Some American Ombudsmen
The objective of this article is to examine graphically the work of several United States officials,—the United States Congressman, the United States Attorney General, the New York State Attorney General, the New York City Commissioner of Investigation, and the Nassau County Public Protector—in an effort to determine whether or not these officials perform functions analagous to those performed by the Swedish Justitieombudsman. The measure of analogy will be the degree to which these United States officials effect the primary responsibilities of the Justitieombudsman which are, first, to receive, air and seek redress of citizens' grievances against administrators and administration and, second, to serve as an independent critic of administration acting upon his own independent initiative.
United States Congressman. The United States legislative body, the Congress, consists of the Senate and the House of Representatives. There are one hundred senators and four hundred and thirty-five representatives. It has been said that the United States has five hundred and thirty-five ombudsmen, referring to federal congressmen. This observation is at least partly correct as congressmen are actively concerned with what administrators do and with how well administrative functions are performed. It is the Congress which, after all, creates administrative organs, jobs, and functions by establishing independent and departmental agencies, commissions, and government corporations.
The principal ombudsman work performed by congressmen is in response to grievances received from constituents relating to administration. United States congressmen feel that "constituents' casework" is part of their duty as legislative representatives. In order to add a degree of precision to the discussion of the nature of "constituents' casework", Columbia University Law Professor Walter Gellhorn conducted a sampling of the mail of ten congressional representatives, from the various regions of the United States, over a nine month period in 1965. His purpose was to analyze the nature and amount of congressional casework. He explains that the sample "is offered for lack of anything better. Hard statistics concerning the quantity or kinds of casework do not exist".1
After discounting legislative and public affairs communiqués, it was found that the sample congressman receives approximately one hundred and sixty-five letters per week from constituents. Of these, thirteen letters or roughly eight per cent of the total amount relate to individuals' complaints or grievances. Many of the remaining letters involve public relations matters, information requests, job seeking, military affairs, public works and personal ambitions.
The bulk of congressional casework is performed by congressional sec-
retaries and aides, in the name of their superiors. Congressmen themselves, however, do become personally involved in at least some cases depending upon such factors as the weight of the issues involved, the importance of the complainant, and even "a junior legislator's occasional need to escape from anonymity . . ."2 Complaints are passed along from congressional offices to administrators in varying ways. Most often contact is made at high administrative levels and ordinary administrative grievance hierarchies are disregarded. A routine letter or telephone call may suffice to change the administrative course in question. The following two illustrations of congressional casework suggest a disparity in quality of congressional casework.
A Navy enlisted man complained to this congressman about disciplinary action which had been taken against him. He had been convicted of an atrocious crime and had been sentenced to ten years in prison. A three inch file on the matter, containing some sixty letters and documents, was accumulated in the congressman's office. Following the representative's intervention the sentence was reduced to nine years for no apparent reason other than the congressman's pertinacity.
An importer complained to his congressman that the Customs Bureau had improperly levied duties upon certain foreign machine parts. After investigation, the congressman concluded that the agency had accurately followed the provisions of the Tariff Act but that these provisions were less than efficacious. He was successful in effecting a legislative amendment to the Tariff Act to avoid future recurrence of the same problem.
The motivations for undertaking casework are as varied as casework results. Some plausible motivations include the desire to supervise congressionally created agencies, the desire to see humanity prevail over bureaucratic impersonality, and the desire to stem the tide of administrative malfunctioning of which a multiplicity of trivial grievances may be symptomatic. Perhaps the most compelling reason for undertaking casework, and the least high minded motivation as well, is the desire to insure re-election. Self concern, rather than concern for constituents or for improved administration may be the moving force.3
Several generalizations concerning congressional casework are adduced in Professor Gellhorn's study. First, it is clear that administrators move quickly when dealing with a congressman's case. A complainant who is fortunate to have the assistance of his congressman can be assured of prompt action. The cases of less influential complainants, however, are bypassed and delayed. Second, the congressman's chief concern is prompt victory for his constituent, with scant attention paid to the merits of the case. Fundamental causes of delay and other forms of maladministration are all too often ignored. Third, congressmen are able to effect outcomes favorable to constituents in roughly ten per cent of all cases. Such victories would probably not materialize but for the congressman's intervention. The unfavorable consequences which attend these ten per cent cases indicate that they may entail elements of a pyrrhic victory. Disregard of established channels of internal administrative review turns the congressional office into a sub-agency rather than a court of last resort. Congressional offices distribute information, tender advice, and collect evidence; in the process they become unjustifiably overloaded. Disregard of proper administrative
channels also precludes suitable emphasis upon getting the job done correctly the first time. It abrogates internal administrative supervision. Fourth, the quality of congressional casework is markedly uneven owing to the varying competence of congressional aides and secretaries. In one office, one female assistant deals single-handedly with problems relating to immigration, social security, internal revenue, civil service, and military personnel matters. In short, while the congressman does address himself to receiving, airing and redressing citizens' complaints about administration, "finding ways to dispose of inconspicuous unhappiness—and, even more fundamental, identifying and lessening the frictions that create them—need more continuous, more informed, more objective attention than Congressional offices now give".4
The United States Attorney General serves as the head of one of the great executive departments in the federal government, the Department of Justice. The office of the Attorney General has existed since 1789 and its occupant is a member of the President's cabinet. The Department of Justice was created by Congress in 1870.5 The Attorney General as head of the Department of Justice is described as the principal law officer of the federal government. He is at once public prosecutor, legal adviser and counsel, and investigator.
As public prosecutor, the Attorney General supervises the work of the United States Attorneys and Marshalls in enforcing federal laws. Despite the fact that many violations of federal law are handled by administrative agencies, an increasing number of such violations are prosecuted in the federal courts. When the Department of Justice receives evidence of a federal law violation the matter is assigned to the appropriate United States Attorney who prepares the case for prosecution.
As legal counsel, the Attorney General directs the Solicitor General to represent the United States in the Supreme Court and furnishes counsel for the United States in other federal courts in cases in which the United States has an interest. As legal adviser, the Attorney General supervises the work of staff assistants rendering legal advice and opinions to the President and to executive department heads upon request. In 1941 the Attorney General was requested to supervise an examination of federal administrative agency practice and procedure and to recommend administrative reforms. Among other things the Attorney General's Committee on Administrative Procedure considered the problems of concentration of functions in agencies and the institutional decision. Several of the Committee's suggestions were subsequently incorporated in the Administrative Procedure Act of 1946.
As investigator, the Attorney General supervises the activities of police agencies in detecting violations of federal laws. Perhaps the most famous of all federal police agencies, the Federal Bureau of Investigation, is within the sprawling Department of Justice.
A brief study of the structure of the Justice Department may further clarify the role and the function of the Department and the Attorney General.6
The Deputy Attorney General assists the Attorney General in the overall
supervision of the Department of Justice. Upon the request of congressional committees and administrators, the Deputy's office prepares reports and recommendations concerning proposed legislation originating in the Department of Justice and in other departments and agencies.
The Solicitor General has special charge of, and represents the United States government in, cases before the Supreme Court. In addition, he authorizes the taking of appeals by the United States.
The Office of Legal Counsel is headed by the Assistant Attorney General whose task it is to prepare the opinions of the Attorney General, to render advice and opinions to government agencies, and to assist the Attorney General in rendering legal advice to the President and to cabinet members.
The Department of Justice also includes some eight separate divisions, each of which is headed by an Assistant Attorney General. It also comprises some five bureaus and boards. The most important functions of some of these divisions and bureaus are as follows:
The Civil Rights Division which has the responsibility for enforcing all federal statutes relating to civil rights such as laws relating to illegal deprivations of rights of citizens, omit slavery, obstructing justice, and illegal use of search warrants.
The Criminal Division which has the responsibility for supervising the enforcement of federal criminal laws such as laws relating to counterfeiting, fraud, racketeering, and narcotics.
The Antitrust Division which has the responsibility for enforcing federal antitrust legislation such as the well-known Sherman Act.
The Federal Bureau of Investigation (FBI) which investigates all violations of federal law, except those matters specifically assigned elsewhere for investigation. It also investigates threats to the United States internal security. Organized in 1934, the FBI serves primarily as a fact finding agency. It offers assistance to state and local police agencies upon request, but does not assume responsibility in these cases.
The New York State Attorney General is an official whose work is akin to that of the United States Attorney General.7 Unlike the United States Attorney General who is appointed to office by the President, the New York State Attorney General is elected to office every four years. Broadly described as the "lawyer for the people"8 the New York Attorney General is a prosecutor, legal adviser and counsel, and investigator, as head of the Department of Law.
The New York Attorney General prosecutes all actions and proceedings in which the state has an interest. For example, upon the request of the Governor, the Secretary of State, the Comptroller, and the Superintendent of Public Works, he prosecutes persons charged with the commission of indictable offenses. He prosecutes civil and criminal actions to enforce state anti-discrimination laws, at the request of the State Commission Against Discrimination. Also, the Attorney General supervises and advises in matters concerning all the legal business of state departments and agencies. He renders advisory opinions to state agencies construing and enforcing the State Code of Ethics. In this area, the Attorney General is assisted by a
Department of Law committee which receives and examines complaints involving officers and employees of state agencies. The committee renders advisory opinions to the Attorney General concerning state laws which establish standards of conduct for state officers and employees (Code of Ethics) and which deal with possible conflicts between official duties and private interests. As legal counsel, he defends actions and proceedings in which the state has an interest. He appears in cases challenging the constitutionality of state statutes. He prepares proper drafts of commercial instruments. Finally, the Attorney General has the rather broad authority to inquire into matters concerning public peace, safety, or justice at the behest of the Governor or, with the Governor's approval, on his own initiative.
The Attorney General has many more specific powers and duties in addition to those mentioned above. Interestingly, several of these remaining functions concern the business community and business practices. These business powers combined with the Attorney General's broad investigative authority and with the efforts of the Attorney General's Bureau of Consumer Frauds and Protection enable the Attorney General to function as a type of ombudsman; not, to be sure, as an ombudsman for administration but rather as an ombudsman for consumer protection. The Attorney General's business powers include the following:
1. Power to maintain actions against persons engaging in fraudulent or illegal partnership activities.
2. Power to prosecute persons engaging in fraud in the sale of securities, under state Blue Sky Laws.
3. Power to enjoin the formation of monopolies.
The Bureau of Consumer Frauds and Protection was established as part of the Attorney General's office in 1957. It is a pioneer institution in the field of consumer protection standing "ahead of all efforts national, state, and local to protect the consumer".9 The achievements of the Bureau include investigating and exposing disreputable firms and disreputable business practices, often acting upon complaints registered by consumers, causing thousands of dollars to be restored to defrauded consumers, and breaking up illegal price fixing arrangements in the milk, meat, dry cleaning, and TV repair industries. The Bureau's most important activity is providing consumers with information concerning wise purchasing and unscrupulous business practices. This task is shared by the Bureau with representatives of business, labor and consumer groups.
The Attorney General's annual legislative recommendations also reflect his unofficial role as consumer ombudsman. Successful bills initiated by the Attorney General include laws requiring that used retail items be labelled as such, that retail foodstuffs be accurately labelled so as to reveal price and weight, and that contractors hold down payments in trust for purchasers of new homes.
The two remaining officials, New York City's Commissioner of Investigation and Nassau County's Public Protector, most nearly compare with the Swedish Justitieombudsman.
New York City Commissioner of Investigation is designated, under the New York City Charter, as the head of the Department of Investigation
and is empowered to make any investigation directed by the Mayor or by the City Council and to make any "study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency».10 The Charter also calls for the creation, within the Department of Investigation, of a complaint bureau open to the public. Such a complaint mechanism ("Box 100") has been established and provides the initiative for many of the Commissioner's investigations. Box 100 provides roughly one hundred and fifty letters weekly11 which often contain meritorious grievances about city administration. The letters are all followed up unless it appears that they are written by cranks. Complaints may relate to such matters as public welfare programs, housing conditions, police and sanitation.
Despite its potential and plausible results, the Department of Investigation and the Commissioner of Investigation have not, and probably will not, assume the status or effectiveness of the Swedish Justitieombudsman. The Commissioner is not a "widely acclaimed figure in New York"12 nor is he enthusiastically accepted by press or public. Also, the Commissioner is not an autonomous official. He may not always, or often, be embroiled in partisan politics but he is first and last the Mayor's man. He is appointed by the Mayor alone and he is directed by the Mayor to undertake investigations. There is the suspicion, at least, that his investigations are politically motivated and not always aimed at improving administration. "So long as the Department of Investigation remains merely an appendage of the mayor's office, the Commissioner is unlikely to fulfill the role of an ombudsman to whom a citizen will turn confidently for redress of a grievance. Little has been done to make individuals or organizations feel the Department can or will function as a public complaint bureau though authority to serve in that way does clearly exist."13
Nassau County Public Protector who is perhaps the first official local executive ombudsman anywhere in the world was established in Nassau County, New York, in May of 1966 by executive order of the Nassau County Executive.13a A retired judge, Samuel Greason, was selected to serve as Public Protector "to represent the individual citizen in the examination of possible abuses of authority in all governmental agencies in the county" and "to protect the public and individual citizens against inefficiency, maladministration, arrogance, abuse and other failures of government . . ."14 Between July of 1966 and May of 1967 some three hundred and fifty complaints were received by the Public Protector. Roughly eighty per cent of these were valid whereas the remaining twenty per cent were completely unmerited. Most of the valid complaints were disposed of satisfactorily to
the complainant who, at least, received a degree of reassurance. The success of the Public Protector was attributed to the prestige and popularity of his office. Mr. Greason has stated that the ombudsman's most valuable role is to reduce the cynicism which many citizens feel toward public officials. By humanely dealing with complaints of disgruntled citizens, he can help to restore people's faith in men and government.
Despite the apparent success of the Nassau County Public Protector, on November 7, 1967 Nassau County voters overwhelmingly rejected the executive ombudsman for their local government.15 This result is attributable, in part at least, to the vigorous campaigning against the Public Protector engaged in by the Nassau County Patrolmen's Benevolent Association in the weeks prior to the election. The Association charged that the office of Public Protector would become a one-man civilian review board and would hamper legitimate police activities. The Nassau County experience reminiscent of a similar experience shared by New Yorkers who voted down a police civilian review board, seems to indicate that those who stand to gain most from the ombudsman are at present misinformed, non-informed, satisfied with the status quo, or afraid of innovation—in any case they do not see the executive ombudsman as necessarily advantageous.
One may draw the following conclusions from an examination of the powers and responsibilities of the aforementioned American officials. United States congressmen do seek to redress citizens' complaints about administration. Their efforts in this regard, however, are hampered by limited staff assistance and resources, the pressures of primary duties of legislation, and the occasional incompatibility of victory for constituents and sound administration. The United States Attorney General is most concerned with the application and enforcement of federal legislation directed to the public sector, but does serve, from time to time, as a critic of administration. The Attorney General's Committee on Administrative Procedure and his proposals for agency legislation and reform are examples. As a political official—a Presidential appointee and a member of the Cabinet—who renders legal opinions only when requested to do so, the Attorney General lacks the independence that has proven to be an indispensable characteristic of effective ombudsman practice. The New York Attorney General serves as an external administrative critic in the same manner as does his federal government counterpart. With the aid of committee assistants and the Bureau of Consumer Frauds and Protection, he also acts upon citizens' complaints directed against state employees and unscrupulous members of the business community. The New York Attorney General is a political figure but, unlike the United States Attorney General, he is elected to office by the public. New York City's Commissioner of Investigation is empowered by the City Charter to serve both as citizens' administrative complaint handler and as administrative critic. The positive results of his office, however, are overshadowed by the interrelated factors of mayoral control and insufficient public support. By definition and design, the Nassau County Public Protector most closely approximates the Swedish Justitieombudsman. Unlike the Justitieombudsman, who is appointed to office by Riksdag members, the Public Protector has been subjected to and defeated by direct electoral process.
Richard Miles Berman