1. Ombudsmanship – Preliminary Thoughts on the Theory and Practice of Ombudsman Presentation to FCO Investigative Skills Workshop January 22, 2012 Toronto, Ontario by Greg Levine © Gregory J. Levine, 2012

2. Outline Introduction – Common Ideals and Threads; Preliminary Definitions; Brief Historical Sketch Types of Ombudsmen and their Mandates Key Concepts and Operational Conundrums: Independence, Impartiality, Confidentiality, Administrative Justice, and Fairness Effectiveness Issues – Resources, Fairness Accountability – Reporting, Answerability, Stewardship

3. Types of Ombudsmen Ombudsmen may be grouped various ways and with various typologies: Organizational Hierarchy – Legislative and Executive/Organizational Conveyance of Powers – Legislation; Contract Breadth of Mandate - General; Specialty Method of operation – Investigative, Mediative, Hybrid Nature of Powers – Investigative powers; Process Protections

4. Defining Ombudsmanship Ombudsmanship is the just reclamation of aggrieved human dignity through understanding and resolving of administrative problems by means of critical information gathering and the use of the redemptive powers of logic and persuasion.

5. Common Ideals All ombudsmen seek to: Behave compassionately, empathetically and with decency Engage others and their work fairly Seek justice Work with meaning and efficacy Act with conviction and optimism

6. Common Foundations Trust Legitimacy An ombudsman without trust loses efficacy; an ombudsman acting without legitimacy loses trust

7. Key Concepts Fairness Independence Impartiality Confidentiality

8. Fairness and Administrative Justice Fairness – fair play (process), fair results (substance); process (no bias, right to be heard), substance (justice, equity) Administrative Justice – “justice at all levels of government” and “a means to attain justice, morally and legally defined in respect of governmental and administrative action” (Levine, Law of Government Ethics – Federal, Ontario and British Columbia (2007), p.50)

9. Independence Freedom to do one’s work without coercion; in the ombudsman context, freedom to form opinions, conduct inquiries, report, recommend and settle matters free from interference and coercion

10. Ensuring Independence Conditions which promote independence – security of tenure, status of position, selection process Independence is never absolute Having independence and using it are not the same

11. Impartiality Free from bias as between complainants and complainants and institutions Free from bias as to nature and subject matter of complaint Having an open mind but not a blank one – must evaluate facts and assess situations within a framework of knowledge and understanding

12. Neutrality Non-alignment with parties – similar to but not the same as impartiality

13. Confidentiality Keeping confidences Core element of ombudsmanship - operating in a manner which protects information and uses and discloses it appropriately Core protection for those who encounter the ombudsman process but not an absolute protection

14. Ensuring Confidentiality Law – legislation, common law Practice – securing records; establishing privacy in investigative and mediative practices

15. Effectiveness Methods Resources Staff

16. Larger operations must have staff besides the Ombudsman Deserve support and respect

17. Resources Resources Matter - never underestimate the obvious Adequate resourcing – finances, equipment, training are critical to an effective operation

18. Methods Investigation – informal/formal; ability to summons and use subpoenas depends on legislative authority; ability to gather information in the absence of legislative authority depends on policy, contract and common law. Mediation – focus for some ombudsmen, technique for others – use of depends on mandate and authority as above

19. Accountability Answerability Stewardship

20. Answerability Answer for one’s conduct; report on operations Outline actions in cases; report to complainants, institutions

21. Stewardship Obligation to use resources prudently Obligation to report on that use

22. Thank you Please feel free to comment or raise questions about this presentation – my e- mail is: greg.levine@bmts.comgreg.levine@bmts.com Please visit my websites online at: http://publish.uwo.ca/~glevine/GovtEthicsLaw and http://www.govtethicslaw.ca (Note that this site is being reconstructed)