In the decades since the initial 1990 Recommendation of the Administrative Conference of the United States (ACUS or the Conference) on federal ombuds was adopted, the milieu in which government operates has, by all accounts, become more polarized, with government itself often the target of suspicion and hostility.  In a challenging environment in which many federal agencies struggle to maintain the trust of the public they serve and even of their own employees, the ombuds is uniquely situated to provide both pertinent information and assistance in resolving issues to constituents and the agency alike.  The ability of the ombuds to provide a place perceived as safe — which can offer a ready, responsive, and respectful hearing and credible options — in itself builds trust.  And trust is a commodity without which government in a democratic society cannot function effectively. 

Thankfully, that first ACUS recommendation encouraged support for the use of ombuds in the federal government. In fact, the number, prominence, and diversity of federal ombuds offices have grown significantly in the past twenty-seven years. However, due to a lack of comprehensive empirical information available about this promising – if at times confusing – new landscape, the value of the federal ombuds has not yet been fully realized. Moreover, without a shared understanding and recognition of the fundamental components of federal ombuds, the field is at risk of being misunderstood, under-utilized, and ultimately not maximizing its potential contributions and benefits.

To help ensure the continued value and success of federal ombuds practice, ACUS contracted with chiResolutions, LLC to conduct a study in order to reevaluate the earlier recommendation and examine what is happening today among federal ombuds in terms of who they are, what they do, why they do it, how they do it, and the value they bring.  Our 2016 report provided an empirical basis for examining the shape and development of federal ombudsmen in the ensuing years, and more importantly, informed ACUS’ new Recommendation, which was adopted December 14, 2016 (81 Fed. Reg. 94,316, Dec. 23, 2016) by the full Conference.

Recommendation 2016-5 is an explicit acknowledgement of the unique value ombuds provide to constituents both internal and external to federal agencies.  At the same time, it is a response to the exponential growth within the federal government of a relatively unknown profession, and the critical need to define, standardize, and promote best practices. 

In addition to urging Congress and the President to create, fund, and otherwise support ombuds offices across the federal government, it provides detailed suggestions to agencies and Congress regarding how ombuds offices should be established and managed. Specifically, the Conference’s new Recommendation advises that all current and future ombuds offices should have the ability to, and be expected to, adhere to the three core ombuds standards of independence, confidentiality, and impartiality, and offers several procedural suggestions for doing so with regard to:

• Reporting structure: Ombuds should report to the highest level of senior leadership. 
• Protection from retaliation: Ombuds should not be subject to retaliation based on their looking into and assisting with the resolution of any issues within the ombuds’ areas of jurisdiction.
• The Alternative Dispute Resolution Act (ADRA): Agencies should recognize that ADRA’s requirements for confidentiality attach to communications that occur at intake and continue until the issue has been resolved or is otherwise no longer being handled by the ombuds.
• Impartiality: Ombuds should conduct inquiries and investigations free from conflicts of interest. 
• Access to counsel: Ombuds should have access to legal counsel without conflicts of interest for matters within the purview of the ombuds, whether provided internally, by the hiring of outside counsel, or sharing resources across agencies.
• Records management: Ombuds offices should work with agency records officials to ensure appropriate confidentiality protections for the records created by the office and to ensure that ombuds records are included in appropriate records schedules. 
• Physical office: Agencies should ensure that the physical ombuds office and telephonic and online communications systems and documentation enable discreet meetings and conversations.
• And more.

Notably, Recommendation 2016-5 considers the critical role leadership support plays in the success of the federal ombuds and strongly encourages leadership to provide visible support – renewed as leadership changes – for the role of ombuds offices in the agency and their standards.

It goes on to urge that ombuds offices created by executive action should be established or governed by an agency-wide directive (e.g., a charter) specifying the office’s mandate, standards, and operational requirements, so that others in the agency and the public are aware of the office’s responsibilities.  In a similar fashion, any action by Congress creating or affecting the operations of agency ombuds offices, whether through amendment of the Administrative Dispute Resolution Act (ADRA) or other legislative action, should reinforce the core standards and maintain clarity and uniformity of definitions and purpose for federal agency ombuds, while allowing for differences in constituencies, type of office, and agency missions.  As a testament to the importance of the core standards, ACUS recommended that existing offices with the ombuds title that do not adhere to these standards should consider modifying their title, where permitted, to avoid any confusion.

Based in part on the difficulty the researchers encountered when trying to identify and contact ombuds offices for the study, the Recommendation specifically suggests that information about the office, including contact information, should be made available on the agency’s public website.

To foster continual improvement and accountability of individual ombuds offices, the Recommendation advises that each office arrange for periodic evaluation of its management and program effectiveness.  Evaluation of ombuds by colleagues within the office can be useful if the office is of sufficient size to make this feasible.  Otherwise, any external evaluation should be conducted by individuals knowledgeable about the roles, functions, and standards of practice of federal ombuds. 

Finally, this new Recommendation urges the designation of an entity to serve as a central government-wide resource to address issues of common concern among agency ombuds that transcend organizational boundaries.

When we began our research in the summer of 2015, our goal was to gather and assess the qualitative and quantitative evidence that federal ombuds provide a tremendous amount of value to the federal government and the American public. Two years later, we hope that the Recommendation and our research can convince Congress, agencies, and the administration of that value because the function has never been more critical to effective governing.

The full report, history of the project, and other relevant information can be found online at https://www.acus.gov/research-projects/use-ombuds-federal-agencies 

A helpful Reader’s Guide to the Report and Recommendation can found online at

http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/newsletter/feb2017/kamenshine_acus_report_readers_guide.authcheckdam.pdf