Bureaucratic oppression: its causes and cures.

Author:Rubin, Edward L.
Position::II. Potential Solutions B. Ombudspersons: The Legislative Solution through Conclusion, with footnotes, p. 327-362
 
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  1. Ombudspersons: The Legislative Solution

    The ombudsperson mechanism was developed in Scandinavia, (135) which is why it has a funny-sounding name. An ombudsperson is an individual or, given the scale of modern government, an office or agency that stands apart from the administrative hierarchy and is authorized to intervene in its procedures on behalf of private parties. (136) In its original and classic formulation, the ombudsperson was an officer of the legislature. (137) This arrangement is designed, in part, to assert legislative control over the administrative apparatus, which means that the ombudsperson can be placed in the same category as oversight hearings, (138) budgetary control, (139) and the now unconstitutional but far from defunct legislative veto. (140) But it also reflects a more general desire to secure the ombudsperson's independence from the administrative hierarchy.

    This device has been used fairly extensively in the English-speaking world, specifically in the United Kingdom, (141) Canada, (142) New Zealand (143) and India, (144) and has been adopted by the European Union. (145) In the United States, it has been implemented in some specific administrative programs at the federal and state level, (146) and comprehensively in several states. (147) It is particularly well developed in the U.K., where there are three separate groups of ombudspersons at the national level, one having general jurisdiction, (148) a second with jurisdiction over health-related matters, (149) and a third for local government. (150) In addition, many U.K. government agencies have developed their own ombudspersons. (151)

    In order to invoke the authority of the U.K.'s national ombudspersons, citizens must file their complaints with a member of the House of Commons, who then transmits them to the ombudspersons. (152) This arrangement, which reflects the mechanism's historical roots, may appear to resemble casework in the U.S., that is, interventions by legislators on behalf of influential constituents. (153) In fact, the legislators in the U.K. perform only a general screening or gate-keeping function and transmit most of the complaints to the ombudspersons, rather than providing redress on their own and reaping political benefits for doing so. (154) once the ombudspersons have received a complaint, they investigate and can either intervene directly with the agency or recommend legislation. (155)

    The content of the complaints covers a range of problems regarding the performance of administrative agencies. The typical ones are substantive--that the agency has given the individual incorrect information, applied an incorrect rule, or applied the correct rule in an incorrect manner. If the complaint is deemed plausible, the ombudspersons can investigate to determine its validity. (156) Their remedial repertoire is generally limited to advisory or hortatory interventions. This may be sufficient in many cases; if the agency has made an error, all that may be necessary is to bring that error to the attention of a responsible official. The official's own motivation to correct the error is greatly amplified by the fact that the person pointing out the error is an agent of the legislature. if systematic errors occur that seem to stem from the design of the authorizing legislation, the ombudspersons are expected to frame recommendations to the legislature for revision of the statute. (157)

    Three defining features of legislative ombudspersons are that they are complaint driven, they are empowered to investigate, and they are independent of the administrative hierarchy. In this sense, they are similar to the judges who enforce due process requirements. (158) They enable both ombudspersons and judges to redress specific wrongs or problems involving individuals, to do so on the basis of information about these wrongs and problems, and to act in a more neutral, more confrontational way toward administrative agents than those agents' superiors or colleagues in the administrative hierarchy. (159) The mechanisms employed by judges and ombudspersons thus depend on the existence of independent centers of political authority that are characteristic of a democracy, as opposed to the unitary structure of a monarchy or an autocracy. (160) The two mechanisms differ, however, in that judges are authorized to issue definitive decisions reversing administrative action, while ombudspersons rarely have such authority. (161) This lack of authority can be regarded as a fourth defining feature of the ombudsperson mechanism, and perhaps an inherent defect, or it can be seen as the failure to fully realize the mechanism's full potential.

    While the ombudsperson mechanism began as an instrumentality of the legislature, and often continues to function in that form, it is also found in many other settings. As noted above, administrative agencies sometimes establish internal ombudspersons offices. (162) Universities, health care facilities, and other non-profit institutions sometimes do so as well, to deal with either employee or client complaints. (163) The device has also been adopted by a number of private, for-profit corporations, again for either employee or customer complaints. (164) While all such offices tend to be complaint-driven and to grant the ombudsperson investigative authority, they often lack the independence of the legislative ombudsperson. The reason is that none of these institutions possess the separate power centers that are available to a democratic government. In a sense, they are autocracies, no matter how benignly they are run. On this basis, many observers assert that these mechanisms do not deserve to be placed in the same category as the legislative ombudsperson, and charge that they are using the ombudsperson name to obtain an undeserved legitimacy. (165) Their real purpose, it is claimed, is not to provide genuine redress but, in Erving Goffman's phrase, to "cool the mark out." (166)

    The legislative ombudsperson avoids this defect, but suffers from the obverse problem of being inherently confrontational. An investigation carried out by someone who answers to the governmental entity that can, and regularly does, review the agency's budget, subject its leaders to adversarial oversight hearings, review its regulations, and sometimes revise its authorizing statutes, necessarily conveys a sense of threat. Judicial intervention via due process is also confrontational, of course, but it can back its inherently threatening stance with real sanctions. Legislative ombudspersons, lacking these sanctions, are left with little to combat the defensive and intransigent response that confrontation is likely to elicit. At the outset, the agency will tend to resist the ombudsperson's investigatory efforts, concealing rather than disclosing information and squelching genuine self-criticism by its staff with appeals to institutional loyalty and threats of subsequent, clandestine punishment. It would be possible to provide a legislative agency with subpoena power, (167) but this might not reveal the necessary information and would certainly exacerbate the sense of confrontation. When solutions are discussed, the agency will tend to justify its existing procedures because it will regard any changes as risky admissions of fault and because it will resent being asked to make such changes by an outside force. In short, the legislative ombudsperson often finds herself in the unenviable position of having no means of effecting change other than empty threats.

  2. Client-Centered Administration: The Management Solution

    Management theory, developed through the disciplines of both sociology and engineering, offers a different solution to the problem of bureaucratic oppression. (168) Rather than engaging other branches of government--such as the judiciary or the legislature--to supervise administrative agents, the management approach attempts to change the internal structure and procedures of the agency itself, enabling it to carry out its tasks more fairly and effectively. (169) in the particular case of controlling oppressive behavior, management theory seeks to modify or eliminate the procedures that produce oppression and to instill among the staff an ethos of client orientation, a prevailing attitude that the people for whom the agency provides benefits or services are to be treated as clients, or better still, as customers. (170)

    Management theory draws upon the premise that organizational realities control behavior and thus tends to efface distinctions between public agencies and private firms. The same kinds of strategies that private firms adopt because they need to please their customers in order to obtain their income can therefore be adopted by government agencies in their effort to serve their clients. According to the Gore Report, an action plan drafted at the beginning of the first Clinton administration that summarized the work of a study group called the National Performance Review, "government agencies must do what many of America's best businesses have done: renew their focus on customers." (171) The report, moreover, documents a number of cases where agencies actually implemented this approach. (172)

    Michael Barzelay provides a more systematic account of client-centered administration. (173) The first step, he suggests, is to identify the customer with care: "A customer relationship is a mutually adjustive working relationship in which the provider's main purpose is to meet the user's needs." (174) After the customer has been identified, the agency must decide the particular kind of service that it should be providing. The best sources of information about this are the customers themselves: "as a rule," he writes, "customers' informed and reflective judgment about how well a service meets their needs are accurate." (175) To foster an ethos of customer service, control functions should be separated from service functions and assigned to a different...

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