Auditing isn’t the only accountability tool. The mission, framework and methods of performance auditing have parallels in other accountability mechanisms and problem-solving strategies. As the elected Portland Auditor, I had greater freedom to explore accountability strategies to accomplish the mission of my office. In addition to the ten staff conducting performance audits, there were fifty-four other staff in my office. The ombudsman is one of several strategies I introduced during my time as Portland Auditor.
In the first few months in office, I received many phone calls from community members who felt they had been unfairly treated by city employees, or caught by contradictory or ambiguous rules, or baffled by confusing or capricious decisions, or…you’ve probably heard the same complaints. Mark Funkhouser spoke of the three Es—efficiency, effectiveness, and equity. This is one means of addressing the third, case by case. A performance audit was too big and cumbersome for the problem at hand; it would be like using a road grader to smooth a garden path. In a chance conversation with Michael Mills, a city hall staffer and former Anchorage Ombudsman, I learned about the ombudsman as a means of addressing these kinds of problems and a bit of their history.
Originally developed in Sweden several hundred years ago, the term refers to an independent investigator who resolves public complaints, from an objective point of view. The ombudsman (a Swedish word that is actually gender-neutral) is not an advocate for the community member, and does not replace other avenues of appeal, but offers one last means of resolving a frustrated community member’s problem. In some cases, the ombudsman sides with the agency’s position, yet may provide the first clear and compelling explanation that the community member has heard. Alternately, the ombudsman may agree with the community member and work with the agency to modify its policies or practices to resolve this and future problems. Ombudsman offices have long, impactful histories in the United Kingdom and Canada.
I was told that two characteristics are critical for the success of an ombudsman: independence and objectivity. (Where had I heard that before?) I realized that my elected office could provide that safe harbor for an ombudsman. After conducting more research and soliciting additional advice from Duncan Fowler, the ombudsman for King County, Washington, I proposed to the Portland City Council that my office provide ombudsman services. They approved an ombudsman to report directly to me, as well as a deputy ombudsman and an office support position. In July 2001, we opened the doors.
The ombudsman filled a need for Portland residents, businesses, and bureaus. The ombudsman has worked with bureaus to add some humanity to the enforcement of building codes, the collection of delinquent water bills, car tows, and several other systemic and contentious administrative issues. The ombudsman has regularly advocated for better communications and notification processes from city agencies to the public, as ambiguous language is often the cause for problems. The ombudsman has also explained to many community members that the city’s rules and enforcement practices were appropriate. The office handles about 350 calls per year and most cases are resolved with research of rules and procedures, and discussions with bureau personnel and complainants.
For those cases that are more complex and consequential, the ombudsman conducts an investigation and issues a report. An investigation produces recommendations that address the individual’s complaint and often makes systemic recommendations to prevent future recurrences. Many ombudsman offices ask for a management response to include in the report. These investigations follow a pattern close to an audit, though they could learn a few tricks from us.
I attended several United States Ombudsman Association (USOA) conferences and left them feeling educated and inspired, much as I did after ALGA conferences. Their topics sounded very familiar to auditors: report writing, getting recommendations implemented, navigating ethics, conducting investigations, coping with tight budgets, setting up an ombudsman office, and practicing proactive communication skills. The USOA business meetings speak of projects like “outreach,” which consists of assisting jurisdictions interested in an ombudsman, as well as standards development, peer reviews, and newsletter logistics.
I was interested in their standards development efforts and introduced several members of the USOA standards committee to our own Standards. In some parts I can see how our Standards have influenced their most recent update. (You can read more about the USOA and the efforts of our office on the internet.)
There are significant differences, too. To not discourage future complainants, the government ombudsman takes vigorous actions to protect the confidentiality of complainants, and most of their efforts go unreported. In some jurisdictions the ombudsman files are completely confidential. There are also different kinds of ombudsman besides those in government settings that deal with the public: they are in corporate settings that deal with consumer complaints; in corporate or nonprofit settings that deal with employees; and in university settings that deal with students and faculty.. At the federal level, an environmental ombudsman is located in the Environmental Protection Agency’s Inspector General’s Office. However, some jurisdictions have ombudsman offices that serve as advocates for children or the elderly, and these may not always practice objectivity.
I see an opportunity for ombudsman offices to borrow from audit practices regarding the elements of the finding. Ombudsman investigations produce a clear and strong narrative regarding a systemic problem, and the recommendations are carefully considered, but they lack the persuasive force of “effect.” Describing the magnitude of costs, dissatisfaction, lost time, victimization, and general confusion can increase the likelihood that management will be convinced to change its policies and practices. Evidence-based criteria can be challenging for those cases that are clearly unfair. City administrative rules may not fit every circumstance and the report would question their rigid application.
Here is one example from the 2002 Annual Report:
The complaint related to code enforcement fees imposed upon the owner of a rental property for electrical work that was done in 1997 by a contractor who failed to purchase a permit or have the work inspected, although the contractor claimed he had and charged the owner for the permit.
The Bureau maintained that City Code established the property owner as the responsible party, that a permit was mandatory, that it could not accept payment for the permit from the property owner because it was a commercial property and required a commercial-licensed electrician, and that it was responsible for regulating the property-owner, not the contractor (who in this case had gone out of business). While the bureau’s actions were justified by the rules, we argued that the rigid application of the rules were unfair for this property owner’s situation. When the newspaper published this story, many also saw it the same way.
In this case, the original lien of $71.50 ballooned to $2,600 even as the owner diligently worked with the Bureau of Development Services [BDS] to resolve the issue. In this report, the Ombudsman made three recommendations:
1. Cancel the fees and penalties
2. Improve internal systems to address code violations at an early stage to avoid the accumulation of assessments and liens; and
3. Increase enforcement against contractors who do not obtain permits.
The Bureau of Development Services initially agreed to waive substantially less of the penalty than what our report recommended. An Ombudsman has no authority to enforce recommendations but may draw public attention to recommendations. The publication of the report in this case resulted in some media attention and interest by the public. Ultimately, in April 2002 BDS refunded half of the liens that the owner had paid to the city, some $1,300. Although this was a partial resolution to the complaint, the systemic issue of the fairness of the revolving fees, particularly as they accrue for work done without permits in the past, was not resolved.
This report did not change the bureau’s immediate practices, but it helped tip the bureau toward substantial reform, involving a rewrite of the building code, and a new commissioner who changed the regulatory philosophy and put an end to these kinds of complaints.
We also found that the mechanisms of the ombudsman office could respond to whistleblower calls. An ombudsman can investigate allegations of wrongdoing and issue reports. In one case regarding questionable purchases of parking meters, we saw the artfully worded request for proposals (RFPs) and saw that only one company could qualify, but we didn’t have evidence of criminality. We informed the city transportation bureau which conducted additional investigation without success. We contacted the FBI and handed over our records. The FBI had greater powers, such as access to bank records, and obtained a conviction of the city manager.
In 2017, Portland voters established the ombudsman in the city charter. I believe that this helped to offer the public a guarantee of quality similar to what the charter promised for our performance audits, that they were conducted according to “generally accepted government auditing standards.” I think ombudsman investigations can also be conducted according to those standards, and I still watch the progress of the field of ombudsman. The USOA is moving toward a robust set of standards, ones that could be more appropriate for the Portland ombudsman. In the meantime, the Portland Ombudsman Office continues to conduct its work in a professional, objective, and independent manner in conformance with its office procedures and the mission of the auditor’s office.
