PRINTER'S NO. 21
No. 21 Session of 1977
INTRODUCED BY FISCHER, JANUARY 19, 1977
REFERRED TO COMMITTEE ON STATE GOVERNMENT, JANUARY 19, 1977
AN ACT
1 Establishing the Office of Ombudsman and making an
2 appropriation.
3 TABLE OF CONTENTS
4 Section 1. Short title.
5 Section 2. Legislative purpose.
6 Section 3. Definitions.
7 Section 4. Creation of office.
8 Section 5. Nomination and appointment.
9 Section 6. Qualifications.
10 Section 7. Term of office.
11 Section 8. Removal and vacancy.
12 Section 9. Compensation.
13 Section 10. Organization of office.
14 Section 11. Powers.
15 Section 12. Investigation of complaints.
16 Section 13. Rights of complainant; communication with
17 complainant.
18 Section 14. Rights of agency.
1 Section 15. Recommendations.
2 Section 16. Reports.
3 Section 17. Ombudsman's immunities.
4 Section 18. Witnesses' privileges.
5 Section 19. Obstruction.
6 Section 20. Relation to other laws.
7 Section 21. Appropriation.
8 Section 22. Effective date.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Short title.
12 This act shall be known and may be cited as the "Ombudsman
13 Act."
14 Section 2. Legislative purpose.
15 It is the intent of the General Assembly to establish, in
16 addition to other remedies or rights of appeal of any person, an
17 independent impartial office, readily available to the public,
18 responsible to the General Assembly, empowered to investigate
19 the acts of State administrative agencies and to recommend
20 appropriate changes toward the goals of safeguarding the rights
21 of persons and of promoting higher standards of competency,
22 efficiency and justice in the administration of the laws of the
23 Commonwealth.
24 Section 3. Definitions.
25 The following words and phrases when used in this act shall
26 have, unless the context clearly indicates otherwise, the
27 meanings given to them in this section:
28 "Act of an agency." Any action, decision, failure to act,
29 omission, rule or regulation, interpretation, recommendation,
30 policy, practice or procedure of any agency.
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1 "Agency." Any department, organization, board, commission,
2 council, institution or other governmental entity of
3 Pennsylvania, and any official, officer, employee, or member
4 thereof acting or purporting to act by reason of his connection
5 with Pennsylvania except:
6 (1) Any court, or judge and appurtenant judicial staff.
7 (2) The General Assembly, its members, its committees,
8 its staff and its employees.
9 (3) Elected constitutional officials and their personal
10 staff.
11 Section 4. Creation of office.
12 The office of ombudsman is hereby established.
13 Section 5. Nomination and appointment.
14 The General Assembly shall elect the ombudsman by a two-
15 thirds vote of the members of each house. A candidate or list of
16 candidates shall be unanimously submitted by the President pro
17 tempore of the Senate, the Speaker of the House and the minority
18 leaders of the Senate and House of Representatives.
19 Section 6. Qualifications.
20 (a)The ombudsman and deputy ombudsman shall be persons of
21 recognized judgment, objectivity and integrity who are well
22 equipped to analyze problems of law, administration and public
23 policy.
24 (b) No person while serving as ombudsman, acting ombudsman
25 or deputy ombudsman shall:
26 (1) Be actively involved in political party activities.
27 (2) Be a candidate for or hold other public office,
28 whether elective or appointive.
29 (3) Be engaged in any other occupation, business or
30 profession.
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1 (4) Remain in office after December 31 in the year in
2 which he reaches the age of 70 years.
3 Section 7. Term of office.
4 The ombudsman shall serve for a term of nine years and until
5 his successor is appointed and qualified. He may be reappointed
6 for one additional term.
7 Section 8. Removal and vacancy.
8 (a) The General Assembly by a vote of two-thirds of the
9 members of each house may remove the ombudsman or acting
10 ombudsman from office, but only for mental or physical
11 incapacity to perform the duties of his office for at least
12 three months, or other grounds sufficient for removal of a
13 judge.
14 (b) If the position of ombudsman becomes vacant for any
15 reason, the deputy ombudsman shall serve as acting ombudsman
16 until an ombudsman has been appointed for a full term.
17 Section 9. Compensation.
18 The ombudsman shall receive the same salary and benefits as
19 the Attorney General.
20 Section 10. Organization of office.
21 (a) The ombudsman shall select, appoint and fix the
22 compensation of a person as deputy ombudsman and may select,
23 appoint and fix the compensation of such other officers and
24 employees as he may deem necessary to discharge his
25 responsibilities under this act. All officers and employees of
26 his office shall serve at the ombudsman's pleasure.
27 (b) The ombudsman may delegate to members of his staff any
28 of his authority, powers, or duties except this power of
29 delegation and his duty to make any report under this act.
30 However, the ombudsman may authorize the deputy ombudsman to act
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1 in his stead during illness, absence, leave or disability.
2 (c) The ombudsman and his staff shall be entitled to
3 participate in any employee benefit or retirement plan available
4 to State employees.
5 Section 11. Powers.
6 The ombudsman shall have the following powers:
7 (1) To investigate, on complaint or on his own motion,
8 any act of an agency without regard to its finality.
9 (2) To adopt, promulgate, amend and rescind rules and
10 regulations required for the discharge of his duties,
11 including procedures for receiving and processing complaints,
12 conducting investigations, and reporting his findings, not
13 inconsistent with this act. He may not levy any fees for the
14 submission or investigation of complaints.
15 (3) To examine the records and documents of any agency.
16 (4) To enter and inspect without notice the premises of
17 any agency.
18 (5) To subpoena any person to appear, to give sworn
19 testimony or to produce documentary or other evidence that is
20 reasonably material to his inquiry.
21 (6) To undertake, participate in or cooperate with
22 persons and agencies in such conferences, inquiries,
23 meetings, or studies as might lead to improvements in the
24 functioning of agencies.
25 (7) To obtain such information and make such inquiries
26 from any agency or person as he shall require for the
27 discharge of his duties.
28 (8) To maintain secrecy in respect to all matters and
29 the identities of the complainants or witnesses coming before
30 him.
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1 (9) To bring suit in Commonwealth Court to enforce the
2 provisions of this act.
3 (10) To establish and administer a budget for his
4 office.
5 (11) To concern himself with strengthening procedures
6 and practices which lessen the risk that objectionable
7 administrative acts will occur.
8 Section 12. Investigation of complaints.
9 (a) The ombudsman shall investigate any complaint alleging
10 that an act of an agency is:
11 (1) contrary to or inconsistent with law, regulation or
12 agency practice;
13 (2) based on mistaken facts or irrelevant
14 considerations;
15 (3) inadequately explained when reasons should have been
16 revealed;
17 (4) inefficiently performed; or
18 (5) unreasonable, unfair, or otherwise objectionable,
19 even though in accordance with law.
20 (b) The ombudsman may decide not to investigate because:
21 (1) The complainant could reasonably be expected to use
22 another remedy or channel, and then the ombudsman shall
23 furnish the complainant with written instructions on the
24 procedural steps to be taken in connection with such other
25 remedy or channel.
26 (2) The complaint is trivial, frivolous, vexatious, or
27 not made in good faith.
28 (3) The complaint has been too long delayed to justify
29 present examination.
30 (4) His resources are insufficient for adequate
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1 investigation in which case the ombudsman shall refer the
2 complaint to the proper legislative committee and the
3 Governor.
4 (c) The ombudsman in his discretion may investigate any act
5 of an agency not enumerated in subsection (a).
6 (d) The ombudsman's declining to investigate a complaint
7 shall not bar him from reviewing on his own motion acts of an
8 agency whether or not included in the complaint.
9 Section 13. Rights of complainant; communication with
10 complainant.
11 (a) After the ombudsman has decided whether or not to
12 investigate a complaint, he shall suitably inform the
13 complainant.
14 (b) The ombudsman shall, if requested by the complainant,
15 report the status of his investigation to the complainant.
16 (c) After investigation of a complaint, he shall suitably
17 inform the complainant of his conclusion or recommendation and,
18 if appropriate, any action taken or to be taken by the agency
19 involved.
20 (d) A letter to the ombudsman from a person held in custody,
21 including by detention, incarceration and hospitalization, by an
22 agency shall be forwarded immediately, unopened to the
23 ombudsman. A letter from the ombudsman to such person shall be
24 immediately delivered, unopened to the person.
25 (e) No person who files a complaint pursuant to this act
26 shall be subject to any penalties, sanctions or restrictions in
27 connection with his employment because of such complaint.
28 Section 14. Rights of agency.
29 (a) If the ombudsman decides to investigate a complaint, he
30 may, if he deems it appropriate, suitably inform the agency
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1 involved.
2 (b) Before announcing or reporting a conclusion or
3 recommendation that criticizes or is adverse to an agency, the
4 ombudsman shall consult with that agency and permit the agency
5 reasonable opportunity to reply.
6 (c) If any report that he issues criticizes or is adverse to
7 an agency, the ombudsman shall include any brief statement the
8 agency may provide.
9 Section 15. Recommendations.
10 If, after investigation, the ombudsman is of the opinion that
11 an agency should:
12 (1) consider the matter further;
13 (2) modify or cancel an act;
14 (3) alter a regulation, practice, or ruling;
15 (4) explain more fully the act in question;
16 (5) rectify an omission;
17 (6) take any other action; or
18 he shall state his recommendations and reasons therefor to the
19 agency. If the ombudsman so requests, the agency shall, within
20 the time he has specified, inform him about the action taken on
21 his recommendations or the reasons for not complying with them.
22 After a reasonable period of time has elapsed, the ombudsman may
23 issue a report.
24 (b) If the ombudsman believes that an action has been
25 dictated by laws whose results are unfair or otherwise
26 objectionable, and could be revised by legislative action, he
27 shall bring to the General Assembly's and agency's notice his
28 views concerning desirable statutory change.
29 (c) If the ombudsman believes that any person has acted in a
30 manner warranting criminal or disciplinary proceedings, he shall
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1 refer the matter to the appropriate authorities without notice
2 to that person.
3 Section 16. Reports.
4 The ombudsman may from time to time and shall annually report
5 on his activities to the Governor, to the General Assembly, or
6 any of its committees, to the public and, in his discretion, to
7 agencies.
8 Section 17. Ombudsman's immunities.
9 (a) No proceeding, conclusion, recommendation, or report of
10 the ombudsman or member of his staff shall be reviewable in any
11 court.
12 (b) The ombudsman and his staff shall have the same
13 immunities from civil and criminal liabilities as a judge of
14 this Commonwealth.
15 (c) The ombudsman and his staff shall not be compelled to
16 testify or produce evidence in any judicial or administrative
17 proceeding with respect to any matter involving the exercise of
18 their official duties except as may be necessary to enforce this
19 act.
20 Section 18. Witnesses' privileges.
21 Any person required to provide information under this act
22 shall be paid the same fees and travel allowances and accorded
23 the same privileges and immunities, including right of
24 assistance of counsel, as witnesses whose attendance has been
25 required in Commonwealth Court, however, a representative of an
26 agency during business hours shall not be entitled to such fees
27 and allowances.
28 Section 19. Obstruction.
29 Any person who willfully obstructs or hinders the proper and
30 lawful exercise of the ombudsman's powers, or willfully misleads
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1 or attempts to mislead the ombudsman in his inquiries, shall be
2 subject to a fine of not more than $1,000.
3 Section 20. Relation to other laws.
4 The provisions of this act are in addition to and do not in
5 any manner limit or affect the provisions of any other enactment
6 under which any remedy or right of appeal is provided for any
7 person, or any procedure is provided for the inquiry into or
8 investigation of any matter. The powers conferred on the
9 ombudsman may be exercised notwithstanding any provision in any
10 enactment to the effect that any administrative action shall be
11 final or unappealable.
12 Section 21. Appropriation.
13 The sum of $500,000 or so much thereof as may be necessary,
14 is hereby appropriated to the Office of Ombudsman for the fiscal
15 year beginning July 1, 1978 for the purpose of carrying out this
16 act.
17 Section 22. Effective date.
18 This act shall take effect in one year.
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