PRINTER'S NO. 646
No. 611 Session of 1981
INTRODUCED BY ZWIKL, CALTAGIRONE, CAPPABIANCA, ITKIN, McINTYRE,
FISCHER, ARTY, OLASZ, COHEN, STUBAN, J. L. WRIGHT, TRELLO,
LETTERMAN AND PISTELLA, FEBRUARY 18, 1981
REFERRED TO COMMITTEE ON STATE GOVERNMENT, FEBRUARY 18, 1981
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.
1 Section 14. Rights of agency.
2 Section 15. Recommendations.
3 Section 16. Reports.
4 Section 17. Ombudsman's immunities.
5 Section 18. Witnesses' privileges.
6 Section 19. Obstruction.
7 Section 20. Relation to other laws.
8 Section 21. Appropriation.
9 Section 22. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Short title.
13 This act shall be known and may be cited as the "Ombudsman
14 Act."
15 Section 2. Legislative purpose.
16 It is the intent of the General Assembly to establish, in
17 addition to other remedies or rights of appeal of any person, an
18 independent impartial office, readily available to the public,
19 responsible to the General Assembly, empowered to investigate
20 the acts of State administrative agencies and to recommend
21 appropriate changes toward the goals of safeguarding the rights
22 of persons and of promoting higher standards of competency,
23 efficiency and justice in the administration of the laws of the
24 Commonwealth.
25 Section 3. Definitions.
26 The following words and phrases when used in this act shall
27 have, unless the context clearly indicates otherwise, the
28 meanings given to them in this section:
29 "Act of an agency." Any action, decision, failure to act,
30 omission, rule or regulation, interpretation, recommendation,
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1 policy, practice or procedure of any agency.
2 "Agency." Any department, organization, board, commission,
3 council, institution or other governmental entity of
4 Pennsylvania, and any official, officer, employee, or member
5 thereof acting or purporting to act by reason of his connection
6 with Pennsylvania except:
7 (1) Any court, or judge and appurtenant judicial staff.
8 (2) The General Assembly, its members, its committees,
9 its staff and its employees.
10 (3) Elected constitutional officials and their personal
11 staff.
12 Section 4. Creation of office.
13 The Office of Ombudsman is hereby established.
14 Section 5. Nomination and appointment.
15 The General Assembly shall elect the ombudsman by a two-
16 thirds vote of the members of each house. A candidate or list of
17 candidates shall be unanimously submitted by the President pro
18 tempore of the Senate, the Speaker of the House and the minority
19 leaders of the Senate and House of Representatives.
20 Section 6. Qualifications.
21 (a) The ombudsman and deputy ombudsman shall be persons of
22 recognized judgment, objectivity and integrity who are well
23 equipped to analyze problems of law, administration and public
24 policy.
25 (b) No person while serving as ombudsman, acting ombudsman
26 or deputy ombudsman shall:
27 (1) Be actively involved in political party activities.
28 (2) Be a candidate for or hold other public office,
29 whether elective or appointive.
30 (3) Be engaged in any other occupation, business or
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1 profession.
2 (4) Remain in office after December 31 in the year in
3 which he reaches the age of 70 years.
4 Section 7. Term of office.
5 The ombudsman shall serve for a term of nine years and until
6 his successor is appointed and qualified. He may be reappointed
7 for one additional term.
8 Section 8. Removal and vacancy.
9 (a) The General Assembly by a vote of two-thirds of the
10 members of each house may remove the ombudsman or acting
11 ombudsman from office, but only for mental or physical
12 incapacity to perform the duties of his office for at least
13 three months, or other grounds sufficient for removal of a
14 judge.
15 (b) If the position of ombudsman becomes vacant for any
16 reason, the deputy ombudsman shall serve as acting ombudsman
17 until an ombudsman has been appointed for a full term.
18 Section 9. Compensation.
19 The ombudsman shall receive the same salary and benefits as
20 the director of the Legislative Reference Bureau.
21 Section 10. Organization of office.
22 (a) The ombudsman shall select, appoint and fix the
23 compensation of a person as deputy ombudsman and may select,
24 appoint and fix the compensation of such other officers and
25 employees as he may deem necessary to discharge his
26 responsibilities under this act. All officers and employees of
27 his office shall serve at the ombudsman's pleasure.
28 (b) The ombudsman may delegate to members of his staff any
29 of his authority, powers, or duties except this power of
30 delegation and his duty to make any report under this act.
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1 However, the ombudsman may authorize the deputy ombudsman to act
2 in his stead during illness, absence, leave or disability.
3 (c) The ombudsman and his staff shall be entitled to
4 participate in any employee benefit or retirement plan available
5 to State employees.
6 Section 11. Powers.
7 The ombudsman shall have the following powers:
8 (1) To investigate, on complaint or on his own motion,
9 any act of an agency without regard to its finality.
10 (2) To adopt, promulgate, amend and rescind rules and
11 regulations required for the discharge of his duties,
12 including procedures for receiving and processing complaints,
13 conducting investigations, and reporting his findings, not
14 inconsistent with this act. He may not levy any fees for the
15 submission or investigation of complaints.
16 (3) To examine the records and documents of any agency.
17 (4) To enter and inspect without notice the premises of
18 any agency.
19 (5) To subpoena any person to appear, to give sworn
20 testimony or to produce documentary or other evidence that is
21 reasonably material to his inquiry.
22 (6) To undertake, participate in or cooperate with
23 persons and agencies in such conferences, inquiries,
24 meetings, or studies as might lead to improvements in the
25 functioning of agencies.
26 (7) To obtain such information and make such inquiries
27 from any agency or person as he shall require for the
28 discharge of his duties.
29 (8) To maintain secrecy in respect to all matters and
30 the identities of the complainants or witnesses coming before
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1 him.
2 (9) To bring suit in Commonwealth Court to enforce the
3 provisions of this act.
4 (10) To establish and administer a budget for his
5 office.
6 (11) To concern himself with strengthening procedures
7 and practices which lessen the risk that objectionable
8 administrative acts will occur.
9 Section 12. Investigation of complaints.
10 (a) The ombudsman shall investigate any complaint alleging
11 that an act of an agency is:
12 (1) contrary to or inconsistent with law, regulation or
13 agency practice;
14 (2) based on mistaken facts or irrelevant
15 considerations;
16 (3) inadequately explained when reasons should have been
17 revealed;
18 (4) inefficiently performed; or
19 (5) unreasonable, unfair, or otherwise objectionable,
20 even though in accordance with law.
21 (b) The ombudsman may decide not to investigate because:
22 (1) The complainant could reasonably be expected to use
23 another remedy or channel, and then the ombudsman shall
24 furnish the complainant with written instructions on the
25 procedural steps to be taken in connection with such other
26 remedy or channel.
27 (2) The complaint is trivial, frivolous, vexatious, or
28 not made in good faith.
29 (3) The complaint has been too long delayed to justify
30 present examination.
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1 (4) His resources are insufficient for adequate
2 investigation in which case the ombudsman shall refer the
3 complaint to the proper legislative committee and the
4 Governor.
5 (c) The ombudsman in his discretion may investigate any act
6 of an agency not enumerated in subsection (a).
7 (d) The ombudsman's declining to investigate a complaint
8 shall not bar him from reviewing on his own motion acts of an
9 agency whether or not included in the complaint.
10 Section 13. Rights of complainant; communication with
11 complainant.
12 (a) After the ombudsman has decided whether or not to
13 investigate a complaint, he shall suitably inform the
14 complainant.
15 (b) The ombudsman shall, if requested by the complainant,
16 report the status of his investigation to the complainant.
17 (c) After investigation of a complaint, he shall suitably
18 inform the complainant of his conclusion or recommendation and,
19 if appropriate, any action taken or to be taken by the agency
20 involved.
21 (d) A letter to the ombudsman from a person held in custody,
22 including by detention, incarceration and hospitalization, by an
23 agency shall be forwarded immediately, unopened to the
24 ombudsman. A letter from the ombudsman to such person shall be
25 immediately delivered, unopened to the person.
26 (e) No person who files a complaint pursuant to this act
27 shall be subject to any penalties, sanctions or restrictions in
28 connection with his employment because of such complaint.
29 Section 14. Rights of agency.
30 (a) If the ombudsman decides to investigate a complaint, he
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1 may, if he deems it appropriate, suitably inform the agency
2 involved.
3 (b) Before announcing or reporting a conclusion or
4 recommendation that criticizes or is adverse to an agency, the
5 ombudsman shall consult with that agency and permit the agency
6 reasonable opportunity to reply.
7 (c) If any report that he issues, criticizes or is adverse
8 to an agency, the ombudsman shall include any brief statement
9 the agency may provide.
10 Section 15. Recommendations.
11 If, after investigation, the ombudsman is of the opinion that
12 an agency should:
13 (1) consider the matter further;
14 (2) modify or cancel an act;
15 (3) alter a regulation, practice, or ruling;
16 (4) explain more fully the act in question;
17 (5) rectify an omission; or
18 (6) take any other action;
19 he shall state his recommendations and reasons therefor to the
20 agency. If the ombudsman so requests, the agency shall, within
21 the time he has specified, inform him about the action taken on
22 his recommendations or the reasons for not complying with them.
23 After a reasonable period of time has elapsed, the ombudsman may
24 issue a report.
25 (b) If the ombudsman believes that an action has been
26 dictated by laws whose results are unfair or otherwise
27 objectionable, and could be revised by legislative action, he
28 shall bring to the General Assembly's and the agency's notice
29 his views concerning desirable statutory change.
30 (c) If the ombudsman believes that any person has acted in a
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1 manner warranting criminal or disciplinary proceedings, he shall
2 refer the matter to the appropriate authorities without notice
3 to that person.
4 Section 16. Reports.
5 The ombudsman may from time to time and shall annually report
6 on his activities to the Governor, to the General Assembly, or
7 any of its committees, to the public and, in his discretion, to
8 agencies.
9 Section 17. Ombudsman's immunities.
10 (a) No proceeding, conclusion, recommendation, or report of
11 the ombudsman or member of his staff shall be reviewable in any
12 court.
13 (b) The ombudsman and his staff shall have the same
14 immunities from civil and criminal liabilities as a judge of
15 this Commonwealth.
16 (c) The ombudsman and his staff shall not be compelled to
17 testify or produce evidence in any judicial or administrative
18 proceeding with respect to any matter involving the exercise of
19 their official duties except as may be necessary to enforce this
20 act.
21 Section 18. Witnesses' privileges.
22 Any person required to provide information under this act
23 shall be paid the same fees and travel allowances and accorded
24 the same privileges and immunities, including right of
25 assistance of counsel, as witnesses whose attendance has been
26 required in Commonwealth Court, however, a representative of an
27 agency during business hours shall not be entitled to such fees
28 and allowances.
29 Section 19. Obstruction.
30 Any person who willfully obstructs or hinders the proper and
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1 lawful exercise of the ombudsman's powers, or willfully misleads
2 or attempts to mislead the ombudsman in his inquiries, shall be
3 subject to a fine of not more than $1,000.
4 Section 20. Relation to other laws.
5 The provisions of this act are in addition to and do not in
6 any manner limit or affect the provisions of any other enactment
7 under which any remedy or right of appeal is provided for any
8 person, or any procedure is provided for the inquiry into or
9 investigation of any matter. The powers conferred on the
10 ombudsman may be exercised notwithstanding any provision in any
11 enactment to the effect that any administrative action shall be
12 final or unappealable.
13 Section 21. Appropriation.
14 The sum of $150,000 or so much thereof as may be necessary,
15 is hereby appropriated to the Office of Ombudsman for the fiscal
16 year beginning July 1, 1981 for the purpose of carrying out this
17 act.
18 Section 22. Effective date.
19 This act shall take effect in 60 days.
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