(New Chapter added by Ordinance No. 175568, effective July 1, 2001.)
The City hereby establishes, in addition to other remedies or rights of appeal, an independent, impartial office, readily available to the public, responsible to the City Auditor, empowered to investigate the administrative acts of city agencies and to recommend appropriate changes toward the goals of safeguarding the rights of persons and of promoting higher standards of competency, efficiency and justice in the provision of city services. This office shall be known as the Office of the Ombudsman.
A. "Administrative act" means an action, failure to act, omission, decision, recommendation, practice, policy or procedure.
B. "Agent or agency" includes any bureau, office, institution, corporation, authority, board, commission, committee of the city, and any officer, employee, or member of the foregoing entities acting or purporting to act in the exercise of their official duties. EXCEPTING: elected officials and their personal staff.
C. "City Auditor" refers to the elected City Auditor.
D. "City" refers to the City of Portland.
E. "City Council" refers to the City’s legislative body comprised of five elected officials, the Mayor, and four City Commissioners.
F. "Ombudsman" means the public official appointed by the City Auditor to receive and investigate citizen complaints against administrative acts of City government.
G. "Person" means natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, and/or the manager, lessee, agent, servant, officer, or employee of any of them;
H. "Record" means all records, documents, books, papers, files, photographs, microfilms, sound recordings, video recordings, magnetic storage media, computer data and all other materials, regardless of physical form or characteristics, created, generated, recorded, received, possessed or controlled by or on behalf of any agency.
I. "State" refers to the State of Oregon.
There is established by the City Council the Office of Ombudsman.
The City Auditor shall select the Ombudsman in accordance with any applicable civil service regulations and other laws.
A. The Ombudsman shall be a person of recognized judgment, objectivity and integrity who is well-equipped to analyze problems pertaining to City regulations, administration, and public policy, and shall have a working knowledge in local government commensurate to the powers and duties of the office. The Ombudsman shall be a registered voter of the United States, and shall hold a degree from an accredited college/university, or its equivalent in service to local government.
B. No person may serve as Ombudsman while engaged in any other occupation, business, or profession likely to detract from the full-time performance of his or her duties as Ombudsman or to result in a conflict of interest or an appearance of impropriety or partiality. All laws and requirements generally applicable to public employees are applicable to the Ombudsman.
A. The Ombudsman may be removed from office during his or her term by the City Auditor.
B. If the position becomes vacant for any reason, the Deputy Ombudsman shall serve as acting Ombudsman until a new Ombudsman has been appointed.
A. The Ombudsman may appoint a deputy who is accountable to the Ombudsman and other personnel necessary to carry out the provisions of this chapter, when in keeping within the adopted budget for the Ombudsman's Office.
B. The Ombudsman may delegate to his or her staff members any of his or her duties, unless otherwise specified in this chapter.
C. The deputy shall succeed to all duties and responsibilities of the Ombudsman, including those specified by ordinance, when he or she is serving as the acting Ombudsman.
A. The City shall provide suitable office facilities for the Ombudsman and staff in a location convenient for the public.
B. The Ombudsman shall annually recommend a budget proposal for submission to the City Auditor, who shall in turn include it in the Auditor’s budget submission to the Mayor and City Council.
C. The Ombudsman shall be located within the City Auditor’s office, and be accountable to the City Auditor. The Ombudsman shall have sole discretion in choosing consultants to assist with investigations, and in hiring staff. All administrators shall retain the authority to deny any request which is otherwise contrary to ordinance or which exceeds the city council-adopted budget for the office.
The Ombudsman’s powers and duties include, but are not limited to the following:
A. To investigate, on complaint or on the Ombudsman’s own initiative, any administrative act of an agency, without regard to the finality of the administrative act, if he or she reasonably believes that it is an appropriate subject for review;
B. To undertake, participate in or cooperate with persons and agencies in such general studies, conferences, inquiries, meetings, or studies which might improve the functioning of agencies or lessen the risks that objectionable administrative acts will occur;
C. To make such inquiries and obtain such reasonable assistance and information from any agency or person as the Ombudsman shall require for the discharge of the Ombudsman's duties; and he or she may without prior notice enter and inspect the premises of any agency. Agencies shall not restrict the Ombudsman's access to agency personnel;
D. Notwithstanding any other provision of city law, to have access to and to examine and copy, without payment of a fee, any agency records, including records which are confidential by city law, subject to any applicable state or federal laws. Except, the Ombudsman shall not have access to legally privileged documents held by the City Attorney or Attorney-Client communications held by the City Attorney clients. The Ombudsman shall not disclose confidential records and shall be subject to the same penalties as the legal custodian of the records for any unlawful or unauthorized disclosure;
E. To request any person or agency to give sworn testimony or to produce documentary or other evidence that is reasonably relevant to the matters under investigation;
F. To maintain confidential any matter related to complaints and investigations to the extent allowable by law, except as the Ombudsman deems necessary to discharge the Ombudsman's duties or as directed by the District Attorney pursuant to a public records request;
G. To take appropriate measures to enforce the provisions of this chapter, including issuing reports, submitting recommendations, or seeking Council authorization for legal recourse if necessary to carry out the duties of the Ombudsman Office;
H. To adopt, promulgate, amend and rescind rules and regulations required for the discharge of the Ombudsman's duties, including policies and procedures for receiving and processing complaints, conducting investigations, and reporting findings, conclusions and recommendations. However, the Ombudsman may not levy any fees for the submission or investigation of complaints;
I. To insure that a budget for the Office of the Ombudsman is well prepared and administered.
A. The Ombudsman shall receive complaints from any source concerning any administrative act. He or she may conduct a suitable investigation of a complaint that is an appropriate subject for investigation. An appropriate subject for investigation by the Ombudsman includes any administrative act that the Ombudsman believes might be:
1. contrary to, law, regulation or agency practice;
2. unreasonable, unfair, oppressive, arbitrary, an abuse of discretion, or unnecessarily discriminatory even though in accordance with law;
3. based on mistaken facts or irrelevant considerations;
4. unclear or not adequately explained;
5. performed in an inefficient or discourteous manner;
6. otherwise erroneous or objectionable.
B. The Ombudsman, at the Ombudsman’s discretion, may decide not to investigate a complaint because:
1. the complainant could reasonably be expected to use, or is using, another remedy or channel, or tort claim, for the grievance stated in the complaint;
2. the complaint relates to a matter that is outside the jurisdiction of the Ombudsman;
3. the complaint has been too long delayed to justify present examination;
4. the complainant does not have a sufficient personal interest in, or is not personally aggrieved by, the subject matter of the complaint;
5. the complaint is trivial, frivolous, vexatious or not made in good faith;
6. the resources of the Ombudsman's Office are insufficient for adequate investigation;
7. other complaints are more worthy of attention.
C. The Ombudsman shall not investigate matters currently in litigation; covered by collective bargaining agreement grievance procedures; or, employee or applicant discrimination complaints.
D. The Ombudsman's declining to investigate a complaint shall not bar the Ombudsman from proceeding on his or her own initiative to investigate an administrative act whether or not included in the complaint.
E. The Ombudsman shall protect the confidentiality of complainants or witnesses coming before him or her consistent with the requirements of the Oregon Public Records Law, except insofar as disclosures may be necessary to enable the Ombudsman to carry out his or her duties or the disclosure of records is directed by the District Attorney. (See Subsection 3.77 110 F.)
F. The Ombudsman shall have the authority to pursue administrative review of responses to complaints through higher authorities within the City.
A. The Ombudsman may make recommendations to an agency for the resolution of complaints and inquiries in accordance with this chapter.
B. In seeking a resolution to a complaint or inquiry the Ombudsman may draw the matter to the attention of any bureau head or division manager, the City Auditor, Mayor, City Commissioner, or the public.
C. Before formally issuing a report with a conclusion or recommendation that is significantly critical or adverse to an agency, the Ombudsman shall have consulted with that agency and permitted the agency reasonable opportunity to reply. The Ombudsman may require an agency to notify him or her within a reasonable specified time of any action taken on a conclusion or recommendation. The Ombudsman will provide the opportunity to include with a final report a brief statement by the agency.
A. After the Ombudsman has decided whether or not to investigate a complaint, the Ombudsman shall inform the complainant.
B. The Ombudsman shall, if requested by the complainant, report the status of his or her investigation to the complainant.
C. After investigation of a complaint, the Ombudsman shall inform the complainant of his or her conclusion or recommendation and, if appropriate, any action taken or to be taken by the agency involved.
A. If, after investigation, the Ombudsman is of the opinion that an agency should:
1. consider the matter further,
2. modify or cancel an act,
3. alter a regulation, ruling, practice, policy or procedure;
4. explain more fully the act in question,
5. rectify an omission, or take any other action,
the Ombudsman shall state any conclusions, recommendations and reasons therefor to the agency. If the Ombudsman so requests, the agency shall, within the time specified, inform the Ombudsman about the action taken on recommendations or the reasons for not implementing them.
B. After a reasonable period of time has elapsed, the Ombudsman may issue his or her final conclusions or recommendations to the Auditor, the Mayor and City Commissioners, a grand jury, the public, or any other appropriate authority. The Ombudsman shall include any brief statement the agency may provide if an opportunity to reply is required by this Chapter.
C. If the Ombudsman believes that an action has been dictated by laws whose results are unfair or otherwise objectionable, and could be revised by City Council action, the Ombudsman shall notify the City Council and the agency of a desirable statutory change.
D. If the Ombudsman believes that any agency official or employee has acted in a manner warranting criminal or disciplinary proceedings, the Ombudsman shall refer the matter to the appropriate authorities without notice to that person.
The Ombudsman shall post notices or use other appropriate means to inform citizens of their rights, protections, and availability of services provided for under this Chapter. These notices may include posted notices in public areas; or, electronic postings or links through Internet web sites, including the City web site. Nothing in this section is to be construed as repealing any other provisions of contract, ordinance or law.
The Ombudsman may from time to time and shall annually report his or her activities to the Auditor and City Council, or any of its committees, to the public and, in the Ombudsman’s discretion, to agencies.
City employees shall cooperate with the Ombudsman in the exercise of his or her powers, and shall not mislead or attempt to mislead an Ombudsman’s inquiry.
To the extent allowable by law, the Ombudsman and staff shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties except as may be necessary to enforce this Chapter.
No person who files a complaint or participates in any investigation or proceeding pursuant to this chapter shall be subject to any penalties, sanctions or restrictions in connection with his or her employment or be denied any right, privilege, or benefit because of such action.
The provisions of this Chapter are in addition to and do not in any manner limit or affect any other provisions of law under which any remedy or right of appeal is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter. The powers conferred on the Ombudsman may be exercised notwithstanding any provision of law to the effect that any administrative action shall be final or unappealable.
This Act shall take effect on July 1, 2001.