What is an Ombudsman?

An Ombudsman is an independent official who investigates complaints from the public about public authorities to ensure fair treatment and good public administration.

THE NAME

The word "Ombudsman" comes from Swedish, derived from the Old Norse term umboðsmaðr, meaning "representative" or someone given a charge, commission, or task. The modern institution traces back to the first Swedish Parliamentary Ombudsman established in 1809.

THE ROLE

An Ombudsman acts as:

• a neutral investigator who examines complaints about government maladministration
• an advocate for fairness who ensures citizens are treated properly by public authorities
• an independent voice that operates free from government control or influence
• a bridge between the public and public authorities

HISTORICAL CONTEXT

The concept of addressing grievances against official actions is ancient:

• Ancient Egypt: Pharoahs appointed complaint officers attached to royal courts
• Imperial China: Mandarins established methods for the public to complain about official actions
• 1712 Sweden: The Swedish King (inspired by the Ottoman Empire) appointed a high-level official to oversee royal courtiers, which evolved into the first fully independent modern Ombudsman in 1809

TODAY

The Ombudsman institution has spread globally over the last 30 years. Today, there are over 200 Ombudsman institutions from more than 100 countries that are members of the International Ombudsman Institute, the only global organisation for cooperation of ombudsman institutions worldwide.

WHAT MAKES AN OMBUDSMAN UNIQUE?

• Independence: Not controlled by any government authority
• Accessibility: Free service available to all citizens
• Informal process: Less formal than courts, more approachable
• No power to punish: Makes recommendations rather than binding orders
• Focus on fairness: Looks at whether actions were fair and reasonable, not just legal

In essence, an Ombudsman is the people's representative who ensures that government agencies treat citizens fairly and follow proper procedures.

What is the history of the Ombudsman in Bermuda?

2001 - THE CONSTITUTION CREATES THE OFFICE

In 2001, an amendment to the Bermuda Constitution Order 1968 created an Office of the Ombudsman. Chapter VI A, Section 93A of the Bermuda Constitution 1968 establishes two fundamental principles:

• Independence in Appointment The Ombudsman is appointed by the Governor after discussion with the Premier, who must first consult with the Opposition Leader.
• Operational Independence In performing their duties, the Ombudsman operates independently and is not under the management or control of any person or authority.

2004 - LEGISLATIVE FRAMEWORK IS ESTABLISHED

For the Office to open and begin receiving complaints, the Legislature needed to pass legislation defining its functions and powers.

In 2004, the Governor gave assent to the Ombudsman Act 2004, which set out the specific powers, procedures, and responsibilities of the Office.

2005 - FIRST OMBUDSMAN APPOINTED

In August 2005, Arlene Brock was appointed as Bermuda's first Ombudsman. The Office officially opened in 2005, with the formal opening ceremony held in January 2006.

WHY CONSTITUTIONAL STATUS MATTERS

The Ombudsman's constitutional status is crucial for protecting the Office's independence. Unlike regular government offices, the Office of the Ombudsman can only be abolished by amending the Constitution through an Order in Council by the UK Government.

This means:

• An act of Parliament alone is not sufficient to dismantle the Office
• The Ombudsman cannot be easily removed due to political pressure
• The Office has robust institutional protection

This structural independence ensures the Ombudsman can investigate government actions without fear of retaliation or interference.

How is the Office funded?

OMBUDSMAN'S SALARY

The Ombudsman's salary is charged directly to the Consolidated Fund (Section 4, Ombudsman Act 2004).

What this means: The salary comes from a protected government fund and is not subject to annual budget negotiations, helping to safeguard the Ombudsman's independence.

OPERATIONAL EXPENSES

All other Office expenses are funded through the annual budget process, including:

• Salaries of staff officers
• Office operational costs
• Investigation expenses
• Administrative costs

These funds are appropriated by the Legislature as part of the Bermuda Government's annual budget process (Section 23, Ombudsman Act 2004).

How is the Ombudsman appointed?

The appointment of the Ombudsman is made by the Governor under Section 93A(1) of the Bermuda Constitution Order 1968.

THE SELECTION PROCESS

The Ombudsman selection follows a rigorous, transparent process designed to ensure indepedence and competence:

1. Public Advertisement: The position is advertised publicly
2. Advisory Panel Formation: The Governor organises an ad-hoc Advisory Panel, chaired by the Deputy Governor, to review applications.
3. Application Review & Shortlisting: The Advisory Panel reviews all applications and creates a shortlist based on key job requirements.
4. Competency-Based Interviews: Shortlisted candidates are interviewed and assessed on six core competencies:
   • Analysis & decision making
   • Management & leadership
   • Communication skills
   • Negotiation & mediation skills
   • Civil service knowledge
   • Administration and legal knowledge
5. Panel Recommendation: After scoring candidates against these competencies, the Advisory Panel recommends a final selection of candidates to the Governor.
6. Final Interviews with the Governor: The Governor meets with each of the recommended candidates individually for a final interview
7. Consultation Process: The Governor makes the final decision following consultation with the Premier, who would have consulted the Opposition Leader
8. Official Appointment: The appointment of the new Ombudsman is announced and made by instrument under the Public Seal

WHY THIS PROCESS MATTERS

This multi-step process with oversight from multiple parties ensures:

• Independence: No political party controls the appointment
• Transparency: Public advertisement and clear criteria
• Competence: Rigorous assessment of necessary skills
• Legitimacy: Broad political consensus through consultation

What can the Ombudsman investigate?

What is maladministration?

Maladministration occurs when a public authority acts improperly, unfairly, or fails to follow correct procedures in carrying out its administrative functions.

TYPES OF MALADMINISTRATION

The Ombudsman Act 2004 defines maladministration to include:

1. Unreasonable Delay

• Taking too long to make decisions
• Failing to act within reasonable timeframes
• Causing unnecessary waiting periods

2. Abuse of Power

• Misusing authority
• Exercising discretionary powers improperly
• Acting beyond legal authority

3. Actions That Are:

Inefficient, Bad, or Improper

• Poor administrative practices
• Inadequate processes
• Unprofessional conduct

Contrary to Law

• Violating legal requirements
• Ignoring statutory obligations
• Acting outside legal authority

Based on Mistakes of Law or Fact

• Misunderstanding the law
• Getting the facts wrong
• Making decisions based on incorrect information

Based on Irrelevant Grounds

• Considering factors that shouldn't matter
• Ignoring relevant considerations
• Making decisions for wrong reasons

Unfair, Oppressive, or Improperly Discriminatory

• Treating people inequitably
• Using arbitrary procedures
• Discriminating without proper justification
• Causing unnecessary hardship

Negligent

• Failing to exercise proper care
• Not following reasonable standards
• Careless administration

(Section 2, Ombudsman Act 2004)

EXAMPLES OF MALADMINISTRATION

In Practice, This Might Look Like:

• A government department losing your application and not telling you
• Being denied a license without proper explanation
• Different people getting different treatment in the same situation
• Officials ignoring their own policies and procedures
• Taking months to respond to straightforward requests
• Making decisions without considering relevant facts
• Refusing to reconsider a decision despite new evidence

WHAT MALADMINISTRATION IS NOT

The Ombudsman does not investigate:

• Disagreements with policy decisions (unless the process was unfair)
• Political choices made by elected officials
• Decisions that were fair and reasonable, even if you disagree with the outcome
• Matters where proper procedures were followed, even if the result was unfavourable

THE STANDARD

The Ombudsman asks: "Did the authority act fairly, reasonably, and in accordance with proper procedures?"

If the answer is no, maladministration may have occurred.

Who can the Ombudsman investigate?

The Ombudsman has broad jurisdiction over government departments, public authorities, and publicly-funded bodies.

WITHIN THE OMBUDSMAN'S JURISDICTION

The Ombudsman can investigate:

1. All Government Departments

• Every ministry and department of the Bermuda Government
• Central government administrative bodies
• Government agencies and divisions

2. Government Boards

• Statutory boards established by legislation
• Advisory boards with administrative functions
• Regulatory boards and commissions

3. Public Authorities

• Bodies created to carry out public functions
• Organisations exercising governmental powers
• Entities established by the Legislature

4. Bodies Established by Legislature or Cabinet Minister

• Organisations created through Acts of Parliament
• Bodies formed by ministerial order
• Entities given authority through legislation

5. Bodies Funded by Public Money

• Organisations whose revenues or fees derive from money provided by the Legislature
• Entities authorised to receive government funding
• Bodies substantially supported by public funds

(Section 3, Ombudsman Act 2004)

EXAMPLES OF AUTHORITIES

This includes entities like:

• Department of Planning
• Department of Immigration
• Bermuda Housing Corporation
• Transport Control Department
• Social Insurance Department
• Registry General
• Land Valuation Department
• Public schools and education authorities
• Health services and regulatory bodies
• Licensing authorities

NOT WITHIN JURISDICTION

The Ombudsman cannot investigate:

• Private companies - Unless they're exercising a public function funded by the government
• Private individuals - Personal disputes between citizens
• Elected officials in their political capacity - MPs, Cabinet Ministers, Senators making political decisions
• The judiciary - Courts and judges
• Private organisations - Even if they interact with the government

UNCERTAIN WHETHER A BODY IS IN THE OMBUDSMAN'S JURISDICTION?

Contact the Office:

• Phone: (441) 296-6541
• Email: contact@ombudsman.bm
• Visit: Suite 102, 14 Dundonald Street, Hamilton

The Office can quickly tell you whether they can help or direct you to the appropriate avenue for your complaint.

When can the Ombudsman investigate?

The Ombudsman can launch an investigation in two ways: based on a complaint from the public or on her own initiative when she identifies potential maladministration.

TWO TRIGGERS FOR INVESTIGATION

1. Following a Specific Complaint

The most common way investigations begin—a member of the public files a complaint about administrative action by an authority.

2. On the Ombudsman's Own Initiative

Even without receiving a complaint, the Ombudsman may investigate when:

• He becomes aware of potential maladministration
• There are reasonable grounds to believe investigation is warranted
• The investigation would serve the public interest

This "own motion" power allows the Ombudsman to address systemic problems even when no individual has complained.

(Section 5, Ombudsman Act 2004)

BEFORE THE OMBUDSMAN CAN INVESTIGATE

Existing Remedies Must Usually Be Exhausted:

Generally, the Ombudsman will not investigate until the complainant has:

• Used any existing internal complaint procedures
• Exhausted available appeals processes
• Tried to resolve the matter through normal channels

However, the Ombudsman may investigate before other remedies are exhausted if she determines it was not reasonable for the complainant to use those procedures.

Reasons this might apply:

• The internal process is clearly inadequate
• Using internal procedures would cause unreasonable hardship
• The authority has not followed its own procedures
• Too much time has passed
• The complainant is particularly vulnerable

(Section 6, Ombudsman Act 2004)

TIME LIMITS

12-Month Awareness Period:

Complaints should generally be about actions that:

• Occurred within the last 12 months, OR
• The complainant became aware of within the last 12 months

The Ombudsman may decline to investigate if:

• The complainant knew about the action more than one year before complaining
• There's no reasonable explanation for the delay

However, the Ombudsman has discretion to investigate older matters if there are compelling reasons.

(Sections 7 & 9, Ombudsman Act 2004)

How does the Ombudsman determine whether to investigate?

Not every complaint results in a full investigation. The Ombudsman has discretion to assess complaints and determine the most appropriate response.

THE ASSESSMENT PROCESS

Preliminary Inquiries:

After receiving a complaint, the Ombudsman may make preliminary inquiries to understand the situation and determine the best course of action.

This might involve:

• Contacting the authority for basic information
• Reviewing the complaint details
• Assessing whether the matter falls within jurisdiction
• Determining what remedy might be appropriate

(Sections 8 & 10, Ombudsman Act 2004)

THREE POSSIBLE OUTCOMES

After preliminary assessment, the Ombudsman will decide to:

1. Formally Investigate

• Launch a full investigation with evidence-gathering
• Exercise formal investigative powers
• Produce findings and recommendations

2. Mediate or Facilitate Resolution

• Help the parties reach an agreement
• Facilitate communication between complainant and authority
• Achieve a practical solution without formal investigation

3. Decline to Investigate

• Determine the complaint is not appropriate for investigation
• Provide explanation and possible alternative remedies

GROUNDS FOR DECLINING INVESTIGATION

The Ombudsman may decide not to investigate if:

1. Complaint Is Too Old

• The complainant knew about the administrative action more than one year before making the complaint
• There's no reasonable explanation for the delay

2. Adequate Remedy Exists

• Current law or administrative procedure provides a sufficient solution
• There's no reasonable justification for the complainant not having used that remedy
• Example: An appeal process exists and hasn't been tried

3. Complaint Lacks Merit

• The complaint is frivolous - Not serious or substantial
• The complaint is vexatious - Made to harass or annoy
• The complaint is not made in good faith - Dishonest or malicious intent
• The matter has already been settled

(Section 9, Ombudsman Act 2004)

THE REASONABLENESS TEST

Even when other remedies exist, the Ombudsman may still investigate if:

• Using the other remedy would cause unreasonable delay
• The process is overly complicated or expensive
• The complainant is vulnerable and needs assistance
• The alternative remedy is inadequate for the circumstances
• The authority has not followed its own procedures

The Ombudsman exercises discretion based on fairness and reasonableness.

WHAT HAPPENS IF INVESTIGATION IS DECLINED?

You'll Be Informed:

If the Ombudsman decides not to investigate, you will receive:

• Written notification of the decision
• Explanation of the reasons
• Information about alternative options if applicable
• Guidance on other potential remedies

MEDIATION AND INFORMAL RESOLUTION

Not Every Problem Needs a Formal Investigation:

Sometimes the Ombudsman can resolve issues through:

• Facilitated communication - Helping the parties talk productively
• Mediation - Acting as neutral third party to reach agreement
• Informal inquiry - Making a quick call to the authority that resolves the matter
• Referral - Directing the complaint to the appropriate channel

These approaches can achieve results faster than formal investigation.

SYSTEMIC ISSUES

Beyond Individual Complaints:

When preliminary inquiries reveal:

• Problems affecting multiple people
• Systemic administrative failures
• Widespread poor practices

The Ombudsman may expand investigation beyond the original complaint to address the broader issue, even using his "own motion" powers.

TRANSPARENCY AND FAIRNESS

The Decision-Making Process:

The Ombudsman's assessment considers:

• Whether investigation would serve the public interest
• Whether the complaint raises important issues
• Whether maladministration appears to have occurred
• Whether investigation is the most effective remedy
• Available resources and priorities

The process is designed to be fair, efficient, and focused on achieving good outcomes.

IF YOU DISAGREE WITH A DECISION

If the Ombudsman declines to investigate your complaint and you believe the decision is wrong:

• Request a written explanation of the reasoning
• Provide additional information that might change the assessment
• Contact the Office to discuss your concerns

The Ombudsman will reconsider if new, relevant information becomes available.