Nebraska office of public counsel or ombudsman

On Aug. 16, the Nebraska Attorney General’s Office issued an opinion concerning the Nebraska Public Counsel’s (Ombudsman) oversight of executive branch agencies.

This article follows the Nebraska Examiner reporting of this AG opinion.

In Opinion No. 23-008 dated Aug. 16, 2023, Attorney General Mike Hilgers specified how the ombudsman’s oversight and reporting obligations of executive branch agencies is unconstitutional because it violates the “separation of powers” principle. This opinion included the legal avenues available for the Legislature to discover information from the executive branch when researching legislative issues.

The attorney general stated, “The Inspectors General have breathtaking power.…” In this article, I discuss the history behind this “breathtaking power.”

My comments are written not to demean the hard work performed by many people in the Ombudsman’s Office.

So, how did public counsel arrive at a point where state leaders asked for an attorney general opinion? I suggest that past office supervision is an underlying cause. This author raised concerns six years ago when an ombudsman brought a phone into a prison and allowed a death row inmate to place a call. Nebraska Statute 83-417 states, “any person who … allows any offender to be visited, conversed with, comforted, or relieved or conveys to or from any committed offender any communication or article shall be guilty of a Class IV felony.” State employees who commit egregious acts of this nature are terminated and prosecuted. In their lack of subsequent action with this employee, public counsel placed themselves above Nebraska law.

In response to my request for Ombudsman rules and procedures that would allow this behavior, the ombudsman wrote on Oct. 19^t, 2017, “We have never found it necessary to reduce our internal processes to writing.” This office has had no written operating procedures for its decades of existence which, on its own, is breathtaking.

In a No. 8, 2017, letter, the ombudsman explained how the staff avoided writing policies by saying, “the Nebraska Administrative Procedure Act is not applicable to the Ombudsman’s Office.” This act is followed by the executive branch to invite public scrutiny and input before a final policy is published.

When asked about Nebraska Statute 81-8,245(2) which provides that “Public Counsel shall have the power to prescribe the methods by which complaints are to be made, received, and acted upon,” he replied, “(P)lease note that the Public Counsel shall have the power to do this, not that the Public Counsel is obligated to do this….” He went on to say his office should “not be strapped into a procedural straight jacket of its own making.”

In referring to policies governing personnel, he stated that “too much micromanagement from the top is likely to stifle creativity…. (N)ormal people working on cases day-in and day-out experience burnout … and so, in the interest of having a high rate of retention … it is a good idea to have management … that encourages caseworkers to engage in their own creativity in addressing problems and issues.”

He further stated that he did not want to “turn the Office into just another state bureaucracy.” Essentially, the ombudsman made it known that he and his subordinates, unique in American government, answer to no one but themselves, because there are no guidelines to measure their performance.

In 1997, the Nebraska ombudsman co-authored the United States Ombudsman Association (USOA) publication the “Governmental Ombudsman Standards.” In Section 15, the Standard reads, “The ombudsman should … uphold the highest standards of public service … and, as an advocate for good government, the Ombudsman must exemplify the standards used to measure government agencies under his or her jurisdiction.” Public Counsel has never recognized or followed the USOA Standards.

As directed by the executive committee, the ombudsman subsequently created and posted what they defined as policies and procedures. This new document stated, “the most significant source of credibility for the Ombudsman’s Office is found in the quality of its investigations, that is, from conducting an investigation that is well planned, thoroughly documented, and scrupulous in its attention to detail.” And in the USOA Standards he co-authored, the ombudsman (P1) is to review complaints “free from bias and treat all parties without favor or prejudice.”

Yet, the ombudsman wrote that his office “performs the role of a watchdog with respect to the operation of the administrative entities under the Ombudsman’s jurisdiction … and protect(s) the sovereign people from the mistakes and malpractice of public administrators” … and his office was formed “to compel accountability.”

The office’s website stated, “the presence of an agency attorney or agency supervisor may intimidate the witness to not volunteer information to the Ombudsman’s Office.” Further, “their presence might frustrate the progress of the investigation and the Ombudsman’s efforts to get the facts.” This means that the rights of an agency, and its employees, hold no value when viewed through the lens of public counsel.

In summary, the ombudsman does not follow Nebraska laws, USOA standards, the Nebraska Procedures Act, and does not perform at anywhere near the minimum level of performance by the agencies under its jurisdiction. If this office is needed, it should reside in the executive branch and perform at industry-best level of professional discipline and transparency.