HOUSE BILL No. 4375

 

 

March 16, 2017, Introduced by Reps. Neeley, Phelps, Geiss, Faris, Schor, Durhal, Love, Chang, Sneller and Ellison and referred to the Committee on Natural Resources.

 

     A bill to create the office of the water ombudsman; to provide

 

a process for investigating and evaluating the quality of drinking

 

water provided by public water supplies; to prescribe the powers

 

and duties of the office, the ombudsman, the legislative council,

 

and certain other state agencies and officials; and to prescribe

 

penalties and provide remedies.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the "water

 

ombudsman act".

 

     Sec. 2. As used in this act:

 

     (a) "Administrative act" includes an action, omission,

 

decision, recommendation, practice, or other procedure of the

 

department.

 

     (b) "Complainant" means a person that submits a complaint to

 

the ombudsman under this act.

 

     (c) "Council" means the legislative council established under

 

section 15 of article IV of the state constitution of 1963 and

 

provided for in section 103 of the legislative council act, 1986 PA

 

268, MCL 4.1103.

 

     (d) "Department" means the department of environmental

 

quality.

 

     (e) "Office" means the office of the water ombudsman created

 

in section 3.

 

     (f) "Ombudsman" means the water ombudsman appointed under

 

section 3.

 

     (g) "Person" means an individual, partnership, corporation,

 

association, governmental entity, or other legal entity.

 

     (h) "Public water supply" means that term as defined in

 

section 2 of the safe drinking water act, 1976 PA 399, MCL

 

325.1002.

 

     (i) "State drinking water standards" means that term as

 

defined in section 2 of the safe drinking water act, 1976 PA 399,

 

MCL 325.1002.

 

     (j) "Supplier of water" means that term as defined in section

 

2 of the safe drinking water act, 1976 PA 399, MCL 325.1002.

 

     (k) "Waterworks system" means that term as defined in section

 

2 of the safe drinking water act, 1976 PA 399, MCL 325.1002.

 

     Sec. 3. (1) The office of the water ombudsman is created

 

within the legislative council.

 

     (2) The principal executive officer of the office is the water

 

ombudsman, who shall be appointed by and serve at the pleasure of

the council.

 

     Sec. 4. The council shall establish procedures for approving

 

the budget of the office, for expending funds of the office, and

 

for employing personnel for the office.

 

     Sec. 5. (1) The ombudsman may commence an investigation upon

 

his or her own initiative or upon receipt of a complaint from a

 

person concerning an administrative act related to the person's

 

drinking water or the quality of water from a public water supply.

 

The complaint may allege a violation of law or departmental policy

 

or a water quality condition that poses a significant health or

 

safety issue for which there is no effective administrative remedy.

 

     (2) Subject to approval of the council, the ombudsman shall

 

establish procedures for receiving and processing complaints,

 

conducting investigations, holding hearings, and reporting the

 

findings resulting from the investigations.

 

     Sec. 6. (1) Upon request and without the requirement of any

 

release, the ombudsman must be given access to all information,

 

records, and documents in the possession of the department or a

 

supplier of water that the ombudsman considers necessary in an

 

investigation, including, but not limited to:

 

     (a) Procedures for collecting water samples.

 

     (b) Results of the analysis of water samples.

 

     (c) Results of an analysis of water samples indicating

 

noncompliance with state drinking water standards.

 

     (d) Evidence of violations of the safe drinking water act,

 

1976 PA 399, MCL 325.1001 to 325.1023.

 

     (2) Upon request and without notice, the ombudsman must be

granted entrance to inspect at any time any waterworks system

 

providing water for a public water supply.

 

     (3) The ombudsman may hold informal hearings and may request

 

that any person appear before the ombudsman or at a hearing and

 

give testimony or produce documentary or other evidence that the

 

ombudsman considers relevant to an investigation.

 

     Sec. 7. (1) The ombudsman shall advise a complainant to pursue

 

all administrative remedies open to the complainant. Upon request

 

from the ombudsman, the department shall provide a progress report

 

concerning the administrative processing of a complaint submitted

 

to the department. After the department takes administrative action

 

on a complaint, the ombudsman may conduct further investigation at

 

the request of a complainant or on his or her own initiative.

 

     (2) The ombudsman is not required to conduct an investigation

 

on a complaint brought before the ombudsman. A complainant is not

 

entitled to have an investigation conducted by the ombudsman.

 

     Sec. 8. Upon receiving a complaint under this act and deciding

 

to investigate the complaint, the ombudsman shall notify the

 

complainant and the department. If the ombudsman declines to

 

investigate, the ombudsman shall notify the complainant, in

 

writing, of the reasons for the ombudsman's decision.

 

     Sec. 9. Upon request of the ombudsman, the council may hold a

 

hearing. The council may administer oaths, subpoena witnesses, and

 

examine the books and records of the department or of a supplier of

 

water in a matter that is or was a proper subject of investigation

 

by the ombudsman.

 

     Sec. 10. (1) Subject to subsection (2), correspondence between

the ombudsman and a complainant is confidential, is privileged

 

communication, and is exempt from disclosure under the freedom of

 

information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     (2) The ombudsman shall maintain confidentiality regarding all

 

matters under investigation and the identities of the complainants

 

or persons from whom information is acquired, unless disclosure is

 

necessary to enable the ombudsman to perform the duties of the

 

office or to support any recommendations resulting from an

 

investigation.

 

     (3) A report prepared and recommendations made by the

 

ombudsman and submitted to the council under section 11 are exempt

 

from disclosure under the freedom of information act, 1976 PA 442,

 

MCL 15.231 to 15.246.

 

     Sec. 11. (1) Within 30 days after completing an investigation,

 

the ombudsman shall prepare and submit a report of its findings to

 

the council. The report must include recommendations if the

 

ombudsman finds any of the following:

 

     (a) A matter that the department should consider.

 

     (b) An administrative act that should be modified or canceled.

 

     (c) A statute or rule that should be altered.

 

     (d) An administrative act for which justification is

 

necessary.

 

     (e) A significant health and safety issue due to the quality

 

of drinking water provided by a public water supply.

 

     (f) Any other significant concern as determined by the

 

ombudsman.

 

     (2) Subject to section 12, the council may forward the report

prepared and submitted under subsection (1) to the department and

 

the complainant who requested the report.

 

     (3) In addition to preparing the report under subsection (1),

 

within 30 days after completing the investigation, the ombudsman

 

shall prepare and provide to the complainant a resolution report

 

that details the findings of the investigation, the recommendations

 

of the ombudsman, and any actions that have been taken to address

 

the complainant's concerns.

 

     Sec. 12. Before announcing a conclusion or recommendation that

 

expressly or by implication criticizes the department, a supplier

 

of water, or other person, the ombudsman shall consult with the

 

department, the supplier of water, or the other person. If the

 

ombudsman publishes an opinion adverse to the department, a

 

supplier of water, or other person, the ombudsman shall include in

 

that publication a statement of reasonable length made to the

 

ombudsman by the department, the supplier of water, or the other

 

person in defense or mitigation of the finding if that statement is

 

provided within a reasonable time as determined by the council. The

 

ombudsman may request that the department, a supplier of water, or

 

other person notify it within a specified time of any action taken

 

on any recommendation presented. The ombudsman shall notify the

 

complainant of the actions the department, the supplier of water,

 

or the other person takes to address the complaint.

 

     Sec. 13. (1) The ombudsman shall submit to the council and the

 

legislature an annual report on the conduct of the office that

 

contains information required by the council.

 

     (2) The ombudsman shall annually post on its website a report

that contains all of the following:

 

     (a) The number of complaints received.

 

     (b) The number of complaints investigated.

 

     (c) The number of complaints resolved.

 

     (d) The nature of each incident that was the basis for the

 

complaint. However, personal identifying information must not be

 

included.

 

     (e) The average time from the receipt of a complaint until a

 

resolution report is provided under section 11(3).

 

     (f) The percentage of repeat complaints.

 

     (g) Satisfaction feedback.

 

     (h) Any additional information the council requests to be

 

included in the annual report or the ombudsman considers relevant.

 

     Sec. 14. (1) The department or a supplier of water shall not

 

penalize in any way a complainant or other person for filing a

 

complaint, providing information to the council or a legislator, or

 

cooperating with the ombudsman in investigating a complaint.

 

     (2) The department, a supplier of water, or any person shall

 

not hinder the lawful actions of the ombudsman or employees of the

 

office or willfully refuse to comply with any lawful demand of the

 

office.

 

     Sec. 15. The authority granted to the ombudsman under this act

 

is in addition to other authority granted by law to any other

 

office or agency relative to a remedy or right of appeal or

 

objection for a complainant, or any procedure provided for the

 

inquiry into, or investigation of, any matter concerning a public

 

water supply. The authority granted to the ombudsman under this act

does not limit or affect any other remedy or right of appeal or

 

objection provided by law and shall not be considered to be

 

exclusionary.

 

     Sec. 16. A person that violates this act is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $1,000.00, or both.

 

     Enacting section 1. This act takes effect 90 days after the

 

date it is enacted into law.