SENATE BILL No. 788

 

 

January 30, 2018, Introduced by Senators STAMAS, ANANICH, HUNE, BIEDA, HOPGOOD, JONES, HORN, HOOD, COLBECK and GREGORY and referred to the Committee on Government Operations.

 

 

     A bill to create the office of the state employee ombudsman;

 

to provide a process for investigating and evaluating reports of

 

suspected violations of law, conduct or decisions that may endanger

 

public health or safety, and gross mismanagement of public funds;

 

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 "state

 

employee ombudsman act".

 

     Sec. 2. As used in this act:

 

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

 

decision, recommendation, practice, or other procedure of a state

 

department or agency.

 


     (b) "Complainant" means an individual who submits a complaint

 

to the ombudsman under this act.

 

     (c) "Council" means the legislative council provided for in

 

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

 

created in section 103 of the legislative council act, 1986 PA 268,

 

MCL 4.1103.

 

     (d) "Office" means the office of the state employee ombudsman

 

created in section 3.

 

     (e) "Ombudsman" means the state employee ombudsman appointed

 

under section 3.

 

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

 

association, governmental entity, or other legal entity.

 

     (g) "State department or agency" means a state department or

 

other agency within the executive branch.

 

     (h) "State employee" means a full-time or part-time employee

 

of a state department or agency.

 

     Sec. 3. (1) The office of the state employee ombudsman is

 

created within the legislative council.

 

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

 

employee 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

 

state employee concerning an administrative act.


     (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 investigations.

 

     Sec. 6. (1) Upon request, the ombudsman must be given access

 

to all information, records, and documents in the possession of a

 

state department or agency that the ombudsman considers necessary

 

in an investigation, including, but not limited to, all of the

 

following:

 

     (a) Violations or suspected violations of law.

 

     (b) Conduct by a state department or agency that will, or is

 

substantially likely to, endanger public health or safety.

 

     (c) Gross mismanagement or waste of public funds.

 

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

 

that any individual 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, a state department or agency shall provide a

 

progress report concerning the administrative processing of a

 

complaint submitted to the state department or agency. After the

 

state department or agency 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 state department or agency. 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 state department or agency

 

that is or was a proper subject of investigation by the ombudsman.

 

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

 

the office 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 office 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.

 

     Sec. 11. (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.

 

The ombudsman may request that a state department or agency notify


the ombudsman within a specified time of any action taken on any

 

recommendation presented. The ombudsman shall notify the

 

complainant of the actions a state department or agency takes to

 

address the complaint.

 

     (2) In addition to the report prepared under subsection (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) Conduct that will or is substantially likely to endanger

 

public health or safety.

 

     (b) A violation or a suspected violation of law.

 

     (c) The gross mismanagement or waste of public funds.

 

     (d) A matter that the state department or agency should

 

consider.

 

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

 

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

 

     (g) An administrative act for which justification is

 

necessary.

 

     (h) Any other significant concern as determined by the

 

ombudsman.

 

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

 

prepared and submitted under subsection (2) to the state department

 

or agency and the complainant who requested the report.

 

     (4) A report prepared and recommendations made by the

 

ombudsman and submitted to the council under subsection (2) are

 

exempt from disclosure under the freedom of information act, 1976


PA 442, MCL 15.231 to 15.246.

 

     Sec. 12. Before announcing to the general public a conclusion

 

or recommendation that expressly or by implication criticizes a

 

state department or agency, the ombudsman shall consult with the

 

state department or agency. If the ombudsman publishes an opinion

 

adverse to a state department or agency, the ombudsman shall

 

include in that publication a statement of reasonable length made

 

to the ombudsman by the state department or agency in defense or

 

mitigation of the finding if that statement is provided within a

 

reasonable time as determined by the council.

 

     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(1).

 

     (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) A state department or agency shall not penalize

 

in any way a complainant for filing a complaint, providing

 

information to the council or a legislator, or cooperating with the

 

ombudsman in investigating a complaint.

 

     (2) A state department or agency 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. 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.