View from the Validation Committee: an ombudsman’s appointment and dismissal

The Ombudsman Association’s Validation Committee reviews applications for membership of the Association and makes recommendations to the Board. It is composed of three independent members and two members of the Board (one of whom is Chair of the Committee). The Chief Executive also attends to provide advice and record proceedings. In addition to reviewing new applications, the Committee makes recommendations in relation to the re-validation of existing Association members on a five-year cycle.

In assessing applications for membership and re-validation, the Committee considers whether the Association’s criteria for membership have been met. In doing so, the Committee occasionally comes across recurrent issues, which suggest areas of practice which would benefit from being discussed and clarified. In this post, Donal Galligan, the OA Chief Executive, highlights an issue which has been identified in a number of recent applications: the terms of appointment and dismissal for an ombudsman.

Among others, the Association’s criteria around appointment and dismissal require that:

• term of office is sufficient not to undermine independence (the appointment should be for a minimum of five years and if renewable, the renewal process should not undermine or compromise the office holder’s independence),
• the Ombudsman should be appointed by an open process without a predetermined outcome,
• appointment not to be subject to premature termination other than for incapacity, misconduct or other good cause (grounds for dismissal should be stated – those subject to investigation should not be entitled to exercise the power to terminate the Ombudsman’s appointment).

In relation to appointment of an ombudsman, the criteria require an open process of recruitment, where the position is publicly advertised. Open recruitment processes not only increase the quality of appointments by ensuring that there is a competitive process, but also provide a visible sign of the ombudsman’s independence. Similarly, independence is bolstered where the ombudsman is appointed for a term of office that frees the ombudsman from potential political / industry interference. Recent examples of appointment process the Committee have seen which have been in tension with the criteria include:

• where an ombudsman’s term of office has been less than the five year’s stipulated in the criteria or, more ambiguously, where an ombudsman is appointed on an open contract that does not include a minimum term of office,
• where an ombudsman has been appointed without an open recruitment process or where, despite open recruitment occurring in practice, there is no formal requirement for this to take place and, as a result, there is a risk that future appointment processes will not follow this practice.

In relation to minimum terms of office, the current criteria are clear and where terms of office are non-compliant, it can be expected that this will be picked up in subsequent revalidations. In relation to the open recruitment the key concern is that a commitment to open recruitment tends not to be reflected in legislative requirements or requirements of the scheme’s governing constitutions. While in most cases appointments are made openly, there is nonetheless no guarantee that this will happen each and every time. The Committee’s view is that a commitment to open recruitment should be made publicly, ideally included in the scheme’s founding documents, for good intentions to be translated into practice. An appointment that is not made via open competition is likely to be a matter of concern as part of the re-validation processes.

In relation to terms of dismissal, the Committee has queried recent applications where the grounds on which an ombudsman could be dismissed were either not specified or were not restricted to very limited circumstances. Criteria around appointment and dismissal are crucial to ensure the independence of ombudsman offices and the possibility of dismissal without good cause.

Examples of terms of dismissal which the Validation Committee has found not to meet the criteria and therefore required amendment include:

• a provision in an ombudsman’s contract of employment which stated that the contract could be terminated with one month’s notice by either party, but which did not specify the grounds on which termination were permissible,
• a provision in an ombudsman’s contract of employment which suggested that dismissal was permissible where “we think there is gross negligence” and which permitted dismissal on grounds stated in other handbooks or policy documents (and which did not make clear that unilateral changes to those documents were not permitted),
• a legislative provision which was unduly broad in giving a Minister authority to dismiss an ombudsman if it “appears to the Minister to be necessary for the effective performance of the functions of the office”.

Vague provisions around dismissal terms, or the ability of one party to reach subjective decisions on termination or unilaterally amend contractual terms, undermine the security of tenure which is essential for an ombudsman to carry out their role independently. While problematic practices around dismissal have not come to light, the Committee has been concerned with the ambiguity of terms of dismissal in several cases. In the Committee’s view best practice in meeting the dismissal criteria is for the grounds of dismissal (which should be very limited) to be stated unambiguously and exhaustively in the scheme’s founding document and/ or contracts of employment.

This post has aimed to share some of the insights from the Association’s validation process and highlight how the current criteria are operating and the types of issues that are arising. A series of posts will be published in the future to increase familiarity with the Validation Committee’s work and help members and prospective members better understand the requirements of the Association’s membership criteria. The criteria themselves and the application of them will also be reviewed following the current re-validation period and these posts will help feed into that process.