ADMINISTRATIVE OMBUDSMAN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP70B00338R000200070001-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 102
• Document Creation Date: December 15, 2016
• Document Release Date: December 23, 2003
• Sequence Number: 1
• Publication Date: January 16, 1968
• Content Type: OPEN

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ADMINISTRATIVE OMBUDSMA
HEARING
SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETIETH CONGRESS
SECOND SESSION
PURSUANT TO S. RES. 25
S. 1195
TO 'ESTABLISH THE OFFICE OF ADMINISTRATIVE OM-
BUDSMAN TO INVESTIGATE ADMINISTRATIVE PRACTICES
AND PROCEDURES OF SELECTED AGENCIES OF THE
UNITED -STATES
JANUARY. 16, 1968
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COMMITTEE ON THE JUDICIARY
JAM] iS0. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas EVERETT McKINLEY DIRKSEN, Illinois
SAM J. ERVIN, JR., North Carolina ROMAN L. HRUSKA, Nebraska
THOMAS J, DODD, Connecticut HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigar HUGH SCOTT, Pennsylvania
EDWARD V. LONG, Missouri STROM THURMOND, South Carolina
ED?,VARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana
QUENTIN N. BURDICK, N(rth Dakota
JOSEPH D. TYDINGS, Mar.-land
GEORGE A. SMATHERS, F orida
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE
EDWARD V. LONG, Missouri, Chairman
PHILIP A. HART, Michigan EVERETT McKINLEY DIRKSEN, Illinois
BIRCH BAYH, Indiana STROM THURMOND, South Carolina
QUE;NTIN N. BURDICK, North Dakota
BEENARD FENSTERwALD, Jr., Chief Counsel
BERNARD J. WATERS, Minority Counsel
BENNY L. KASS, Assistant Counsel
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CONTENTS
STATEMENTS OF WITNESSES
Alexander, Myrl E., Director of the Bureau of Prisons; accompanied by
Eugene Barkin,counsel --------------------------
Hamilton, Randy II., executive director, Institute for Local Self-Govern-
ment, Berkeley, Calif_____________________
Williams, Guy S., Assistant Director for Contact and Foreign Affairs,
Veterans' Administration; accompanied by Philip V. Warman, assistant
deputy general counsel -------_-___
Williams, Jerre S., Chairman of the Administrative Conference of the
United States; accompanied by John F. Cushman, Executive Director
and Webster P. Maxson, Executive Secretary of the Conference-------
Page
35
16
EXHIBITS
S. 1195, a bill to establish the Office of Administrative Ombudsman to
investigate administrative practices and procedures of selected agencies
of the United States--------------------------------
Biographical sketches for Jerre S. Williams, Chairman of the Administrative
Conference; John F. Cushman, Executive Director; and Webster P.
Maxson, Executive Secretary of the Conference -------- _ _ _
Public La
88
499
i
9
w
-
wh
ch created a permanent Administrative Conference
of the United States ---------------------------------------------
"The Ombudsman
" ex
t f
13
,
cerp
rom a report of the 32d American Assembly;
The American Assembly at Columbia University---------------
Bio
ra
hi
l
k
t
h
19
g
p
ca
s
e
c
on Randy H. Hamilton, executive director of the
Institute for Local Self-Government, Berkeley, Calif _
Bureau of P
i
'
li
24
r
son
s po
cy statements concerning Federal prisoners- _ _ _ _ _ _
38
APPENDIX
Agency comments on S. 1195:
Bureau of Prisons------------------------------------------
Inter
l R
53
--
na
evenue Service____________________ _ -
Veterans' Administration---------___ ------------
"Ombudsmen-1967 C
53
59
ompilation of State Proposals," excerpt from com-
mittee print issued in November of 1967---------------
"Annotated M
d
l O
b
d
"
61
o
e
m
u
sman Statute,
by Prof. Walter Gellhorn, Betts
professor of law at Columbia University; excerpt from "Ombudsmen for
American Government?" edited by Stanley V. Anderson--------------
"The Ombudsman's Relevance to American Municipal Affairs," by Profes-
sor Gellhorn, from the American Bar Association Journal of February
1968__________
"The Mexican `Amparo' as a Supplemental Remedy for the Redress of
Citizen's Grievances in California," January 1967, by Randy H. Hamilton
of the Institute for Local Self-Government---------------------
Letters from:
Prof. Walter Gellhorn, commenting on S. 1195 --------------------
Mr. John F. Nagle, chief, Washington office of the National Federa-
tion of the Blind____________________
Mr. Everett C. McKeage, attorney at law, San Francisco -_-........
(III)
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ADMINISTRATIVE OMBUDSMAN
TUESDAY, JANUARY 16, 1968
U.S. SENATE,
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND
PROCEDURE OF THE COMMITTEE ON THE JUDICIARY,
We sliington, D.C.
The subcommittee met, pursuant to notice at 10:10 a.m., in Room
3110, New Senate Office Building, Senator Edward V. Long of Mis-
souri (chairman of the subcommittee), presiding.
Present: Senator Long of Missouri (presiding).
Also present: Bernard Fensterwald, Jr., chief counsel; Benny L.
Kass, assistant counsel; William G. Ohlhausen, assistant counsel;
Bernard J. Waters, Senator Dirksen's office, minority counsel.
Senator LONG. The committee will be in order.
This morning the Senate Subcommittee on Administrative Prac-
tices and Procedure resumes hearings on the subject of ombudsman.
A little less than 2 years ago when our subcommittee first began an study-
ing this concept, it was necessary to explain what the word. "ombuds-
man" means. Since our hearing with the Swedish ombudsman in
March of 1966, there has been a lot of activity in this field. Today
it is not necessary to explain the meaning of the word.
(S. 1195 follows:)
[S. 1195, 90th Cong., first sess. ]
A BILL To establish the Office of Administrative Ombudsman to investigate administrative
practices and procedures of selected agencies of the United States
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That subchapter III of chapter 5 of title 5 of
the United States Code is amended by renumbering section 576 as section 577,
and inserting a new section 576 entitled "Administrative Ombudsman".
SEc. 2. As used in this Act, the term.-
,(a) "Ombudsman" means the Administrative Ombudsman duly appointed and
serving under the provisions of this Act.
(b) "Office" means the Office of the Administrative Ombudsman established
by this Act.
(c) "Agency" shall include the Social Security Administration, Veterans Ad-
ministration, Internal Revenue Service, and the Bureau of Prisons, and any
officer, employee, or member thereof acting or purporting to act in the exercise
of his official duties.
(d) "Administrative act" includes any action, omission, decision, recommenda-
tion, practice, or procedure.
SEc. 3. (a) There is hereby created an establishment of the Government to
be known as the Administrative Ombudsman, which shall be independent of the
executive department and under the direction and control of the Administrative
Conference. There shall be in the Office an Ombudsman and a Deputy Adminis-
trative Ombudsman who shall be appointed by the Ombudsman and shall per-
form such duties as may be assigned to him by the Ombudsman. During the
absence or incapacity of the Ombudsman, or at any time at which there is no
Ombudsman, the Deputy shall act as Ombudsman.
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(b) The Ombudsman shall be appointed by the President, by and with the
advice and consent of the Senate, for a term of five years. In no case shall
apny person hold the office for more than four full terms. The Ombudsman shall
receive compensation in an amount equal to that of .the Chief Judge of the
district of Columbia Court of Appeals. The annual rate of basic compensation
off the Deputy Ombud ;man shall be $22,500.
(c) The Ombudsmaa and the Deputy Ombudsman appointed under this Act
9611 be chosen, without regard to political affiliation, from individuals specially
qualified to perform the duties of the office. Each individual so appointed shall
lie an individual who-
(1) has been admitted to the practice of law before the highest court of
any State, possession, territory, Commonwealth, or the District of Columbia,
and is member of 1 he bar of that court in good standing ;
(2) is of good :noral character, and possesses a good reputation for pro-
fessional legal competence, personal integrity, diligence in the performance
of duty, and freedom from personal bias or prejudice ;
(3) has not, within the five-year period immediately preceding his appoint-
ment, served as as Member of Congress or as an appointed officer of any
agency as defined n this Act ;
(4) is a citizen of the United States.
(d) No person ma;r serve as Ombudsman or Deputy Ombudsman while a
Candidate for or holder of any elected office, whether municipal, State, or Federal,
r while engaged in an r other business, vocation, or employment.
(e) The Congress of the United States, by two-thirds vote in each House,
?~{gaay remove the Ombudsman from office when, in the judgment of the Congress,
)Gae has become permanently incapacitated, or has been guilty of any felony, mis-
conduct, or any other conduct involving moral turpitude, and for no other cause
a.nd no other manner except by impeachment.
(f) Subject to the civil service laws and the Classification Act of 1949, the
Ombudsman may appoint and fix the compensation of such personnel as may be
$ equired for the performance of the duties of the office. The Ombudsman shall
promulgate such rules and regulations as may be necessary to carry out the
duties imposed upon him by this Act, and he may delegate authority for the
performance of any such duty, except those specified in section 6 of this Act, to
any officer or employ se of the office. Such regulations shall include procedures
for receiving and processing complaints, conducting investigations, and :reporting
)iis findings.
(g) The Ombudsman is authorized to charge a nominal fee for the investiga-
'tion of complaints, aid to waive any such fee when, in his opinion, a financial
Lhardship may result t) the complainant.
Sac. 4. (a) The Ombudsman shall have jurisdiction to investigate the adminis-
trative acts, practices, or procedures, of any agency as defined in section 2(c).
,Where necessary the ,)mbudsman may exercise his powers under this Act without
;regard to the finality if any administrative act.
(b) Upon his own notion or upon any oral or written complaint of arty person,
the Ombudsman shall conduct or cause to be conducted, in such manner as he
shall determine to be appropriate, a full and complete investigation of any matter
which is an appropriate subject for investigation under section 5 of this Act,
sunless, in his opinion-
(1) there is presently available an adequate remedy for the grievance
stated in the coi ,plaint, whether or not complainant has availed himself of
it;
(2) the complaint relates to a matter that is outside the jurisdiction of the
Ombudsman ;
(3) complainant does not have a sufficient personal interest in the sub-
ject matter of th 5 complaint ;
(4) complainant has had knowledge of the action complained of for too
long a period bef )re the complaint was submitted ; or
(5) the complaint is trival, frivolous, vexatious, or not made in good
faith.
(c) If, with respect to any complaint the Ombudsman decides not to investi-
j gate, he shall inforn. the complainant of that decision and his reasons therefor;
j except that he shall not be required to divulge matters which would invade the
privacy of any individual, or interfere with legitimate governmental activities.
I In the event he decides to investigate, he shall notify the complainant and the
agency concerned in writing of that fact. The Ombudsman shall not be prohibited
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from making on-the-spot investigations of agency proceedings and activities,
subject to proper notice to an appropriate official.
SEC. 5. (a.) For purposes of this Act, an appropriate subject for investigation
by the Ombudsman is an administrative act, practice, or procedure, of any agency
which might be-
(1) contrary to law or regulation ;
(2) unreasonable, unfair, or oppressive ;
(3) based wholly or partly on a mistake of law or fact;
(4) based on improper or irrelevant grounds;
(5) unaccompanied by an adequate statement of reasons ;
(6) performed in an inefficient manner; or
(7) otherwise erroneous.
(b) In carrying out his duties under this Act, the Ombudsman may investigate
to find an appropriate remedy, or to make routine checks of the operations of
any agency or agencies covered under this Act. The Ombudsman may undertake,
participate in, or cooperate with general studies or inquiries, whether or not
related to any particular administrative agency or any particular administrative
act, if he believes that they may enhance knowledge about or lead to improve-
ments in the functioning of administrative agencies.
(c) In any investigation under this Act, the Ombudsman may (1) make in-
quires and obtain any and all information from the agency or agencies as he
deems necessary; (2) enter to inspect the premises of an agency; and (3) hold
private hearings with both the complaining individual and agency officials.
(d) Subject to the privileges which witnesses have in the courts of the United
States, the Ombudsman may (1) compel, at a specified time and place, by
subpena, the appearance and sworn testimony of any person who the Ombuds-
man has reasonable. cause to believe may be able to give information relating to a
matter under investigation; and (2) compel any person to produce documents,
papers, or objects! which the Ombudsman has reasonable cause to believe may
relate to a. matter under investigation. The Ombudsman is authorized to bring
an action. in a district court in. which the complainant resides, or has his principal
place of business, or in which the agency is situated, in order to enforce the afore-
mentioned powers.
SEC. 6. (a) Prior to rendering any opinion or making any recommendation that
is critical of any agency or person, the Ombudsman shall consult with that
agency or person. The Ombudsman shall allow that agency or person a reasonable
period of time to, take the necessary or appropriate action indicated, or to file a
statement of explanation with the Ombudsman.
(b) If, after any investigation conducted by him under this Act, the Ombuds-
man fincisi that (1) a matter should be further considered by the agency; (2) an
administrative act should be modified, amended, or canceled.; (3) a statute or
regulation on which an administrative act is based should be amended or re-
pealed; (4) reasons should be given for an administrative act; or (5) any other
action should be taken by the agency, he shall submit his views and recommen-
dations to the agency. The Ombudsman may request the agency to notify him
within a specified, time, of any action taken by the agency on his recommendations.
Any agency so requested shall be required to comply with such request.
(c) Within sixty days following the submission of his views and recommenda-
tions to any agency tinder subsection (b) of this section, the Ombudsman shall
transmit copies thereof, together with copies of the agency's reply, to the head
of the concerned agency, to the Chairman of the Administrative Conference of
the United States and to the appropriate committees of the Senate and of the
House of Representatives. The Ombudsman is further authorized to take such
action. as he, may determine feasible to make such information available to the
general public.
(d) The Ombudsman shall notify the complainant in writing of any action
taken by him. and by the agency with respect to his complaint.
SEC. 7. (a) If, in carrying out his- duties under this Act, the Ombudsman de-
termines, that any employee or officer of any agency has been guilty of a breach
of duty or misconduct in connection with his duties as an employee or officer of
such agency, the Ombudsman shall refer the matter to the appropriate authorities
in the Department of Justice.
(b) The Ombudsman shall, on or before March 1 of each calendar year, submit
to the President, to the Congress, and to the head of the Administrative Con-
ference a written report concerning his activities under this Act during the pre-
ceding calendar year.
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SFc. 8. {a) No proceed ng, decision, or report of the Ombudsman conducted
or made in accordance w tli the provisions of this Act shall be challenged, re-
, viened, quashed, or called into question in any court. No action, civil or criminal,
shah lie against the Oml-udsman or against any person holding any office or
appdintment under the Ombudsman, for anything the Ombudsman or such per-
sons may do, report, say in the course of the exercise or intended exercise of
theist functions under this Act, unless it is shown that they acted in bad faith.
The !Ombudsman shall not be called to give evidence in any court, or in any pro-
ceeding of a. judicial investigation.of his functions.
(b) Any letter addressed to the Ombudsman and written by any person in
custody on a charge of, of after conviction of, any offense under the laws of the
Unified States, or by any inmate of any institution under the control of the Bureau
of Pr}'isons, shall be immeciately forwarded, unopened, to the Ombudsman by the
institution where the wriF;er of the letter is detained or which he is an inmate.
(c) The provisions of this Act shall be in addition to the provisions of any
other law or regulation older which any remedy or right of appeal is provided
for uy person, or any procedure is provided for the inquiry into or investigation
of aty matter, and nothing? in this Act shall limit or affect any such remedy, right
of appeal, or procedure. The powers, conferred on the Ombudsman by this Act
may; be exercised by hin. notwithstanding any other provision of law to the
effect that any administrative action or omission shall be final or that no appeal
shall lie in respect thereof'.
S14c. P. Any person who willfully obstructs or hinders the Ombudsman in. the
proper exercise of his pow erg under this Act, refuses or willfully fails to comply
witty any lawful requirerient of the Ombudsman under this Act, or willfully
makes any false statement or misleads or attempts to mislead the Ombudsman in
the xereise of his powers under this Act, shall be fined not more than $1,000.
Sac. 10. There are hereby authorized to be appropriated such sums as may be
necessary, not in excess of $100,000, to carry out the provisions of this Act.
As I remarked at our, first hearing on this subject, any new idea, is
met with immediate opposition. Opposition to ombudsman today
con es from many places: from, elected officials, agency representatives,
and occasionally from the press. But in general, it seems safe to say
that the majority of Americans want and need some institution to help
then fight their city hall; they want some place to complain about
the operations of their government.
Decently, the subccmmittee issued a committee print listing the
ombudsman activities in 1967. Hawaii has become the first State in the
Union to formally cr(ate the office. We were encouraged. to find that
bil13 to create a State ombudsman: were introduced in some 27 State
legislatures; several cities are also considering the creation of an
ombudsman and, of course, several of my colleagues and I in the
Sedate have introduced bills to create various forms of Federal
ombudsmen.
here is today a nosed for some grievance procedure whereby the
complaining citizen can get his day in court. This function, in large
part is handled at the Federal level by the elected representatives in
Congress. There is still .room for additional procedures. For this reason,
we !look forward to watching the recently activated Administrative
Conference of the United States, which has the authority to take com-
plants from the public at Large. We are pleased to welcome the newly
ap ousted Chairman of the Administrative. Conference, Prof. Jerre
Williams, who will explore this subject with us this morning.
I here are, of cours(, other areas of the Federal Government which
neeq ombudsman-like review, including the Selective Service System,
ant farming and ab riculture. As this Congress progresses, we will
try I to study these problems also. It is, of course, at the State and :loeal
level where the ombucsman can be most useful. We are encouraged by
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the letters and comments of State and local governments throughout
the Nation who have expressed interest in our hearings, and are them-
selves considering ombudsman proposals. To assist these local gov-
ernments in their consideration of grievance procedures, we will also
hear this morning from Mr. Randy Hamilton, director of the Institute
for Local Self-Government. It is my understanding that Mr. Hamil-
ton's organization has made the only existing study of local grievance
procedures, and we will hear from Mr. Hamilton later in the day.
Before we turn to Professor Williams, I want to read a statement
which Ambassador Arthur Goldberg made while he was an Associate
Justice of the Supreme Court.
In Scandinavia, that excellent institution called the Ombudsman assists the
ordinary citizen in seeing that the law is not administered with an evil eye or
an uneven hand. He also assists the public official by clearing the air of unfound
charges. In both ways, the Ombudsman helps safeguard the integrity of equal
protection. The Ombudsman-or rather the idea it embodies-appropriately
adapted to our governmental institutions, towns, cities, states, and even the
Nation could help in the realization of our ideal of equal treatment of all citizens
by government officials.
Our first witness this morning is Prof. Jerre S. Williams, Chairman
of the Administrative Conference of the United States. Mr. Williams,
will you come around? We are certainly delighted to have you here.
We, of course, have been very anxious for this position to be filled
since this bill was considered, and passed on by this committee and
Congress, and we are delighted to welcome you here in your new
position and in your first appearance before the committee that con-
sidered the legislation.
Will you introduce your two colleagues to the committee and then
I believe you have a prepared statemenlt which we will be glad to
hear at this time.
STATEMENT OF JERRE S. WILLIAMS, CHAIRMAN OF THE ADMIN-
ISTRATIVE CONFERENCE; ACCOMPANIED BY JOHN F. CUSHMAN,
EXECUTIVE DIRECTOR OF THE CONFERENCE, AND WEBSTER P.
MAXSON, EXECUTIVE SECRETARY OF THE CONFERENCE
Mr. JERRE WILLIAMS. Thank you, Mr. Chairman.
I do appreciate your welcome. I am delighted to be here.
I have a prepared statement. It is quite short, and I believe I would
rather stick fairly close to it except as you would like to have me
digress with whatever questions you may have.
Senator LONG. If you would prefer to finish your entire statement
before-
Mr. JEilnn WILLIAMs. No; if you would like to ask questions that
would be fine.
Senator LoNG. You may proceed with your statement.
Mr. JERRE WILI.IAMs. Mr. Chairman, my name is Jerre S. Williams,
and I am Chairman of the Administrative Conference of the United
States. I am accompanied today by the Executive Director of the
Conference, Mr. John F. Cushman, on my right, and the Executive
Secretary of the Conference, Mr. Webster P. Maxson, on my left.
. It is a particular pleasure and honor to be invited to make my first
official appearance before the subcommittee which played such a lead-
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ing role in the establishment of the agency I am privileged to head.
I regard the Administrative Conference Act as landmark legislation.
I assure you we will devote our best efforts to carry out its important
policies and programs.
At the outset I must make it clear that I am not today a spokesman
for the Administrative Conference. The conference is just in the very
early stages of being organized. Its membership has not been fully
selected, and it has not yet met. It follows that today I testify only
in in individual capacity as Chairman of the Conference. Moreover,
I fee it wise to adopt the suggestion in your letter of invitation; my
rema ks are limited to exploring the concept of ombudsman and the
Administrative Conference as they relate to the handling of citizens'
grievances, without tak'ng a specific position on the bill you have be-
fore you.
It is obvious, but yet so inescapably true it should be stated here
again, that every effort must be made to establish the dealings of our
citiz(-ns with their government on a fair, thorough, and expeditious
basis; I am sure the vase bulk of those in government service who deal
diregtly with our citizens are as thoroughly convinced of this as are
the 4itizens themselves. Our system of government works in large
measure because it is composed of dedicated public servants of integ-
rity who do a magnificent job. At the same time there is and there
always will be room fo ? improvement in the practices and procedures
of the administrative pi ocesses of our government.
The current moves coward experimentation with the ombudsman
concept surely are desirable. One of the outstanding advantages of the
Federal System is that it enables experimentation with various agen-
cies for the improvement of government at State and local levels.
Thu', I am pleased tc. see the number of proposals for the use of
ombudsman at these leirels of government, for they should prove use-
ful i our own examinai ion of the subject.
On the Federal scene, the consideration of the creation of an om-
budsman as set out in tie chairman's proposed bill is a worthwhile and
useful inquiry. The application of the ombudsman concept to the
Federal Government does raise some significant considerations, how-
ever which should ben entioned.
Tie first and most obvious of these is the size of the Federal Gov-
ernment structure and the scope of its multitude of administrative
professes. There is some evidence, as this committee knows from, its
extensive study of particular cases, that the ombudsman technique may
work most effectively in smaller and simpler governmental structures.
Thee is, therefore, tho very real possibility that a single ombudsman
for all Federal regulatory processes would require such a large orga-
nization that it might become a super agency which could be more of
an obstruction to the administrative processes than a means of ex-
ped ting them. I am, of course, fully aware that the chairman's bill
is n uch more limited i:i scope, and if an ombudsman is to be developed
in the Federal structure, a limited scope for his activities is desirable,
at least initially.
G losely related to what I have just said is that if we do adopt this
approach we must be nindful of the danger that concentration upon
individual complaints may bog down the governmental processes to
thei extent that far-reaching and important improvements to the
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benefit of all citizens become more difficult to accomplish. Certainly we
do not want to create what amounts to new administrative processes
which would expend undue time and effort to redo administrative
action which has been taken already in the regular administrative
structure.
Another preliminary observation I would make concerning the
ombudsman facility as it applies to the Federal scene is that we al-
ready have a number of effective governmental processes filling a simi-
lar function. I need not stress to this committee the tremendously useful
and dedicated work along these lines which is carried out by the Mem-
bers of Congress and their staffs. The heads of the executive depart-
ments and the independent regulatory agencies also have fine records
in resolving their own administrative difficulties. Our system of judi-
cial review of administrative determinations provides a remedy against
arbitrary or capricious action or actions contrary to law. It should
be emphasized that in those countries in which the ombudsman facility
has wide use we do not find as highly developed systems of judicial
review of administrative action as we do in this country. And then,
of course, the Office of the President hastraditionally received citizens'
complaints and has been a strong influence in resolving many of them
or explaining to an aggrieved citizen the rationale for governmental
action taken.
With these general observations, I should now like to turn my at-
tention to the role of the Administrative Conference as it relates to
the ombudsman concept. It should be obvious to the members of this
committee that I am enthusiastic about the prospects for the new per-
manent Administrative Conference. It will be a means for the constant
and continuing improvement of Federal regulatory practices and
procedures. I should like to emphasize, that the Administrative Con-
ference is not and will not become a super agency. The Congress has
wisely constituted it in such a way that the governmental depart-
ments and regulatory agencies will play a dominant role in improving
their own procedures. The Administrative Conference is established
at the same level as the regulatory agencies for the purpose of creating
a mechanism and an environment whereby they can themselves work
together in a structured organization to bring about improvements in
practices and procedures. In addition, the conference enables the in-
jecting into this process of self-improvement, some of the finest and
most skilled minds from outside the Government as a leavening agent.
The previous temporary Administrative Conferences, under the most
able leadership of Judge Prettyman, showed that the departments
and agencies through the use of this kind of organization are willing
and eager to participate. The fact that there should be a Conference
organized on a permanent basis was one of the principal recommenda-
tions of the last temporary Conference, and the widespread support
this recommendation received from all quarters augurs well for the
future of the Conference.
More particularly as it relates to the ombudsman concept, the Ad-
ministrative Conference may well develop into an effective agency
for fulfillinsome of the more important objectives envisioned in the
ombudsman's role. The major statutory charge for the conference is
the improvement of administrative practices and procedures which
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serve the public. Ths first power given to the Chairman by the statute is
o "make inquiries into matters he deems important for Conference
onsideration, inclu ding matters proposed by persons inside or outside
he Federal Govern went."
I regard this statutory directive as a specific authorization for the
Chairman and the Conference to investigate particular regulatory
processes and procedures whenever there is indication from any source
that such particular processes and procedures are trouble spots. This
indication may arise from a series of citizens' complaints, but could,
of course, be manifc sted in a single complaint.
I do stress, howeirer, that I do not envisage the Administrative; Con-
ference or the Offic 3 of the Chairman handling individual complaints
on a substantive basis-that is, to determine the correctness or incor-
tectness of a particular action on the merits. But I do see the use of
citizens' complaints as a means of pinpointing troublesome areas that
he Conference might wish to investigate.
Senator LONG. M ly I interrupt you right there?
Mr. JERRE WILLIAIMS. Yes.
Senator LONG. That would be in this area where the ombudsman
concept might be of some assistance in handling individual complaints.
Mr. JERRE WILLIAMS. That is correct. The statutory charge of the
Administrative Co:iference is limited to procedures only, and is not,
herefore, concerned with the substance of any particular complain.
Senator LONG. YOU mentioned a moment ago one of the problems
eve have considered-and that is the size of the Federal Government.
ut Mr. Fensterwald just pointed out to me that Great Britain, with
population of approximately 50 million, has just installed an om-
udsman system in their government.
Mr. JERRE WILL.AMS. Yes, they have.
Senator LONG. So we will watch that with interest to see how they
get along.
Mr. JERRE WILLIAMS. It is realty exciting for us to know that
Great Britain has installed such a system and to watch how it operates
there.
For the Administrative Conference, I do see the use of citizens'
complaints as a moans of pinpointing trouble in some areas that the
Conference might ?vish to investigate. From the Conference may then
come remedial procedural recommendations for improvements which
will redound to thO advantage not just to the complainant but to all
citizens involved in those regulatory programs.
I might add tha.t this concept of the function of the Administrative
conference as it elates to individual citizen complaints seems to be
~n line with that of Prof. Walter Gellhorn of Columbia, who is un-
doubtedly, as I an. sure you know, one of the leading experts in the
United States on ombudsmen and similar devices for resolving citizen's
complaints against governmental action. In his book, "When Ameri-
cans Complain," he sets forth a role of the Administrative Confer-
ence similar to what I have just outlined and I quote :
The Administrative Conference of the United States is particularly well suited,
n structure and in concept, to analyze methodological problems and ;prescribe
their solution; if the conference functions as It should, complaints should be-
come less voluminous.
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As soon as the Administrative Conference is sufficiently organized
to begin its work, a first order of business, of course, will be the selec-
tion of potentially fruitful subjects for conference study. Careful
consideration in this selection process will be given' to the possibility
of evaluating the application of the ombudsman idea in our Federal
establishment and the potential utility of the various forms in which
.the mechanism might be tried in this country. Such questions would
seem to me to be among the appropriate initial undertakings of the
Conference, and I plan to suggest this topic to the Conference for
its early consideration.
Finally, as I complete my statement, I would like to say, I look
forward to close cooperation with the Congress, this subcommittee,
and the Federal departments and agencies. Our common goal is to
improve administrative practices and procedures. The most direct
and effective way is for the agencies themselves continually to review
their practices and to initiate and adopt improvements themselves.
But the philosophy underlying the concept of the ombudsman or
any other technique for meaningful handling of citizens' complaints
is sound. The specific question is how that philosophy can be adopted
to our huge Government structure in a way which will do the most good
for the most citizens. Our obvious aim should be to cure the problems
in regulatory processes without becoming fettered by detail. In short,
our common direction should be to devise procedures which will lessen
the need for an ombudsman to handle a multitude of specific complaints
from aggrieved citizens.
I am confident the Administrative Conference can play a significant
role in working toward the achievement of this aim. We welcome the
aid, advice, and guidance of this subcommittee and of the Congress
as we organize and begin our assigned tasks.
That completes my prepared statement, Mr. Chairman.
Senator LONG. Thank you, Mr. Chairman. It is a very fine state-
ment. Without objections, we will place in the record at this paint the
biographical sketches of Mr. Williams, Mr. Cushman, and Mr. Masson.
(The information follows:)
BIOGRAPHICAL SKETCH OF JERRE S. WILLIAMS
Jerre S. Williams was born in Denver, Colo., August 21, 1916, the son of the
late Wayne C. Williams and Lena Day Williams. He was reared in Denver where
his father was a practicing attorney and at one time was Attorney General of
Colorado and also Special Assistant to the Attorney General of the United States.
Mr. Williams graduated from the University of Denver in 1938 with an A.B.
degree in political science; graduated from Columbia Law School with an LL.B.
degree in 1941. While at Columbia Law School he was an editor of the Columbia
Law Review and a Kent Scholar. He was admitted to the Colorado Bar in 1941,
the Texas Bar in 1950, and the Bar of the United States Supreme Court in 1945.
In 1941, Mr. Williams began his law teaching career at the University of Iowa
Law School. In the summer of 1942, he served as an attorney in the- Office of
Price Administration while awaiting his call of active duty in the Air Force.
In the fall of 1942, he entered the Air Force and, served as a Legal Officer in the
Air Transport Command until his release from active duty in 1946.
In the spring and summer of 1946, Mr. Williams served as Assistant Professor
of Law at the University of Denver Law School while awaiting his joining of
the faculty at the University of Texas Law School in the fall of 1946. He served
successively as an Associate Professor of Law and Professor of Law at the
University of Texas until appointment as Chairman of the Administrative Con-
ference of the United States in October of 1967. In 1964, he was named the
Rex G. Baker and Edna Heflin Baker Professor of Constitutional Law at the
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University of Texas. In 1958, he was the first Professor in the Law School to
be awarded the Teaciing Excellence Award upon designation of the students.
$Ie was given this award again in 1964. Mr. Williams has also taught summer
terms at the University of Chicago Law School, the University of California
at Los Angeles Law school, and the University of North Carolina Law School.
In 1955 and 1956, Mr. Williams took leave from the University of Texas to
serve as Associate Stag Director of the Special Committee on Loyalty-Security
of the Association of the Bar of the City of New York. In the summer of 1960,
be made a study of ccmparatioe free speech problems in London, England under
a grant of Ford. Fou idation funds from the University of Texas Law School.
In 1964-1966, lie served as Chairman of the 'Southwest Regional Manpower
;Advisory Committee under the joint appointment of the Secretary of Health,
Education and Welfare and the Secretary of Labor.
Mr. Williams is the author of several books, including The Supreme Court
Speaks, 1956, Cases and Materials on Employee's Rights, 1952, Second Edition,
x958, and he is the Editor-in-Chief of the Third Edition of Labor Relations
and the Law, 1965. In 1963, he won the Ross essay prize of the American
Bar Association.. He delivered a paper at the Fifth International Congress of
Labor Law and Social Legislation in Lyon, France in 1963, and in 1966, he
-delivered a paper a ; the Sixth International Congress of Labor Law and
Social Legislation in Stockholm, Sweden. He is also the author of numerous
articles in legal publications.
An active labor arbitrator for many years, Mr. Williams is a member of the
National Academy of Arbitrators, having served on its Board of Governors.
Mr. Williams was harried in Austin, Texas in 1950 to the former Mary Pearl
Hall who also is an attorney. They have three children : Jerre Stockton Jr.,
Shelley Hall, and Stelhanie Kethley.
Mr. Williams is a Democrat, and a member of the University Methodist
Church in Austin, Tee:as, where he has served on the Official Board, as Chairman
bf the Pastoral Rela'ions Committee, and as Chairman of the Commission on
Christian Social Concerns.
i Mr. Williams has two brothers. Dr. Daniel Day Williams is Professor of
Systematic Theology at the Union Theological Seminary, Now York City, and
Mr. Wayne D. Williams Is a practicing lawyer in Denver, Colo. Another brother,
Roger W. Williams is deceased.
BIoa{RAPIIICA7: SKETCH OF JOHN F.. CUSHMAN
Born November 20, 1922 the son of Professor (Emeritus) and Mrs. Robert
B. Cushman of Cornell University, Mr. Cushman attended public schools at
Ithaca, New York, and the Westtown (Pa.) Friends Preparatory School. He
received his A.B. de.free with honors from Cornell University in 199:4, served
in the Field Artillery until the end of W.W. II, being discharged as a First
Lieutenant, and obtained his law degree from the Cornell Law School in 1949,
where he was a member of the Law Journal.
From 1949 to 1951 he was law clerk, first to Judge Henry W. Edgerton of the
Circuit Court of Appeals for the District of Columbia Circuit and, later, to
Mr. Justice Robert H. Jackson of the Supreme Court of the United States.
Mr. Cushman joined the Department of Justice In 1961 as a trial attorney in
the Office of Alien Property. From 1953 -to 1957 he was a general attorney in
the Department's Oi6ce of Legal Counsel. After serving as Associate General
Counsel of the Interstate Commerce Commission (1957-1958), he returned
to the Department (f Justice as Director of the Office of Administrative Pro-
cedure (1958-1959), and served as Executive Assistant to the Attorney General
(1959-1961).
In May 1961 he became the Assistant General Counsel for Administrative Law
and Treaties, Federi.l Communications Commission, and in September 1962 was
appointed Administrative Assistant to Chairman Newton N. Minow, a position he
continued to hold wider Chairmen E. William Henry and Rosel H. Hyde. He
joined the staff of the Administrative Conference of the United States in January
1968 as Executive Director under Chairman Jerre S. Williams.
Mr. Cushman is t member of the Annandale Methodist Church, Phi Beta
j Kappa, Phi Kappa. Fhi, the Order of the Coif, and is admitted to practice before
the Bar of the State of New York and the Supreme Court of the United. States.
He married Jane : J.' Casterline of Ithaca, New York, March 6, 1945: children,
Mrs. - Fred N. Nado+au of Portland, Oregon, John, Jr. and Robert H. ; their
residence is 4312 Braeburn Drive, Fairfax, Virginia.
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BIOGRAPHIC SUMMARY, WEBSTER P. MASON
Career public servant now in his 23rd year of Federal service. Born Septem-
ber 24, 1916, the second of four sons of Harold S. and Bertha (Kapple) Maxson,
his voting residence is in Massachusetts. Mr. Maxson is a graduate of Amherst
College (1939) and the College of Law, University of Cincinnati (1949), and
studied accounting at George Washington University (1951). He served for
five years in Army Air Forces.
Mr. Maxson's early government experience was as a trial attorney handling
litigation in the Federal courts throughout the country on behalf of the Govern-
ment, and as bureau counsel in a great many administrative proceedings before
the Department of Agriculture and the Federal Communications Commission.
As a member of the staff of the Office of Legal Counsel in the Department of
Justice, he did considerable work in connection with proposed legislation involving
a variety of subjects.
In 1959, Mr. Maxson was appointed Director of the Office of Administrative
Procedure in the Justice Department. He also has served as Staff Director of the
President's Panel on Ethics in Government, in 1961, and was Executive Secretary
of the temporary Administrative Conference of the United States which operated
in 1961 and 1962.
His present position is Director, Office of Administrative Procedure, Depart-
ment of Justice. He is acting as Executive Secretary of the permanent Adminis-
trative Conference of the United States established pursuant to 5 U.S.C. 571-576.
As I said a moment ago, we are delighted that you are serving as
chairman and that this Administrative Conference will now proceed
to perform the duties that we think it will. We hope that it works out
well. It might even put.the ombudsman out of business-making it an
unnecessary institution.
Mr. JERRE WILLIAMS. It would be a wonderful thing if it could,
and we will try.
Senator LON(k. But as you indicated in your statement, if an om-
budsman is to be established, it would require the close cooperation
with you and the Office of the Administrative Conference. I am sure
that your working together would be very gratifying.
Mr. JERRE WILLIAMS. Yes.
Senator LONG. Mr. Fensterwald, do you have any questions?
Mr. FENSTERWALD. No.
Senator LoNG. Mr. Kass?
Mr. KASS. Thank you, Mr. Chairman.
Senator LONG. Benny Kass has been doing a lot of work on this
subject.
Mr. KASS. Professor Williams, there has been a lot of concern about
the question of size, as to whether one ombudsman can handle all of
the problems and complaints that come in at the Federal level. Pro-
fessor Gellhorn, as you mentioned, in his book made the comment that
there is no magic to the number one-perhaps we could set up four or
five or six ombudsmen. In this connection, would a form of regional
ombudsmen with jurisdiction, for example, over all of the Federal
activities in a particular State or two States seem to work as an exper-
iment in your mind?
Mr. JERRE WILLIAMS. Mr. Kass, I would, certainly, anticipate some
jurisdictional problems in matters that go between States, and I am
sure you have anticipated them, too. But in general, this kind of ap-
proach of experimenting with the ombudsman concept in a region or
at a lower governmental' level or in a more selected area, as the chair-
man's bill does, it seems to me, is the way to work effectively toward
the proving out of this concept.
Mr. KASS. As an experiment?
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MI.. JERRE WILLIAMS. As an experiment, that is right.
Mr. KASS. When Senator Long introduced S. 1195, he made the
state ent that we have selected the four agencies, Bureau of Prisons,
VA, and the others because, and I quote the Senator, "the great bulk of
citizens' complaints ar.se in connection with the above-mentioned
agencies."
When the Department of the Treasury responded to the bill in their
letter, they made the coinment that if any agency at the national level
is to be made the subject of an innovative experiment, the agency se-
lecte4 should be such as serves or deals with a relatively small number
of persons and administers a law that is not overly complex or fre-
quently changed, referring obviously to the Internal Revenue proce-
dure.Do you have any comments on this-suggestion?
Mr. JERRE WILLIAMS. Yes, Mr. Kass. It seems to me that you can
get the restricted scope in any one of several directions. One of them
is to limit it to certain a?encies, and not try to cover the entire Federal
Government. Another o_ie would be to limit it to agencies where there
would not be many coml laints. It could be done either way.
It certainly seems to me that there can be substantial justification for
considering the innovative experiment in an area, such as these four
agencies, that most commonly involves what we might call relatively
small citizen complaintE. They are not the complaints of large indiis-
tries or anything like that, but they are the individual dealing with his
government, and this is a. way to restrict it and try it out.
Of ;course, I don't thir k we can anticipate just how many complaints
will come in on that ba:;is, but it is an innovative experiment and we
could' see. But you could restrict it either way.
Mr, KASS. Of course, the Swedish expert who testified that the
petty complaints of the citizens bother them more than anything else.
Mr Jiuun WILLIAMS. They are the complaints of the citizens, and
the danger is we may s:.t back and take a look and say, "we can't be
bothered with those thir gs."
Mr. KASS. And we may find that 80 to 90 percent of the complaints
in the United States ari unfounded as the Swedish ombudsman and
rnan311other ombudsmen have found.
Mr JERRE WILLIAMS. We don't know. -I would emphasize again at
this point the value of ombudsmen experiments at the State and local
level such as we are getting around the country, for this very- purpose.
Mr KASS. Now, in our S. 1195, section 3 of the bill puts the admin-
istrative ombudsman under the control and direction of yourself as
Chairman of the Administrative Conference. Is this a workable pro-
cedure, do you think?
-
Mr; JERRE WILLIAMS. I think there are some difficult problems here.
Certainly it doesn't follow the patterns which we have seen elsewhere
in the world-to have fm ' ombudsman in one sense under the super-
vision of somebody else.
Nov, I recall that Kenneth Culp Davis, in his analysis of the
ombudsman concept, inc.icated he thought there could be a bifurcated
Administrative Confere ice, one side of it being the Conference con-
cept, and the other side being the ombudsman concept. This it seems
to mey is simply a detail. The function is the important thing. I would
say in summary that I aave some reservations about the precise way
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that the relationship is set up here because I think it is somewhat vague
and indefinite. I am not sure just how it would work out.
Mr. KASS. But in theory, even without the legislation, you could set
up a form of ombudsman office under the Administrative Conference.
Mr. JERRE WILLIAMS. I certainly think this is so, and it might well
be that the Chairman of the Conference would have to be viewed as
something of an ombudsman, and then this creates problems because
he is also the Chairman of the Conference, and it is a bifurcated
set up.
Mr. KASS. Although the legislation clearly allows you to take com-
plaints from outside the Government.
Mr. JERRE WILLIAMS. This is certainly true, that is right, but on
the procedural basis.
Mr. KASS. Mr. Chairman, I have no further questions.
Senator LONG. Mr. Waters?
Mr. WATERS. Professor, it is a pleasure to welcome you to your new
endeavor, and I wish you every success in it.
Mr. JERRE WILLIAMS. Thank you.
Mr. WATERS. I have no questions for you at this time except to wish
you well, and I assume that you will be appearing before similar
committees and subcommittees with equal profit in time to come. I
look forward to the opportunity of discussing with you your new
work in due course.
Thank you very much.
Mr. JERRE WILLIAMS. Thank you very much, Mr. Waters. I look
forward to further appearance before this and other similar com-
mittees.
Senator LONG. Thank you Mr. Chairman. We are grateful to you
for appearing this morning. At this point in the record shall be printed
a copy of Public Law 88-499 which created the permanent Administra-
tive Conference.
(The information follows:)
[Public Law 88-499, 88th Cong., S. 1664, Aug. 80, 19641
AN ACT To provide for continuous improvement of the administrative procedure of
Federal agencies by creating an Administrative Conference of the United States, and
for other purposes
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That this Act may be cited as the
"Administrative Conference Act".
FINDINGS AND DECLARATION OF POLICY
SEC. 2. The Congress finds and declares that-
(a) administration of regulatory and other statutes enacted by Congress
in the public interest substantially affects large numbers of private in-
dividuals and many areas of business and economic activity ;
(b) the protection of public and private interests requires continuing
attention to the administrative procedure of Federal agencies to insure
maximum efficiency and fairness in achieving statutory objectives ;
(c) responsibility for assuring fair and efficient administratve procedure
is inherent in the general responsibilities of officials appointed to administer
Federal statutes;
(d) experience has demonstrated that cooperative effort among Federal
officials, assisted by private citizens and others whose interest, competence,
and objectivity enable them to make a unique contribution, can find solu-
tions to complex problems and achieve substantial progress in improving
the effectiveness of administrative procedure; and
(e) it is the purpose of this Act to provide suitable arrangements through
which Federal agencies, assisted by outside experts, may cooperatively
92-437-68-a
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study mutual prnblems, exchange information, and develop recommenda-
tions for action by proper authorities to the end that private rights may be
fully protected and regulatory activities and other Federal responsibilities
may be carried o it expeditiously in the public interest.
(a) "Administrative program" includes any Federal function which involves
protection of the public interest and the determination of rights, privileges, and
bbiigations of private? persons through rulemaking, adjudication, licensing or
vestigation, as those terms are used in the Administrative Procedure Act (5
U.S.C. 1001-1011), ex Sept that it does not include any military, naval, or foreign
affairs function of the United States.
I (b) "Administrative agency" means any authority as defined by section 2(a)
Pf the Administrative Procedure Act (5 U.S.C. 1001(a) ).
(c) "Administrative procedure" means procedure used in carrying out an ad-
ministrative program and shall be broadly construed to include any aspect of
agency organization, procedure, or management which may affect the equitable
consideration of public and private interests, the fairness of agency decisions,
the speed of agency action, and the relationship of operating methods to later
judicial review, but Shall not be construed to include the scope of agency re-
sponsibility as established by law or matters of substantive policy committed by
.~aw to agency discretion.
I ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
SEC. 4. (a) There is hereby established the Administrative Conference of the
United States (hereinafter referred to as the "Conference"), which shall con-
ist of not more than ninety-one nor fewer than seventy-livemembers appointed
"set forth in subsect:.on (b) of this section.
(b) The Conference shall be composed of-
(1) a full-time Chairman, who shall be appointed for a five-year term
by the President by and with the advice and consent of the. Senate. The
Chairman shall receive compensation at the highest rate established by law
for the chairmar, of an independent regulatory board or commission, and
may continue to serve until his successor has been appointed and has
qualified ;
(2) the chairn an of each independent regulatory board or commission or
a person designat 3d by such board or commission ;
(3) the head of each executive department or other administrative agency
which is designa:ed by the President, or a person designated by such head
of a department cr agency ;
(4) when authorized by the Council, one or more, appointees from any
such board, commn1ssion, department, or agency, designated by the depart-
ment or agency mead or, in the case of a board or commission, by the head
of such board or commission with the approval of the board or commission;
(5) persons appointed by the President to membership upon the Council
hereinafter established who are not otherwise members of the Conference;
and
(6) no more tian thirty-six other members appointed by the Chairman,
with the approval of the Council, for terms of two years: Provided, That
the number of members appointed by the Chairman shall at no time be less
than one-third nor more than two-fifths of the total number of members.
Such members s hall be selected in a manner which will provide broad
representation of the views of private citizens and utilize diverse experience,
and shall be meiibers of the practicing bar, scholars in the field of admin-
istrative law or government, or others especially informed by knowledge and
experience with I espect to Federal administrative procedure.
(c) Members of the Conference other than the Chairman shall receive no com-
pensa?tion for service but members appointed from outside the Federal Govern-
iment shall be allowed travel expenses, including per diem in lieu of subsistence,
as authorized by law (5 U.S.C. 73b-2) for persons serving without compensation.
DUTIES AND POWERS OF THE CONFERENCE
j SEC. 5. To carry out the purposes of this Act the Conference is authorized to-
(a) study the efficiency, adequacy, and fairness of the administrative
procedure used ~)y administrative agencies in carrying out administrative
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15
programs, and make recommendations to administative agencies, collec-
tively or individually, and to the President, the Congress, or the Judicial
-Conference of the United States, in connection therewith, as it deems
appropriate;
(b) arrange for interchange among administrative agencies of informa-
tion potentially useful in improving administrative procedure ; and
(c) collect information and statistics from administrative agencies and
publish such reports as it deems useful for evaluating and improving
administrative procedure.
ORGANIZATION OF THE CONFERENCE
Sm. 6. (a) The membership of the Conference meeting in plenary session
.shall constitute the Assembly of the Conference. The Assembly shall have ulti-
mate authority over all activities of the Conference. Specifically, it shall have
power to (1) adopt such recommendations as it deems appropriate for improving
administrative procedure : Provided, That any member or members who disagree-
with a recommendation adopted by the Assembly shall be accorded the privilege
of entering dissenting opinions and alternative proposals in the record of Con-
ference proceedings, and the opinions and proposals so entered shall accompany
the Conference recommendation in any publication or distribution thereof ;
and (2) adopt bylaws and regulations not inconsistent with this Act for carry-
ing out the functions of the Conference, including the creation of such com-
mittees as it deems necessary for the conduct of studies and the development of
recommendations for consideration by the Assembly.
(b) The Conference shall include a Council composed, of the Chairman of the
Conference, who shall be the Chairman of the Council, and ten other members ap-
pointed by the President, of whom not more than one-half shall be officials or
personnel of Federal regulatory agencies or executive departments. Members
other than the Chairman shall be appointed for three-year terms, except that the
Council members intially appointed shall serve for one, two, or three years, as
designated by the President: Provided, That (1) the service of any member
shall terminate whenever a change in his employment status would make him
ineligible for Council membership under the conditions of his original appoint-
ment, and (2) except as provided in item (1), above, any member whose term
has expired may continue to serve until a successor is appointed. The Council
shall have power to (1) determine the time and place of plenary sessions of the
Conference and the agenda for such meetings and it shall call at least one
plenary session each year; (2) propose bylaws and regulations, including rules
of procedure and committee organization, for adoption by the Assembly; (3)
make recommendations to the Conference or its committees upon any subject
germane to the purposes of the Conference; (4) receive and consider reports
.and rconunendations of committees of the Conference and tansmit them to
members of the Conference with the views and recommendations of the Council ;
(5) designate a member of the Council to preside at meetings of the Council
in the absence or incapacity of the Chairman and Vice Chairman ; (6) designate
such additional officers of the Conference as it may deem desirable; (7) approve
or revise the Chairman's budgetary proposals;. and (8) exercise such other powers
as may be delegated to it by the Assembly.
(c) The Chairman shall be the chief executive of the Conference. In that
capacity he shall have power to (1) make inquiries into matters he deems
important for Conference consideration; including matters proposed by persons
inside or outside the Federal Government; (2) be the official spokesman for the
Conference in relations with the several branches and agencies of the Federal
Government and with interested organizations and individuals outside the Gov-
ernment, including responsibility for encouraging Federal agencies to effectuate
the recommendations of the Conference; (3). request agency heads to provide
information needed by the Conference, which information shall be supplied
to the extent permitted by law ; (4), recommend to ? the Council appropriate
subjects for action by.the Oonference;'(5) appoint, with the approval of the
.Council, members of committees 'authorized by the bylaws and regulations of
the Conference ; (6) prepare, for approval of the Council,, estimates of the
budgetary requirements of the Conference;. (7) appoint employees, subject to
the civil service and classification laws define their duties and responsibilities,
and direct and supervise their activities; (8) rent office space in the District
of Columbia ; (9) provide necessary services for the Assembly, the Council,
and the committees of the Conference; (10) organize and direct studies ordered
.by the Assembly or the Council, utilizing from time to time, as appropriate,
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experts and consultants who may be employed as authorized by section 15
of thg Administrative Exienses Act of 1946, as amended (5 U.S.C. 55a), but
at rates for individuals not to exceed $100 per diem ; (11) upon request of the
head of any agency, furnish assistance and advice on matters of administrative
procedure; and (12) exercise such additional authority as may be delegated to
him y the Council or the Assembly. The Chairman shall preside at meetings
of th Council and at each plenary session of the Conference, to which he shall
make) a full report concerning the affairs of the Conference since the last
preceding plenary session. The Chairman shall, on behalf of the Conference,
trans>;nit to the President t.nd the Congress an annual report and such interim
reports as he deems desirable.
(d) The President may designate a member of the Council as Vice Chairman,
who shall serve as Chairm in in the event of a vacancy in that office or in. the,
absence or incapacity of the Chairman.
APPROPRIATIONS
SEC. 7. There are hereby authorized to be appropriated such sums as may be
necessary, not to exceed $260,000, to accomplish the purposes of this Act.
Approved August 30, 1964.
Senator LONG. The next witness this morning is Mr. Randy IT..
Hamilton, the exccutivf: director of the Institute for Local Self-Gov-
ernment, Berkeley, Calf. Mr. Hamilton.
Mr. HAMILTON. Thank you.
Senator LONG. Mr. Hamilton, I understand that you have a px e-
pare. statement and th,I committee would be happy to hear it at this.
time.. We appreciate yo i.r coming clear across the country to be here
to te$tify before our committee this morning.
ST'AT1EMENT OF RANI T H.. HAMILTON, EXECUTIVE DIRECTOR,.
INSTITUTE FOR LOCAL',SELF-GOVERNMENT, BERKELEY, CALIF.
Mrt HAMILTON. Thank you Mr. Chairman, and with your indili-
gencey I will concentrate my efforts largely on my prepared statement..
I would suggest as a matter of procedure that if you find a question.
arising from my statement, I would be pleased to have you interrupt
at any time at your coi.venience..
Senator LONG. It will be necessary for me to listen to your statement
very closely. I see you haire used very small type.
Mr HAMILTON. May I also say at the outset, Mr. Chairman, as it
representative of a great State which has produced in our history-
a good many famous woodsmen that you would have less difficulty
with the term if you would call it omudsman-rhymes with "woods-
man"4-instead of other pronunciations. I have the same difficulty
with `tsmorgasbord."
I a ii Randy H. Hamilton, executive director of the Institute for
Local Self-Government, Berkeley, Calif. I make this presentation
to the' committee in response to its invitation of January 4, which
I assume to have been occasioned by the research efforts of the institute
for the past 21/2 years under a grant from the Stern Family Fund to,
study and inventory met. cods for the redress of citizen grievances.
The outstanding featt.re of public administration in this century,,.
at all! levels of government has been the extension of governmental
responsibility for the provision of new services and engagement in.
new functions. This has, of course, added new and larger dimensions
of administration which directly affects the lives and property of the
individual in a manner and on a scale not previously prevalent. An
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increasing number of discretionary decisions affecting the rights and
interests of citizens are being made-or are not being made-by
governmental agencies and employees. Government's policies and the
implementation of them through the bureaucracy affect the lives of
people not envisaged in a way when the structure and the administra-
tive processes of Federal, State, and local governments were being
developed in the United States.
In Jefferson's words the unending conflict between liberty and
authority has intensified. The area of rights without remedies is
broadening. These things being so, procedures for the redress of citizen
grievances become of looming and extraordinary importance. This
committee is to be commended for its recognition of and consideration
.of proposals for improving these conditions.
The discretionary decisions now being made in agencies almost
without number have created sore spots because multitudes of people
feel aggrieved by government action or inaction. As government has
grown bigger and become more omnipresent, the total of such citizens
has increased geometrically and multidimensionally. This makes for
bitterness and unrest which, in turn, create difficult, administrative
situations for administrators and an atmosphere that adds to the
:already monumental difficulties of establishing effective improvement
:and new service programs. The problem is not, one of civil rights.
Properly understood, it is basically that most administrations are not
sufficiently aware of, much less structured and organized, to provide
simple, orderly, inexpensive, widely known, accessible processes for
the redress of citizen grievances in keeping with justice and equity
where administrative agencies execute a milaton of regulations.
The results of our research indicate a potentially serious weakness
in our governmental processes caused by a general absence of such
procedures for objecting to decisions or nondecision:s. Research reveals
:a singular lack of attention, literature or comprehensive study, for
example, of the quasi-judicial roles of legislators and legislatures. It
is said that everybody knows you can appeal to the city council or
the State legislature or to your Congressman but there are no gen-
eral patterns in fulfillment of these roles with which citizens can
become generally familiar. Legislatures and legislators serving in a
quasi-judicial capacity may make it seemingly easy fora citizen to
.approach the policymakers with reference to his complaint against
administration but there should be a recognition that this blurring
tends to eliminate the usual checks, balances, and separation of powers
characteristic of American Government. A third party critic in such
situations might be helpful.
It was found, for example, early in our project, that top level execu-
tive officers rarely keep files on complaints and grievances. In our
research we were frequently told, "if the departments and agencies
under my supervision were not doing a good job vis-a-vis the citizen,
I'd be the first to know." Our opinion, iowever, is that like the tra-
ditional cuckolded husband, he is frequently the last to know. The
failure to keep adequate records of complaints and grievances make
it impossible to discern patterns of dissatisfaction with administra-
tive behavior and decisions. Files are virtually nonexistent. It is our
conclusion the bureaucracies do not generally use complaints and
grievances known to them as a tool for testing performance and
making reforms.
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Technical competence in government is no longer enough, if, indeed,,,
it ever was. Social awareness and leadership are most necessary. The.
development of better grievance mechanisms and the hairline tuning
of government to societal di.senchantments is at the core of many of`
our problems. Institutio:ial reforms are part of the task of modern.
governmental administration. Legislatures, in their policy setting
roles, have the responsi )ility to initiate such reforms. The lack of
administrative innovations to adapt government bureaucracies to the
urban; changes of this cE ntury is a major obstacle in solving today's
urban'; problems. Administrative structures must be devised to permit
flexibility in meeting public needs, and policies must be altered to
keep government attuned to grievances.
The; problem is basically an administrative one. As I indicated.
earlier:, it is not one simply of civil rights. When civil rights activi-
ties cause administrations to run scared, the result is a tendency to,
improvise to meet crisis situations in redressing citizen grievances.
More reasoned, orderly public administrative processes could over-
come the difficulties of acting only after the panic button has been
pushed. Governments have tended to develop impromptu responses
to pressures rather than structured operational methods for redress-
ing citizen grievances, to the detriment of both, the government and
its citizens. I3ased upon )ur inventories of redress mechanisms in the
urban; areas of California, it is obvious that what is needed is planned,.
phased administrative end structural reform that could make our
government better able to handle grievances and in the process become-
better: of the success of democracy.
It has been said with full justification that we are not only a Nation
of immigrants, but one which has freely borrowed and adapted go-v-.
ernmen.tal processes and institutions to suit our needs. You, sir, as?
a Senator are part of our borrowings from Rome. Your colleagues r,n
the other House with its speakership are involved in an adaptation
of a British governmenlal invention. The separation of powers doc-?
trine s, of course, originally a French governmental philosophy.
Particularly in our cri;ies, we are operating under legal machinery
more .appropriate to the simple agrarian society of Old England
from which we inherited our common law base. We may be so uncriti-
cally enamored of the v.rtues of our system of common law that we
have hot perceived the appearance of novel forms of injustice for
which. existing procedu -es for adjudication are inadequate. Under
today's conditions, large masses of our population cannot obtain re-
dress for many of their grievances against government, whether those
grievances be real or irlagined, from the great writs of American
jurisprudence or traditi )nal redress mechanisms. These are compl i'-
cated, time and money consuming procedures. Why not then, continue
our borrowing tradition to meet. the needs of the day and utilize the
ombudsman, or at least. ombudsmanic concepts?
In our rightful concera for the relationships between the governors
and the governed, there is a need to improve democratic processes for
adjudicating accusation:, of noncriminal maladministration.
We: have found that imperfections exist in the operation of present
institutions dealing with the redress of citizen grievances. The problem
is to counterbalance the despair of the individual in his confrontation
with the unyielding monolithic public agency which may be follow-
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ing perfectly legal procedures and still treat citizens unfairly because
its monopolist position enables it to ignore individual plaints.
The Institute for Local Self Government has concluded and we have
so reported in its research for the President's National Advisory Com-
mission on Civil Disorders, that the social tensions and disturbances
which beset our times will not be alleviated simply by improving
mechanisms for the redress of grievances. Many of the ills of our time,
of which the alienation of citizens from. the. governments meant to
serve them is but a symptom, call for solutions which are essentially
political. This committee's deliberations should proceed with the full
understanding that neither improved grievance procedures, nor legal
services or information and referral agencies can be expected to cope
with basic social disorders. Profound social and economic dislocations
call for political solutions. While we who deal with citizens' perplex-
ities and grievances may be able at times to identify the underlying
causes of distrust and discontent, such identification will not erase the
main imperfections in contemporary America. My point, sir, is that
both the political solutions and the improvement of complaint machin-
ery must proceed simultaneously, both are essential if we are to make
progress in the long struggle of mankind to convert the polls of the
Greek city-State into cosmopolis-the state neither of the Athenians
or the Romans, but of the human race; the state in which men at last
may resolve the eternal riddle of liberty under law.
This committee's opinions and recommendations concerning the,
utility of an ombudsman on a selective basis with reference to specific
Federal agencies can be supported by those of us who may be con-
sidered ombudsm.aniacs. It is fully in line with the suggestions of the
report of the 32d American Assembly held at Arden House in New
York, 3 months ago. In preparing that report, "The Ombudsman,"
a very distinguished group of Americans debated ombudsmanic ideas
for 3 days and agreed to "* * * Recommend that application of the
concept be undertaken at the Federal level." I am certain that this
committee has had access, to the report and that the list of over 50 truly
outstanding participants in its preparation lends sanction to the high-
est magnitude to the discussions here this morning.
Senator LONG. If the witness would pardon an interruption at this
time, I would like to place in the record the report of the American
Assembly that you referred to. Without objection it will be done.
(Report referred to above follows:)
THE OMBUDSMAN-The American Assembly, Columbia University
(Report of the Thirty-Second American Assembly, October 26-29,1967,
Arden House, Harriman, New York)
PREFACE
On October 26, 1967, the Thirty-second American Assembly-on The Ombuds-
mvan-=-openled at Arden House, on the Harriman (New York) campus of Columbia
University. There were 72 participants from the worlds of business, education,
communications, labor, and government; and from the clerical, legal and military
professions.
For three. days, in small discussion groups, they considered in depth various
aspects of citizen grievance and redress vis-h-vis government (local, state, and
federal) ; and on the fourth day in plenary session they reviewed and approved
the report contained in these pages.
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As background for their discussions participants read a volume entitled
gmbudsmen for American Government? prepared under the editorial supervision
of Dr. Stanley V. Anderson of the University of California at Santa Barbara,
with chapters and authors as follows:
Chapter 1-The Si read of the Ombudsman Idea-Donald C. Rowat, Carlton
University, Ottawa, Canada.
Chapter 2-Trans7 erring the Ombudsman-William B. Gwyn, Tulare Uni-
versity.
Chapter 3-State Government and, the Ombudsman-John E. Moore, Univer-
sity of Californi.i (Santa Barbara).
Chapter 4-The Oitibudsman and Local Government-William H. Angus and
Milton Kaplan, ~htate University of New York at Buffalo.
Chapter 5 Propossls and Politics-Stanley V. Anderson.
Appendix-Annotated Model Ombudsman Statute-Walter Gellhorn, Colum-
bia University.
Regional Assemblies on The Ombudsman, making use of the above-named
chapters and the American Assembly conference technique, will be held across
the nation with the coc peration of other educational institutions.
The report of the Tl.irty-second American Assembly reflects the views of the
participants in their private, not their official, capacities. The American Assembly
ittself, a non-partisan Educational organization, takes no position on matters it
presents: for public di 3cussion ; and The Ford Foundation, which generously
p ovided support for this program, similarly takes no official position on the
orinions contained heroin.
CLIFFORD C. NELSON,
President, The American Assembly.
FINAL REPOBr OF THE THIRTY-SECOND AMERICAN ASSEMBLY
At the close of their discussions the participants in the Thirty-
second American Assembly on The Ombudsman reviewed as a
group the following statement. The statement represents general
agreement; however no one was asked to sign it, and it should no:
be assumed that every participant necessarily subscribes to every
recommendation.
Millions of Americans view government as distant and unresponsive, if not
hostile. Though often 1 he targets of the resentment which ensues, government
ollicials are usually not the cause of remoteness, but sometimes its victims.
Dehumanized government derives from the impersonality of modern mass so-
ciety. Improving the means by which individual citizens can voice dissatisfaction
with governmental ad ion or inaction will make for a more democratically
efective society.
Many devices-governmental and private, formal and informal-already serve
to, amplify the voice of the individual in the halls of government. Admini,ot:rative
agencies may provide him internal avenues of appeal. Courts may hear his case.
Elected representatives may handle his complaint. Public legal aid may be avail-
able. News media or pri late organizations may take up his cause.
All these means of a,cess to government are useful. We should strive further
td improve them. Because these existing devices have important functions to
rve other than handling citizens' complaints, there is a need in today's large
ad complex government for mechanisms devoted solely to receiving, examining,
at}d channeling citizens' complaints, and securing expeditious and impartial
redress. We believe that American utilization of the Ombudsman concept will
help to fill that need.
that is an Ombudsman!
The Ombudsman is an independent, high-level officer who receives complaints,
wjio pursues inquiries into the matters involved, and who makes recom:menda-
tibns for suitable action. He may also investigate on his own motion. Ile makes
pgriodic public reports. His remedial weapons are persuasion, criticism and
publicity. He cannot as a matter of law reverse administrative action.
What Does an Ombudsman Do?
When the Ombudsman receives a complaint which seems to him to have valid-
it he he asks the agency for an explanation. If necessary he consults further with
the complainant and again with the agency. He reports his findings to those
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concerned. He may suggest a specific remedy to correct individual injustices and
he may suggest an improvement in agency procedure.
After consideration, if he finds a complaint to be unfounded, he may discover
that the agency has failed adequately to explain its action to the citizen. In
this case he may urge the agency to improve its techniques of communication.
In other cases he may report to the complainant why his.grievance was un-
founded. In addition to handling individual complaints, the Ombudsman may
make studies and recommendations for the improvement of administration.
The Ombudsman proceeds without cost to the complainant. He is able to oper-
ate informally and expeditiously without formal hearing procedures.
Establishment of an Ombudsman
We recommend that Ombudsman offices be established in American local and
state governments. We do not recommend the establishment of a single office of
Ombudsman for the entire federal government, but we do recommend that
applications of the concept be undertaken at the federal level.
The Ombudsman must be selected in a manner which assures public confi-
dence in his independence, impartiality and professional attainments. He should
be given a salary which will reinforce his high status in the community.
The Ombudsman should designate his own subordinates. The Ombudsman.'s
tern of office should be sufficiently long to minimize his preoccupation with
reappointment and should not be coterminous with that of the selecting author-
ity. Provision for his removal from office for, cause should be made in such
manner as not to interfere with his independence while in office.
The authority of the Ombudsman should extend to public agencies exclusive
of courts, legislatures and chief executives. On the other hand, the experience
of California and other states with a 'commission on judicial qualifications-
fin ombudsmanlike institution-should be given serious consideration as a
means for reducing the abuse of judicial authority.
Since American local governments vary greatly in size, population, and legal
structure, no uniform design need be followed and advantages are to be derived
from experimentation. Such experimentation should include meaningful accessi-
bility to the Ombudsman by all sectors of society.
How Far Does the Ombudsman Go?
An Ombudsman, concerned with mistaken or imperfect action, is a valuable
resource. But an Ombudsman often can not provide all the help a citizen may
need when confused by or in conflict with the officials who administer public
affairs.
At times the citizen must have recourse to an active advocate who can press
a demand on his behalf or plan a defense against governmental action. This
need is for adequate legal services. Then, too, citizens require information
about governmental services. This need is more properly provided by easily
accessible information and referral agencies.
Of course, neither an Ombudsman nor legal and information services can elimi-
nate profound social and economic injustice, which calls for essentially political
solutions.
While the Ombudsman does not make policy, his office has two important
indirect effects on policy-making. First, the Ombudsman's findings provide the
Legislature and the Executive with additional significant information and ad-
vice upon which to base major policy improvements. Secondly, the legislative
process is enhanced to the extent that the Ombudsman's existence permits and
encourages legislators to give increased attention to lawmaking.
Conclusion
We urge the prompt enactment of laws to create the special office required
to handle citizens' complaints.-the Ombudsman.
Mr. HAMILTON. I might suggest, Senator, that the previous witness
mentioned two persons of eminence in this field, Prof. Walter Gellhorn
and Prof. Kenneth Culp Davis, both of whom were signatories of the
report you just inserted into the record.
Even if the perfect governmental agency existed, citizens would still
find some cause for complaint. It is essential that at all levels of govern-
ment, the perfect agency and the not-so-perfect one, hear and respond
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to its citizens by better attunement of complaint and grievance han-
dling machinery. any now call for a third party critic to make cer-
tain that a complaint receives a fair hearing for his grievance and, if
justified, a proper : emedy.
The most propularly current model of the third party for this
pur-e is the ombudsman. He can be characterized briefly as a, high
evel officer, with adequate salary and staff, free and independent of
both the agencies he may criticize and the power that appoints him,
? vith long tenure o:` office sufficient to immunize him from the natural
Pressures concurrent with seeking reappointment, with power to in-
vestigate administrative practices on his own motion. He is a unique
officer whose sole job is to receive and act on complaints without the
necessity for charge to the citizen. He should have the power to sub-
ena records. He operates informally and expeditiously without for-
al hearing procedures. His principal corrective weapons are pub-
17eity, criticism, persuasion, and reporting. He does not have the
power to either pt.nish maladministrators or reverse administrative
decisions.
With those understandings and in response to the committee's
acknowledgement (S our major interest being at the local level of gov-
rnment, I will moae to the final phase of my presentation in discuss-
the utility of ombudsmanic concepts there. We see the o.rnbuds-
Mn as 'a supplement to existing redress procedures which, if they exist
.t all, tend to be episodic, partial and selective; leaving an aggrieved
citizen frustrated a3 a result of his dealings with administrative agen-
4ies that have been delegated quasi-judicial and quasi-legislative as
well as executive powers.
Any discussion cI 'the ombudsman, particularly at the local level,
should be accompa:ried by the caution ably sounded by Prof. Walter
4 ellhorn who, whi -e the ombudsman's most popular American pro-
onent, is also a sober critic of those who think that the transplanta-
tion would create a transformation. While an ombudsman would, as he
says, "substantially adorn the American Governmental scene, it, would
not remake the scenery."
I The ombudsman's not a substitute, for either civic reform or bureau-
ratic responsibility. An ombudsman can isolate aberrations; he can
luggest better ways of reaching agreed ends; he can point out rLe.w ap-
plications of previcusly accepted concepts, but as Professor Gellhorn
states "what he cannot do is force hesitant officials to embrace a
hilosophy created by him." (Gellhorn, "Ombudsman and Others," p.
439.)
A second note of caution emerges from the work of Rowat, Moore
and others : An om' 3udsman will not be able to deal with many of the
things that most desply aggrieve some elements of the citizenry. He is,
in short, not quite al combination of George Washington, Abraham
*.,incoln, Moses, an c'. Will Rogers. The ombudsman is an administrator
of administrative decisionmaking. He is neither a pathfinder for citi-
z{ens through burcaucratic mazes nor an umpire tallying policy
decisions.
Many citizen complaints clearly pertain to policy choices which
ipust be made. by bureaucrats and legislators. Should a city's view
of the waterfront be cut off by a freeway in the furtherance of an
interstate highway network? Should a Job Corps center be estab-
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lished in a quiet Missouri town of 15,000? Should a treatment cen-
ter for a growing number of narcotics addicts be built at all; and, if
so, where? Should restaurants be subjected to more rigid controls in
the interests of public health. Should tuition be charged for the first
time at a great American university. While these are, of course, im-
portant questions about which citizens can and should make their
opinions known-vocally and otherwise-they are essentially policy
decisions about which an ombudsman will be little concerned.
Nowhere is the ombudsman a creator or critic of public policy. He is
not a reviewer of the policy decisions made primarily in political
arenas. While he may criticize a department for reaching a decision
not in accordance with facts or required administrative procedures,
the policy decisions at any level of American Government are those in
which the ombudsman will not participate and which he could not seek
to supplant.
To some in our society, "politician" is a word dirty enough for
enshrinement on public toilet walls. No matter how much people of
that view want to expunge it from the community vocabulary, they
are mistaken if they think it can or will 'be replaced by the word
"ombudsman." "No matter how able an ombudsman may be, no matter
how venerated by the public, he cannot supplant the political processes
that in the and control the administration of public affairs," says Pro-
fessor Gellhorn again.
The ombudsman is not a super administrator. He is not one any-
where. He is now operating, and it is a useless dream to think we can
create a wizard of ours. As Professors Angus and Kaplan have noted,
he is not a general supervisor of public services nor an overseer of
those that do. Alleged deficiencies or failures in service or unimagina-
tive exercise of the police power cannot be overcome by ombudsmanic
wand waving. Anyone who thinks that an ombudsman at the local
level will keep the streets in repair, remove the trash from a public
park or stop firetrucks from sirenic wailings in the middle of the
night is bound to be quickly disillusioned.
Fortunately for democratic processes, deciding the proper order of
priorities and the setting of public policies will continue to be the
ob of the department officials and legislators. An ombudsman will
bring no comfort to those who wish that another order of priorities
had been chosen. His notation that the staff of the street maintenance
department is too small to give proper service is far, far different from
making the policy decisions to increase the staff; or, from deciding
that,the potholes on Boardwalk and Park Place will be filled before
those on Baltic Avenue.
Nevertheless, there remains the need for serious consideration of
new methods for the redress of citizen grievances or the improvement
of existing ones, some of the categories of need are :
Complaints against discretionary decisions wherein the citizen dis-
agrees with the manner in which an official has exercised his discre-
tion but has no formal means of challenging it; or, at least, inexpensive
means. The complaint in these cases is generally not that of the official
abusing his power, but that the decision reached is not, in all circum-
stances, appropriate. There may be no allegation of bias, negligence
or incompetence but merely the charge that the decision is misguided.
In essence, this type of complaint is one that has not a right of appeal
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to air independent body which can substitute, its discretionary decision
for that of the official ww ho made the original one.
Grievances against acts of maladministration, in essence not a ques-
tionof appeal from, but of making an accusation against an authority.
in new and previously unperformed functions, there is an absence
of settle case law and, as I have previously indicated, only vaguely
applicable common law. Few people, most of all the underprivileged,
know what their rights or obligations are. In the absence of progressive
legislation or good case law, there often exists inadequate or inaprro-
priate mechanisms for i ppeal against real or alleged grievances. There
is, cgnsequently an insi itut.ional lag. In addition, in words popularly
current here, there is what might be called a grievance gap as applied
to the newer functions, particularly those involved in the processes
of urbanization.
The areas latterly mentioned are quite legitimate ones for ombuds-
men They are sorely needed there. But again, caution should be noted.
The ombudsman is not snake oil. Selling the concept as a panacea for
society at large does the concept an injustice. The office should not be
looked on as a replacement for genuine reform in the structure of
government, most particularly reconsideration of the methods for
providing people-orient ed services. The ombudsman is, at best, a sup-
plemental remedy for the redress of citizen grievances. There are
othe*s, such as the .Amp i.ro processes as found in Mexico and elsewhere.
Ini conclusion, I suggest that, the redress of citizen grievances is a
mattor worthy of continous consideration by this committee. It should
not lje said of us, as it was of Henry III of England, that he was
"more pious than wise in that he heard mass three times a day but
refused to listen to complaints." Communication between the citizen
and his government is it the heart of any redress procedure. People
must; be aware of where government is and what it is doing; govern-
ment must be able to Bear what citizens want and need. When this be-
comes so, then we can change the folklore that now has it "that you
can't: fight city hail." I ] ake it that we are agreed that in a democracy
this is intolerable.
Thank you.
Senator LoNG. Thant: you, Mr. Hamilton, for a very fine statement.
I have looked over your biographical sketch here and am impressed
with your very distingaished background. Without objection, I am
going to ask that it be placed in the record prior to your remarks.
Mi?. HAMILTON. Thar. kyou for your courtesy, Senator.
(Biographical sketch rderred to follows:)
CONDEiNSED BIODATA SHEET, COMMITTEE WITNESS, RANDY H. HAMILTON, JANUARY
16, _1968 (ExECUTIvE DIRECTOR, INSTITUTE FOR LOCAL SELF GOVERNME:VT,
CLA{ EMONT HOTEL, BER%]:L5Y, CALIF.)
EDUCATION
A.B, U. of North Carolina, M.A., U. of North Carolina, M.CR.P., U. of North
Carolina, Ph. D., Internatiox al University, Zurich, Switzerland.
City; Manager, Carolina Reach, N.C.-Associate Director and Washington Di-
reotor] National League of Cities-Municipal Advisory, City of Bangkok, Thai-
land- ocal Government Advisor, Royal Government of Thailand-Director,
Unites Nations: Institute of Public Administration Comparative Urban Studies
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Project-Currently' Special Project Director, League of California Cities and
Executive Director, Institute for Local Self Government.
TEACHING EXPERIENCE
Faculty member or visiting professor at University of North Carolina, Amer-
ican. University in Washington, D.C., Thammasat University in Bangkok, Uni-
versity of Southern California, San Francisco State College, University of Cali-
fornia at Berkeley.
PROFESSIONAL MEMBERSHIPS
Full member, International City Managers' Association-Former national
council member and President of the North Carolina Chapter of the American
Society for Public Administration-American Political Science Association-
Former President, North Carolina Chapter Pi Sigma Alpha (National Honorary
Political Science Fraternity).
"Man of, the Year, 1950" Carolina Beach Lions Club-Decorated by the King
of Thailand for "outstanding services to Local Government", Knight Commander
of the Order of the Crown of Thailand, 19G3.
PUBLICATIONS
One book on comparative municipal government and more than 50 articles in
professional journals of several countries.
CONSULTANCIES
Local government consultant to : Time-Life-Fortune Magazines.,-Committee
for Economic Development (CED),-Chamber of Commerce of the U.S.,-More
than a dozen Federal advisory committees, etc.
Senator LONG. Mr. Hamilton, a few months ago I was in Berkeley
and had the opportunity of visiting with Speaker Unruh who has some
connections with Missouri. I had a letter from him just a few days ago,
and I know that he has been trying from time to time to get this om-
budsman concept started in California. Would you comment about
some of the problems or difficulties he has had? I am sure you have
worked closely with him.
Mr. HAMILTON. In California, the reverse of the situation in the U.S.
Congress is so with reference to the ombudsman. There it has been the
assembly or our lower house which has taken the lead.
Twice the bill has passed the lower house. Twice the upper house,
the senate, has failed to even have hearings in committee. I think
there will be more consideration of it in the current session of the
California legislature. Senator Dymally, of Los Angeles, has intro-
duced a companion bill to Speaker Unruh's bill and that is the first
time there have been companion bills.
Basically the problem has been not that anyone was opposed to the
ombudsman. But, the first time around nobody knew what it was. The
second time around having learned what it was they began to be
troubled by some of the problems of application.
California has a population that is, in fact; greater than all of the '
countries now using an ombudsman with the exception of the parlia-
mentary commissioner in England.
We are a State, as you know, of large size, and an absence of homo-
geneity in population. The critics of the proposal, utilizing our large
population, our large or great geographic size, the disturbances which
beset our various classes of citizens, were able to postpone considera-
tion of the bill. I think, sir, that the third time will be the time, because
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the answers to the questions that were raised during the second con-
sideration of the bill hare. now been provided.
There is no concept (f utilizing one ombudsman for all State agen-
cies sitting in one city, Sacramento, as was the charge by those who
were; opposed to it the East time, in addition to which, a good deal of
citizen support for the ombudsman has come about in the last couple
of years. The Friends Committee on Legislation supports it, and now,
God bless them, the League of Women Voters are out in favor of it.
Senator LONG. I spot:e to the Senate when I was in Sacramento at
the time I mentioned a while ago. After seeing the decorations of that.
Senate Chamber, I am surprised they are a liberal progressive body
with those decorations because they are rather outstanding.
Mr. Hamilton, has it been your thought that the ombudsman serves.
as sort of a steam valve by which the citizens, administrators, and the
legislatures can sometimes let off steam? Do you think this would be
some basis, some help in solving your problems or would it be of as-
sistance to them?
Mr. HAMILTON. Yes, sir; and I do not think that that particular
aspect of an ombudsman. role should be denigrated. It is a fact that the
examination of cases of ombudsmen in the foreign countries and, in-
deed,I the one ombudsman that existed in this country for a year in
Nass4u County, plus tho ombudsman who has existed for 7 months in
the city of San Diego, i:Idicate that somewhere about 8 out of 9 or 10'
complaints are unfounded. But when the citizen is advised of the rea-
son for the decision, or the reason why his complaint is unfounded, he
tends' to go away as a l appy and satisfied customer of Government,.
which in fact he is.
I think that the great,;st testimony that can be given to the ombuds-
man concept is that now there are some retail establishments, in Cali
fornia, which advertise in the press that "we have an ombudsman."
The complaint window at the department store in some of the areas of
California has now been replaced by an ombudsman window, in other.
wordsl the attempt on the part of business to create a happy customer.
I thiil the role you have outlined for the ombudsman in that regard
is most applicable.
If it may refer to my own experience as a former city manager, I
know That when I had tune to sit down with a citizen and explain why
we hail arrived at a particular administrative decision, he tended t:o?
go away a much happier citizen.
We could not chop down trees in my home State of North Carolina
to widbn streets because most trees were planted in honor of somebody'sl
grandfather who was deceased or killed in the late unpleasantness
between the States.
Senator LONG. They ct.n't build streets in Rome for the reason they
have to go around some ritinthey have dug up, too, so I guess they have
had th#st problem for many years.
Mr. HAMILTON. But if we sit down with U.D.C. and explain wh,y-
we are doing it and suggest the plantation of another grove elsewhere
for a truly living memorial, we could be successful in chopping trees
down. $ut without taking; the opportunity to explain to the citizen, we.
were not. The ombudsman is most utilizable in that regard, sir.
Senator LONG. Thank you very much. Mr. Kass, any questions?
Mr. 1ASS. Yes, just ore or two, Mr. Chairman. -
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Mr. Hamilton, the problem of size, as I explored with the chairman
of the Administrative Conference, is one of the most serious obstacles
toward the creation of a Federal ombudsman. You have done con-
siderable work in the State and local area. What about the possibility
of creating the regional type of ombudsman that I explored with
Chairman Williams? Do you think this will work as an experiment
at the Federal level?
Mr. HAMILTON. I would think so, but I would imagine that the
regional definition would be based rather than on State lines on the
jurisdictional lines of the agency concerned. In other words, since 1937
in this country we have been trying to get Federal agencies to have the
same regions. Quite obviously the FAA does not have the same region
as the VA or the Federal Bureau of Prisons or HUD or HEW. Con-
sequently, I do think in answer to your question specifically, that a
regional application will work provided the jurisdiction of the
ombudsman conforms to the administrative region of the agency to
which his work is addressed rather than to an artificial geographic
area, say, the States of California, Nevada, and Colorado.
Mr. KASS. So, if an experimental ombudsman were created with
jurisdiction over complaints of all citizens residing in, for instance,
the State of Missouri or the State of California, even though this did
tend to cross State lines as far as Federal agencies are concerned, you
think this would cause problems?
Mr. HAMILTON. Yes, I do; because the regional office may not be
located in that State.
Mr. KASS. I See.
Mr. HAMILTON. Accessibility is to my mind at the heart of the griev-
ance mechanism.
Mr. KASS. Access to the appropriate official?
Mr. HAMILTON. Yes.
Mr. KASS. But now, if the ombudsman had access through the use
of telephones-part of the process as we understand it is that the
ombudsman doesn't necessarily have to make field investigations, but
can accomplish the same thing through telephone calls and letters if
people had access to the ombudsman living in St. Louis or Berkeley
or some place, and this ombudsman had jurisdiction and had access
to literally everybodyy.
Mr. HAMILTON. Yes; if he had the access to the_ officials and the
records, then it would work.
Mr. KASS. This would work.
Now, you mentioned the concept of amparo. Could you just for
about a minute explain what it is and, with the chairman's permission,
we would like to put the document that you prepared into the Ap-
pendix of this hearing record.
Senator LONG. Without objection that will be placed in the record.
Mr. HAMILTON. The amparo is a concept of Mexico particularly.
It is a writ, and a constitutional right, which allows an individual to
proceed against an administrative action without proceeding against
the law under which the administrator is acting.
It is before the Federal judicial authorities. The plaintiff is always
an individual. One of its unique and distinct features is that the doc-
trine of stare decisis does not apply; and, consequently, the judge
when he hears this plaint does not have to worry about judges 20 years
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frrom now loolcing tack to say that was a pretty stupid decision. He
oily has to be concerned with the. individual complainant. before him,
and arrive at an equitable decision in that case which has-and does,
not set precedents.
Mr. KASS. There i; 3 no precedential significance.
Mr. HANSrLTON. T3-is is the unique feature.
Mr. KASS. This ccncept applies only in the State of Mexico and in
the State of California which adopted the Mexican Constitution?
Mr. HAMILTON. It. existed in California before 1849. We did. some
research to find out what happened when we wrote an English con-
stitution. California when it became part of the Union, had to have
art English constitution, and we could find no reason why it dropped
omt. It just didn't get translated.
Mr. KAss. But this would have no application for other State
leivels ?
Mr. HAMILTON. Yes; it has. It has an application in the minds of
a good many people. I have talked to a good many Mexican-American
people and they have: an idea that amparo applies in the Anglo-Saxon
oil Romanic court.
What I am suggesting is this: In Mexico when a person pleads
"Guilty" he expects I,mparo process to be applicable, expecting that
thie judge will not on:.ylook at the. law, but will look at the whole situa-
tion. Ile does not uncerstand, members of the Mexican-American coin-
munity in the West do not understand, when they plead "guilty" to a
criminal violation ir. America that the judge does not do anything
exr_-~pt look at the law rather than extenuating circumstances. That he
ddes not have discretion as he has in Mexican procedure. It has been
testified before the C ilifornia Assembly by the president of the Mexi-
can American Political Association, Mr. Bert Corona, who is a rnem-
be~ of the U.S. Commission on Civil Rights, that in his opinion the
Mexican American community in California does not understand that
the ability of a judge in Mexico to temper justice with mercy :s not
applicable to a judge in a criminal procedure in California.
Senator LONG. Mr, Waters?
Mr. WATERS. Mr. Hamilton, I believe you said that there is in San
Di~eo an ombudsman: who has been active for several months. I won-
der if you are familiar with the work of that ombudsman.
Ir. HAMILTON. Yes; I am, sir.
Senator LONG. Is he generally accepted by the agencies with whom
he lworks ?
Mr. HAMILTON. Yes, he is. Ile is in the office of the city manager,
anil his title is. "Citi yens' Assistance Officer." He is accepted by the
agencies, I suppose, because of the background muscle or the inherent
clout of anybody from the city manager's office in council. But he
happens to be a particularly soft-spoken and judiciously tempered
individual, and so fa.- as he advises me-and I am in fairly frequent
contact with him-ha is perfectly acceptable, most importantly by
agencies outside of ci ~y hall. He finds his success equal with. agencies
over which he does not have legal jurisdiction as he does with agencies
who would legally come under the purview of the city manager; for
ex4mple, the county welfare agency, the health agency, and tie high-
w *
a department, and other agencies. When he explains to the adrn inis
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trative officer the problem involved, he finds extremely good
cooperation.
Senator LONG. Thank you very much. What is that citizen's officer's
name?
Mr. HAMILTON. Larry Haden.
Senator LONG. Thank you, Mr. Hamilton, for a very fine statement.
It has been extremely helpful to the committee.
Mr. HAMILTON, Thank you, sir.
Senator LONG. Our next witness is Mr. Guy S. Williams, Assistant
Director for Contact and Foreign Affairs of the Veterans'
Administration.
Messrs. Williams are at least 50 percent of the witnesses today. We
are glad to have your associate with us. I judge you have a prepared
statement.
STATEMENT OF GUY S. WILLIAMS, ASSISTANT DIRECTOR FOR CON-
TACT AND FOREIGN AFFAIRS, VETERANS' ADMINISTRATION;
ACCOMPANIED BY PHILIP V. WARMAN, DEPUTY ASSISTANT GEN-
ERAL COUNSEL
Mr. Guy WILLIAMS. Yes, sir.
I am accompanied by Mr. Philip V. Warman, Deputy Assistant
General Counsel of the Veterans' Administration.
I appreciate the opportunity to appear and discuss S. 1195, a bill
before this subcommittee which would establish the Office of Admin-
istrative Ombudsman to investigate administrative practices and
procedures of the Social Security Administration, Veterans' Adminis-
tration, Internal Revenue Service, and the Bureau of Prisons. I submit
for the record the Administrator's report which states our position on
the bill and points to the existing aids to claimants before the
Veterans' Administration. These aids include the VA Contact Service
and representation by service organization representatives. We have a
detailed statement which, with the chairman's permission, I would like
to submit for the record and which I will briefly summarize now.
Senator LONG. Without objection, it will be placed in the appendix
of the hearing record.
Mr. GUY WILLIAMS. I understand you are interested in the assist-
ance now available to veterans and their dependents from VA and
non-VA sources in the presentation and prosecution of their claims for
Veterans' Administration benefits.
The Veterans' Administration has contact representatives stationed
in each of its 230 locations. It is the job of the contact representative
to know by heart the requirements for each benefit, how to apply, the
administrative procedures involved, and how best to assist the claimant
in bringing out the facts that will present his claim in its most
favorable light. He must be knowledgeable on many diverse benefit
programs-compensation, pension, education, insurance, hospitaliza-
tion, outpatient medical and dental care, wheelchair homes, para-
plegic lifts, housing loans, guardianship, burial benefits, automobiles,
anc many others, as well as benefits available through other Federal
or State a encies.
SenatorTONG. Now, Mr. Williams, are they Federal employees?
Mr. Guy WILLIAMS. Yes, sir.
92-137-6S-3
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senator LONG. Don't some of the States have veterans' agents some-
th ng like we have ir. Missouri?
V{r. Our WILLIAME[. That is correct.
enator LONG. Which actually is nearly a State ombudsman; isn't
th t right? Isn't that the type of work they do?
l4r. GuY Wn r.IAMs That is correct. But we feel when we are talking
to t man, and we have knowledge that he may be eligible for some
benefit from a State s.gency, we will cue him in on this and help him
to et to the person who can give him further assistance.
senator LONG. But the State agency, though, assists the man, as I
understand it, in pre ?aring his claim for benefits or in getting him
into a Veterans' Hospital.
Mr. Our WILLIAMS. That is correct.
enator LONG. Eve I though there is no State benefit available?
Mr. Our WILLIAMS. Right. He determines what additional benefits
the; claimant may be eligible for beyond those specifically requested
and assists in the prey aration of the proper claim.
The contact representative also determines the actions necessary
and files claims for veterans who are too ill to act in their own behalf,
iy of these claimants are patients in hospitals who have no one
els immediately avai: able to act for them.
f the 2.5 million r ersonal interviews conducted by contact repre
sen atives during fiscal year 11,167, thousands were conducted with per-
son5 who were not satisfied with the outcome of their claims for
benefits. Many of these were resolved to the complete satisfaction
of the claimant by setting down and going through the VA file with
hin and explaining tl re' requir. ements of the law and regulation and,
whIre indicated, assisting him in obtaining the evidence that might
result in favorable action.
Unique and efl'ectiv 3 services are also provided claimants for VA
benefits by the natio:aal service organizations, the American Red
Cross and recognized state service organizations, which the chairman
mentioned. Accredited representatives of these organizations number
neafly 31200.
Any claimant may ile a power of attorney with one of these or-
ganizations and be ass ired that a skilled technician representing that
organization in the Y A regional offices and insurance centers will
assist him fully in the presentation of his claim, and will review each
action taken often as the claim is in process, to assure that the claim
is fully developed and rainy and properly disposed of. If the clairrmant
or tie organization representative expresses disagreement with the
decision and finally appeals it, a representative of the service organiza-
tion appears in the ch,imant's behalf before the Board of Veterans'
Appeals.
Field representative3 of these service organizations visit all VA
offices and VA hospitals regularly and submit written reports of their
findings to their natio:ial ieadquarters which in turn submits them
to o it central office for any indicated investigation and reply.
Tits completes my Formal presentation and I will be pleased, to
answer any questions c,f the subcommittee on the proposal.
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(Statement of Mr. Guy Williams follows:)
STATEMENT OF Guy S. WILLIAMS, ASSISTANT DIRECTOR FOR CONTACT AND
FOREIGN AFFAIRS, VETERANS ADMINISTRATION, BEFORE THE SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURES, COMMITTEE ON TIIE JUDICIARY,
UNITED STATES SENATE, JANUARY 16, 1968
I appreciate the opportunity to appear and discuss S. 1195, a bill before this
Subcommittee which would establish the Office of Administrative Ombudsman
to investigate administrative practices and procedures of the Social Security
Administration, Veterans Administration, Internal Revenue Service and the
Bureau of Prisons. I submit for the record the Administrator's report which states
our position on the bill and points to the existing aids to claimants before the
Veterans Administration. These aids include the VA Contact service and repre-
sentation by service organization representatives. We have a detailed statement
which, with the Chairman's permission, I would like to submit for the record and
which I will briefly summarize now.
I understand you are particularly interested in the assistance now available
to veterans and their dependents from VA and non-VA sources in the presentation
and prosecution of their claims for Veterans Administration benefits.
The Veterans Administration has Contact Representatives stationed in each
of its 230 locations. It is the job of the Contact Representative to know by heart
the requirements for each benefit, how to apply, the administrative procedures
involved and how best to assist the claimant in bringing out the facts that will
present his claim in its most favorable light. He must be knowledgeable on many
diverse benefit programs ... compensation, pension, education, insurance, hos-
pitalization, out-patient medical and dental care, wheelchair homes, paraplegic
lifts, housing loans, guardianship, burial benefits, automobiles and many others
as well as benefits available through other Federal or state agencies. He deter-
mines what additional benefits the claimant may be eligible for beyond those
specifically requested and assists in the preparation of the proper claim.
The Contact Representative also determines the actions necessary and files
claims for veterans who are too ill to act in their own behalf, many of these
claimants are patients in hospitals who have no one else immediately available
to act for them.
Of the 2.5 million personal interviews conducted by Contact Representatives
during FY 1967, thousands were conducted with persons who were not satisfied
with the outcome of their claims for benefits. Most of these were resolved to the
complete satisfaction of the claimant by sitting down and going through the VA
file with him and explaining the requirements of the law and regulation and,
where indicated, assisting him in obtaining the evidence that might result in
favorable action.
Unique and effective services are also provided claimants for VA benefits by
the national service organizations, the American Red Cross and recognized state
service organizations. Accredited Representatives of these organizations number
nearly 3,200.
Any claimant may file a Power of Attorney with one of these organizations and
be assured that a skilled technician representing that organization in the VA
regional office and Insurance Centers will assist him fully in the presentation of
his claim, and will review each action taken often as the claim is in process, to
assure that the claim is fully developed and fairly and properly disposed of. If the
claimant or the organization representative expresses disagreement with the
decision and finally appeals it, a representative of the service organization ap-
pears in the claimant's before the Board of Veterans' Appeals.
Field representatives of these service organizations visit all VA offices and VA
hospitals regularly and submit written reports of their findings to their national
headquarters which in turn submits them to our Central Office for any indicated
investigation and reply.
This completes my formal presentation and I will be pleased to answer any
questions of the Subcommittee on the proposal.
Senator LONG. Mr. Kass?
Mr. KASs. Thank you.
Mr. Williams as I understand the contact system of the VA, when
a veteran or anybody, for that matter, walks into a local VA office, he is
assigned a contact man. In effect, the first person he sees may be the
contact man?
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Mr. GUY WILLIAM s. That is correct.
Mr. KASS. And the contact man is responsible for that individual un-
til the problem or cc mplaint has exhausted all possibilities within the
VA?
Mr. Guy WILLIAM S. Yes, Sir.
Mr. K ASS. How lo :ig has this system been in existence?
Mr. Guy WILLIAM It has been in existence at least as far back as
1024. It is embodied Jj n,the World War Veterans Act of 1924.
Mr. KASS. And this is a formal office rather than just a loose, ad hoc
kind of approach?
Mr. Guy WILLIAM s. That is correct.
Mr. KASS. Embodied in your regulations?
Mr. Guy WILLIAMS. Right.
Mr. KASS. To your knowledge, have any other agencies of the
I+ederal Government established -a form of contact system?
Mr. Guy WILLIA_ IS. Not to my knowledge-that is, not with the
same kind of responsibility for protecting the interests of the claimant
a well as being a representative of the agency itself.
Mr. KASS. Now, -when a claimant or a veteran or anybody walks
i4to the VA local office and has a problem or a complaint, does the
contact man have access to the entire file?
Mr. Guy WILLIA AS. Yes, sir.
Mr. KASS. If the veteran is represented by a service organization-
VFW, DAV or something like that-would they have access to the
same file?
Mr. GUYWILLIAMS.Yes, sir; complete access.
Mr. KASS. So there is complete access to the file of the individual
claimant or veteran''
Mr. Guy WILLIA xis. Yes, sir.
Mr. KASS. In yoi r formal statement which you submitted for the
record, you make r-,ference to the FX exchange telephone system?
Mr. Guy WILIIA AS. Yes, sir.
Mr. KASS. What -xactly is that?
Mr. Guy WILLIA AS. It is a system whereby a veteran in, let's say,
a small city in Miss ouri, might dial a local number on his own tele-
phone without any charge and be connected with a contact repre-
s+ntative of the Veterans' Administration in St. Louis, who would
have access to his records and could immediately answer questions.
Mr. KASS. There is no long distance charge to him ?
Mr. Guy WILLIAMa. That is correct.
Mr. KASS. Do you t publicize this type of service?
Mr. Guy WmLIA its. Yes, sir.
Mr. KASS. Now, 1.o any of the other Federal agencies utilize this
type of service so that if I, as a citizen having a complaint against
the Social Security Administration, the Internal Revenue Service, or
tiny of the other agencies, have a complaint and am located some dis-
tnce from the reg:.oval office, could I use your phone or any other
phone system to call in without charge?
Mr. Guy WILLIAMs. I understand that the Social Security Admin-
iTtration has done some experimentation in setting up an FX or foreign
exchange system for themselves. Just how far they have gone, I am
riot sure.
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Senator LONG. Mr. Kass, let me interrupt you a minute. Do I under-
stand you to say that in Bowling Green, my hometown, there is that
type of system where a veteran can dial a particular number and
reach the Veterans' Administration in St. Louis and talk to someone
about his problem or complaint without a long-distance call charge?
Mr. Guy WILLIAMS. Not at this time, Senator. We are running a
pilot operation actually.
Senator LONG. I see.
Mr. Guy WILLIAMS. We have FX telephone service in 12 large
communities at this time.
Senator LONG. Is it your plan to go, into it so that the system will
be nationwide?.
Mr. Guy WILLIAMS. Yes, sir. We plan to have about 74 cities
covered by fiscal year 1969.
Senator LONG. Your plans are, though, to have it in all towns of
any size?
Mr. Guy WILLIAMS. Yes, sir.
Senator LONG. Suppose a veteran calls the St. Louis VA office,
would he be assigned a contact man?
Mr. Guy WILLIAMS. Yes, sir; if you pick up the phone and call
St. Louis, you would get a contact representative who would give his
name, and ask the veteran to refer any further questions on his case
to him.
Senator LONG. Mr. Kass, you mentioned the agency I have heard
a little about-the Internal Revenue Service. It seems to me the things
that we get a lot of complaints about concerning the IRS is that the
citizen either gets a form back filled out by a computer, or they talk
to one fellow today and somebody else tomorrow; nobody knows about
their particular problem one way or the other. Would you think
perhaps some of the big problems citizens have with that agency is the
cold mechanism that they come in contact with when they have com-
plaints, instead of a warm, personal individual they get when they
call your agency?
Mr. Guy WILLIAMS. Well, all I can really testify to, sir, is our
contact service, but I would like to say that the first requirement is
that these people have an image of themselves as talking to their own
brother when they talk to this client.
Senator LONG. It is much warmer talking to an individual or
brother than to just a cold computer.
Mr. Guy WILLIAMS. Right.
Senator LONG. It might be desirable if some of the other agencies
would think along those lines. I think you are to be commended for
it certainly.
Mr. Guy WILLIAMS. I am in favor of it personally.
Senator LONG. I think you are to be commended for it because, in-
cidentally, that has a close relationship to the ombudsman theory we
are talking about here.
Pardon me for interrupting, Mr. Kass.
Mr. KASS. This, in effect, is a built-in ombudsman that the VA has
instituted?
Mr. Guy WILLIAMS. Yes, sir; from all I have heard of the ombuds-
man, I would say you are correct.
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Mr. KASS. Therefore, getting back to my earlier question about
regional ombudsman, i,his would have application to the regional idea
of ombudsman so that everybody in the State could call his local VA
office, but they also could call their ombudsman wherever he would be
loci .ted so there would be instant access or easy access to the ombuds-
ma#i as well as to the F ;deral agencies?
11r. Guy WILLIAM 8. Yes, sir.
Mr. KASS. As it is being programed. Thank you, Mr. Chairman.
Senator LONG. Mr. Williams, I saw a letter just the other day where
an application had b(,en made for a substantial refund from the In-
ternal Revenue. It was just a blank form which was filled out which
says he didn't get it filed on time or words to that effect. No signature
or anything else to it. Very cold, very impersonal. Whether it was put
out by a typewriter or computer, I don't know. But your mail that goes
out is signed by an individual who has personal contact with your con-
tact man or ombudsman who is handling the veteran's case ?
Ifr. Guy WILLIAME. To a large degree; yes, sir. We do have some
computerized letters. For the most part, computerized letters in the
Veterans' Administration are used to advise of decisions of entitlement
or awards made. For example, when a veteran applies for educational
be*efits, he will receive a letter which is a mechanized type of thing
saying, "You have sc many months of entitlement and are approved
to go to George Washington University." The contact program, how-
ever, does not use any -.omputerized letters. With the exception of a few
fo4m letters which wo issue for use by veterans in securing Civil Serv-
ice'i preference or core missary privilege ID cards, all contact program
correspondence is individually composed, typed, and, we feel, com-
pl4tely responsive to :.ncoming inquiries.
enator LONG. Bu; when he has a complaint you just don't get a
computerized letter saying "we are not going to allow it," and that is it?
Mr. Guy WILLIAM 3. No, sir. Any complaint is pounced on immedi-
at0ly by the VA administrative procedure.
Senator LONG. By a live human being and not a computer?
1fr. Guy WILLIAM,;. That is correct.
Senator LONG. Ye,. You are dealing with humans.
fr. Guy WILLIAI4iia. Right.
Senator LONG. And it certainly has much more effect. People have
much more confidence, I am sure, with an agency that handles its
business on a more personal basis.
Mr. Waters?
Mr. WATERS. No questions.
Senator LONG. Th ink you, Mr. Williams.
Mr. Guy WILLIAM i. Thank you sir.
Senator LONG. Our next and concluding witness this morning is Dr.
1V1yrl E. Alexander, Director of the Bureau of Prisons. The chairman
his quite a little interest in this Bureau. The chairman is also chairman
of the National Pen:.tentiary Subcommittee of the Judiciary Commit-
tee, and it is our pleasure to work with Dr. Alexander quite often on a
personal, cordial rel itionship.
Doctor, we are glad you can be here this morning. If you will intro-
duce us to your assi, tant, we will be happy to hear him and we will be
happy to have your E tatement.
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35
STATEMENT OF DR. MYRL E. ALEXANDER, DIRECTOR OF THE
BUREAU OF PRISONS; ACCOMPANIED BY EUGENE BARKIN,
COUNSEL
Dr. ALEXANDER. Thank you, Mr. Chairman. I am accompanied this
morning by Mr. Eugene Barkin, legal counsel of the Bureau of
Prisons.
Senator LONG. Doctor, I am impressed with all of you men bringing
your legal counsel along. You don't need a lawyer to protect your
rights when you come before this committee-on this type of hearing
anyway. But we are happy that both of you are here.
Dr. ALEXANDER. Mr. Chairman, Mr. Barkin is here primarily be-
cause he handles so many of the complaints of our 20,000 guests who
register complaints.
Senator LONG. He is your ombudsman?
Dr. ALEXANDER. Many of them have requests, including complaints
about sentence, sentence computation; and Mr. Barkin handles these.
It is for that purpose he accompanies me this morning. I can be my own
legal counsel on other questions.
I am indeed happy to be here to present my personal.views on S. 1195
with particular reference to the Bureau of Prisons. Moreover, I am
appreciative of your interest and acquaintanceship with our problems,
Mr. Chairman, in your capacity as chairman of the Subcommittee on
National Penitentiaries of the Senate Judiciary Committee.
All too often prisons are thought to be places of rigorous confine-
ment where prisoners have only the most limited means of communica-
tion with the outside; that, except for closely censored letters or rigor-
ously supervised visits with his immediate family, a prisoner has no
means of communication and is at the mercy of his keepers.
Actually, if that were the true situation, we who administer prisons
and correctional institutions would be stupid indeed,because we would
have created an intolerable and explosive situation which could not
long be contained. Indeed, that kind of administration would no longer
be tolerated by the courts or the public.
In actual practice, many channels of communication are available to
and can be used without restraint by any or all of the nearly 20,000
inmates in our 28 Federal institutions.
First of all, every person has direct communication access to the
Attorney General; to any Congressman or Senator; to the Board of
Parole; to any Federal judge; to the Director, Bureau of Prisons; and
others in Government.
This direct access is through the prisoner mail box system under
which any prisoner may place sealed letters addressed to those men-
tioned in a special letterbox. The contents of those boxes are sent
daily to my office and forwarded unopened to the addressee. Letters
addressed to the courts or a Senator or a Congressman, however, are
sent directly to the addressee under a form letter by the warden of the
institution.
Senator LONG. Some of us have rather extensive correspondence
with these inmates.
Dr. ALEXANDER. And rather perpetual correspondence with some of
them, Mr. Chairman.
Senator LONG. We get so we can recognize the handwriting.
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Dr. ALEXANDER. In i 10-month period from October 1, 1966, through
Jul. 30, 1967, there were 6,1.31 such letters. Almost 900 were con-
gressional letters. Virtually all of them resulted in congressional in-
quities to my office to which we responded with the facts requested.
Malay are addressed to Federal Judges. The great majority, 'however,
are addressed to the Bureau staff and to which we respond to the
wrier.
he letters involve a wide range of subjects: food, disciplinary
a.ct~ons, legal questions, requests for work release, and transfers to
other institutions. Th'i program is critically important to us, under-
sto d and supported by the wardens and, as I have said, used, sub-tatially by the inmates.
We consider the in tits of each request. Many raise questions or
mate claims which cannot be allowed. But we take affirmative action
where justified.
Senator LONG. Doel or, may I interrupt you there?
Dr. ALEXANDER. Yes.
Senator LONG. Do ;7ou feel that works as a "steam valve," too, or
a let-off valve for the prisoner which proves very helpful to him to
know that he has the right to write you or his judge or his Congress-
ma'i while he is in prism?
Dr. ALEXANDER. Yes, sir; we consider this prisoner's mailbox the
mo t valuable safety v 3.lve of the entire system. That is why I indicated
ear ier in my statemeat that a prison administrator would be stepid
indeed if he kept all of the tensions and emotions bottled up with a
lid on them.
~enator LONG. You told me that before, but I wanted ,to get it; in
theirecord as to how important it was.
Ilr. ALEXANDER. A few examples of responses: An inmate claimed
he 'hould have credit for time held in a Canadian jail while awaiting
ex`t -adition to the United States. The records reflected that he was
hel for another offense in Canada, in which case jail time would not
have been creditable to his sentence later imposed here. But after
considerable correspondence, by Mr. Barkin here, with the Queens
Copnsel in Canada, it was definitely determined that he was in custody
there solely awaiting e tradition. We then properly granted his request.
4 prisoner claimed that he was not granted the work-release
pri, ilege although hf, had completed training and believed himself
to be eligible. We investigated. The warden and his staff pointed out
that he was 1,000 miles from his eventual parole plan. We transferred
him to an institution near his home, he was placed on work release,
an continued on the job after release from his sentence.
An inmate complai:ied bitterly to his Congressman that he was not
getting any dental attention. Investigation disclosed that he had
art itrarily refused de::rtal care. Further study revealed deep emotional
pr blems. He was trar sferred to our medical center at Springfield, Mo.,
where both his mental and dental problems were treated successfully.
We noticed a series,)f letters from one institution complaining about
food. I sent our food administrator to the institution where he dis-
covered the complaints were justified and appropriate changes were
made.
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I will not elaborate further on the great value of the prisoners'
mailbox as a channel of communicating complaints, requests, and
charges by prisoners. It is confidential. It works.
Secondly, access to the courts is open and unrestricted. In recent
years, the courts have developed a growing and healthy interest in
prisoner complaints. Hearings are being held daily and decisions
rendered on the merits. This ias been a welcome change from just a
few years ago when the courts usually did not consider such cases on
the grounds that the acts camplained of where matters which were
solely within the administration discretion.
The courts are now hearing suits involving medical treatment,
disciplinary ppractices, mail regulations, loss of good time, and other
numerous sub'ects. And communication by letter, note, or writ ad-
dressed to a Federal fudge is promptly sent to the court without
interference or censorship.
Moreover, we have succeeded in enlisting the interest of several
law schools in providing legal assistance to indigent inmates in both
civil and criminal matters.
Senator LONG. You develop some pretty good lawyers in the prison,
too; don't you?
Dr. ALEXANDER. I beg your pardon?
Senator LONG. I say you develop some very good legal minds or
lawyers among the inmates?
Dr. ALEXANDER. Some of them become extremely experts; yes.
Senator LONG. Excuse me.
Dr. ALEXANDER. The most comprehensive programs at present are
with the University of Kansas for Leavenworth; the University of
Pennsylvania for Lewisburg; and Emory University Law School for
Atlanta. There are several other small programs. Others are under
discussion with major law schools. Our goal is to have such legal
assistance available at all institutions.
We constantly receive letters or personal visits from inmates' famili-
lies, attorneys, and other interested persons. We are fully responsive
to such requests, explaining why the requests can or cannot be granted.
Mr. Chairman, as you know, the Bureau staff conducts regular visits,
inspections, and audits at all our institutions. These range from the
typical fiscal audits to inspections and studies of policy compliance.
I am extremely proud of our career wardens and their associates who
are a corps of administrators trained and developed since 1930 under
the leadership of former Directors Sanford Bates and James V. Ben-
nett. These career men and women are devoted to the policies and
philosophy of correctional control and treatment of offenders. They
are skilled administrators who have a high sense of public respon-
sibility.
Mr. Chairman, I believe it would be helpful to this committee if it
had available some of our policy statements involving inmate dis-
cipline, the prisoners' mailbox, access to legal material and counsel,
and religious beliefs and practices. With your permission, I submit
these statements for the record, or for the committee's use.
Senator LONG. Without objection, it will be placed in the record.
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(~tatelnents referred to follow:)
BUREAU OF PRISONS, WASHINGTON, D.C., POLICY STATEMENT-SUBJECT : PRISONERS
MAILBOX
I
Tod. revise and describe the current procedures pertaining to the operation
of th Prisoners Mail Box.
Pglicy Statement 73002 (formerly Manual Bulletin No. 224) is hereby
superseded.
3. PROCEDURES
a. !Purpose.-The purpose of the Prisoners Mail Box (PMB) is to afford
inmates in Bureau institutions an opportunity for candid discussion of prob-
lems: with government officials not immediately responsible for their custody
and discipline. All inmates may use the box to write to officials specified in
paragraph b below, regal ding any problem of importance which they be sieve
cannot be solved through he assistance of institutional personnel or by utilizing
regular mail channels.
b. Ofoials to whom letters may be addressed through the Prisoners Mail
Sox.-The President and the Vice Pressident ; the Attorney General ; Director,
Bureau of Prisons ; Members of the Board of Parole ; the Pardon Attorney ; the
Surgeon General, U.S. Public Health Service; the Secretary of the Army, Navy,
Air Force; United States Courts; Members of the U.S. Senate and the House
of Representatives.
c. Alaska State Prisoners.-Alaska state prisoners will be permitted to use
the Prisoners Mail Box to write to state officials about their problems. Letters
to the Governor, Attorney General, Commissioner of Health and Welfare,
Director of the Youth an d Adult Authority, and sentencing Judge will be for-
warded without inspection to:
Director,
Youth and Adult Authority,
Pouch-H Health and Welfare Building,
Juneau, Alaska.
4. THE PRISONERS MAIL BOX
a.. Description.-The Prisoners Mail Box should be placed in a conspicuous
location or locations reac fly accessible to the inmate population. Arrangements
s:hoi}ld be made for the c.aily pickup of PMB letters from inmates who would
ordinarily not have access to the principal box, for example, inmates in the
b osliital, in the admission unit, and in segregation.
E ch box should be plainly marked, and above or on it should be posed a
statement of its purpose a list of persons to whom mail may be sent, and a
sta ent that matters which should be taken up with institution officials
ordinarily will be returned to the institution for disposition.
The notice posed on each PMB shall also include the following statement:
"The contents of all corr=spondence deposited in this box are the responsibility
of the individual writer Any material which violates postal laws or regula-
timis, i.e., is obscene or lewd or contains threats of bodily harm, involves
extortion or libel, includes contraband, or is intended to facilitate escape from
legal custody may result i a prosecution in a federal court".
E Collections.-A desi;;nated member of the institution staff shall collect the
contents of each box Dice each working day, Monday through Friday. All
PM3 mail, except that u ddressed to U.S. Courts and to Members of Congress,
shall be forwarded to i he Bureau each day in an envelope plainly marked
"Prisoners Mail Box."
ci Identification of Meil Inmates shall not be required to place any iden-
tifying information on the envelopes but shall be requested to address all
envelopes as clearly and carefully as possible.
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5. PROCESSING OF MAIL
a. Letters to Central O?fllce.-Mail addressed to the Bureau of Prisons Cen-
tral Office staff should be forwarded with other PMB letters addressed to the
Director, but only the Director's name should appear on the notice posted above
the PMB box.
b. Letters to the U.S. Courts.-All letters addressed to U.S. Courts shall be
separated from other PMB correspondence and forwarded directly to the ad-
dressee without inspection but with an accompanying transmittal slip similar
to the sample. Letters shall be forwarded to the addressees each working day
in an institution envelope, and at government expense.
Mail addressed to U.S. Attorneys, U.S. Probation Officers, and Clerks of Court
shall be forwarded to the addressee, but the notice posted above the RMB
box shall be limited to U.S. Courts.
Legal documents such as petitions for writs of habeas corpus, motions to vacate,
requests for trial records, etc. should be processed as special purpose correspon-
dence as provided in Section X, "Special Purpose Letters", of Policy Statement
7300.1.
During admission-orientation, and regularly thereafter through other media of
communication, all inmates shall be advised that their correspondence should be
couched in decent respectful terms and present only those problems over which
the court has jurisdiction and is known to have an interest.
c. Letters to Members of Congress.-All letters addressed to Members of Con-
gress shall be separated from other PMB correspondence and forwarded directly
to the addressee without inspection but with an accompanying transmittal slip
similar to the sample. Letters shall be forwarded to the addressee each working
day in an institution envelope, and at government expense.
Letters to Members of Congress shall be sent to their Washington address. In
this connection each institution should obtain a current Congressional Directory
for ready reference.
Letters addressed to persons you are unable to identify as Members of Con-
gress, or which pose other unusual questions, may be forwarded to the Bureau
together with other PMB mail for advice or disposition,
During admission-orientation and regularly thereafter through other com-
munication media, inmates shall be advised that the PMB letters should be
limited to the U.S. Congressman from the district in which the inmate has resi-
dence, or to the U. S. Senators from his state. Such letters must be couched in
decent, respectful, and non-libelous terms and should confine themselves to prob-
lems with which these officials may be able to help him or in which they are
known to have an .interest.
Inmates should be instructed that letters to several Members of Congress about
the same problem are likely to be less effective than will one letter to, the Con-
gressman of his choice. Follow-up letters ordinarily are unnecessary and cer-
tainly should not be resorted to in less than three or four weeks.
Letters to Members of Congress may be sent as "special purpose letters" if the
inmate wishes.
6. REPLIES TO PMB MAIL
a. From the Bureau of Prisons.-All Bureau of Prisons replies to PMB letters
will be addressed to the inmate. The original copies will be placed in an envelope
marked "Mail Room" and will be forwarded to the institution each day. This;
procedure will result in the inmates receiving direct replies and will eliminate
the necessity of caseworkers having to forward the individual replies on to the
inmates.
Carbon copies of all replies for the institution will be forwarded under separate
cover to be placed in the appropriate inmate's file. These replies should first be
routed through the caseworkers for information purposes.
Should there be any serious questions about the propriety of sending a par-
ticular reply directly to the inmate, the letter will be addressed to the special
attention of the Chief Executive Officer of the institution for appropriate
disposition.
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b. From the Board of Parole.-Tbe U.S. Board of Parole will eventually adopt
a sinfilar policy, but until its present procedures for responding can be re-
evaluated, some replies wit. continue to be directed to the Chief Executive Officer
of the appropriate institutic in, in duplicate.
MYRL E. ALEXANDER,
Director, Bureau of Prisons,
Commissioner, Federal Prison Industries, Inc.
UNITED STATES PENITENTIARY, ATLANTA, GA. (DATE)
Ti'e attached letter was placed in our Prisoners Mail Box for forwarding to
you. !The letter has been neither opened nor inspected. If the writer raises a prob-
lem over which this institution or the Bureau of Prisons has jurisdiction, you
may !wish to write to we or tothe Director, Bureau of Prisons, Department of
Just#ce, Washington, D.C. 20537.
If j the writer encloses for forwarding correspondence addressed to another
addljessee, please return .he enclosure to me, or the Director.-WARDEN.
(Sample)
E~ch institution shall duplicate a supply of these transmittal forms for its own
use. -
11 BUREAU of PRIgoNs, I VASHINOTon, D.C., POLICY MEMORANDUM-SUBJECT :
RELIOICUS BELIEFS AND PRACTICES OF INMATES
a it amount of
r
The objective of the Bureau of Prisons is to extend the greater
freedom and opportunity in this area as is consonant with the total mission of the
Bur,?eau. This includes the requirements of maintaining security, safety, and
orderly conditions in the institutions and of distributing available resources as
wi ely as possible among the many kinds of services and activities which con-
tri$ute to these aims anf to the purpose of rehabilitating offenders. To this end
we :have established thes 3 policies.
Ind them to deepen and i!xpand their knowledge, understanding and commitment
to the beliefs and principles of the religion of their choice and to resolve such
personal conflicts as the3' may have relative to religious beliefs.
1. Achieving these purposes may, and at times should, entail utilization of re-
sotrces beyond those no imally available within the institution, including clergy-
men or other representatives of churches in the community.
d. Staff, including part-time persons or volunteers who may be permitted to
have contact with inmates, will never disparage an inmate's religious beliefs
nor seek to persuade him to change his religious affiliation.
e. Except as provided below, inmates may attend any religious worship service
copducted by an institu1onal chaplain unless there is some prior requirement on
their time or unless his status does not permit him the freedom of the institution.
T. The chaplains shol.ld devote a reasonable portion of their funds to the pro-
cgrement of a wide rat.ge of religious literature and should obtain free of cost
suitable materials from all church groups of interest to members of the inmate
bgdy. Religious materii.1 should be made available to inmates who desire it-in
b 'th the chaplain and it stitutlonal libraries.
1g. Where an inmate desires personal copies of certain ,books or a subscription
to a religious periodici.l, he may arrange for this through the chaplain, Books
and periodicals purchased for purposes of religious study or inspiration must meet
tl~e test of not being of such a nature as to injure the good order of the institution.
Sjame material in this broad category is of an obviously inflammatory nature.
Regardless of its effect on the individual who originally obtains it, its presence in
2e institution can be c.isruptive. Where the Warden is in doubt, he may seek the
advice of the Bureau cc ncerning particular publications.
I h. An inmate will be permitted to retain for his use in the institution scriptural
or devotional books appropriate to his faith. Also, books officially presenting the
hings or doctrines of a religious body shall be admitted into the institution.
books will be referred to the appropriate chaplain for review and delivery
7o:,~;e
the inmate.
1. POLICY : FIERDOM OF RELIGIOUS BELIEFS AND PRACTICE
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i. Members of religious groups may also be permitted to have religious medals
or comparable insignia provided that the wearing of such symbols does not
create disciplinary or custodial problems or that they do not constitute what
under usual rules of the institution may be defined as contraband.
2. REGULATION OF RELIGIOUS ACTIVITIES
In any society there is the likelihood of occasional or even frequent conflict
between an individual's religion-inspired inclinations or obligations and his need
to comply with requirements of civil authority. The problem is enlarged when he
is an inmate of a total institution, and especially a prison. Although we wish to
minimize such conflicts, there are constraints in the correctional setting that
must be recognized, understood and accommodated. The following list is not
exhaustive but should serve as a useful set of guidelines for local administrations.
a. Freedom to change religious atjiliations.-We have set up a requirement
(Para. IC above) that staff not seek to change an individual's religious affiliation.
At the same time we require that individuals be assisted in their pursuit of re-
ligious knowledge and devotion. At times a chaplain will find it almost impossible
to observe both dicta, because to provide an individual with requested instruction
or counsel could encourage him along a course that will reseult in a change of
religious affiliation. Granting the potential contradiction, the chaplain can par-
tially resolve the conflict by encouraging an individual to defer his identifying
with a new religious denomination (as by baptism, for example) so long as he is
confined. Such enrollment can be taken care of after the inmate's release to the
community by the prospective pastor. This policy could well be modified, of
course, in the case of long-term prisoners, an individual who may be near death,
or a situation where conversion to a particular religion would strengthen family
ties or produce other desirable results.
Although the decision to change a religious affiliation is the responsibility of
the inmate, it should be made with the advice and guidance of the chaplain.
Each conversion should be recorded in the inmate file, and notification given to
the Warden and the Supervising Chaplains, and, where appropriate to members
of the immediate family. In cases of minors parental consent must be obtained.
b. Attendance at religious services.-The worship services led by the regular
institutional chaplains usually meet religious needs of the inmates, The Protestant
service is specially designed to be non-denominational in nature, and Catholic
services are increasingly of a nature to meet the needs of persons of other faiths.
In addition, special non-denominational services may be arranged on occasion,
such as in connection with certain holidays, religious feast days, commemoration
of some major public event, etc.
We recognize the fact that members of some religious faiths have special needs
which cannot be met by the services of the institutional chaplain. For example,
there are some Protestant denominations in which there are special require-
ments surrounding the administration of the Sacraments. Jewish inmates,
members of the Church of Jesus Christ and the Latter Day Saints, Jehovah's
Witnesses, and others also have special religious needs.
The chaplains are responsible for coordination of all religious services. When
inmate request shows the need for such denominational activity, the_chaplain
may, with the approval of the Warden, provide contract coverage from the local
community, or as suggested by the appropriate administrative office of the de-
nomination involved. Such special denominational activities shall be scheduled at
a time when the institution can provide adequate staff supervision. Services
conducted by a regularly appointed chaplain, contract chaplain, or approved
civilian religious leader shall be open to the general population, with consent
of the religious leader involved. Where religious groups with. special needs are
without the services of a visiting clergyman, they may, on recommendation of the
chaplain and with approval of the Warden, be permitted to meet for religious
activities under supervision of a staff member. Inmate conducted religious
activities are not open to the general population, but shall be limited to bona fide
members of the group holding the service. Under no circumstances will members
of a religious group be permitted to proselytize members within the institution
population.
c. Religious instruction.-Chaplains should attempt to meet the needs of all
inmates for religious education, but they may and. should utilize the services of
voluntary and contractual representatives of various denominations to supple-
ment their own program. Participation in such instruction classes shall be ap-
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provdd by the chaplain in consultation with the denominational representatives.
Ci.as$es will be limited to tl;ose inmates authorized to attend.
d. Reasonable limits mist be placed on the accumulation by individuals of
qua tities of religious ma aerial. Where these limits are exceeded, inmates shall
be given the option of donating the material to the institution or assuming the
costIof shipping excess religious literature to an approved correspondent. If
neither option is exercised, the material shall be confiscated.
e. The policy of augmenting usual religious services does not contemplate the
adm ssion of clergymen tc conduct worship services except on invitation of the
chap ains pursuant to the policies set forth above,
f. Diet.-Inmates should be given the option to abstain from eating those food
items served to the general population which are prohibited by their religion.
Ordinarily, the provision of special diets or the introduction into the institution
of special foods or cooking utensils must give way to the practical problems of
institutional administration.
Upon receipt of an inmate request, it shall be the responsibility of the institu-
tion, when qualified leadership is available, to provide opportunity for celebration
of that ritual of sacramental nature necessary to meet at least minimal annual
ith
F
i
f
or
.
ous
a
requirements imposed by bona fide membership in a given relig
instance, for those of Jewish Faith, authority is granted to arrange for the
observance of the annual Passover Seder. Sacramental elements, within limita-
tionS imposed by regulation, shall be obtained by the institution through fund-
ing for religious activitic s. Seder sacramental elements are defined as: grape
juice, matzos, bitters, green vegetable, haroses, and the lamb bone.
S. MISCELLANEOUS
ROligious and other gre?ting cards available through the office of the chaplains
shah be distributed on a free and non-discriminatory basis ; the lack of com-
misary funds shall not be a criterion for distribution. Mailing of these cards
will 'be according to estab) fished institutional correspondence regulations. Postage
of slich cards will be accc rding to normal institutional procedure ; fees for post-
age shall not be taken frori the chaplains' budget.
4.! This policy statemen ` is cancelled upon inclusion in the inmate management
manual.
MYRLE. ALEXANDER,
Director. Bureau of Prisons,
Commissioner, Federal Prison Industries, I no.
BUREAU OF PRISONS, WASHINGTON, D.C., POLICY STATEMENT-SUBJECT :
INMATE DISCIPLINE
1. PURPOSE
Tie objectives of inmate discipline and control are fully consonant with the
correctional objectives o' the institution, the focus being on (a) individual
inmte adjustment to the programs, behavior standards and limitations imposed
by the administration ; and, (b) the general welfare of the institutional
com{nunity.
2. EXPLANATION
While the foregoing sta Cement of purpose has been basic to Inmatemanagement
and: control for many years, a reaffirmation of policy and standards at this time
will. serve as a basis for the formulation of more precise guidelines and evaluative
procedures.
8. CANCELLATION
Policy Statement 7400.1 dated 9-9-66 Is hereby cancelled.
4. POLICY
It, is the policy of the Bureau of Prisons that inmates shall be subjected to
disc plinary action only for the purposes expressed above and only in accordance
witl$ basic requirements listed below. This is in recognition that discipiln.ary
sanction is but one factor in correctional treatment and control and that, as
applied to an inmate whc has misbehaved, the sole objective is his future volun-
tars acceptance of certain limitations which are being imposed upon him.
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a. Essential Principles.-(1) Disciplinary action shall be taken only at such
times and in such measures and degree as is necessary to regulate an inmate's
behavior within acceptable limits.
(2) Inmate behavior must be controlled in a completely impersonal, impartial
and consistent manner.
(3) Disciplinary action shall not be capricious nor in the nature of retalia-
tion or revenge.
(4) Program assignments and changes are made to achieve treatment goals
not as punishment or reward.
(5) Corporal punishment of any kind is strictly, prohibited.
(6) The initiation of disciplinary measures against any inmate is the province
only of the Adjustment Committee (a subcommittee of the classification com-
mittee) or, for minor infractions, as may be defined and delegated by the head
of the institution and controlled by the Adjustment Committee.
(7) Disciplinary action shall be taken as soon after the occurrence of mis-
conduct as circumstances permit.
(8) Inmate case records shall reflect misconducts, dispositions and shall in-
clude interpretive and evaluative statements regarding them.
b. Administration of Discipline.-It is the responsibility of the head of the
institution to prepare and promulgate clear Policy Statements for the guidance
of institutional staff in handling disciplinary matters. Such Policy Statements
shall reflect that primary responsibility for the disciplinary program rests
with the Classification Committee. The statement shall also require that every
reported misconduct be investigated and referred as prescribed. Top manage-
ment retains continuing responsibility for consistency in the administration of
discipline and for evaluating the results achieved.
c. Use of Segregation.-Inmates shall be segregated' only for the purpose of
insuring immediate control and supervision when it is determined that they
constitute a threat to themselves, to others, or the safety and security of the
institution, and only in accordance with the principles and guidelines expressed in
Appendix A, attached.
d. Forefeiture and Withholding of Good Time.-The forfeiture, withholding
and restoration of good time shall be accomplished in accordance with a Policy
Statement an this subject soon to be issued.
e. Transfers for Adjustment Reasons.-Transfers for adjustment reasons may
be considered, either as an aid to the adjustment of individual inmates or in the
best interests of the institution community, in accordance with the guidelines
expressed in Appendix A, attached.
f. Referrals for Prosecution.--Whenever inmate misconduct violates Federal
statutes, the head of the institution shall immediately convey the facts to the
appropriate Federal investigative' agency, and United States Attorney; as pre-
scribed in'the revised C st, di
w,r.._
a
ual
Institutional Policy Statements relating to inmate discipline shall be prepared
in accordance with this Policy Statement and the guidelines expressed in Appen-
dix A, attached. All such statements shall be submitted to the Director for
approval.
MYRL E. ALEXANDER,.
Director, Bureau of Prisons,.
Commissioner, Federal Prison Industries, Inc.
SUBJECT. IMPLEMENTATION or POLICY RELATING TO INMATE DISCIPLINE
1. ADYUSTMENT COMMITTEE
Basic authority for the administration of inmate discipline shall be delegated
by the head of each institution to an adjustment committee an:d/or Treatment
Team of the Classification Committee. The Committee shall consist of at least
three members of the Classification Committee whose selection places this impor-
tant responsibility in the hands of personnel who are most competent and who
broadly represent the primary areas of correctional treatment. (One of the mem-
bers shall represent the correctional service). Such delegation shall be accom-
panied by a specific charge which outlines duties and responsibilities in
accordance with the following:
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a..Functions.-The Adjistnient Committee and/or Treatment Team functions
as a' sub-committee of the Classification Committee. In addition to receivin>, re-
ports of misconduct, conducting hearings, making findings, and imposing disci-
plinary actions, the Adju?tment committee makes direct referral for diagnosis
or special handling, makes indicated program changes and otherwise has authori-
tative concern over instititional policies and operating procedures which affect
discipline. It is also concerned with evaluating the effectiveness of its, decisions
and other factors which have a bearing upon inmate discipline and morale.
b.; Dispositions.-The JLdjustment Committee and/or Treatment Team has
access to a broad range of dispositi.onal alternatives, included are direct referral
to v trious institutional program and service resources, reprimand, restrictions
of ~arious kinds, segregation and recommending the withholding or forfeiture
of ood time. Consistent with the Policy Statement objectives of discipline, the
choice of alternatives is .t composite group judgment which takes cognizance of
the reasons for the adverse behavior, the setting and circumstances in which it
occurred, the involved inriate's accountability and the correctional program goals
set for him. The choice of disposition goes far beyond mere compliance with
reg lations. To be fully effective, the inmate must understand and accept the
rea0onableness of the lirzitations being imposed upon him. A system should be
itev6sed to provide follow-up of at least the more serious and persistent behavior
problems dealt with.
2. USE OF SEGREGATION
Iii most institutions there is a separate housing unit for inmates who, at times,
nee:! to be segregated from the regular population. This unit is to be designated
the Segregation Unit. In keeping with Policy Statement purpose, the Segregation
Untt shall be operated i a accordance with the following basic requirements of
coz trol and supervision.
91. Segregation Condiions.-The
r heated and segration nd shall in a sbe well
velitilated, adequately lighted, appropriately
condition at all times.
l}. Cell Occupancy.-Except in emergencies, the number of inmates confined to
ea4h cell or room shall not exceed the number for which the space was designed.
Wlenever an emergenc3 arises which indicates that excess occupancy may be
tenwporarily needed, an immediate report shall be made to the head of the
institution and his appro Gal obtained.
e. Clothing and Bedding.-All inmates shall be admitted to segregation (after
through search for contraband) dressed in normal institution clothing and shall
be furnished a mattress and bedding. In no circumstances shall an. inmate be
segregated without clotldng except when prescribed by the Chief Medical Officer
for medical or psychiatric! reasons. If an inmate is so seriously disturbed that he
is likely to destroy his (lathing or bedding a medical officer shall be notified im-
mediately and a regimer of treatment and control instituted with the concurrence
of the medical officer.
d. Food.-As prescribed in existing regulations, segregated inmates shall be
fel three times a day on the standard ration and menu of the day for the
institution.
e. Personal Hygiene: -Segregated inmates shall have the same opportunities
tomaintain the level of personal hygiene available! to all other inmates, e.g., toilet
tissue, wash basin, sha+'hig, tooth brushing, comb, eye glasses, etc.
f. Duration of Segregation.-Consistent with the need for segregation, no in-
mate shall be segregated longer than necessary. Special care must be taken that
segregation does not be.~ome a haven for those who persistently fail to face their
problems. The adjustmf nt committee is responsible for the program'needs of in-
maates who require or demand long-term segregation. They will conduct a formal
review of such cases a; least once each month and their recommendations will
be brought to the attention of the head of the institution.
g. Supervision:-In addition to the direct supervision afforded by the unit offi-
car, each segregated innate shall be seen daily by a physician or medical techni-
cian, and one or more other responsible officers designated in the local, policy
ispuance.
h. Correspondence as.d Visits: -In the absence of direct and compelling reasons
to the contrary, inmatasin segregation shall not be required to forfeit corre-
spondence and visiting privileges. (Note that this supersedes the provisions of
paragraph IX of Polic, Statement No. 7300.1 and is in keeping with paragraph
D7c. of Policy Statement No. 7300.4).
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I. Records.-A permanent log will be maintained in the segregation unit. All
admissions will be recorded indicating date, reason for admission, and the author-
izing official. All releases. from the unit will be similarly recorded. Officials re-
quired to visit the unit will sign the log giving time and date of visit. Unusual
activity or behavior of individual inmates will be recorded in the log with a
follow-up memorandum through the head of the institution for the inmate's file.
3. TRANSFERS FOR ADJUSTMENT REASONS
Whenever, in the opinion of the Adjustment Committee and/or Treatment
Team, transfers to a more appropriate institution or facility is indicated, a com-
plete progress report shall be prepared and shall describe the inmate's status in
all phases of his program. In recommending or effecting such transfers, par-
ticular care shall be taken that (a) the inmate is not manipulating his situation
by becoming a serious management problem, and (b) the staff has exhausted
every reasonable local resource before transfer is considered.
BUREAU OF PRISONS, WASHINGTON, D.C., POLICY STATEMENT-SUBJECT: ACCESS
TO LEGAL REFERENCE MATERIALS AND LEGAL COUNSEL AND PREPARATION OF
LEGAL DOCUMENTS
1. POLICY
It is the intent of the Bureau to afford inmates reasonable access to legal
materials, legal counsel and a reasonable 'opportunity to prepare their legal
documents. The inmates program will continue without undue disruption by legal
activities except in those instances where inmates are confronted with imminent
deadlines established by the court in which the inmates lawsuits are pending.
The purpose of this Policy Statement is to set forth the policies to be applied
throughout our system. In certain instances the Policy Statement is purposely
general to enable individual institutions, within these guidelines, to promulgate
local rules and regulations which are most appropriate to their needs. Manual
Bulletin No. 47, dated February 16,. 1943, is accordingly rescinded.
All institutions are to submit copies of their regulations which implement this
Policy Statement within 60 days from this date.
2. PROVISION FOR LEGAL RESEARCH MATERIALS BY THE INSTITUTION
a. While there appears to be no present legal requirement for the institution
to provide law books for inmates, it is appropriate and equitable that we provide
some of the basic legal reference materials which are most apt to assist the in-
mates needs. Lack of uniformity and large accumulations of irrelevant and
meaningless materials have resulted from the application of Manual Bulletin
No. 47.
b. In order to foster uniformity, as far as practical, provide meaningful re-
source materials, and avoid stockpiles of material of dubious value, all institu-
tions are to provide copies of each of the following
(1) The 7 volumes of Title 18, United States Code Annotated (Criminal Code
and Criminal Procedure).
(2) Title 28, United States Code Annotated ?? 2241-2280 (Habeas Corpus
and Motions to Vacate Sentences).
(3) Title 21, United States Code Annotated (Food and Drug).
(4) Title 26, United States Code Annotated ?? 4001-5600, and 7501 to end
(Narcotics Offenses).
(5) A recognized law dictionary, such as Blacks Law Dictionary by West
Publishing Company.
Three sets of United States Code Annotated should be sufficient for the, major
penitentiaries and the Medical Center. Other institutions should have sufficient
numbers as are required by their needs. The United States Code Annotated should
be kept current by obtaining the pocket parts each year from the West Publishing
Company.
3. PURCHASE AND DISPOSAL OF LAW BOOKS AND OTHER LEGAL MATERIALS BY INMATES
a. If the inmate has the financial means to purchase a law book, he shall be
allowed to do so unless there is a compelling reason to the contrary. It is inap-
propriate for an administrator to make the determination that the specific ma-
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terial sought by an inmate is not relevant to his case and the refusal to allow
the inmate to obtain such i iaterials may well result in an adverse judicial decision
or cgnsure. If there appe;irs to be clear and compelling reasons to disallow a
purchase, the Legal Couns>_l should be advised before a final determination o2 the
matter is made.
b. Law books and other materials are to be purchased only from the primary
sour' es of supply, i.e. the published of law books; the clerk of court and/;or a
judgb of the court in the case of court documents.
c. Since the institution,; will be maintaining the basic reference books there
sho Id be no need to accumulate all books purchased by inmates. An inmate may
donte a particular book to the library when he is finished with it, if he wishes to
do and the institution ?.grees to accept the offer. The physical facilities o C the
institution and the nature of the book are appropriate factors to be considered.
i.e. *hether additional books can be readily accommodated and whether the book
is b}oad in applicabilty. :n the event a book is not to be acquired, it should be
senthome or destroyed, whichever the inmate prefers.
d.I The present accumu ation of obsolete and irrelevant materials may be dis-
posed of but case reports (Federal Supplement ; Federal Reporter ; United States
Reports) already in the library should be retained. Further accession of these
reporters should be made only by mutual agreement as indicated above.
4. PREPARATION OF LEGAL MATERIALS BY INMATES
a. Inmates should be allowed to have a reasonable amount of time to prepare
their documents. Of course, what is reasonable depends upon the individual
circumstances. Inmates who are required to meet deadlines in connection with
pending litigation in general should be given more latitude than those who are
preparing to institute suit. and are not required to file within a given period. Docu-
mellts presented for submission to the courts should always be forwarded. If
they are threatening or indecent, a special cover letter should accompany the
document explaining Bureau policy and relevant background factors and data.
b Inmates in administrative segregation status should, as far as possible, be
given the opportunity to work on their legal matters and have access to legal
reference materials equal to those persons in general population. In view of the
very short duration which inmates are normally kept in punitive segregation,
the; aforementioned policy should apply only if such inmates are in the midst
of litigation and where tl ie time element is such that it is important to allow them
to Continue to work on Their cases. If, however, an inmate remains in punitive
segregation beyond the normal period, the policy relating to administrative
segregation should be al piicable to him as far as possible.
Cr Physical facilities provided for legal research and study will depend upon
the: facilities available in aparticular institution. While a separate- room is more
desirable, the physical and staff limitations and the number of inmates using
legal materials could well indicate the advisability of using other facilities.
d. Preparation of legal documents in living quarters during "off duty" hours
may be authorized. Factors which might preclude such - arrangements could
inc'blde the individuals involved or the peculiar housing accommodiations. -
5. USE OF TYPEWRITERS
4. The advantage of submitting typewritten documents is well established.
Thins, unless it is demonstrated that the use of typewriters is not feasible in
a particular institution, their use should be allowed either through inmate
clerks to whom handwritten documents are submitted by the individual irmiates
ortyped individually, or submitted to public stenographers, whichever procedure
is in accordance with ins;itution policy.
b. If there is to be a delay in having documents typed, the inmate should be
so advised, and he may transmit handwritten papers to the court.
6. RETENTION OF ATTORNEYS
i. Inmates should be f.llowed to contact attorneys for the purpose of represent-
in' them. They should nit, however, send out several requests simultaneously but
shpuld make their requests one at a time.
b. While it is permiss ble to advise an attorney of the funds which the :inmate
h 's available, and it is many times desirable to counsel with the inmate, if the
in ate has attained hit: majority and is mentally competent to handle his own
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affairs, we are not to interfere with the financial arrangement between attorney
and client neither are we to act as a guarantor or collector of the fees. The
payment of retained attorney's fees is a matter between attorney and client.
Administrative Form 6 is hereby discontinued.
c. Visits by attorneys of record are not to be subject to auditory supervision.
Correspondence between attorney of record and client may be opened, but for the
sole purpose of inspection for improper content. Matters which relate to legal
advice or concern pending or prospective litigation, included in such correspond-
ence, are to be kept in strict confidence by the inspecting official.
MYRL E. ALEXANDER,
Director, Bureau of Prisons,
Comm,Essioner, Federal Prison Industries, Inc.
Dr. ALEXANDER. Finally, Mr. Chairman, I appreciate this oppor-
tunity to make known to the committee my views on our policies and
practices which are designed to assure full communication between
the men and women in our institutions and responsible officials of
Government.
The use of ombudsmen in Government is beyond my experience
as a prison administrator and my personal judgment of the ombuds-
man principle must be deferred until it has been fully explored Gov-
ernment-wide or by persons more competent than I. In the meantime,
I firmly believe that we have provided a responsible and effective
means for Federal prisoners to communicate any complaints, requests,
or wishes to the responsible officials of their Government and the
courts.
Thank you, Mr. Chairman.
Senator LONG. Thank you, Dr. Alexander.
Mr. Kass?
Mr. KASS. Thank you, Mr. Chairman.
Dr. Alexander, in listening to the discussion of the Veterans' Ad-
ministration, I assume you couldn't set up the telephone-type systems
in the Bureau of Prisons as we could with the VA?
Dr. ALEXANDER. I agree. It would severely breach institutional se-
curity, Mr. Kass.
Mr. KASS. I see.
Professor Gellhorn who has written a book called "When Americans
Complain," and has done a lot of study in the area of ombudsmen at
both the Federal, State, and local level, has made the. ' following
statement which I will paraphrase; that the prisoners, as he says,
are deluded-and talking both at the Federal, State, and . local
level-if they suppose that complaints are investigated without local
awareness that they have been made, implying that the complaints at
all levels, whether from Congress or the President or others, are ulti-
mately sent back to your agency for review. He makes the point,
therefore, that there is no real external review of the prisoners' com-
plaints.
Would you care to comment on this in light of this which is, in
effect, the supplemental remedy that Mr. Hamilton referred to, of
the ombudsman.
Dr. ALEXANDER. First of all, a majority of, or a very substantial
number of, the complaints are legal complaints. These involve pro-
cedures of investigative agencies, or legality of sentences, the con-
struction of sentence the way time is computed, and the like. These are
all matters of fact or record. They are reviewed, each and every one,
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by cur legal staff, anc. where there is some aspect of the complaint
thaid is open to questi )n, it is completely investigated by our legal
office. The inmate is then supplied with a statement as to why or why
not the request cannot :)e granic,d. I happen to have given one example
of a case on constructi.)n of sentence which could be done.
Iu cases where we .lave an unusual complaint, it is our practice
to $end someone from the central office. In two recent instances
in the past year, I have had a disinterested person actually retained
to go to an institution to check out complaints on which I did not
want to be in the position of conducting a self-investigation.
There are many other kinds of complaints; for example, those in-
volui.ng injury comee_ isation for a minor injury of some kind. We
follow the standards and the principles of the National Safety Council.
Our hospitals which are administered by the U.S. Public Health
Service are regularly iispected. Incidentally, included in the prisoner's
ma l box addressees are letters to the Surgeon. General, U.S. Public
Helth Service, on any complaints such as medical practices or lack
of sanitation.
What I am saying is that as conscientiously as possible, we answer,
follow every complaint, give a written response to every prisoner's
mail box letter that comes to us; that is, those directed to me as a
Director of the Burear. of Prisons or one of our staff.
now, as the chairman knows, this sometimes initiates correspondence
b c. and forth. We don't have a person who acts in a capacity similar
to he contact representative of the Veterans' Administration. How-
ever, each inmate in cur institution is assigned to a trained counselor
or baseworker, and each complaint that he has is handled by this
caseworker. We have now the established practice in our institutions
than the inmate doesn't even have to put in an interview request and
wait 2 or 3 days to be called up. Either at the noon or evening meals
the staff people are available to any man from the institution going
or ;coming from the dining hall. In some of our youth institutions we
nor put such a, person right into the cellhouse or the dormitory.
W$ have tried to provide, within our system, both an immediate, op-
po*tunity to register his complaints within the institution and access
to $he highest levels of Government.
Mr. KASS. The stru Jtures that you referred to within the institution
are, of course, commendable and do work in many instances. I am
thiking of the instance you raised of prisoners complaining about
tho quality of food.
Jf, for example, the quality of the food is good, and one of the food
ingpectors goes to the prison, inspects the food and then comes back
and says the food is good; maybe this is the steam-valve approach we
talked about; but isn't there a utility for the external type of review
so'that the prisoner will know that not only did the Bureau of Prisons
sad the food is good, but also this ombudsman, or call him "grievance
man," has told him the same thing.
Dr. ALEXANDER. Any system or device which would help us manage
these highly volatile prisons and institutions and provide an outlet for,
many times, these rather emotionally disturbed persons, can be no
set ious problem to urn. Indeed, all of these procedures I described are
designed for that purpose.. My principal concern is that we not provide
so;many avenues and channels of communication that too many people
I
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get involved so that the inmates spend all of their time voicing their
complaints and there is a great deal of duplication. I certainly think
we have demonstrated through the years that we are anxious to provide
proper outlets and competent evaluation of the complaints.
Mr. KASS. This will be actually a statement more than a question.
Professor Gellhorn, also in reference to State and local governments
primarily, makes the statement, and I quote "nowhere is the need
for external examination of grievances greater than American prisons,
jails, and other places of detention." Would you care to comment on
this more toward the question of State and local?
Dr. ALEXANDER. That is a very sweeping question since it is covered
in terms of all jails or prisons in the United States. There are some
3,200 county jails, some 285 major prisons, and untold numbers of
detention homes, police lockups, and city workhouses throughout the
country. I can only suggest that by our practice, I hope it is clear that
I endorse full communication and opportunity for any person held in
confinement to enable him to make known whatever his problems may
be.
Mr. KASS. And in S. 1195, section 8b says "any letter addressed to
the ombudsmen and written by any person in custody on a charge of
or after conviction of any offense in the United States shall be imme-
diately forwarded to the ombudsmen from the institution where the
writer of the letter is detained." This would not conflict with your
present intention?
Dr. ALEXANDER. This is precisely the method we use with Members
of Congress and with the courts at present.
Mr. KASS. But would there be a harm in giving it to an additional
person who would be able to investigate it?
Dr. ALEXANDER. No; my response suggests that if there is an
ombudsman, I would subscribe to that procedure of communicating
with him because wherever there is a responsible person in government
we follow that practice now.
Mr. KASS. Although you seem to suggest in your statement there
is some merit to it, I think that maybe you don't want too many people
sticking their fingers into the prison pot so that the prisoners will
have constant correspondence, and maybe are deluded in thinking
they are going to get assistance when they are not.
Dr. ALEXANDER. I think it is important that those with whom they
communicate be responsible officials of government. If the Office of
Ombudsman is created, the ombudsman no doubt would be a respon-
sible official of government and would be included in this pattern of
communications which we presently follow.
Now, we do not, for example, permit an inmate of a Federal institu-
tion to write to the chief food inspector of some far-off State, and
many times, they will want to do this. We believe that since they are
Federal prisoners, they should communicate with responsible officials
of the Federal Government, the Federal courts, or those persons who
are responsible. You see, 20,000 inmates sitting around talking in the
yard at night can concoct all kinds of ideas, and they might decide
that the president of the National Football League really ought to
know about the fact that we don't play contact football. If one such
case came up, we probably would say, "Well, write the letter." How-
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i
ever; to open the door to: widespread; unlimited kind of correspondence-
would be inconsistent with our general pattern.
AM I said before, if there is a Federal ombudsman,. he should be able.
to communicate with inmates the same as the other officials I mentioned
before.
M. KASS. And the system would give him full access to the
prisyners' records?
D . ALEXANDER. Oh, yes. Well, this is true right now of those with.
whom they correspond.
A LASS. Does the prisoner have full access to his. records?
D. ALEXANDER. No, sir.
1Vlr. LASS. Does lie hive limited access; does he have any access?
Dar. ALEXANDER. Ile may have access to certain information which.
he wants to know, but he has no Recess directly to his file nor can he
handle it. These files contain investigative reports, reports by judges,
probation officers, conf.dential psychiatric records, and so on.
Mr. LASS. Thank ycu. I have no further questions.
Senator Lowe. Mr. Waters ?
Mr. WATERS. Doctor, 'I note that you list several people to whom
the prisoners have direct communications, among them Congressmen
and' Senators, and certainly Ave know that the Congressmen and
Senators do get a lot of mail. I didn't see lawyers on there. But I
assume they are also permitted free access to lawyers?
Dr. ALEXANDER. Ye>; to their attorney of record. This applies not
only to correspondent,', but also to confidential visits.
Af r. WATERS. Thank you.
Dr. ALEXANDER. Bu, the prisoners' mailboxes which I was describ-
ing is not used for that purpose.
Mr. WATERS. Thank you.
senator LONG. Doei:or, do you notice a possible resentment among
thejprisoners against the system that is presently in force that they are
having to communica_e;. with people who investigate, people who are
act Tally making the ,omplaint against them? Is there some rerson
me nt on that basis? IVould they feel freer by writing the letter to [lie
ombudsman and having him look at it rather than your legal depart-
me it which is an employee of the group that they are comnpla i:iirig--
ag inst ?
Dr. ALEXANDER. I I:ave had no feedback on that that would suggest
that there is complaint against the system of making complaint.
Did you have something?
1Ir. BARKIN. If I could point out one illustration, the legal. aid
program we have encompasses civil as well as criminal remedies, in-
cluhng complaints against the administrators. Our experience has
bean, especially with :~eavenworth, which has been in existence longer
than any other, that t:rere is a very small number of complaints leveled
against the administrator but they are free. to make such complaints.
As a matter of fact, ?vq encourage this. We indicate that, if there is a
complaint against the administrator; the institution should bend over
backward not to interfere, because in such cases there could be a ground
:fob alleging that we lave an interest in the complaint. The experience
is pretty much that way. The legal aid program has this concept in
mind-that once a Law school program gets started, the Bureau of
Prisons bows out completely other than providing the, legal aid pro-
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grain with the necessary information. The prisoners do not go through
us in any way. We don't talk to them, and the students are treated in
every respect like counsel.
Senator LONG. That is really the ombudsman theory?
Dr. ALEXANDER. That is right.
Senator LONG. Along that line.
Dr. ALEXANDER. That is right.
Senator LONG. I have visited the institutions over the years and
have been very impressed with the cordial relationships between the
warden and prisoners. There appear to be very few feelings of resent-
ment against the wardens. When I am on the vests, I always have been
available and have talked to quite a number of them. I recall over the
years that I have had one prisoner who has been critical of the warden
or institution-only one, the "Bird Man"-that was a rather unusual
exception, so I don't believe there is actually too much resentment
all culminated in the theory of the ombudsman we are talking about,
Any other questions?
Dr. ALEXANDER. Well, in the sense, Mr. Chairman, of providing
unrestrained and uninhibited communication, we have certainly tried
to follow that principle.
Senator LONG. I doubt very much that you should permit unlimited
correspondence and communication with the outside.
Mr. Fensterwald ?
Mr. FENSTERWALD. Doctor, I would like to ask whether the inde-
pendent investigatory power of an ombudsman would cause any diffi-
culty? I understand the part about free access to Federal officials, but
most of the Federal officials that the prisoner can communicate with,.
such as a Senator or Congressman, don't have any power to investigate.
What they do is turn the complaint back over to you. Would it cause
any trouble if an ombudsman or a representative of an ombudsman
would have access to prison officials and physically have access to the
prisoner imprisoned to investigate a complaint?
Dr. ALEXANDER. I don't see that it would cause any more problem
than a staff member of the General Accounting Office coming right into
our institution for an investigation or an FBI investigation a U.S.
attorney's inquiry on a complaint of some sort. These types of investi-
gations now regularly take place.
As a matter of fact, in prison administration we are quite accus-
tomed to numbers of other agencies coming to the institution. I must
confess that sometimes we think they are attracted to the prison be-
cause its kind of a unique, isolated sort of place that they are interested
in. But in direct response to your question, assuming that he were a
person of good judgment and circumspect in his work, I would see
no problem.
Mr. FENSTERWALD. Thank you.
Senator LONG. Thank you, Doctor. Thank you, sir. We appreciate
both of you being here. You have been very helpful to the committee.
The committee will stand in recess until 10 o'clock tomorrow morn-
ing, at which time we will meet in this room for a hearing on another
subject.
(Whereupon, at 12:05 p.m., the hearing was recessed until 10 a.m..
Wednesday, January 17,1968.)
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(Views of Bureau of Prisons can be found beginning on p. 35 of this volume
under testimony given by Dr. Myr]: E. Alexander.)
AGENCY COMMENTS ON S. 1195
INTERNAL REVENUE SERVICE,
THE GENERAL COUNCIL OF THE TREASURY,
Washington, D.C., November 15, 1967.
Hon. JAMES A. EASTLAND,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Reference is made to your request for the views of this
Department on S. 1195, "To establish the Office of Administrative Ombudsman
to investigate adminstrative practices and procedures of selected agencies of
the United States."
The bill would create an Office of Administrative Ombudsman which would be
independent of the executive department and under the direction and control
of the Administrative Conference. The Ombudsman would be appointed by the
President for a term of five years and could not hold the office for more than
four full terms. The Ombudsman would' have the authority to investigate,
whether on his own motion or upon a complaint, the administrative acts, prac-
tices, or procedures of the Internal Revenue Service, the Social Security Admin-
istration, the Veterans Administration, and the Bureau of Prisons and of their
officers, employees or members.
The Ombudsman would be required to investigate, under sections 4 and 5
of the bill, administrative acts which might be contrary to law or regulation,
unfair, unreasonable, oppressive, based on a mistake whether of law or fact,
based on "improper or irrelevant grounds", "unaccompanied by an adequate
statement of reasons", inefficiently performed or "otherwise erroneous", unless he
decides that there is already an adequate remedy for the complaint, or the
matter is outside his jurisdiction, is trivial, frivolous, vexatious, not made in good
faith, or the complaint does not have a sufficient personal interest in the matter
or has had knowledge of the matter too long before complaining about it. If the
Ombudsman decided to investigate, he would so inform the complainant, if any,
and the agency concerned. On-the-spot investigations of agency proceedings
and activities would not be prohibited. In Investigations, the Ombudsman could
make inquiries of the agencies and hold private hearings with "both the
complaining individual and agency officials", to find an appropriate remedy
with respect to the matter complained of, or to make routine checks of the
operations of any agency under his jurisdiction.
Section 6 of the bill would provide for the Ombudsman's course of action in
dealing with an agency. If the Ombudsman's investigation were to convince
him that a matter should be considered further by an agency, or an admin-
istrative act should be modified or canceled, or the governing statute or regulation
should be changed or repealed, or reasons should be given for an administrative
act, or some other action should be taken by the agency concerned, the Ombuds-
man first would consult with the agency about which, or the person about whom,
he is planning a critical report or recommendation and then would allow a
reasonable time either for compliance with his recommendation or for the filing
of an explanation of the administrative act. When he had prepared his final views
or recommendations, he would submit them to the agency and could then
request that he be notified within a specified time of what action the agency
had taken on his recommendations. The agency would be required to respond
to the request. Thereafter, within 60 days of sending his views or recommenda-
tions to the agency, the Ombudsman would send copies, together with the agency's
reply, to the head of the agency concerned, the Chairman of the Administrative
(53)
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54
Conference of the United States, and the appropriate Congressional Committees,
and; would take any other action to make such information available to the
pubic. Finally, the Ombudsman would notify the complainant as to the fate
of h s complaint.
Section 8 of the bill would provide that no proceeding, report or decision
of the Ombudsman whi,th was conducted or made in accordance with the
provisions of the bill co ild be "challenged, reviewed, quashed, or called into
'quedtion in any court." Fr rthermore, no civil or criminal action could be brought
against the Ombudsman or his staff for anything they might do in a good faith
disc arge of their duties under the bill nor could the Ombudsman be required
to give testimony in an3 court or in any judicial "investigation of his func-
tion ."
I addition, section 8 would provide that the authority of the Ombudsman to
act !would be in addition to any other remedy available to a complainant
and! that any other such remedy would continue to be available. The authority
of tie Ombudsman could be exercised notwithstanding any other provision of
law providing for the fin ility of any administrative act.
e author, when he introduced the bill, stated that the proposed Ombudsman
is intended to be "a combination red-tape cutter, complaint bureau, and citizen's
def nder against bureau,.,racy" with "broad investigatory powers". According
to the author, the Ombudsman would, in effect, "be an arm of the Congress,
similar to the General Accounting Office which primarily handles fiscal matters,
and . similar to the other Ombudsmen of the world who are responsible to their
parliaments." (113 Cong. ]tec. S3201)
It is difficult to assess the probable impact of the bill on the work of the
Internal Revenue Service of this Department since to ombudsman concept
is not analogous to anything in American administrative experience. However,
after consideration of the provisions of the bill and after a review of the avail-
able literature in English on the institution of the ombudsman, it is the view of
the Treasury Department that enactment of the bill would not achieve the
endq sought by its sponsor, that is, providing citizens with a forum for complaints
abofit administrative act i. Furthermore, it could seriously impede the aclmin-
i,trution of the Internal Revenue Code without contributing noticeably to the
greeter well-being of allf godly aggrieved taxpayers. We believe that adequate
remedies for such taxpayers to pursue and adequate procedures for investigating
the iadministration of tle Federal tax laws without seriously impeding: the
adnnlinistration of such lays presently exist.
T e institution of the ombudsman has existed in more or less its present
forin4 since provision for it was made in the Swedish constitution of 1809. The
office of the ombudsman his been incorporated into the administrative framework
of several other small countries in this century, several making the addition
in the years since the second World War. In contrast to the United States,
the countries adopting the institution of the ombudsman have been small coun-
tries governed by the par .iamentary system where governmental bureaucracy is
responsible to the parliamentary majority. It is noted that the Ombudsman
for Denmark has hesita:ed to recommend that a country as large as Great
Britain adopt the institution. Confining the operations of the ombudsman
proposed in the bill to foirr Federal agencies does not meet the objection to the
ombudsman based on the size of a country. The Internal Revenue Service alone
is responsible for the colle?tion of Federal taxes with respect to 190 million people
throjighout fifty States and territories.
Itl is urged by the prcponents of the ombudsman, and the point was made
by ijhe author of the bill n his introductory remarks, that the institution works
best] in those countries having the best developed and most honest administrative
systems. While this is true, it does not follow that the highly technical and
sap isticated system of law found at the Federal level in the United States wends
itself to overseeing by an ombudsman. In the November 1965 Yale Law Journal,
Professor Walter Gellhorn points out that Sweden, in 1909, created a Supreme
Adnninistrative Court to which certain classes of cases, preponderantly .:hose
invdiving taxation, now g). Professor Gellhorn concludes :
* * * the administration of social insurance and related `welfare state' activi-
ties!was not a dominant e:.ement of the Ombudsman's caseload, nor were taxation
disppztes a major feature of his concern. These observations concerning the Om-
budsman's work are empl asized here because both Swedish and foreign commen-
tators have sometimes stressed that the Ombudsman system is especially needed
in societies with elaborate social welfare and tax administration. The available
figures suggest, on the co:itrary, that the Ombudsman plays a minor part in re-
solving the undoubtedly numerous controversies that arise between citizens and
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officials in these fields. Those controversies are dealt with by other means, especi.
ally designed for the purpose." (Emphasis added)
The Congress, through the Joint Committee on Internal Revenue Taxation, al-
ready conducts a continuing and detailed examination of the Internal Revenue
Service's discharge of its duties under the Internal Revenue Code. Sections 8001
through 8023 of the Internal Revenue Code set forth the powers and duties of the
Joint Committee relevant to its continuing supervision of the Service and the
development of the Code. These .provisions in many respects parallel those which
would be conferred upon the Ombudsman. Section 8022 confers broad powers of
investigation upon the Joint Committee. Section 8022 provides :
"It shall be ,the duty of the Joint Committee-
(1) INVESTIGATION.
(A) OPERATION AND EFFECTS OF LAW.-To investigate the operation and
effects of the Federal system of internal revenue taxes;
(B) ADMINISTRATION.-TO investigate the administration of such
taxes by the Internal Revenue Service or any executive department,
establishment, or agency charged with their administration ; and
(C) OTHER INVESTIGATIONS.-To make such other investigations in
respect of such system of taxes as the Joint Committee may deem
necessary.
(2) SIMPLIOATION OF LAW.-
(A) INVESTIGATION OF METHODS: To investigate measures and meth-
ods for the simplification of such taxes, particularly the income tax ; and
(B) PUBLICATION OF PROPOSALS.-To publish, fromtime to time, for
public examination and analysis, proposed measures and methods for the
simplification of such taxes.
(3) REPORTS.-To report, from time to time, to the Committee on Finance
and the Committee on Ways and Means, and, in its discretion, to the Senate
or the House of Representatives, or both, the results of its investigations,
together with such recommendations as it may deem advisable."
Under section 8021, the Joint Committee may hold hearings with sworn testimony
where and when it wishes and may compel attendance of witnesses and the pro-
duction of books, papers and documents. In addition, the Joint Committee is
authorized by section 8023 to obtain, whether from the Internal Revenue Service
or any other agency, information, suggestions, rulings, and other relevant data for
the purposes of the Joint Committee.
Dr. Laurence Woodworth, Chief of Staff of the Joint Committee on Internal
Revenue Taxation, has briefly described the continuing function of that Com-
mittee in its supervision of the Internal Revenue Service :
"* * * the Joint Committee meets to review administrative problems arising
under the internal revenue laws. These may involve a review of administrative
procedures in the Internal Revenue Service or, perhaps, review of some proposed
ruling or regulation brought to its attention by the Service with respect to which
a particular problem exists. In addition, the Joint Committee, from time to time,
of its own volition raises questions as to an administrative procedure or proposed
or final ruling or regulation. The Joint Committee, on occasion, has made recom-
mendations with respect to legislation, but has not done so on any regular, or
frequent bases." ("Enacting Tax Legislation", 18th Tax Institute, University of
Southern California Law Center (1966) p. 23)
Furthermore, the Joint Committee, together with the House Committee on
Ways and Means and the Senate Finance Committee, has much greater access
to tax returns than any other Federal establishment. The effect is that the Joint
Committee, with its expert staff, is permanently in session on matters of tax ad-
ministration. The ombudsman could only duplicate the work of the Joint Com-
mittee and with less staff and less expertise than is enjoyed by the Joint Com-
mittee and with less responsibility for the results of his intervention than is borne
by the Joint Committee.
The Internal Revenue Code of 1954, as amended, is a complex and technical
statute. An especially qualified Tax Court hears cases with respect to contested
tax deficiencies and the United States District Courts and the United States
Court of Claims hears cases with respect to refund suits. Appeals are heard by the
United States Courts of Appeals or, in some cases, by the United States Supreme
Court. The Ways and Means and Finance Committees carry on a review of the
operations of the Internal Revenue Service and its interpretation of the Code.
Members of the teaching profession and professional organizations also provide a
close and continuing review of Internal Revenue Service activities through law
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56
journals, bar groups, and annual tax conferences. Students of the Internal Rev-
enue Code will agree that, in many difficult and complex areas of the Code, there
is no always uniformity cf agreement in the interpretation of Code provisions.
An Ombudsman cannot be expected, or even be permitted, to supply the one
proper interpretation of ether the substantive or procedural provisions of the
Code; It is the responsibility of the Internal Revenue Service to administer the
tax l ws fairly, promptly, and uniformly. The rulings and determinations of the
Service are applicable to i axpayers throughout the country in contrast, for ex-
ample, to the jurisdiction ~f the several United States Courts of Appeal, whose
decis ons are binding only on the courts within their respective circuits. Within
this Oontext, the question A accepting an adverse decision by the Tax Court, a
district court, the Court of Claims, or one or more circuit courts of appeal involves,
necegsarily, a determination that the litigation has resulted in a rule reasonably
consistent with the intent ?)f Congress, that it is one likely to be acceptable to all
taxpyers similarly situat(!d and to other courts in which the question may arise,
and Is thus one calculated l o make for certainty and uniformity among taxpayers.
A rule which benefits one taxpayer may be harmful to others or may estab-
lish a precedent which is inconsistent with the broad scheme of the stai.ute.
Mordover, it is not uncommon for appellate courts to disagree as to the proper
interipretation of the tax laws, with some courts upholding the position of the
Inte nal Revenue Service and others rendering adverse decisions on the name
question. In general, under firmly established policy, adverse decisions by two
circuits (or one circuit ar d the Court of Claims) are deemed an adequate test
of the Internal Revenue Service's position, although, frequently, the Service's
position, once it has been fairly tested and rejected by even a single court of
appeals or even, in some cases, a district court, will be conformed to such adverse
decision, provided it lays down a rule capable of fair and equitable administra-
tion on a nation-wide basis. Except for constitutional questions, there is no right
of appeal to the United S1 ates Supreme Court. Jurisdiction to review, by writ: of
certiorari, lower court determinations of tax questions is rarely sought or granted
except where there is a ?:euuine, positive conflict in the circuits, including the
Cou of Claims, or where a lower court determination conflicts with a decision
of the Supreme Court.
A material factor to be considered in determining whether Supreme Court
review should be sought i,a whether the case in which the decision adverse to the
Inte nal Revenue Service has been rendered may not turn on the particular facts
involved and so not; prow de the direct conflict so essential to resolution of the
legs question presented. Therefore, with respect to an issue of continuing, im-
portance to taxpayers everywhere and to the administration of the tax laws,
the Internal Revenue Service will continue to litigate cases involving such a
que ion with a view towf.rd developing a satisfactory vehicle for Supreme Court
clarification of the issue as soon as possible. It should be noted that where con-
sideration of an adverse decision of substantial precedential value has led to
the determination that it would be in the public interest not to accept such de-
cisidn, but to continue to litigate the issue with a view toward clarification of
the law, the policy of the Internal Revenue Service is to announce to the public
the determination reaches. as promptly as possible. In the context of the responsi-
bility imposed on the Co:npnimioner of Internal Revenue for administration of
tax l aws and the care thatmust be taken to harmonize decisions by many courts
witlj the sound administration of these tax laws, it can readily be seen that it
wou d be inconsistent wit i the responsibility imposed on the Commissioner if the
Internal Revenue Service were to acquiesce in the interpretation in tax matters
of an ombudsman where it would not have done so with respect to the adverse
decision of a court.
Congress decided as early' as 1921, when it enacted section 1313 of the Revenue
Act'af 1921 (predecessor to section 6406 of the Code), that only the Internal
Revenue Service should determine the merits of any claim under the Internal
Revenue Code and that nc other agency should review that determination. Section
6404# of the Code provides
In the absence of fraud or mistake in mathematical calculation, the findings
of f bt in and the decision of the Secretary or his delegate upon the merits of any
clai presented under or authorized by the internal revenue laws and the allow-
ance or nonallowance by the Secretary or his delegate of interest on any credit
or refund under the internal revenue laws shall not, except as provided in sub-
chapters C and D of chapter 76 (relating to the Tax Court), be subject to review
by Any other administrative or accounting officer, employee, or agent of the
United States."
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At the Senate Finance Committee hearings with respect to section 1313, the
Treasury Department. It is a thing you can pass judgment upon very quickly. The
provision resulted from the enactment of the Budget and Accounting Act of 1921
which established the General Accounting office, stated :
"I have a new provision with relation to claims for refund of taxes in the
Treasury Department. It is a thing you can pass judgment upon very quickly. The
proposition is this : the new budget bill ? practically gives the right to a final
determination on all claims against the Government. It puts it in the hands of the
Comptroller General. He has the final say on all claims. The question is whether
you want him to have the final say on these technical tax questions. In other
words, you have a bureau up there which costs five, six, seven, or eight million
dollars a year. It is technical in the highest extreme. I can not think of the
Comptroller General performing that work satisfactorily without duplicating
the machinery already provided." (Hearings before the Senate Finance Commit-
tee on the Revenue Act of 1921, II.R. 8245, 67th Cong., pp. 299-300 (1921) )
To make clear that the provision was applicable to the General Accounting
Office, the Revenue Act of 1924 added the words "or accounting" where they now
appear between the words "administrative" and "officer". The bill would, by
granting the Ombudsman authority to investigate and hold hearings on deter-
minations made by the Commissioner, reverse long-standing Congressional policy
that determinations of the Commissioner should not be subject to review by other
administrative agencies of the Government.
The author, in his introductory remarks on the bill, indicated that the agencies
to which the Ombudsman's jurisdicton would extend were selected because, "It
is our opinion that the great bulk of citizens' complaints arise in connection with
the above-mentioned agencies." The Department believes that, if any agency at
the national level is to be made the subject of an innovative experiment of this
nature, the agency selected be such as serves or deals with a relatively small
number of person, administers a law that is not overly complex or frequently
changed, and does not have so highly developed a review procedure as the In-
ternal Revenue Service affords.
The proposed Ombudsman would be required to present annually to the Pres-
ident, the Congress, and the head of the Administrative Conference a written
report on his activities for the preceding year. If historical precedent in other
countries having an ombudsman is any guide, the report would consist of a
detailed, case-by-case report on all matters handled by his office. It is said that
Swedish officials anxiously search through the report each year to see if their
names appear with a critical reference. (Bainbridge, "A Civilized Thing"-Inter-
view with Mr. Bexelius, New Yorker Magazine, February 13, 1965) The Swedish
Ombudsman, Mr. Bexelius, believes that his actions, especially his reports or
the fear of his reports, "promotes uniformity" of interpretation of the law.
(Statement of Hon. Alfred Bexelius, Hearing before the Senate Subcommittee on
Administration and Procedure an S. Res. 190, 89th C'ong. (1966)) However,
there is another side of the "uniformity" imposed by Mr. Bexelius. Professor
Gellhorn reports in his law review article case after case of judges and adminis-
trators who had accepted the Ombudsman's guidance or interpretation yet who
had felt and still believed (and in one case all six judges of a court) that they
had been right and the Ombudsman wrong. They had nevertheless accepted the
Ombudsman's decision without contest because they did not want to get involved
in a fight. The mental attitude apparently Induced by the actions, or threat of
actions, of the Ombudsman is destructive of the outlook required for imaginative
and creative administration. Furthermore, personnel are, as it were, separated
from their agency background when they are singled out for criticism by a
national officer on a nationwide basis.
Under present procedures of the Internal Revenue Service, if a return is
selected for audit and does not involve complex issues, the taxpayer will be
asked to supply information through correspondence or to, come to the district
director's office with his records, for an interview (office audit). In the case of
a more complicated return the examining officer will go to the place of business
of the taxpayer (field audit) to examine his records.
First, the taxpayer can discuss the matter fully with the examining officer
and try to reach an agreement at the threshold of the dispute. In the absence
of an agreement, he can have a hearing with the examiner's supervisor. If
agreement.is still not reached, a further conference is available with the district
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conference staff, still witho-it the necessity of a written protest in smaller cases. If
agreement is not reached upon this review, a further review is open to the taxpay-
er at the- regional AppellatE: Division, which is separate and completely independ-
ent of the Audit Division and the examining officer. Both the district conference
staff and the Appellate Division are charged with the responsibility of giving
impartial and unbiased co:isideration to the taxpayer's contentions. If the tax-
payer does not avail himself of the right to these reviews, or if no settlement is
reached upon these reviews, litigation may ensue. Where no settlement is reached,.
a no0ce of deficiency is issued and the taxpayer may then file a petition in the
Tax Court for a redetermnation of the claimed deficiency, or the tax claimed
may be paid and suit filed l'or its refund in the District Court or Court of Claims..
Settlement opportunities mill still be available to the taxpayer during litigation
and significant percentage of such disputes are resolved without a court
decision.
Both the district conference and the Appellate Division hearing afford an
inexpensive, speedy, and mpartial review to the taxpayer. He can represent
hims if or be represented 3y counsel at these hearings-the choice is up to the
to Kpdyer. Conferences are arranged at his convenience, near his home and,
withi reasonable limits, at a time most suitable and least costly to him. There
are approximately 300 district and branch offices of the Audit Division at which
conferences are granted, and 41 branch offices of the Appellate Division. Addi-
tionally, many confernces are conducted through "circuit riding" to places even
near4r the taxpayer's home.. There are approximately 1,050 district and Appellate
conferees engaged in this administrative appeals activity. In the fiscal year
ended. June 30, 1967, the Enternal Revenue Service examined some 3.1 million
tax returns. Of this number, over 2.1 million were accepted without change,
390,000 taxpayers who were audited received $191 million in refunds and an
additional $94 million was refunded to 1.5 million taxpayers who made mathe-
matical errors in their returns resulting in overpayment of taxes. One of the 3.1
million returns examined, disputes arouse in only 74,000 cases. Forty-one thous-
and eases were handled by the district conference procedure in fiscal 1967, about
27,00 of these being settled by agreement at the district level. At the Appellate
Division level, 92 percent of the cases handled in fiscal 1967 were settled, 6
percent were disposed of ay default and only 2 percent, or 799 cases, went on
to be tried before the Tax Court. This record is all the more impressive when it
is cobsidered that most cases before the Appellate Division represent the hard
core of controversy : alti:ough only 1.7 percent of the returns examined were
involived, the disputes concerned $1.8 billion, approximately 55 percent of the
total; deficiencies proposei, by District Directors, The convenience, speed, and
expertness available to taxpayers under the existing system exceed anything
an Ombudsman could off,1r without duplicating the review structure already
available.
The Department is also concerned that passage of the bill would jeopardize
the effectiveness of the administrative handling of disputes. The organization
and administration of the procedures responsible for the settlement of tax
disputes is the product Ef considerable experience and analysis on the part
of the Internal Revenue Service. Prior to the establishment of the Board of
Tax ;Appeals' in 1924, appellate administrative review was afforded taxpayers by
a Coommittee on Appeals E.nd Review in the Bureau of Internal Revenue. How-
ever,) in order to afford to ipayers a judicial review prior to assessment of their
tax, the Board of Tax Appeals was established in 1924, and its authority more
completely defined in the ]Revenue Act of 1926. It was soon ascertained, however,
that; many cases were being 'tried before the Board on facts not previously dis-
closed to the administrative authority. Some taxpayers, having this additional
forum, were hesitant to disclose fully their position before trial. Many of these
cases would have been soE.'-u y wo
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