Georgia Ombudsman Bill Comparison
This report was prepared on February 25, 2000 by Karen Worthington during the 2000 Georgia Legislative session. The Ombudsman Bill (HB 1081) (later to be known as the "Child Advocate Act") was working its way through committee at the time. This report is preserved as a record of the evolution of the Child Advocate Act in the hope that it might be useful to others.This is meant to be a side-by-side comparison of the original Ombudsman Bill (HB1081), the Governor's substitute (HB 1422), a proposed compromise substitute for HB1081, and ABA model recommendations. This report was prepared for the sponsor of the original bill, Rep. Sinkfield. HB 1422 was later adopted by the Georgia House and Senate and signed into law by Governor Barnes on April 6, 2000.
February 25, 2000:
| Sections | House Bill 1081 | Proposed Substitute for House Bill 1081 | House Bill 1422 | ABA Recommendations for Ombudsman offices or Items from ABA model Ombudsman statutes |
|---|---|---|---|---|
| Legislative purpose | The policy and intent is to provide independent oversight over all persons, organizations, and agencies responsible for caring for children who are removed from the care of their parents or guardians because of court involvement. To provide children with a direct avenue through which to seek relief when their rights are violated by state officials and agents who are entrusted with their protection and care. | Same as original bill. | None included | This section should provide a concise description of the characteristics of the office and its goals. |
| Definitions *When the term "child" or "children" is used throughout this chart, it refers to the definition listed in this row of the appropriate column. | "Child" means a child who has been removed from the custody of the child's parent or guardian and remains in the custody of the Department of Human Resources. "Division" means the Division of Family and Children Services of DHR. | "Child" means a child who has been removed from the custody of the child's parent or guardian and remains in the custody of the Department of Human Resources, is receiving services from the Division, or has been the subject of an abuse or neglect report to the Division."Division" means the Division of Family and Children Services of DHR. | "Child" or "children" means a child or children receiving services from the division, for whom the division has an open case file, or whose siblings, parents, or other caretakers have been the subject of a report to the division within the previous five years. "Division" means the Division of Family and Children Services of DHR. | Clear definitions should be included |
| Nomination and Appointment | Statutorily defined nominating committee presents list of 3-7 qualified attorneys who must have been admitted to the Bar for at least 3 years. Governor appoints Ombudsman from this slate. | Same as original bill. | Appointment by the Governor. | ABA recommends election by 2/3 vote of both house and senate OR appointment by the Governor with confirmation required by 2/3 vote of both house and senate. |
| Term of service | Ombudsman serves four-year term and can be reappointed. | Ombudsman serves five-year term and can be reappointed. | Advocate serves at the pleasure of the Governor w/ no set term. | A long term is desirable: to permit the Ombudsman sufficient time to become proficient at his duties; to provide a measure of independence from politics; and to provide prestige and security to attract qualified people to the position. The term should not be less than five years. |
| Salary and funding | Office is attached to Office of Planning and Budget for administrative purposes only. The general assembly annually appropriates funds for office. | Same as original bill. | Office of the Child Advocate is created w/in the office of the Governor. Salary of the Advocate is fixed by the Governor and comes from funds appropriated to the office of the Governor. Office of the Child Advocate shall be assigned to Office of Planning and Budget for administrative purposes only. | The Ombudsman shall receive the same salary and benefits as the chief judge of the highest court in the state. Rather than fixing the salary at a specific sum, which would shortly become obsolete (leading inevitably to legislative wrangling), it is pegged to a judge's salary and benefits. |
| Staffing of office | The ombudsman shall appoint such staff as is necessary to effectively fulfill the responsibilities of the office, provided that such staff includes 2 full-time professionals with specified skills. Staff is limited to two full-time positions unless the number of complaints requires additional staff members. | The ombudsman shall appoint such staff as is necessary to effectively fulfill the responsibilities of the office, provided that such staff includes professionals with specified skills. | The Advocate shall appoint such staff as necessary to fulfill the purposes of the office, with salaries fixed by the advocate and approved by the director of the Office of Planning and Budget. | The experimental nature of the office and the close, personal relationship engendered in such a small staff implies the Ombudsman should be free of civil service and political constraints in staff selection and retention. The Ombudsman, however, should refer to civil service salary schedules in setting comparable salaries for staff, and would naturally use state accounting facilities for payment of such salaries. |
| Independence of office | Notwithstanding any other provision of state law, the ombudsman shall act independently of any state official, department, or agency in the performance of his or her duties. | Same as original bill. | Notwithstanding any other provision of state law, the ombudsman shall act independently of any state official, department, or agency in the performance of his or her duties. | Independence: The ombudsman must be free from interference in the legitimate performance of duties and independent from control, limitation, or penalty by any officer of the appointing entity or person who may be the subject of a complaint or inquiry. In assessing whether an ombudsman is independent in structure, function, and appearance, the following factors are important: whether anyone can (a) control or limit the ombudsman's performance of duties, or (b) penalize the ombudsman for performance of duties by eliminating the office, removing the ombudsman, or reducing the office's budget or resources. |
| Duties | Identify, receive, investigate, and seek the resolution or referral of complaints concerning any act, omission to act, practice, policy, or procedure that may adversely affect the health, safety, or welfare of the children in the custody of, or under the supervision of, any court, county or state agency, or private agency receiving public funds for the care of and treatment of children referred there as a result of court involvement. | Identify, receive, investigate, and seek the resolution or referral of complaints concerning any act, omission to act, practice, policy, or procedure that may adversely affect the health, safety, or welfare of the children who are receiving services from the Division; have been the subject of an abuse or neglect report to the Division; are in the custody of, or under the supervision of, any court, state or county agency, or any private agency receiving state or county funds for the care of and treatment of children referred there as a result of court or Division involvement. | Identify, receive, investigate, and seek the resolution or referral of complaints made by or on behalf of children concerning any act, omission to act, practice, policy, or procedure of an agency or any contractor or agent thereof that may adversely affect the health, safety, or welfare of the children. | The Ombudsman shall receive complaints and questions about, and address, investigate or otherwise examine alleged acts, omissions, improprieties, and systemic problems within the ombudsman's defined jurisdiction. |
| Duties | Prepare and distribute a Children's Bill of Rights describing the rights of children and parents who become involved with the courts. The Bill of Rights must be provided to every child, parent or guardian at disposition of a court case and must be prominently displayed in every facility receiving public money for the care or treatment of children protected under this act. | Prepare and distribute a Children's Bill of Rights describing the rights of children who become involved with DFCS or the courts. The Bill of Rights must be provided to every child, parent or guardian, and the foster parent or relative care-giver, at the time the child is placed in out of home care or at the disposition of a court case and must be prominently displayed in every facility receiving public money for the care or treatment of children protected under this act. | No equivalent provision included. | ABA recommendations are not this specific; Rhode Island statues, highlighted by the ABA Center on Children and the Law as an effective model, include a similar provision. |
| Duties | Take all actions necessary, including public education, legislative advocacy, and formal legal action to secure rights of children requiring the intervention, protection, and supervision of courts and state and county agencies. Ombudsman can pursue administrative, legal, or other appropriate remedies if less formal means of resolution do not achieve appropriate results. | Same as original bill. | No equivalent provision included. | The Ombudsman shall function by such means as developing, evaluating, and discussing options available to affected individuals; facilitating, negotiating, and mediating; conducting an inquiry; investigating and reporting findings; making recommendations for the resolution of an individual complaint or a systemic problem to those persons who have the authority to act upon them; identifying complaint patterns and trends; and educating. Ombudsman can initiate litigation to protect the rights and authorities of the office. |
| Duties | Review facilities, policies, procedures, and practices of all places, public and private, where children are placed. | Same as original bill. | No equivalent provision included. | The Ombudsman shall have the power to enter and inspect without notice the premises of any agency. |
| Duties | With other organizations, create a system whereby all agencies receiving public funds for the care and treatment of children are accountable to citizens and elected officials | Same as original bill. | No equivalent provision included. |
|
| Duties | Work with existing organizations to improve the coordination of placement alternatives and funding. | Same as original bill. | No equivalent provision included. | |
| Duties | Work with school-based organizations to develop prevention programs. | Same as original bill. | No equivalent provision included. | |
| Duties | Establish a statewide uniform reporting system to track information about complaints and conditions in places where children are housed. | Establish within the State Ombudsman for the Protection of Children, a uniform tracking and reporting system to record data about complaints and conditions in places where children are housed. | No equivalent provision included. | ABA recommendations are not this specific; Rhode Island statues, highlighted by the ABA Center on Children and the Law as an effective model, include a similar provision. |
| Duties | Provide periodic reports on the work of the office. | Same as original bill. | Provide periodic reports on the work of the office. | Bringing the office's actions into the open is the Ombudsman's sole means of gaining the public's support. Recommendations may be published in discretionary separate special or interim reports. The annual report, whose release date would be set by the Ombudsman, is mandatory. |
| Duties | Appoint a community ombudsman panel to work with the Ombudsman to develop a volunteer community ombudsman program. Provide training and technical assistance to the volunteer ombudsman programs. | No community Ombudsman program. | No equivalent provision included. | The ABA model statutes do not address this issue. |
| Duties | Establish policies and procedures for the Ombudsman office. | Same as original bill. | Establish policies and procedures for the Office of the Child Advocate. | The Ombudsman shall have the power to adopt, promulgate, amend and rescind rules and regulations required for the discharge of duties--including procedures for receiving and processing complaints, conducting investigations, and reporting findings--not inconsistent with this Act. |
| Duties | No equivalent provision included. | No equivalent provision included. | Refer complaints involving abused children to DFCS pursuant to the mandatory reporter statute. | An Ombudsman office is established to exercise discretion to accept or decline to act on a complaint or questions and to resolve issues at the most appropriate level of the entity about which a complaint is lodged. |
| Duties | No equivalent provision included. | No equivalent provision included. | Report child deaths to chair of county child fatality review committee unless the Advocate knows that the death has already been reported by the county medical examiner or coroner; provide the child fatality review committee access to Child Advocate Office records about that child. | ABA recommendations are not this specific but several models highlighted by the ABA Center on Children and the Law give power to the Ombudsman to conduct or be involved in the child fatality review process. |
| Rights and powers | Communicate privately, by mail or orally, with children, their parents and guardians. | Same as original bill. | Communicate privately, by mail or orally, with children, their parents and guardians. | The Ombudsman shall have the power to maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before him. |
| Rights and powers | Ombudsman has the right to inspect, copy, and subpoena records held by clerks of the various courts and agencies and institutions, public or private, where a child has been placed for care or from whom the child has received treatment within the state. | Same as original bill. | Child Advocate has the right to inspect, copy, and subpoena records held by clerks of the various courts and agencies and institutions, public or private, where a child has been placed for care or from whom the child has received treatment within the state. | The Ombudsman has the power to examine the records and documents of any agency. |
| Rights and powers | To enter and inspect any and all institutions, facilities, and residences, public and private, where a juvenile has been placed by a court or the Division. | Same as original bill. | To enter and inspect any and all institutions, facilities, and residences, public and private, where a juvenile has been placed by a court or the Division. | The Ombudsman shall have the power to enter and inspect without notice the premises of any agency. |
| Rights and powers | To apply for and accept grants, gifts, and bequests of funds from sources other than the state. | Same as original bill. | To apply for and accept grants, gifts, and bequests of funds from sources other than the state. | ABA recommendations are not this specific but models highlighted by the ABA Center on Children and the Law give power to the Ombudsman to seek and receive funding from other sources. |
| Rights and powers | Ombudsman shall establish and be the director of a volunteer community ombudsman program, created to carry out the duties of the Ombudsman on a local level. Volunteers must complete volunteer training and a short internship in the type of facility that the volunteer will be placed. The volunteers must be recertified every two years. | The State Ombudsman for the Protection of Children may appoint an advisory council or a volunteer community ombudsman program to work with the State Ombudsman's office but is not mandated to do so. | No equivalent provision included. | The ABA model statutes do not address this issue. |
| Confidentiality | Identifying information on individuals who are the subject of confidential proceedings shall not be released to the public without the individuals' permission. | Same as original bill. | Identifying information on individuals who are the subject of confidential proceedings shall not be released to the public without the individuals' permission. | Confidentiality must extend to communications with the ombudsman and records maintained by the ombudsman in the performance of duties to the maximum extent possible under law. The ombudsman must provide complainants with assurances that their identity will be confidential. The authorizing entity must not seek information relating to the identity of complainants nor seek access to the ombudsman's notes and records, and must defend against third party attempts to obtain this information. |
| Protection from retaliation and discrimination | No person shall retaliate or discriminate against any person for making a complaint to the Ombudsman office or cooperating w/ the Ombudsman office and no person shall interfere with the work of the Ombudsman office. Doing so is a misdemeanor and is punishable under O.C.G.A. Section 31-2-6 and O.C.G.A. Section 31-5-8. | Same as original bill. | No person shall retaliate or discriminate against any person for making a complaint to the Ombudsman office or cooperating w/ the Ombudsman office and no person shall interfere with the work of the Ombudsman office. Doing so is a misdemeanor. | No person who files a complaint pursuant to this Act shall be subject to any penalties, sanctions or restrictions in connection with his employment because of such complaint. Any person who willfully obstructs or hinders the proper and lawful exercise of the Ombudsman's powers, or willfully misleads or attempts to mislead the Ombudsman in his inquiries' shall be subject to a fine of not more than one thousand dollars ($1,000.00). |
| Immunity | The state will protect and hold harmless any employee or volunteer with the Ombudsman office against any claims resulting from acts or omissions in the discharge of official duties, which were not wanton, malicious, or grossly negligent. | Same as original bill. | The state will protect and hold harmless any employee or volunteer with the Ombudsman office against any claims resulting from acts or omissions in the discharge of official duties, which were not wanton, malicious, or grossly negligent. | (a) No proceeding, conclusion, recommendation, or report of the Ombudsman or member of his staff shall be reviewable in any court; (b) The Ombudsman and his staff shall have the same immunities from civil and criminal liabilities as a judge of this state. (c) The Ombudsman and his staff shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties except as may be necessary to enforce this Act. |
| Mandated reporters of institutional abuse and neglect | Mandated reporters listed under O.C.G.A. Section 19-7-5 and employees of agencies engaged in professional services to children or inspections of places housing children, are required to report to the Ombudsman any incidents of abuse, neglect, mistreatment, and exploitation of child residents of facilities, institutions, or residences. This is in addition to other mandated reports that person must make. | Same as original bill. | No equivalent provision included. | The ABA model statutes do not address this issue. |
| Request GBI Investigation | No equivalent provision included. | No equivalent provision included. | Advocate is authorized to request a GBI investigation of any complaint of criminal misconduct involving a child and the GBI shall have access to the following records in the possession of any agency: complete personnel files of any person who is the subject of the investigation; records of any complaint or internal investigation involving any person who is the subject of such an investigation; documents and records relating to any report of abuse or neglect of the child; and medical records of the child. The GBI shall confer w/ and provide progress reports at the request of the Advocate regarding any such investigation and shall present a final report to the advocate at the conclusion of the investigation. | If the Ombudsman believes that any person has acted in a manner warranting criminal or disciplinary proceedings, he shall refer the matter to the appropriate authorities without notice to that person. |
| Expands child death records subject to the open records act | No equivalent provision included. | No equivalent provision included. | Adds the death records of children who were the subject of an investigation, report, referral, or complaint to the Office of the Child Advocate to the child death records that are already subject to the open records act (deaths of children in the custody of a state department or agency or foster parent). | This provision is outside the scope of the model Ombudsman statutes. |
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