Create County Ombudsman

This page explains the proposed bill to create a County Ombudsman Citizens Aide agency.

Proposed County-based Ombudsman Citizens Aide agency

ACV seeks an effective process for addressing citizen complaints at the county-level.

An Arizona Ombudsman Citizens' Aide agency has been established by Arizona Revised Statutes:

• Title 41 - State Government
  • Chapter 8 - Agencies of the Legislative Department
    • Article 5 - Office of Ombudsman-Citizens Aide
      • Paragraphs 41-1371 through 41-1383

Unfortunately, the Arizona Ombudsman Citizens' Aide agency does not have jurisdiction to investigate complaints against the counties.

The following two options were considered as potential implementation stategies:

• Change laws allow county-based complaints to be investigated by the Arizona Ombudsman Citizens' Aide agency and allow the state to charge counties for the cost (time and expenses) of investigations conducted against specific counties.
• Change laws to create county-based Ombudsman Citizens' Aide agencies based on the Arizona mode. Each county would then be responsible for investigating their own complaints and retain responsibility for funding the investigations.

Arizona Citizen Voice believes each county should be responsible for managing the complaints of their own citizens and recommend county-based Ombudsman Citizens' Aide agencies. The Arizona Ombudsman Citizens' Aide agency serves as a convenient and effective model to create county-based processes.

One County Ombudsman Citizens' Aide agency would be established for each of the Arizona counties:

1. Apache County
2. Cochise County
3. Coconino County
4. Gila County
5. Graham County
6. Greenlee County
7. La Paz County
8. Maricopa County
9. Mohave County
10. Navajo County
11. Pima County
12. Pinal County
13. Santa Cruz County
14. Yavapai County
15. Yuma County

Proposed Location for New A.R.S.

• Title 11, Counties
  • Chapter 2, Board of Supervisors
    • Article 16, Office of the County Ombudsman-Citizens’ Aide Agency

Proposed Bill

11-393.01. Definitions

In this article, unless the context otherwise requires:

1. "Administrative act" means an action, decision, omission, recommendation, practice, policy or procedure of an agency but does not include the preparation or presentation of legislation or the substantive content of a judicial order, decision or opinion.

2. "Agency" means a department, office, corporation, authority, organization, commission, council or board established by the County Board of Supervisors.

3. "Record" means any document, photograph, film, exhibit or other item developed or received under law or in connection with the transaction of official business except an attorney's work product, communications that are protected under the attorney-client privilege and confidential information as defined in section 41-1378, subsection D, paragraph 4.

11-393.02. Exemptions

This article does not apply to:

1. Any elected county official.

2. Chief advisors who maintain a direct, confidential and advisory relationship with County Board of Supervisors.

3. An agency attorney who maintains an attorney-client relationship with either an officer or employee of an agency acting in the exercise of the officer's or employee's duty.

4. The immediate staff of the County Board of Supervisors.

11-393.03. Ombudsman-citizens aide selection committee

A. When there is a vacancy in the office of ombudsman-citizens aide, or within twelve months before the expiration of the term of office, the ombudsman-citizens aide selection committee is established consisting of:

1. One member shall be the Arizona Ombudsman Citizen Aide or delegate, who shall also chair the selection committee.

2. Five members, each one of the five County Board of Supervisors shall appoint one member who is an active Chamber of Commerce member with residency from within the applicable county.

3. Two members shall be appointed by the Arizona Auditor General, and the appointed member shall be a member of no more than two selection committees from different Arizona Counties.

4. One public member with residency within the applicable Arizona County shall be appointed by the Chair of the Arizona Democratic Party.

5. One public member with residency within the applicable Arizona County shall be appointed by the Chair of the Arizona Republican Party.

B. The appointing officers shall appoint the members of the committee when a vacancy occurs in the office of ombudsman-citizens aide. The committee shall receive applications and nominate by a two-thirds vote one candidate for ombudsman-citizens aide according to its adopted procedures. The appointment of the ombudsman-citizens aide from this nomination is made by three-fifths approval of the County Ombudsman-Citizens’ Aide from the County Board of Supervisors. Membership on the ombudsman-citizens aide selection committee expires when the appointment is approved. If the County Board of Supervisors disapproves the selection committee shall review candidates and submit another candidate for County Board of Supervisors approval.

C. Meetings of the committee are open to the public except for meetings to interview candidates and to make preliminary choices among the candidates. The meeting held to vote for the nominee is open to the public.

D. The identity of all candidates shall be public.

E. Committee members are eligible to receive reimbursement of expenses pursuant to title 38, chapter 4, article 2 but are not eligible to receive compensation.

11-393.04. Qualifications

A person may not serve as ombudsman-citizens aide within one year of the last day the person served as a state elected officer. As minimum qualifications, 1) the ombudsman-citizens aide shall be a resident of this state for at least six months, 2) shall obtain residency within the applicable county within nine months of appointment, 3) shall be at least twenty-five years of age and 4) shall have investigatory experience.

11-393.05. Ombudsman-citizens aide; term; compensation

A. The office of county ombudsman-citizens aide is established.

B. The county ombudsman-citizens aide who is appointed and approved under section 11.393.03 shall serve full time and shall be a public officer subject to the conflict of interest provisions of title 38, chapter 3, article 8.

C. The term of county office of the ombudsman-citizens aide is five years beginning on the date of appointment. Except as provided in subsection D of this section, the ombudsman-citizens aide shall not serve more than three full terms.

D. If the term of the county ombudsman-citizens aide expires without the appointment of a successor, the incumbent ombudsman-citizens aide may continue in office until either:

1. A successor is appointed.

2. The county ombudsman-citizens aide is removed from office pursuant to subsection E of this section.

E. The county ombudsman-citizens aide may be removed from office at any time by a concurrent resolution approved by three-fifths vote of the county Board of Supervisors, but only for neglect of duty, conviction of improperly divulging confidential information, misconduct or disability. If the county ombudsman-citizens aide is removed, resigns, dies or becomes incapacitated, a deputy ombudsman may serve as acting county ombudsman-citizens aide until a new county ombudsman-citizens aide is appointed.

F. The county ombudsman-citizens aide is eligible to receive compensation [potentially pursuant to other statutes].

G. The county ombudsman-citizens aide may incur, subject to appropriation, expenses that are necessary to carry out the duties under this article.

11-393.06. Powers and duties

A. The county ombudsman-citizens aide shall:

1. Investigate the administrative acts of agencies pursuant to section 11-393.08, subsections A and B except as provided in section 11-393.08, subsections C, D and E. The county ombudsman-citizens aide shall investigate the administrative acts of an agency without regard to the finality of the administrative act.

2. Annually before January 1 prepare a written report to the county Board of Supervisors, county Recorder’s Office, county Treasurer, county Assessor, county Manager and the public that contains a summary of the county ombudsman-citizens aide's activities during the previous fiscal year. The county ombudsman-citizens aide shall present this report annually before the Board of Supervisors and post the report on a county webpage dedicated to the office of the county ombudsman citizens’ aide. This report shall include:

(a) The county ombudsman-citizens aide's mission statement.

(b) The number of matters that were within each of the categories specified in section 11-393.09, subsection B.

(c) State legislative and County issues affecting the county ombudsman-citizens aide.

(d) Selected case studies that illustrate the county ombudsman-citizens aide's work and reasons for complaints.

(e) County ombudsman-citizens aide's contact statistics.

(f) A description of the public awareness and outreach activities conducted by the county ombudsman-citizens aide.

(g) County ombudsman-citizens aide's staff.

3. Before conducting the first investigation, adopt rules that ensure that confidential information that is gathered will not be disclosed.

4. Appoint a deputy ombudsman and prescribe the duties of employees or, subject to appropriation, contract for the services of independent contractors necessary to administer the duties of the office of county ombudsman-citizens aide. All staff serves at the pleasure of the county ombudsman-citizens aide, [find equivoltent exemption for county from state’s chapter 4, articles 5 and 6 of title 41]. All staff are subject to the conflict of interest provisions of title 38, chapter 3, article 8.

5. Before conducting the first investigation, adopt rules that establish procedures for receiving and processing complaints, including guidelines to ensure each complainant has exhausted all reasonable alternatives within the agency, conducting investigations, incorporating agency responses into recommendations and reporting findings.

6. Notify the chief executive or administrative officer of the agency in writing of the intention to investigate unless notification would unduly hinder the investigation or make the investigation ineffectual.

B. After the conclusion of an investigation and notice to the head of the agency pursuant to section 11-393.10, the county ombudsman-citizens aide may present the county ombudsman-citizens aide's opinion and recommendations to the county Board of Supervisors, county Recorder’s Office, county Treasurer, county Assessor, county Manager or the public or any combination of these persons. The county ombudsman-citizens aide shall include in the opinion the reply of the agency, including those issues that were resolved as a result of the county ombudsman-citizens aide's preliminary opinion or recommendation.

11-393.07. Additional powers and duties; definitions

A. In addition to the powers and duties prescribed in section 11-393.06, the county ombudsman-citizens aide shall appoint one assistant who is an attorney to help the county ombudsman-citizens aide investigate complaints relating to public access laws involving an agency and complaints and compliance with reporting requirements pursuant to this article. The assistant shall train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. The assistant shall prepare interpretive and educational materials and programs in cooperation with the county ombudsman-citizens aide and shall distribute to elected or appointed public officials the public access laws and educational materials concerning the public access laws.

B. The annual report of the county ombudsman-citizens aide shall include the following information about public access:

1. The number of inquiries that are received from the public, the media and government agencies.

2. The number of inquiries that are received about state agencies, county agencies, city or town agencies, school districts and other local jurisdictions.

3. The number of requests that are received concerning public records and public meetings.

4. The number of investigations that are conducted and the results of the investigations.

C. For investigations made pursuant to this section, the ombudsman-citizens aide may:

1. Make inquiries and obtain information considered necessary subject to the restrictions in section 11-393.08.

2. Enter without notice to inspect agency premises with agency staff on the premises.

3. Hold hearings.

4. Notwithstanding any other law, have access to all agency records, including confidential records, except:

(a) Sealed court records without a subpoena.

(b) Active criminal investigation records.

(c) Records that could lead to the identity of confidential police informants.

(d) Attorney work product and communications that are protected under attorney-client privilege.

(e) Confidential information as defined in section 42-2001, except as provided in section 42-2003, subsection L.

(f) Information protected by section 6103(d), 6103(p) or 7213 of the internal revenue code.

(g) Confidential information relating to section 36-2903, subsection I, section 36-2917, section 36-2932, subsection F or section 36-2972.

(h) Confidential information relating to sections 36-507, 36-509 and 36-2220.

(i) Documents that are protected by section 214 of the critical infrastructure information act of 2002 (6 United States Code section 133(a)) or by 49 Code of Federal Regulations part 1520.

(j) Information that is protected by section 214 of the critical infrastructure information act of 2002 (6 United States Code section 133(a)) or 49 Code of Federal Regulations part 1520 or critical infrastructure information as defined in section 41-1801 on government owned facilities that are classified as critical infrastructure by the federal government or as defined in section 41-1801.

5. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence to which the ombudsman-citizens aide may have access pursuant to paragraph 4 of this subsection. The ombudsman-citizens aide may only issue a subpoena if the ombudsman-citizens aide has previously requested testimony or evidence and the person or agency to which the request was made has failed to comply with the request in a reasonable amount of time.

D. It is contrary to the public policy of this state for any agency or any individual acting for an agency to take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the ombudsman-citizens aide or the ombudsman-citizens aide's staff.

E. For the purposes of this section:

1. "Agency" has the same meaning prescribed in section 11-393.01 but includes a public body as defined in section 39-121.01, subsection A, paragraph 2.

2. "Public access laws" means:

(a) Title 39, chapter 1.

(b) Title 38, chapter 3, article 3.1.

(c) Any other state statute or rule governing access to public meetings or public records.

11-393.08. Scope of investigations

A. On receiving a complaint the county ombudsman-citizens aide may investigate administrative acts of agencies that the ombudsman-citizens aide has reason to believe may be:

1. Contrary to law.

2. Unreasonable, unfair, oppressive, arbitrary, capricious, an abuse of discretion or unnecessarily discriminatory, even though they may be in accordance with law.

3. Based on a mistake of fact.

4. Based on improper or irrelevant grounds.

5. Unsupported by an adequate statement of reasons.

6. Performed in an inefficient or discourteous manner.

7. Otherwise erroneous.

B. On receiving a complaint the county ombudsman-citizens aide may investigate to find an appropriate remedy.

C. On receiving a complaint the county ombudsman-citizens aide may refuse to investigate an administrative act of an agency that otherwise qualifies for investigation under subsection A of this section if:

1. There is presently available an adequate remedy for the grievance stated in the complaint.

2. The complaint relates to a matter that is outside the duties of the county ombudsman-citizens aide.

3. The complaint relates to an administrative act that the complainant has had knowledge of for an unreasonable time period before filing the complaint.

4. The complainant does not have a sufficient personal interest in the subject matter of the complaint.

5. The complaint is trivial or made in bad faith.

6. The resources of the office of county ombudsman-citizens aide are insufficient to adequately investigate the complaint.

D. The county ombudsman-citizens aide shall refuse to investigate complaints filed by a person in the custody of the state department of corrections or county sheriff’s department.

11-393.09. Complaint; investigation; investigative authority; violation; classification

A. All complaints shall be addressed to the county ombudsman-citizens aide. If an agency receives correspondence between a complainant and the county ombudsman-citizens aide, it shall hold that correspondence in trust and shall promptly forward the correspondence, unopened, to the county ombudsman-citizens aide.

B. Within thirty days of receipt of the complaint, the county ombudsman-citizens aide shall notify the complainant of the decision to investigate or not to investigate the complaint. If the ombudsman-citizens aide decides not to investigate and if requested by the complainant, the county ombudsman-citizens aide shall provide the reasons for not investigating in writing.

C. The county ombudsman-citizens aide shall not charge any fees for investigations or complaints.

D. In an investigation, the county ombudsman-citizens aide may:

1. Make inquiries and obtain information considered necessary subject to the restrictions in section 11-393.08.

2. Enter without notice to inspect agency premises with agency staff on the premises.

3. Hold hearings.

4. Notwithstanding any other law, have access to all state agency records, including confidential records, except:

(a) Sealed court records without a subpoena.

(b) Active criminal investigation records.

(c) Records that could lead to the identity of confidential police informants.

(d) Attorney work product and communications that are protected under the attorney-client privilege.

(e) Confidential information as defined in section 42-2001, except as provided in section 42-2003, subsection L.

(f) Information protected by section 6103(d), 6103(p)(8) or 7213 of the internal revenue code.

(g) Confidential information relating to section 36-2903, subsection I, section 36-2917, section 36-2932, subsection F or section 36-2972.

(h) Confidential information relating to sections 36-507, 36-509 and 36-2220.

5. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence to which the ombudsman-citizens aide may have access pursuant to paragraph 4 of this subsection.  The county ombudsman-citizens aide may only issue a subpoena if the county ombudsman-citizens aide has previously requested testimony or evidence and the person or agency to which the request was made has failed to comply with the request in a reasonable amount of time.

E. It is contrary to the public policy of this state for any state or county agency or any individual acting for a state or county agency to take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the county ombudsman-citizens aide or the county ombudsman-citizens aide's staff.

F. If requested by the complainants or witnesses, the county ombudsman-citizens aide shall maintain confidentiality with respect to those matters necessary to protect the identities of the complainants or witnesses. The county ombudsman-citizens aide shall ensure that confidential records are not disclosed by either the county ombudsman-citizens aide or staff to the county ombudsman-citizens aide. The county ombudsman-citizens aide shall maintain the confidentiality of an agency record. With respect to requests made pursuant to title 39, chapter 1, article 2 or other requests for information, the county ombudsman-citizens aide shall maintain all records that are received from a custodial agency in the same manner as the custodial agency would if it had received the request.

G. The county ombudsman-citizens aide or any staff member or other employee of the county ombudsman-citizens aide who knowingly divulges or makes known in any manner not permitted by law any particulars of any record, document or information for which the law restricts disclosure is guilty of a class 5 felony.

11-393.10. Procedures after an investigation

A. If an opinion or recommendation of the county ombudsman-citizens aide is critical of a person or agency, the county ombudsman-citizens aide shall first consult with the person or agency before rendering the opinion or recommendation. A preliminary opinion or preliminary recommendation is confidential and shall not be publicly disclosed by any party.

B. The county ombudsman-citizens aide shall report the county ombudsman-citizens aide's opinion and recommendations to an agency, if the county ombudsman-citizens aide finds, after investigation, that:

1. A matter should be further considered by that agency.

2. A matter should be referred to the County Board of Supervisors or other elected county Official.

3. A statute or rule on which an administrative act is based should be amended.

4. An administrative act should be modified or cancelled.

5. Reasons should be given for an administrative act.

6. There are no grounds or there are insufficient grounds for action by the agency.

7. Any other action should be taken by the agency.

8. The agency's action was arbitrary or capricious, constituted an abuse of discretion or was not according to law.

C. The county ombudsman-citizens aide may request the agency to notify the office within a specified time of any action taken on his recommendations.

D. The county ombudsman-citizens aide shall notify the complainant of the ombudsman-citizens aide's recommendations and the actions taken by the agency.

E. If the county ombudsman-citizens aide believes there is a breach of duty or misconduct by an officer or employee of an agency in the conduct of the officer's or employee's duty, the county ombudsman-citizens aide shall refer the matter to the chief executive officer of the agency, to the applicable elected county official(s), to a prosecutor's office or to another appropriate official or agency.

11-393.11. County Ombudsman-citizens aide protections

A. A civil action may not be brought against the county ombudsman-citizens aide or the staff of the county ombudsman-citizens aide for any action or omission in performing the duties under this article except for gross negligence or intentional wrongful acts or omissions except as provided in title 38, chapter 3, article 8.

B. A proceeding or decision of the county ombudsman-citizens aide may be reviewed in superior court only to determine if it is contrary to this article.

C. The county ombudsman-citizens aide and the staff of the county ombudsman-citizens aide shall not be required to testify in court regarding matters that come to their attention in the exercise of their duties except as may be necessary to enforce this article.

D. Records and files maintained by the county ombudsman-citizens aide are not public records and are exempt from title 39, chapter 1. The information contained in these records and files that were prepared pursuant to an investigation conducted under this article are not subject to disclosure except to the attorney general or any county attorney in connection with an investigation that has been referred to the attorney general or a county attorney pursuant to section 11-393.10.

11-393.12. County ombudsman-citizens aide political activity

The county ombudsman-citizens aide and the staff of the county ombudsman-citizens aide may express a private opinion, may register to vote as to party and may vote but may not engage in any other political activity. If the county ombudsman-citizens aide or any staff member or employee of the county ombudsman-citizens aide becomes a candidate for political office, that person shall resign.

11-393.13. Violation; classification

A person who knowingly hinders the lawful actions of the county ombudsman-citizens aide or the staff of the county ombudsman-citizens aide or who knowingly refuses to comply with their lawful demands is guilty of a class 1 misdemeanor.

Additional Background

Two existing statutes are relevant and should be understood before changing or creating new laws under the Arizona Revised Statutes (A.R.S.).

• A.R.S. 11-1606, which addresses "complaints; procedures" against counties
• A.R.S. 41-1371 through 41- 1383, which addresses the "Office of Ombudsman-Citizens Aide"

County Complaint Statute

There is an existing complaint process, which is under Title 11, Counties. Citizen complaints are currently addressed by A.R.S. 11-1608. Complaints; procedures. This A.R.S. states:

A. The board of supervisors shall establish a procedure for receiving complaints from an adversely affected person concerning ordinances, rules, regulations, substantive policy statements or county practices alleged to violate this article or section 11-251.18.

B. The board of supervisors may require the complaint to be made in writing and to include the following information:

1. The name and address of the adversely affected person making the complaint.

2. The ordinance, rule, regulation, substantive policy statement or county practice alleged to violate this article or section 11-251.18.

3. Any facts relevant to, and the legal basis for, the complaint.

C. Procedures adopted by the board of supervisors pursuant to this section shall include reasonable time frames to address complaints and shall provide a process for appeal.

Emphasis on "legal basis" was from ACV. Unless you have a legal basis to file a Complaint, Maricopa County Board of Supervisors can legally ignore you. In ACV's humble opinion, IF you already know you have a legal basis for filing a complaint, THEN you would be better off filing a lawsuit and seek legal remedies before an independent judge than filing a complaint with your County

Apparently, the Maricopa County Board of Supervisors (MCBOS) also believes the best way to settle complaints is through litigation. The basis for this nasty comment is from the Arizona Attorney General's Office 2020 General Election Investigation. Arizona State Senate was unable to gain cooperation with the MCBOS, and thus referred allegations to the Arizona Attorney General to investigate potentially malicious or criminal behaviors. MCBOS litigated the information they would release to the Arizona Senate; instead of complying with a Senate subpoena a settlement agreement was reached in court according to Allegation #3: Election Management Server; Sub-allegation #6: Subpoenaed Equipment Not Yet Provided.

The point to that tangent is to first acknowledge that a A.R.S. is already on the books requiring Arizona Counties to allow citizens to file complaints against the county. However, the statute is ineffective. A.R.S. 11-1608 needs to be revised or rescinded with new statues implemented in its place.

Arizona State Ombudsman Statues

Title 41 is for State Government. Chapter 8 is for Agencies of the Legislative Department. Article 5 creates the Office of Ombudsman-Citizens Aide through the following statutes.

• 41-1371: Definitions
• 41-1372: Exemptions
• 41-1373: Ombudsman-citizens aide selection committee
• 41-1374: Qualifications
• 41-1375: Ombudsman-citizens aide; term; compensation
• 41-1376: Powers and duties
• 41-1376.01: Additional powers and duties; definitions
• 41-1377: Scope of investigations
• 41-1378: Complaint; investigation; investigative authority; violation; classification
• 41-1379: Procedures after an investigation
• 41-1380: Ombudsman-citizens aide protections
• 41-1381: Ombudsman-citizens aide political activity
• 41-1383: Violation; classification

You should take notice of the sharp contrast between County and State statutes. For the counties you need a legal basis for a complaint. For Arizona State, you get an Ombudsman as an ally with authority to conduct an independent investigation into potential violations by state departments or agencies.

Public Access to the Complaint Process

Arizona State Level

Arizona Office of Ombudsman-Citizens Aide's home page has two hyperlinks to allow citizens to file a complaint against any Arizona State Government entity, per the following:

It is easy for citizens to find access to submit a complaint to the Arizona Ombudsman Citizens' Aide using their website.

Maricopa County Complaint Website

Maricopa County was the only Arizona county ACV checked to determine the Public's accessibility to making a complaint against the county.

If you're up for a challenge, try to find the main location to submit a complaint using the Maricopa County's website.

If you give up, here is the link to Permit Inquiries and Complaints.

Their main page for complaints offers five choices:

1. Air Quality
2. Environmental Services
3. Flood Control District
4. Planning & Development
5. Department of Transportation (MCDOT)

None of these sites allow citizens to submit a governance complaint.

Summary

The State of Arizona provides easy access to file complaints against any state government entity. Maricopa County has none.