Legislative Analysis
Phone: (517) 373-8080
STATE EMPLOYEE OMBUDSMAN
http://www.house.mi.gov/hfa
House Bill 4064 (H-3) as reported from committee Analysis available at
Sponsor: Rep. Annette Glenn http://www.legislature.mi.gov
Committee: Government Operations
Complete to 4-29-21
SUMMARY:
House Bill 4064 would create a new act, the State Employee Ombudsman Act, to create the
Office of the State Employee Ombudsman in the Legislative Council and to provide for its
powers and duties, which would generally involve investigating and evaluating reports of
suspected misconduct in state departments and agencies.
State Employee Ombudsman
The bill would create the Office of the State Employee Ombudsman in the Legislative
Council.1 The ombudsman would be appointed by the council and serve at its pleasure. The
council would establish procedures for the office’s budget, expenditures, and employees.
Subject to the council’s approval, the ombudsman would establish procedures for receiving
and processing complaints, conducting investigations and hearings, and reporting findings.
Investigations
The ombudsman could start an investigation on his or her own initiative or upon receiving a
complaint from a state employee concerning an administrative act.
State employee would mean a full- or part-time employee of a state department or
agency.
State department or agency would mean a state department or other agency in the
executive branch.
Administrative act would include an action, omission, decision, recommendation,
practice, or other procedure of a state department or agency.
Upon request, the ombudsman would have to be given access to all information, records, and
documents in a state department’s or agency’s possession that the ombudsman considers
necessary in an investigation for misconduct, including the following:
• Violations of law or suspected violations of law.
• Conduct by a state department or agency that will or is substantially likely to endanger
public health or safety.
• Gross mismanagement or waste of public funds.
The ombudsman could hold informal hearings and could request any individual to appear and
give testimony or produce evidence the ombudsman considers relevant to an investigation.
1
The Legislative Council consists of twelve members, six representatives and six senators, who are respectively
appointed by the Speaker of the House and the Senate Majority Leader. Each group of six members must include at
least two members from the respective chamber’s minority party.
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 Upon request of the ombudsman, the Legislative Council could hold a hearing. The council
could administer oaths, subpoena witnesses, and examine the books and records of a state
department or agency that was the proper subject of investigation by the ombudsman.
Complaints
The ombudsman would have to advise a complainant (person making a complaint) of all
available administrative remedies. Upon request from the ombudsman, a state department or
agency would have to provide a progress report on the processing of a complaint submitted to
it. After the department or agency took administrative action on a complaint, the ombudsman
could conduct further investigation.
The ombudsman would not have to investigate every complaint. If deciding to investigate, the
ombudsman would have to notify the complainant and the state department or agency. If
declining to investigate, the ombudsman would have to notify the complainant in writing of
the reasons for that decision.
Confidentiality
Correspondence between the office and a complainant would be confidential, privileged, and
exempt from disclosure under the Freedom of Information Act (FOIA). The office would have
to maintain confidentiality regarding all matters under investigation and could not disclose
personal identifying information to others, including all personal identifying information of
the complainant, anyone from whom information was acquired, or any state employee.
However, if disclosure were necessary for the ombudsman to perform his or her duties or to
support a recommendation resulting from an investigation, the ombudsman could disclose
personal identifying information to the minimum extent necessary for that purpose.
Personal identifying information would mean information that could be used to
identify a specific individual, such as his or her name, initials, email address, phone
number, home address, or Social Security number.
Report to complainant
Within 30 days after completing an investigation, the ombudsman would have to prepare and
provide to the complainant a resolution report detailing the findings of the investigation, the
recommendations of the ombudsman, and any actions that have been taken to address the
complainant's concerns. The report could not include personal identifying information of a
state employee or anyone from whom information was acquired. The ombudsman could
request that a state department or agency notify the ombudsman within a specified time of any
action taken on any recommendation presented. The ombudsman would have to notify the
complainant of the actions a state department or agency takes to address the complaint.
Report to Legislative Council
The ombudsman would also have to prepare and submit a report of its findings to the
Legislative Council within 30 days after completing an investigation. The report could not
include personal identifying information of a state employee or anyone from whom
information was acquired. The report would have to include recommendations if the
ombudsman found any of the following:
• Conduct that will or is substantially likely to endanger public health or safety.
• A violation or suspected violation of law.
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 • The gross mismanagement or waste of public funds.
• A matter that the state department or agency should consider.
• An administrative act that should be modified or canceled.
• A statute or rule that should be altered.
• An administrative act for which justification is necessary.
• Any other significant concern as determined by the ombudsman.
The recommendations could include recommended corrective actions if a state department or
agency penalized a complainant in any way for filing a complaint, providing information to the
council or a legislator, or cooperating with the ombudsman in investigating a complaint.
The council could forward the report to the state department or agency and to the complainant
who requested the report. However, before announcing to the general public a conclusion or
recommendation that expressly or by implication criticized a state department or agency, the
ombudsman would have to consult with the state department or agency. If the ombudsman
published an opinion adverse to a state department or agency, the ombudsman would have to
include in that publication a statement of reasonable length made to the ombudsman by the
state department or agency in defense or mitigation of the finding, if that statement was
provided within a reasonable time as determined by the council.
A report prepared and recommendations made by the ombudsman and submitted to the council
would be exempt from disclosure under FOIA.
Annual report
The ombudsman would have to submit to the Legislative Council and the legislature an annual
report on the conduct of the office that contained information required by the council. The
report could not include personal identifying information of a state employee or anyone from
whom information was acquired. The ombudsman would have to post on its website annually
a report containing all of the following:
• The number of complaints received.
• The number of complaints investigated.
• The number of complaints resolved.
• The nature of each incident that was the basis for the complaint. However, personal
identifying information must not be included.
• The average time from the receipt of a complaint until a resolution report is provided.
• The percentage of repeat complaints.
• Satisfaction feedback.
• Any additional information the council requests or the ombudsman considers relevant.
State departments and agencies
The bill would prohibit a state department or agency from penalizing in any way a complainant
for filing a complaint, providing information to the Legislative Council or a legislator, or
cooperating with the ombudsman in investigating a complaint. It would also prohibit a state
department or agency or any person from hindering the lawful actions of the ombudsman or
employees of the office or willfully refusing to comply with any lawful demand of the office.
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 Scope
The authority granted to the ombudsman under the act would be in addition to other authority
granted by law to any other office or agency relative to a remedy or right of appeal or objection
for a complainant, or any procedure provided for the inquiry into, or investigation of, any
matter. The authority granted to the ombudsman under the act would not limit or affect any
other remedy or right of appeal or objection provided by law and would not be exclusionary.
Penalty
A violation of the act would be a misdemeanor punishable by imprisonment for up to one year
or a fine of up to $1,000, or both.
Sunset provision
The new act would be repealed 10 years after the date it is enacted into law.
BACKGROUND:
The H-3 substitute for HB 4064 that was reported from the House Government Operations
committee is nearly identical to the H-1 substitute for HB 5981 of the 2019-20 legislative
session as that bill was passed by the House of Representatives. The difference between the
bills is that HB 4064 contains a sunset provision, described above.
BRIEF DISCUSSION:
On October 19, 2016, the Joint Select Committee on the Flint Water Emergency issued its final
report,2 which included 36 legislative proposals. In addition to recommendations for health and
safety measures in response to issues presented by the Flint Water Crisis, the report included
proposals for legislative action to improve governmental oversight and accountability. The first
of these recommended the creation of a state employee ombudsman to supplement existing
whistleblower protections by providing an independent office to which state employees could
confidentially report misconduct without fear of reprisal.
Michigan’s Whistleblower Protection Act protects employees from being fired or harassed by
their employers for reporting a violation or suspected violation of a local, state, or federal law
and also protects them from retaliation for participating in hearings, investigations, legislative
inquiries, or court actions. While the act does not apply to those employed by the state classified
civil service, section 2-10 of the Civil Service Commission Rules contains similar protections.3
Some feel that these protections don’t go far enough to ensure governmental accountability.
As the Flint Water Crisis showed, sometimes government employees have knowledge or
concerns that deserve further investigation and scrutiny but fall short of alleging a crime.
Consistent with the joint committee’s final report, House Bill 4064 would allow for
confidential investigation not only of violations and suspected violations of law, but also of
gross mismanagement or waste of public funds and of conduct by a state entity that will, or is
substantially likely to, endanger public health or safety. It is hoped that having an independent
office where state employees can bring the latter types of issues might help prevent or mitigate
potentially large problems before they can grow.
2
https://misenategopcdn.s3.amazonaws.com/99/publications/Final%20Report%20of%20the%20Joint%20Select%20
Committee.pdf
3
https://www.michigan.gov/documents/mdcs/MCSCRules_625564_7.pdf
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FISCAL IMPACT:
House Bill 4064 would have an indeterminate fiscal impact on the state and on local units of
government. Under the bill, a person that violates provisions of the act would be guilty of a
misdemeanor punishable by imprisonment for not more than one year or a fine of not more
than $1,000, or both. There is no way to know the number of convictions that would result
under provisions of the bill. New misdemeanor convictions would increase costs related to
county jails and/or local misdemeanor probation supervision. Costs of local incarceration in
county jails and local misdemeanor probation supervision, and how those costs are financed,
vary by jurisdiction. The fiscal impact on local court systems would depend on how provisions
of the bill affected caseloads and related administrative costs. Any increase in penal fine
revenue would increase funding for public and county law libraries, which are the
constitutionally designated recipients of those revenues.
The bill would increase costs for the Legislative Council. Specifically, increased costs would
result from staff salaries, benefits, office space, office supplies, travel, and any other costs
incurred operating and administering the Office of the State Employee Ombudsman. For
context, the FY 2020-21 appropriations for the Legislative Corrections Ombudsman and the
Michigan Veterans Facility Ombudsman were $1,006,900 and $315,200 respectively.
State departments and agencies likely would incur costs responding to complaint
investigations. These costs would be directly correlated to the complexity of any complaint.
Whether the actions of the office would result in any state fiscal impact subsequent to the
resolution of a complaint cannot be estimated and would depend on the nature of the complaint
and the department or agency response.
Legislative Analyst: Rick Yuille
Fiscal Analysts: Ben Gielczyk
Robin Risko
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations, and does not constitute an official statement of legislative intent.
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