On Being An Ombuds: Considerations And Suggestions For Practice

Introduction

This paper will examine the considerations
that go into establishing an Ombuds Office within an organization, what
constitutes the usual requirements to allow the Office to perform its functions
effectively and some strategic considerations about how to implement such
a plan. The paper identifies a number of pitfalls that may be encountered
along the way and concludes with some suggestions of what an Ombuds Office
can and cannot reasonably be expected to accomplish.

Requirements
for a Feasible Ombuds Office

Alignment:

First and foremost an ombudsman’s office must reflect the values
of the organization it serves. There is no use imposing an ombudsman upon
an organization that is hostile to reform and change and views complaints
and complainants as trouble and trouble makers respectively. For an ombuds
Office to work it will need to be part of a conflict resolving system.
The organization must decide what it values in that system and know what
it wishes to accomplish with it. There are many competing values within
organizations and the forward thinking organization will want to articulate
its values expressly.

When the Royal Bank of Canada began working on a system for reducing
its cost of conflict (which system now includes the use of an Ombuds Office),
it first set about defining what its mission and goals were as they pertained
to conflict. That Statement of Mission had to be tested to see that it
was in alignment with the broader general mission statement of the organization.
With the mission statement in place, the bank was in a much better position
to advance initiatives in the conflict management area.

Autonomy:

An ombudsperson needs, as much as is possible, to have an arms length
relationship with the organization he or she serves. This will mean a reporting
relationship to the legislative or policy making branch of the organization.
In a public body like the Law Society of Upper Canada that would mean Convocation.
In a private body such as a corporation, that would mean the Board of Directors.

Due Process:

An ombudsman in the classical sense is an office of last resort.
It is not (and never was) intended to serve as the front line resolver
of disputes in an organization. In the largest sense, an ombudsperson’s
job is to assist the policy makers in an organization in overseeing the
administration of their policies, to comment critically upon how they are
being administered and to recommend policy changes where they seem appropriate.
They are intended to keep the “big picture” in mind, seeing the forest
and not just the trees.

Due process means respecting the Rules of Natural Justice as they
apply in the organizational setting. This includes such fundamentals as:

  • providing both sides to a dispute a full and fair opportunity to be
    heard
  • ensuring that no one in the organization is sitting in an adjudicative
    capacity over a matter where he or she has a direct interest
  • providing an opportunity to fully respond to the case made by the “other
    side”
  • providing reasonable notice of any investigation or hearing to individuals
    affected by the controversy and allowing a fair length of time for parties
    to prepare and make submissions
  • wherever possible providing reasons for decisions that affect people


Resources:

The organization must make resources available such that the ombudsperson
can perform their responsibilities in a diligent and timely manner. There
is little that will harm an ombuds office’s reputation more than getting
a reputation for being bureaucratic, wasteful or sloppy. An ombuds office,
properly managed, should model the kinds of administrative practices and
behaviours it demands of other units within the discipline, profession
or organization it serves. Where an organization does not provide the resources
to allow this modeling to take place, it places the reputation of the entire
enterprise at risk and may fairly expect to lose all or most of its investment.

Access to Information:

An ombuds office’s effectiveness is determined by the quality of
its investigations. Because the ombudsperson does not have the authority
to reverse executive or administrative decisions, its chief weapon is reasoned
argument. One key tool in the toolbox is the thorough, demonstratably impartial
investigation followed up by a well reasoned report. Without far reaching
access to documentary and viva voce information, the investigative officer
will be disabled from coming to sound conclusions of fact. Access to information
denotes access to documents, electronic files and most importantly to people.

Developing
Workable Terms of Reference

The Ombudsperson’s jurisdiction is dictated by terms of reference.
The use of an ombuds office as a conflict management tool is a design choice.
The terms of reference should reflect the “fit” of the Office within the
conflict system that the profession or organization has chosen.

Below are listed several of the choices that face the profession
or organization writing terms of reference for an Ombuds Office:

Getting Constituency “Buy In”:

As a designer of conflict systems in both the public and private
sector, we have learned that organizational systems, like the system we
call the human body, have a tendancy to reject organs that are transplanted
from outside without adequate tailoring and development work up front.

Develop a draft Ombuds Policy with lots of white space for revisions
and ask key stakeholders within the profession or organization to comment
on it and make suggestions for improvement. The approach that worked well
at McMaster was a questionnaire followed by an annotated draft, which explained
the reasoning behind the policy choices that were made in draft itself.
It has been my experience that large groups of people find it extraordinarily
hard to create together but the same large groups have a tremendous capacity
to criticize. Use that capacity to develop a better terms of reference
and to achieve a measure of buy in to the Office at the outset.

Internal / External Complaints:

Will the ombudsperson have jurisdiction to resolve only complaints
within the organization (i.e. where both the complainant and respondent
are members of the profession or organization) or only those complaints
initiated by someone outside the organization (i.e. a customer, patron
or member of the public) or both?

While I was ombudsperson at McMaster University I stubbornly pressed
for a jurisdiction that would extend beyond student initiated complaints
to include complaints initiated by staff and faculty who were typically
respondents to complaints made by students, the traditional users of the
Ombuds Office. The benefit of this wider jurisdiction was obvious to me.
The Ombudsman’s credibility was enhanced if he was seen as an occasional
resource to individuals who otherwise would only come into contact with
the office as a person responding to the Office about a complaint brought
by another.

This “two way street” approach enhanced the perception of the office
as an impartial clearing house for complaints, regardless of their source.

Recourse:

Unlike the litigation system, the ombuds process does not have the
backstop of a rights based binding determination by a judge to keep the
parties realistic in their negotiations. A good conflict management system
will backstop interest based, consensus building processes like mediation
or negotiation with low cost, quick rights based processes like arbitration
or peer review.

In many instances the back up for a complainant using the Ombuds
Office will be filing a formal grievance or going public with the complaint.
The opportunity for an Ombudsman to go public with a report where the Office
has issued a report with recommendations that the organization is not prepared
to act upon is of critical importance. This recourse acts as a reality
check on the entire profession or organization and encourages a realistic
assessment of the situation and a preparedness to accommodate, collaborate
and compromise to resolve matters. Where the action or inaction by the
organization is justifiable and will withstand public scrutiny then a refusal
to follow an ombudsman’s recommendation will likely be defensible in public.

Simply having access to the court of public opinion is a tool that
encourages reasonableness on the part of all parties and tends to level
the playing field between parties of unequal power or influence. It will
resolve many cases without the necessity of its use or even the overt threat
of its use.

Accessibility:

For an ombuds office to be useful and effective it needs to be accessible.
Accessibility is comprised of at least two pieces:

1. promotion — letting prospective users know
the office is there and how it can help and

2. convenience — the ombudsperson must make
him/herself readily available to people with complaints.

The first of these can be dealt with through public education, speaking
engagements, conventional advertising (the government of Ontario Ombudsman
in the early 1990’s ran a series of billboard advertisements with their
1-800 number across the province) and the circulation of informational
materials like pamphlets, guides, brochures etcetera.

The second piece requires perhaps more inventiveness. 1-800 numbers
and Home Pages on the Internet are two technological responses that will
make the Ombuds Office more convenient to access. Larger organizations
with a number of locations will have to look at branch Ombuds Offices,
and providing a travel budget so that the Ombuds staff can go to the source
to hear a complaint.

Self – Initiated Investigations:

Many ombuds statutes and policies allow the ombudsperson to commence
an investigation into administrative misfeasance or negligence on their
own initiative (i.e. without a formal complaint having been made). Although
most practitioners seldom use this power, either because they are too busy
with individual – initiated complaints awaiting a remedy, or because they
feel uncomfortable with the “busy body” connotations of a self initiated
investigation, it is nevertheless an important ancillary jurisdiction and
consistent with the philosophy of the ombuds function. The degree of comfort
that an institution has with this power and the degree of comfort that
an ombudsperson within such an institution has to use this power is one
good way of gauging how proactive the organization is where conflict is
concerned.

Annual Reports:

The Annual Report is one function of the ombuds office that is not
seen in all manifestations of the office, particularly among quasi-ombudsmen.
The Annual Report serves at least three important functions:

1. First and most importantly, it ensures accountability
between the Office and the community it serves.

2. Secondly, it provides an administrative audit
of the profession or organization and holds administrators and executives
accountable to the policy making body for actions taken throughout the
year.

3. Thirdly, it provides a public medium to outline,
discuss and advocate for policy and other changes that the Ombudsman has
recommended to the profession or organization throughout the year.

For those who doubt the efficacy of the last function, consider the
recent public repudiation of federal government by the federal Human Rights
Commissioner
(a specialized quasi-ombudsman) regarding the failure to commit
to the amendment of the Canadian Human Rights Act to incorporate sexual
orientation into the prescribed grounds for discrimination under the Act.
This repudiation resulted in a quick and decisive reaffirmation of this
commitment from a government that was apparently backing down from its
election commitment to the gay community.

The final thing to point out about the Annual Report is that it is
the one activity that the Ombuds Office performs that benefits the entire
organization or profession. Recommendations contained in the Annual Report
are general in nature and call for either policy changes or changes in
administrative practice that benefit all individuals within the profession
or organization whether or not they access the ombuds office to file a
complaint.

There are of course many other important considerations that go in
to the drafting of Terms of Reference for ombuds offices, but the above
touch on most of the “watershed” issues that will profoundly influence
how an ombudsman performs his or her function.



The
Elements of an Effective Ombudsman’s Office

Good Terms of Reference:

For the terms of reference to be “good” they
must be understood and accepted (have broad consensus approval) by the
profession or community at large.

Qualified, Knowledgeable Incumbent:

An ombudsman defines his or her own role within
the organization to a greater extent than most other professionals. That
individual needs to become knowledgeable about how the organization works,
and must have an awareness of the unique role of an ombudsman in a community
and how it fits into the organizational culture and mission.

A good ombudsman should be in large measure
a philosopher. This is so because he or she will need to develop some understanding
of when it is appropriate and inappropriate to intervene in disputes. That
person must have an integrated value system that helps them identify ethical
issues early wherever possible. They will also need to be an excellent
communicator and react to these issues wisely where it is necessary to
do so.

Finally, an effective ombudsperson requires
courage. He or she can expect to become less and less popular with peers
as time progresses. The ombudsman will need to be prepared to champion
unpopular and in some instances unsympathetic causes. They must have the
energy and stamina to “buck the system” for a living while not losing either
their objectivity or empathy for those involved in running the system.

Strong, Committed Advisory Group:

In developing the structural arrangements
for the Ombuds Office at McMaster, an Ombudsman’s Advisory Committee was
established. This group was drawn from across the University community
and was roughly representative of the Office’s client group, defined as
the complainants and respondents with whom the office would deal to resolve
cases.

This group was invaluable as the Office moved
forward to initiate changes in the way it performed its work and interacted
with University and non University offices. They provided a sounding board
off of which to bounce concepts and ideas as well as constructive critics
to assess many initiatives.

One area where the Advisory Committee were
not able to be of much assistance, of course, was in the management of
cases. Because of the strict confidentiality requirements of the office,
they would not be privy to information about specific cases or situations.
At the same time the group was useful in providing “intelligence” about
unfamiliar areas of the University and its community.

Active Public Relations Campaign:

An ombuds office is intended to be a champion
of the public good. In order to accomplish what it is mandated to do an
ombudsperson needs complaints. These are the grist for his or her mill.

From these complaints the organization can
learn valuable lessons. The lessons are what makes the organization, profession,
or what have you better at what it does. Complaints are valuable. They
need to be cultivated, acknowledged, recognized and ultimately understood
and acted upon. Complaints are not necessarily mistakes by someone. A mistake
is something you do badly a second time, the first time it is called a
lesson.

In order to access these complaints an ombudsman
needs to enjoy the confidence of the community which he or she serves.
This necessitates an active and ongoing public education campaign. It is
through this campaign that the Office will get its casework and it is through
this casework that the organization will ultimately be served.

Structural Autonomy and Accountability:

This element has been discussed to some considerable
extent above in the section pertaining to Feasibility. I choose to deal
with accountability and autonomy together because they are seen as two
signs of the same coin. While a large degree of autonomy is necessary to
establish the credibility of the office and to maintain its integrity,
that autonomy must be appropriately balanced with structural features that
ensure accountability.

Autonomy in this context would include a fair
degree of autonomy concerning resources as well as control over administrative
procedures (within the four corners of the ombuds office policy). For example,
one means of protecting the ombudsperson’s independence from inappropriate
influence might involve “pegging” his or her salary at a level equal to
that of a manager with a similar level of responsibilities within the organization.

One means of ensuring accountability is to
have the ombudsperson report to a budgetary committee made up of representatives
of the various constituencies that he or she works with. This group can
have responsibility for reviewing the ombudsperson’s salary and benefits
package and receiving and looking into any formal complaints or concerns
relating to the conduct or practices of the Ombuds Office.

Most ombudspersons are appointed for a fixed
term. This approach has several advantages that recommend it. First, it
allows the organization to periodically review the direction of the Office
and to influence that direction through the selection of an incumbent that
shares the organization’s philosophy. In addition, because an ombudsman
operates very independently and under the constraints of confidentiality,
it is a difficult position to review effectively. It would be extraordinarily
difficult to develop a case for dismissal at law in the event that the
organization wished to remove an incumbent. A term appointment allows a
change to take place very naturally where it is deemed necessary.

Implementing
the Ombuds Model – Where to Start?

The first step you will want to take is to
strike a selection committee that could easily evolve into the Budgetary
or Employment Committee once the Office was in place. This group should
be broadly representative as discussed above.

Develop an interim or working policy for the
ombudsman that will provide him or her with some direction while they are
“finding their feet”. I would suggest a six month review of the policy,
at which time any significant problems can be ironed out. After one year
there should be a more formal review of the interim policy by the legislative
or policy making body charged with the responsibility to establish the
office, with input from the incumbent ombudsman.

This approach will allow the policy to be responsive
to the particular needs of the host institution and to the needs of the
ombudsperson.

The next step would be for the incumbent to
set up office procedures, train staff (if applicable) and establish professional
contacts among other ombudspersons.

The Office would immediately begin advertising
its existence among those who might be expected to make use of it. Public
education in the form of speaking engagements, brochures, giving interviews
in the organization’s communications organization, etcetera, will be a
staple of this effort.

Once the casework has begun to flow in, the
ombudsperson will be in a better position to assess who should be included
in the advisory committee and that group can be constituted.

It is beyond the scope of this paper to discuss
how to establish a sound case management system for an ombuds office. This
will, of course, vary from setting to setting. The key ingredients will
include:

  • a filing system that identifies “conflicts of
    interest”
  • a flexible data base to track trends in caseload
    and origin
  • a periodic reporting relationship with the advisory
    and budgetary groups
  • a sound time management strategy that incorporates
    time for complaint taking, complaint investigation and constituency development

Pitfalls
to Be Avoided

Below are listed and discussed some of the
more common challenges that face ombuds offices in their infancy and as
they grow into maturity.

Perception of Bias:

Most ombudsman’s offices are “complaint driven”;
that is they respond to complaints brought by members of the institution
they serve. That being the case, there is frequently a profile of the more
commonly received complaints. At the university, most of the complaints
received by the Ombuds Office were from students concerned about grading
and other academic issues. The Ontario Ombudsman Office deals with a large
number of complaints by inmates of Ontario correctional centers.

Because of the structure of a complaint driven
process like ombudmanry, those individuals with complaints get to tell
their story first. Conversely, those persons who more frequently respond
to complaints are faced with an initial approach by an ombuds office which
is working on the assumption that there is a problem, based upon the story
of the complainant. Understandably therefore, there is frequently a perception,
sometimes accurate, sometimes not, that the ombudsperson is biased in favour
of its “clients” the keeper of the complaint.

Although it is possible to dispel this kind
of perception by the kinds of questioning techniques the investigator uses
and the development of an open, yet skeptical mind, it does require an
alertness and sensitivity that not all persons possess. This leads us to
the second common pitfall, the heavy reliance that the model places upon
the good judgment of the incumbent of the office, the ombudsperson themselves.

Reliance Upon the Judgment of
the Ombudsperson:


Just as benevolent dictatorship is arguably
the best form of government, this weakness is also arguably the greatest
strength of the ombuds model. A wise, motivated, skillful and well intentioned
ombudsman can have a profound positive effect upon the profession or organization
he or she serves. The weakness in the model is simply that it relies so
heavily upon the qualities of the particular individual(s) chosen to occupy
the ombuds office.

I have spent some time above (under Elements
of an Effective Ombudsman’s Office) describing those qualities that I believe
denote an ideal candidate for the role of ombudsman, and I will not repeat
myself. Suffice to say that the ombudsman must be a rigorous thinker, who
is able to balance the various competing roles of fixer, administrative
auditor, agent of change and responsible office holder that the ombuds
model combines.

Accountability Gap Between the
Office and the Organization:


As indicated above, the Ombuds Office is an
important, unique and valuable tool for holding an organization or profession
accountable to its users, customers, patients, citizens, students etcetera.
It is of critical importance in establishing this mechanism that the Office
itself is not insulated from accountability itself. When this occurs (or
even where it is only perceived to have occurred) the office itself may
fall into disrepute; consider the government of Ontario Ombudsman’s reputation
among public service agencies as an example.

This paper has attempted to demonstrate a number
of tools that can be used to ensure that the ombuds office remains responsive
to the organization it serves while having the autonomy it requires to
do its job effectively. It is a difficult balance to find, and I do not
presume to have found all or even most of the best answers as yet.

Risk of Civil and Other Liability:

Ombuds offices are typically constrained in
their actions by policies that impose both an obligation of confidentiality
(toward the users of the service) and a standard of impartiality as between
the complainant and the respondent. These constraints can, separately or
together, place the institution employing the ombudsman in a difficult
legal position. This is particularly so if the Office receives a complaint
that the organization is legally bound to act upon, such as an allegation
of sexual abuse or harassment.

Many complainants access an ombuds office simply
to learn about what their alternatives are: what processes (both formal
and informal) are available to resolve their complaint. Once they have
that information they will not infrequently decide that they do not wish
to proceed with either a formal complaint to the ombudsman or to use other
processes in place to resolve the problem. Because the ombudsman promises
confidentiality in his or her dealings with the public, there is an obligation
not to reveal any of the information that was shared by the inquirer for
the purpose of obtaining information or advice. The ombudsman may feel
that the institution has a responsibility to other members of the public
to deal with the situation and therefore finds him or herself in an ethical
dilemma.

An additional consideration is whether the
organization has a legal responsibility to act on information it now possesses
by virtue of the ombudsman having received a complaint. One can make a
strong argument that what the organization possesses is not knowledge of
a dangerous or harmful situation, but simply of the allegation that such
a situation exists. This simply begs the point of whether the organization
then has a positive obligation to investigate the existence (or not) of
this circumstance, notwithstanding the wishes of the complainants.

One of the ways this structural and legal concern
was handled at McMaster was to constitute the Ombuds Office as an independent
body funded and governed by a group of stakeholders none of whom it was
expressly stated in the policy were the employers of the Ombudsman.

This paper is not the place to resolve this
tricky legal and ethical issue. It is, however, an appropriate place to
point out the legitimate concern it raises for institutions hosting an
ombuds office. The same, of course, can be said to be true of peer mediation
and other similar programmes.

Risk of Adverse Publicity:

A final area for consideration is the risk
that an ombuds office may bring bad public relations exposure to an organization
through its use of the media to influence the institution to accept recommendations
made in an Annual or Special (area specific) Report. As indicated above
in the section dealing with Terms of Reference and recourse, I am strongly
of the view that an ombudsman, within certain constraints laid out in the
policy, should have access to the media and through them to the court of
public opinion to keep everyone honest and realistic in their approach
to the resolution of grievances and complaints. Having said this, the cost
of so doing is the risk that the use of this power will bring the profession
or institution into disrepute, either with its own members or with the
public at large. Any profession or organization considering the establishment
of an ombuds office would need to take these competing priorities into
account and strike what they felt was an appropriate balance.

Conclusion

An ombudsman’s office is fundamentally an organ
of democracy. Its ethos is that of public accountability and the responsibility
of governmental and other institutions towards those they govern. The justitieombudsman
was a product of the Swedish enlightenment and occurred at the same time
as a number of other democratic institutions evolved in Sweden. It has
been argued that the ombuds model cannot operate as it was intended without
the spirit of democratic responsibility from which the institution evolved.

Like H. H. Kirchheiner, I would suggest that
an ombuds office is influenced most profoundly not by the terms of reference
it works under, or by the case management strategy it employs or even by
the proclivities of incumbent ombudsperson, but rather by the culture of
the profession or organization that hosts the Office. In deciding whether
or not a given profession or organization wishes to establish an ombuds
office, that institution should first self examine and determine whether
it is prepared to commit to what amounts to serious democratization and
change.

I hope that this paper has provided some insight
into the kinds of risks and opportunities that await those who are prepared
to make this choice.

                        author

Rick Russell

Rick Russell has a broad range of experience in dispute resolution, having practiced as a civil litigation lawyer, an ombudsman, a mediator, a facilitator, an arbitrator, a third party fact finder and a trainer. Rick has mediated well over one thousand cases since 1988. These include business and commercial matters,… MORE >

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