The Practice of One Ombudsman
Frances Bauer
This essay delineates the influences and constraints upon the author’s practice as an ombuds in two different Canadian universities over more than
twenty years. My hope is that an account of my practice as it evolved day
by day will help to shed light on the divergences in practice among particular groups of ombuds practitioners, notably government or legislative
ombudsmen; corporate ombudsmen; and academic ombudspersons in
both Canada and the United States.
Q
uite a bit has been written about the differences among corporate, academic, and governmental ombudspeople. Some members of the ombuds
community believe it is important to develop a model of practice which is
inclusive. They believe that a clear definition of “ombudsman” is an important step towards winning legislative protections so ombudsmen will not
have to testify in court about matters that should remain confidential. My
hunch is that these differences are, at least in part, adaptive responses to different situations. If I am right, the differences are likely to persist, despite the
wishes of those who hope to unify the profession.
Frances Bauer is the ombudsperson at The University of Western Ontario, in London, Canada. She
has served on the Board of the University and College Ombuds Association (UCOA) and is a founding member and former president of the Association of Canadian College and University
Ombudspersons (ACCUO / AOUCC). Her email address is fbauer@julian.uwo.ca. Her office maintains a website at http://www.uwo.ca/ombuds/.
0748-4526/00/0100-0059$18.00/0 © 2000 Plenum Publishing Corporation
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My Current Situation
A mandate signed by my employer and the main constituencies on campus
outlines what I am expected to do in the position I have held continuously
since 1988. I work in a comfortable if modest office, maintain regular contact with colleagues in the profession, and am assisted by a full-time woman
who is competent and cheerful even when I am not. I have friends in the
university community and am aware, too, of those who, while not personal
friends, are unquestionably supportive of the work of the office. I am a feminist and a supporter of social justice causes. I am still far enough from
retirement to feel invested in my professional identity, but old enough to
have gray hair and appear wise, at least to some. Although I am not an academic, I was married to an academic for many years. I have two master’s, but
no Ph.D.
The University of Western Ontario where I work is large, though not
the largest in the province; the total enrollment is about 25,000 students.
There are more than 1200 faculty and about 1800 administrative, technical,
and other staff members. The university has strong professional schools and
many undergraduates enroll in hopes of entering medicine, dentistry, law,
business, education, or one of the other professions. The culture is competitive; the usual complaints are heard about insufficient attention to good
teaching, lack of funds for research, and equity initiatives undermining academic standards or threatening academic freedom.
The faculty is aging, and is more than 80 percent male. All constituencies of the institution are predominantly white, heterosexual, and
able-bodied, though underrepresented groups have gained and are continuing to gain ground. The city in which the university is located has a
reputation for being conservative; little waves of immigrants from Central
and South America, Africa, Asia and eastern Europe in the past decade are
tempering that reputation somewhat. Recent government funding cuts
ensure that the grass is cut less often than in the past, and the cleanliness of
washrooms cannot always be guaranteed. These are only the superficial
signs of loss: more significant are the dramatic growth in class sizes at the
undergraduate level, the merger of faculties, and the loss of positions in support units. Partial deregulation of tuition has meant students now pay more.
Funding to help needy students has increased, but remains limited.
Mandate
A five-page mandate spells out the specifics of my position as ombudsperson. My job requires me to investigate, at the request of any student of the
university or upon my own motion, any problems or complaints or grievances of a student with regard to any aspect of university life. I work in
confidence. Office files are for the use of ombuds office staff only; and my
office functions independently “of all decision-making structures of the university.” I have the right to refuse to handle a particular complaint, but only
on certain grounds. I have access to information.
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It would be difficult to overestimate the influence of my mandate on
my practice. I often reread it when I am unsure what to do. In explaining my
actions to others, I quote from it. If I did not have a mandate which obliged
me to investigate and specified a right of access to files and people, I would
find it nearly impossible to investigate or pursue certain cases. Some people
and offices in the university community would simply not tolerate my interventions if I they felt they had a choice in the matter. Furthermore, without
this mandate, I could not make the claims I do — in brief, that as an
ombudsperson, I:
• am impartial;
• work in confidence;
• have access to information and the power to investigate;
• may make nonbinding recommendations to remedy unfair situations; and
• am independent.
Independence and Impartiality
Independence and impartiality are closely linked but not identical concepts.
“Independence” is structural. My office — and my functioning as an ombuds
— are independent of the other offices and structures in my institution. I am
not part of the students’ council; nor of the president’s office; nor of any of
the faculties or academic departments, nor of the library, the residence halls,
food services, or the chaplains’ office. I am not even part of student services.
I was hired by a representative committee, and only a similar representative
committee has the authority to fire me.
“Impartiality” speaks to the way I behave towards different constituencies within the university. If I check a dictionary (and here I go, checking
one) it says: “impartial: showing no more favor to one side than to the
other.”1 I like the fact that impartiality is the way I behave, rather than the
way I think or feel. It is clearer than neutrality, which the dictionary associates with war and adversarial conflicts. As a matter of fact, my mandate
makes no mention of either impartiality or neutrality. That suggests to me
that the framers of the document believed, rightly or wrongly, that if independence was assured, impartiality would follow.
Independence and impartiality are the characteristics most often challenged by members of the university community. Recently a faculty member
wrote to complain of my behaviour in a particular student appeal. He said
the student was “cheered on by the ombudsman.” Occasionally students
with whom I have disagreed have shrugged off my disagreement by reminding me that the university pays my salary. (As a matter of fact, my salary is a
joint matter between the university and the students’ association.)
Independence and impartiality are complex constructs. There is the
question of how I am perceived by others in actuality, especially those with
whom I disagree. Then the issue of how I believe I am perceived, and the
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efforts I must make from time to time to try to demonstrate that I am, in fact,
impartial. There are moments of self-doubt, and strategies I have learned to
help me think and act impartially. I have been at this university for over ten
years now and I know some people fairly well. Their style of decision making is familiar territory. I have an opinion about how fair-minded or
well-intentioned they are — or are not, as the case may be. Such insider
information is useful in assessing situations, but it does make me less independent and less impartial, in the ordinary sense of those words. How do I
maintain impartiality? Separating the problem from the people is my most
basic strategy. This is a skill; it can be learned and worked at, like any skill.
But I am simply not independent in the same way as a legislative
ombudsman. The very people whose decisions I may from time to time challenge are the people who hired me. So if I make a mistake or make a serious
enemy, I may very well lose my job.
Over my years here, my sense of vulnerability has fluctuated a good
deal, depending on circumstances. When I was newly-hired, I felt more vulnerable than now. On the other hand, when many units were being merged,
closed, eliminated or downsized, I felt a surge of vulnerability. I woke up
every day grateful I had a job, and wondering if tomorrow I would still have
a job. Many persons who had served the institution long and well were
given notice. Offices we thought essential disappeared overnight.
It was a nerve-wracking time. Does my sense of vulnerability impair my
functioning as an ombud? I don’t really believe so. I think back and cannot
find any circumstance where I held back, constrained by fear of job loss. An
ombuds must do all her work in a careful manner. I try not to ruffle feathers,
and if I must ruffle some, I must also have a very good reason for doing so.
As an ombudsperson, a person committed to fairness, claiming to be impartial in a world where partiality and opinion are chic and cool, I am always
vulnerable to critics and must watch my step in order to protect my credibility and the good reputation of my office. Without credibility I could not do
my job at all.
Who I Am
Who I am — my status and personal power — influence how I do my job.
Whenever I set up a meeting with a faculty member, I am aware of being a
nonacademic, someone without a Ph.D., without tenure, and therefore without apparent expertise. I know that makes my arguments less persuasive for
at least some academics. My particular status as a person with less power (a
woman and a nonacademic) combine with the powerlessness of my role. I
can investigate and make recommendations, but my recommendations are
not binding. I am not an actor, not a party, but an observor offering comment. My recommendations or comments will be rejected if I am not able to
persuade the actors of their merit and usefulness.
Just the other day, a student told me a particular faculty member had
offered to speak to a decision maker about her situation. While the faculty
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member would have told the decision maker the very same things I would
have told him, I encouraged the student to let the faculty member do the
talking. I thought there was a better chance of the message getting through.
In another case, an appeals committee was swayed by a glowing letter of
support from a faculty member and granted an appeal that would normally
have had little or no chance.
Knowledge of my own lack of power makes me work hard to find very
solid arguments, supported by references to policy and precedent. It makes
me crafty in presenting arguments, too. Sometimes I simply set it all up, and
hope the faculty member will draw the appropriate conclusion from the
facts. Being without power makes me attentive to the interests of the powerful. To a new dean who had made a questionable decision I said regretfully:
“It does appear as if, under the policy, the only reason such a request can be
denied is lack of sufficient work. And that is not the case here.” I often add
the phrase, “I could be wrong,” thereby managing to appear as if I am deferring to the wisdom of the tenured when, in fact, I am trying to insinuate
ideas into their heads so they will make fairer decisions.
When I first held a position as ombudsman, back in the late 1970s at a
different institution, I was twenty years younger. Now I have gray hair. Students often call me “Ms. Bauer,” instead of using my first name. When
professors attempt to intimidate me, I remind myself that I am older, or the
same age as they are, and tell myself, “Steady on!” If a professor or administrator calls me by my first name, I use his or hers. This is the power of age!
I used to be easily intimidated. I think I was attracted to this work, in
part, because I sensed it would teach me how to be effective in argument,
how to be right and how to right things. I am less easily intimidated now. I
have learned numerous tricks to keep myself on track. If I am facing a potentially difficult meeting, with a potentially nasty character, I read a few pages
of Getting to YES or Getting Past No, and rehearse my lines. Ombuds work
takes courage. Independence allows me to work impartially in coming to
conclusions, but courage is needed to voice those conclusions and then to
follow up to see that unfair situations are remedied.
Working Conditions
The ombuds office consists of two offices, one for me and one for my assistant. The offices are entered through a reception area which also functions
as a resource room. When people come to see me, they come to my office.
This gives me an advantage, since I am on my home turf. At the same time, I
do try to make my office a friendly and comfortable space. Two upholstered
side chairs and a small sofa are available for visitors. There are pictures on
the walls; plants; a mobile. The second-story windows are wide and low, and
overlook a green space. My desk is against the wall; when I have a visitor, I
turn my chair toward her or him. If we need to look at the same document, I
can roll the chair beside my visitor’s chair so we can view it together.
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In some cases, my assistant and I work together with a client or group. I
always explain why I have asked Anita to sit in, and give the visitor a chance
to object. She handles cases too, and will often ask me to sit in. The advantages of this approach differ, depending on each situation. These are some:
• The visitor benefits by having two perspectives, and additional knowledge. For example, Anita handles more financial aid cases than I do, so I
like to check things with her in that area; similarly, she likes to check
with me whenever cheating or plagiarism is involved.
• If the visitor is a difficult person, I will feel safer having Anita present,
and vice versa.
• If the matter is complex, I may want a notetaker, or a second set of ears,
and vice versa.
• If we expect trouble in any form, it may be useful to have a witness.
• Sitting in from time to time with each other’s cases provides an opportunity to make suggestions about style and handling.
• Sitting in on an unusual case provides an extra learning opportunity.
Having an assistant is useful in other ways. Anita handles the budget,
manages the filing system, deals with all the office equipment, orders supplies, places advertisements, books travel, and routinely requests information
from university and administrative offices. This frees me up to focus more
exclusively on case work.
Our caseload is at times quite heavy. We have hectic weeks and hectic
days. However, there are also some slow times which permit us to learn new
word processing programs, tidy our spaces, follow up on issues, possibly
read annual reports from other ombuds offices, and so on. The caseload is
manageable.
Colleagues, Friends and Supporters
Doing this work is demanding in several ways. It is not only often intellectually and emotionally challenging, but you cannot go home and talk about it
because it is confidential. Being able to reach out to colleagues is tremendously important. They can listen, comfort, reassure, confirm, confide,
argue, and play devil’s advocate. They remind me about the important principles involved in this work, or the limitations, or they pass on a crumb of
wisdom or information which becomes a key. One of the most significant
changes I have seen for academic ombudsmen, and probably other groups,
too, has been the growth of ombuds associations over the past twenty years.
It is at association meetings that we often meet the colleagues who become
formative and central to our own work.
Impartiality notwithstanding, I do have friends in the institution. Let’s
start with the people who work on the same floor of the same building, people I say “Hi” to every day, people who lend me their microwave or use my
photocopier when theirs is on the fritz. These people make me feel a part of
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the main, so that even though my job makes me independent and unattached, I have a sense of belonging. “Impartial” is not the same as
“unfeeling.” The people who clean the floors, the people in the office next
door, and the women I run into in the washroom who grin while adjusting
their lipstick are essential to my sense of belonging. A smile or greeting from
any one of them may be enough to turn a bad day into a good day.
Then there are the women with whom I have lunch once a week, and a
few others, not many, with whom I may socialize from time to time, even off
campus. From all these people, I gain new knowledge and perspectives on
the institution; that helps me appreciate the various institutional cultures
and makes it easier to do my job. It is not without cost, of course. For every
so often, one or another person with whom I am acquainted approaches me
as ombudsperson, or is implicated by some third party. Once I felt obliged to
declare a conflict of interest and withdrew. In general, for routine situations
and inquiries, our approach is consistent and does separate the people from
the problem effectively. And there is Anita, too, who can step in, and vice
versa. In an academic environment where wearing multiple hats or a
sequence of hats is expected, there is a high (and sometimes misplaced)
expectation that individuals will, in fact, be able to make fair and objective
judgments despite having a history. This (in my opinion) overly optimistic
reliance on the intellect works to my advantage here; my casual friendships
have never been raised as a reason for believing I am not impartial.
Tension Between Theory and Practice
I first began doing this work in a different university, as one of four ombudsmen, all appointed at the same time. The year was 1978 — fairly early days
for academic ombudsman. None of us had ever been to an ombudsman conference, and most of the present-day ombudsman associations did not exist.
All four of us were inexperienced, and working under brand new terms of
reference. I remember being asked in my hiring interview how I would handle a problem, and explaining that I would mentally take it apart, like a
clock, to see how it worked. The hiring committee was not much clearer
than me about what an ombudsman was. They hired me despite my naive
and simplistic vision.
Having each other to discuss matters with was both wonderful and frustrating. One was so focused on confidentiality that he believed that names of
people or departments were taboo, even among ourselves. Two of us were
staff members as well as part-time ombuds. We anguished about neutrality.
Neutrality was specified in our rather legalistic terms of reference, but what
it meant in practice was simply not explained. How much prior contact was
too much? What counted — our feelings for a person, his or her feelings for
us? Was neutrality an absence of opinion, or merely an openness to forming
an opinion? How could we remain neutral, and ever reach a conclusion in a
case? How could we make recommendations or publish our findings and still
remain confidential?
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We made some enormously instructive mistakes. We debated about
what we thought an ombudsman was supposed to be. We read books about
ombudsmen, met with our provincial ombudsman, and even organized a
conference. Here are a few cases from those early days, appropriately sanitized to protect confidentiality.
Apologies and Publication
Our terms of reference, modeled on those of government ombudsmen,
allowed us to publish our recommendations if the response to them was
unsatisfactory. This gave us a sense of power, probably equivalent to the
sense of power a toddler has sitting behind the wheel of a car. A toddler in
that situation is usually on the lap of a sensible adult with a driver’s licence.
I’m afraid we were not!
The situation was this: two faculty members, one part-time and one fulltime with tenure, developed a popular course which they taught year after
year. Then the full-time faculty member went on sabbatical and the part-time
faculty member (we’ll call her Professor X) expected to team teach the
course with a number of other part-timers during that year (P, Q and R). She
went ahead and chose the part-timers and worked on curriculum with them
over the summer. In late summer, the department chair (Professor Y)
announced that the course would be taught by different people.
Professor X was shocked. She had not anticipated any problem of this
nature. Also, P, Q and R had been working on the course already. As we
learned, X and Y had never had much use for one another. They were in
opposite camps in their particular discipline. X felt Y was not only not acting
responsibly, but acting vengefully.
The institution, in the person of the dean of the area, stated that it had
no obligation to Professor X and her colleagues P, Q and R, because no contracts had been issued. These disaffected part-timers came to us.
I declared a conflict of interest in the case, having once worked on a
project with Professor X. Nevertheless, I was kept up-to-date on the case by
my fellow ombuds and often offered comment, something I can see now
was completely inappropriate. I felt, as did my fellow ombuds, a real sense
of outrage over the matter. Nor were we the only ones. The entire thing
became a cause célèbre. Students held meetings. The institution’s newspaper bristled with nasty letters. There was a good deal of name-calling. When
the dean ventured to address a gathering of students on the issue, they
chanted: “Hey, Big Daddy. . .hey, Big Daddy” and drowned out his words.
The ombudsman office looked into the matter and determined that
contracts were never sent out for signature until after the course change
period, around the end of September or even early October. The university
relied on a pool of part-timers who were advised verbally in the spring that if
such-and-such a course were filled, they would have a contract in the fall. We
concluded that, although the university had the power to do what it had
done, it did not act fairly. The university agreed to give the part-timers finan66
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The Practice of One Ombudsman
cial compensation for time spent preparing the course. So far, so good. But
we went further. We were concerned about how nasty Professor Y had been
to Professor X. She had made a number of allegations. She had portrayed
Professor X as preying on the vulnerable, exerting too much influence, and
encouraging antisocial and nontraditional behavior. She had wrested from
Professor X a course which Professor X, with her full-time colleague, had
actually developed and taught for many years. And Professor X, the injured
party, wanted an apology. So we asked Professor Y to apologize.
Professor Y refused, as we feared she would.
So we published a report. In it we said we had concluded upon investigation that an apology was fair and appropriate but that, regrettably,
Professor Y had refused to apologize.
And guess what?
She didn’t apologize after publication of our report either. If memory
serves, she wrote a letter saying publicly that she would not apologize, and
reiterated some of her views about Professor X.
I can’t remember exactly what happened to us, but I have a feeling
there was a meeting of the committee which oversaw our office. I seem to
recall that they were not well pleased with our stance in this matter.
Over the years, thinking about this case has taught me many lessons.
One, that value conflicts don’t resolve. Two, that it is not a good idea to
demand that someone apologize. To be effective, an apology must be voluntary: the apologizing party needs to agree there is something to apologize for.
Three, that publication is only useful if you think it will move a cause forward.
It is better not to publish if doing so will damage the reputation of the office
by making it appear foolish or weak. Four, that it is usually better not to point
a finger at individuals. It behooves an ombudsman to help individuals save
face and to tackle problems more from a systems point of view. Fifth, that
when a case is very public, it is better for the ombudsman office to step back
and let the authorities resolve it. If a case is as public as this one was, the
authorities have to address the problem some way or another, so the ombudsman does not need to be involved, and probably ought not to be, unless to
facilitate communication. Finally, when an ombudsman has strong feelings of
indignation and outrage, it is certain that neutrality has flown the coop.
Another invaluable lesson we were learning, slowly and painfully, was
that often the parties know more than the ombudsman, despite the fact that
the ombudsman has the power to look at all the information. In this case,
both X and Y knew more about their relations over the years than any
ombudsman could. Their unwillingness to negotiate, apologize or communicate civilly was justified in their own minds by their long and contentious
history. Neither was ready to work to change their view of the other.
Another Part-Time Faculty Case
A couple of years later I was contacted by another part-time faculty member.
He claimed he had taught a particular course for two years, and was very
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well qualified in the area. He had not been hired to teach the course for a
third year. The departmental hiring committee had chosen someone else: in
his opinion, someone not nearly so well qualified. Like Professor X, he was
very angry, even though the news that he would not be hired again was
given to him as early as possible. He believed he was a victim, not of some
individual’s vengefulness, but of racism. Other than his skin color, he was
unable to offer any evidence in support of this view. He said he was going to
chain himself to the dean’s door if I did not get him his job back.
I agreed to look into the matter but pointed out that, if a committee had
made the decision, it would be difficult to overturn it. I said having previously taught a course did not create a right to teach it in future. I said
part-time contracts were year-by-year only, and pointed out that his previous
contract had a termination date of April 30. I suggested chaining himself to
the dean’s door might have the reverse of the desired effect. I hope I
empathized with his sense of frustration, and tried to strategize about more
constructive ways to convey his message to the dean.
In this case, as in the previous one, the department and the part-time
faculty member disagreed on the matter of who was best qualified to teach
the course. My experience with the previous case had made me wiser: I was
at least able to recognize the department’s authority. Upon inquiry, it
appeared that the department had followed its usual procedures and made
its decision in the usual way. The department chair, unlike Professor Y, was
quite tactful about the qualifications and character of the former part-timer. I
assured him I would let the part-timer know that all the normal procedures
had been followed, and that the department was satisfied with the fairness
of its decision. I probably explained that, in the absence of any substantiating information or evidence about wrongdoing, there was nothing further I
could do.
As I recall, the part-timer followed through on his threat and did chain
himself to the dean’s door. That may be part of the reason this case still
haunts me. But I also know I did not take seriously enough at the time the
man’s allegation that he was a victim of racism. I did not understand how
racism works, much less how to investigate such an allegation. When someone makes an allegation of racism today, I probe and ask many questions,
and explore the feelings and previous experiences of that person as well as I
can. I did not do that with the part-timer. I had no idea, then, that my own
naiveté and ignorance were marks of my own racism. I did know that I felt a
good deal of discomfort around the topic.
If he contacted me today, I might still conclude that his claim could not
be substantiated, but I would also know that that kind of answer was not
particularly helpful. Today I would probably offer to facilitate a meeting
between him and the decision-makers, so he could state how he saw the
matter, and feel he had been heard.
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The Hat
After we four beginners had been ombudsing for a year or two, we had
nearly all had some experience with The Hat, as in the expression, “He’s a
real bad hat.” The Hat caused problems for many people.
It was helpful to have so many cases involving this one person, since
we got to know him pretty well. We knew we could count on him to break
rules, lie, intimidate people, take umbrage, and abuse power. We believed he
misused funds, too. He was argumentative, and never admitted to being
wrong about anything, however minor. He had a habit of representing his
own accomplishments in grandiose terms. Unfortunately, he also had friends
in high places. Whenever I had to deal with him, I learned to put everything
in writing. Otherwise he would deny what he had said, or even deny that we
had met or had agreed to meet.
As you can imagine, we had it in for The Hat. We weren’t a bit neutral
about him, yet we did not feel at all compromised by our strong opinions
and prior knowledge. We did recognize that we had strong opinions and
prior knowledge, but we had heard so many different stories from so many
different people that we were deeply certain our nickname for him was well
chosen.
The Hat was convinced we were biased against him from the very outset. He could not tolerate anyone who did not agree with his every word.
This meant we had to be on our toes and very watchful, so that everything
we said or did regarding him was beyond reproach and perfectly evenhanded. We knew there was nothing we could do or say to change his
opinion, but we were mindful that he would complain about us to others,
and we wanted our words and actions to appear perfectly impartial and professional to them.
Alas for us, there was a big problem: Those who complained about him
were all people who were less powerful than he was. Some were staff who
reported to him; some were part-timers who taught in programs in his unit. All
were scared, and most were not willing to take any action. They came to the
ombudsman office, but they were really looking for a superhero to fix it all.
The victims of The Hat taught us that their problems were not our
problems. They were the ones being bullied and harassed; they were the
ones whose jobs were on the line; they were the ones The Hat would punish if so much as a whisper got out. They taught us how essential the
confidentiality of our service was for vulnerable individuals, and they taught
us over and over again how important it was to be able to tell your story to
someone who actively listened. I used to feel apologetic, and say, “Well, I
don’t seem to have been able to really do anything for you,” and the beleaguered victim of The Hat would say, “Oh, please, you’ve been great! It’s just
wonderful to be able to talk to someone who understands.”
I recall only three cases involving The Hat on which I took action. One
involved a person who had done a specific job on the understanding that
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she would be paid a certain sum of money. When she refused The Hat’s
advances, he refused to pay her for her work. She wanted her money but
she didn’t want sexual harassment to come into the matter. She had done a
lot of work in The Hat’s department over the years and knew he was a dirty
fighter. She also had a husband whose feelings she wanted spared.
We got her the money, but it was a tough case. We would have failed had
there not been credible witnesses to counter The Hat’s claim that the woman
had not shown up and done what she was to have been paid for. In the end,
although she was paid, the check came with a statement to the effect that it
had not been established that the money was really owed to her.
Another case involved The Hat promising the same thing to two different people, one a man, the other a woman. He gave the promised role to the
woman, leaving the man in the lurch. The man came to me. I investigated
and found in his favor. In this case, too, there was a resolution which turned
out to be an inadequate victory. An independent expert was hired by the
university to resolve the issue. (I had already made a recommendation, but
The Hat had challenged it, claiming it was a matter beyond my competence.)
The expert supported my conclusion, but the ruling came too late to be of
benefit to the injured party.
Finally, there were three staff members we managed to put in touch with
one another. As a result they had each other to talk to about how they were
being treated. We persuaded them that having the unit reviewed might be one
way to surface some of the abuses, especially the fiddling with funds and the
inappropriate management. It probably took the better part of a year before
the three agreed that we could go forward to the most senior level, and make
the request for a review. We felt pleased and hopeful of the outcome.
We talked to the university president, saying there was reason to
believe there were problems in the unit, and urging the president to undertake a review, including an audit. We declined to state anything about the
kinds of problems or the kinds of people who had come forward to us. We
reminded the president that we worked in confidence. We assured him the
kinds of problems we had heard about for over five years sounded serious to
us. He said he’d think about it.
Nothing was done.
The misery of the staff continued, and I felt awful because their expectations had been raised and disappointed. I have always been cautious about
raising expectations since. I have learned to hedge, saying things like, “I
don’t know” and “that is only my best guess.”
These situations taught me a lot about power. I learned that powerful
people pick and choose their battles. If a battle will not help their own
cause, they will avoid it. It was obvious that the problem of The Hat was
going to be easy for the president to sidestep: the victims were too scared to
come forward. And it was not in the president’s interest to stir up trouble
with The Hat and his friends. Later, when one of The Hat’s schemes back-
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fired and the risk of public embarrassment was high, action was taken to
limit the damage and The Hat suddenly retired.
The Hat himself taught me a valuable lesson. I had a style of working
which was very respectful. This worked well when people were well-intentioned. I guess it was the style dictated for young women of my generation
and class. It did not work well with The Hat — he just used it against me, to
his advantage. I learned to put everything in writing, but I didn’t learn how
to tell him how I really viewed his behavior. I could not bring myself to say,
“It seems to me you keep twisting things,” or “I believe you are not telling
the truth.” It is a lot of work to make your case when you cannot be straight
with someone because being straight involves saying things which are taboo.
After years of struggling with The Hat, I realized I needed to change my own
approach. You have to be straight with people. That is a higher value than
respecting social taboos.
Models of Practice
When I first became an ombudsman, I believed that the key function of the
job was the investigation of complaints of unfair treatment. That was how
my terms of reference made it sound. Because that was the key function, I
believed it was what should take place most of the time. I listened to a person’s story the way a dog hunts rabbits, sniffing out things to investigate.
When there was nothing to investigate, I felt disappointed.
Looking back, I can say that my view of what an investigation involved
was pretty simple-minded in those days. I saw it as the one way to uncover
the truth; and the truth as the one way to persuade people to act in a fair
manner. It followed that I expected people to be either wicked, mistaken or
victims. Interestingly, while I have encountered numerous people since the
late 1970s who did unkind, mean or ignorant things to other people, I have
never again met anyone I believed was as evil as The Hat. I am sure the
world has not changed: I am the one who changed, and the very work I do
nourished that change.
When we started out in 1978, we didn’t know a thing about alternative
dispute resolution. If we had heard of mediation at all, it didn’t sound as if it
was something we needed to know about. It was only one letter away from
“meditation” after all, and it wasn’t the 1960s any more. The phrase “active
listening” was not in our vocabularly. If pressed, I would probably have had a
hard time describing “neutrality” as anything but a state of mind, an absence
of opinion, rather than a commitment to a set of practices.
In time, I began to listen better. Some people weren’t interested in having their situations investigated. Many people simply wanted help
interpreting policies and procedures.
Often people just needed to tell their stories. Sometimes in the course
of the story they answered their own questions. “Thank you so much!” they
said, and went away happy, leaving me with nothing to investigate and no
policy to interpret, either.
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By and by, I came to realize that less is more. I am now a self-described
minimalist. If someone else can help a person better than the ombuds office,
I refer them there. If the visitor or client can do something for herself, I
encourage her to do that. If I can avoid investigating and use an approach
which empowers the parties instead, I do. I look for other ways all the time.
So, when the service most often needed by users of the ombuds office
is information or advice or the modest intervention of a phone call or a
meeting, is my key function still that of investigation?
This is a very good question.
Let me turn the question around: What would my job be like if I could
not investigate? It’s a challenge to imagine that. I suppose, whenever an
investigation needed to be done, I would have to persuade someone else to
do it, someone who had the power to do it. This is something I do quite
often now, since very often it is someone else’s job to do it. I love to recommend that such-and-such a decision, policy or procedure be reexamined in
light of such-and-such. “Investigation” is simply a response to a situation
where you do not know enough to make your way forward. What has to
happen for me to decide to investigate? What would I give up if I gave up
this power?
I investigate as a last resort, when procedures have been exhausted and
the complainant believes that he or she has been dealt with unfairly. “Unfairly”
can mean many different things, including, but not limited to, in a discriminatory manner, not in accordance with the rules or general practice, not taking
into account all relevant information, not being mindful to exclude irrelevant
information, harshly, unreasonably, or in an untimely or burdensome manner.
So let me replay some recent investigations, and see how it would have
worked had I not had investigation as an option. I would approach the decision makers and report what the complainant claimed. I could offer to be
present at a meeting of the parties and attempt to facilitate a discussion. The
complainant would say: I believe it was wrong to treat me so. The decision
maker would say it was not wrong, and that the matter was closed.
In private discussion with each party, I might focus on the separate and
joint interests of the parties. I could indicate the likelihood that the complainant would seek redress through the courts, or bring the matter to the
press, and so on. The decision maker will normally have prepared herself for
that and will not budge. I could indicate to the complainant the important
benefits of reaching an agreement on the issue. If I were a skilled mediator, I
could offer to mediate; and if I were a skilled mediator I would presumably
be skilled, too, in persuading people that it was in their interest to put the
time into the process. Mediation offers the possibility that each party will
broaden and shift his view of a matter by carefully attending to the story of
the other. This is a valuable approach to problem solving, and an ombudsman who is a skilled mediator might favor this approach. I admit that one
reason I do not elect this approach more often is because I am not a skilled
mediator. I do not see my role as primarily facilitating conflict resolution, but
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as working toward fair outcomes. If conflict is also resolved, that is incidental, and credit is due to each person for their willingness to attend to the
sum of the evidence and see what is fair.
What investigation offers is the possibility that there is evidence no one
has yet integrated into the picture. It also allows for other perspectives,
specifically the impartial perspective of the ombud. The value of my perspective derives from my impartiality. It is sustained by all the things I have
learned over the years: how to disagree without giving offence; how to
undertake an analysis without taking a position; how to be truly not a party
and disinterested in the outcome. But I acknowledge that more and more, I
see investigation and recommendation not as the last word on an issue, but
as a catalyst for the parties to attend to the matter anew, and from a different
vantage point. It is not the whole game; it is a possible move in the game,
and a rare one at that. I investigate if and only if:
• there is a genuine fairness issue;
• there is information which might result in a resolution;
• it is not someone else’s job to solve the problem — there is no other
recourse within the institution;
• the matter is important to the affected party;
• the affected party understands fully the process that I will follow and has
agreed to it;
• the affected party has agreed to any necessary release of information to
the decision-maker or others involved;
• the affected party appreciates that I am impartial and that the outcome
may not be what he or she hopes for;
• impositions on the time of others who will need to be contacted in the
course of the investigation will not be unduly burdensome;
• the investigation can be concluded in a timely way; and
• it is not a conflict of interest for me to investigate the matter.
It is certainly true that, when I switch to investigation mode, there is a
change in the tone of communications. Up to that point, the user of service
was in the driver’s seat, and what was taking place was a dialogue between
that user and myself, with occasional involvements of others in a dialogic
process. Once the user has agreed that I should investigate and write a
report of my findings, I make clear to all parties how I plan to proceed. If
other parties object to my involvement, I try to address their concerns, usually by referring to my mandate. I promise to them the same confidentiality I
promise to the persons initiating the process. If they are really uncomfortable with an investigative process, I am open to alternatives.
When I reach what I call a tentative conclusion, I write a “draft” report
and provide it to one party only for comment (usually the responding party).
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This allows for correction and input, and may result in a resolution without
the need for a report. In a recent case, I wrote two tentative reports in succession, one favoring one party, the second favoring the other party. Finally,
we hit on a procedure to which both parties agreed, and dispensed with
findings entirely. Delegates of the parties met in my office and an exchange
of property took place.
Thinking back on the handful of investigations I carried out in the last
few years, nearly every one resulted in recommendations for changes in policy or practice. Although a number of situations involved difficult
individuals, they were never the focus. The focus was the aggrieved person,
and how policies, procedures, and practices somehow failed that person.
Remedies were not always specified; often I recommended that the institution work with the aggrieved person to find an appropriate remedy. The
institution did not always do this, and sometimes I made the recommendation for a remedy knowing that a remedy was unlikely. But I never made a
recommendation without good reasons for thinking it was fair.
I am aware that there are organizational ombudspersons who do not do
investigations. They, too, are concerned with fairness. My impression is that
they look for ways to signal to the employer or other authority that there is a
possible fairness problem. They act, I imagine, the way we did when we
approached the president and asked him to initiate a review of the area overseen by The Hat. Like us in that instance, they act in confidence, protecting
the identities of informants, possibly not even taking their names, possibly
not even keeping records.
I cannot be an effective investigator without keeping records, for the
truth is not simple. The very act of keeping a record acts as a brake on the
all-too-human tendency to rely on impressions. Often a case starts out and I
have a theory about it, based on the first information. It is not uncommon
for that theory to fall by the way quite early on. If I am unsure, I may read all
my notes over, wondering: What is missing? What am I not seeing? What
would make a difference?
It follows from my commitment to confidentiality that my records must
be protected, and they are. They are for the use of my office only, as stated
in my Memorandum of Agreement, a document signed by the presidents of
the University and the University Students’ Council, and the principals and
presidents of our affiliated colleges and other campus groups.
In a university, most people are not like the The Hat. The vast majority
are well-intentioned and hard-working people who want to be fair. When I
start to make inquiries about something, most decision makers are happy to
talk about the matter, and most matters are resolved without any need for a
full investigation.
I have been in my current position more than ten years, and have carried out only a handful of full investigations, perhaps two a year, maybe
fewer. But there is always that possibility, so notes are routine, records are
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routine. And to be frank, I find notes and records useful, too, in cases where
no investigation will take place. When I see a student who saw me two
months ago, it may be very salutary to glance at my notes and observe a difference, a development. Having notes means I do not have to store
information in my head. I leave the files behind in a locked cabinet when I
leave the office each day, and that seems to make it easier to not think about
cases when I am not at work.
Fairness
Fairness is my over-riding concern as ombud. I examine decisions and judge
whether or not they are fair, I examine policies and judge whether or not
they are fair, and I consider reports of behavior and judge whether it is or is
not fair and appropriate behavior. How I make this judgment varies, but I
look at everything which seems to me relevant, and most of my judgments
are provisional and expressed as such. “If everything you have told me is
true,” I may say to someone, “then it sounds as if Professor Q has acted contrary to policy.” Of course, if I do a full investigation, I may come to a
conclusion which is not provisional.
Since I exercise this judging function often, I strive to act fairly in my
own practice. That means being respectful and civil and honest to others;
being conscientious in handling a matter; dealing with individuals on a firstcome, first-served basis except in emergencies; acting impartially; respecting
an individual’s goals; avoiding harm to others; having my office function in
as transparent a manner as I can; and reporting as fully as I can to my community the work I do each year, in a manner consistent with confidentiality.
Confidentiality
Every person is entitled to confidentiality from my office. However, the procedure for maintaining confidentiality varies. When the visitor (normally a
student) comes to my office he or she is entitled to full confidentiality, which
is to say, I will not acknowledge ever having spoken to or seen him or her
without express permission. Furthermore, I will not seek any information
about him or her, unless expressly asked to do so. So for each step, permission or authorization is required from the visitor: “Have I your permission to
look at your academic record? Have I your permission to discuss this with
your father when he phones?”
If a matter is complex and the student has been emotional or critical of
someone, I will often say: “Is there anything you prefer me not to mention
when talking about your case with so-and-so?”
When a student has given blanket permission to discuss the entire thing
with someone, I may point out to him or her things I will protect, since their
disclosure could cause embarrassment or harm or does not serve a purpose:
“I will not mention to the dean that you believe your professor is an incompetent ninny.”
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When I meet with an office-holder of the institution who has been exercising the functions of his or her office, I am also protective of certain kinds
of information, but I make the assumption that most of what the officeholder is telling me is repeatable unless it is personal information involving
other people (for instance, the grades of other students). Still, most of these
meetings conclude with a variant on the following speech: “I will get back to
Ms. Smith, and let her know that you and I have discussed the reasons for
your decision. I will outline those reasons, a, b, c, as you have done. I will
explain to her that the way the policy is framed, you are obliged to consider
matters like a, b and c, and prevented from giving weight to matters like p
and q. I will, of course, refrain from letting Ms. Smith know that you think
she is an incompetent ninny.”
When I do a full investigation, these same strictures obtain: I share
information I am allowed to share. If my investigation culminates in a written
report, I ensure that each party has an opportunity to see what I have written about his or her information. If information I have been given is
important, but the person wants their identity protected, I do my best to do
that. If there is no way to do that, of course, I may have to discount the information. A written report is given to both or all parties. I am very aware that
once I have provided a report, others may use it as they see fit, regardless of
whether I label it a confidential report. It is always possible, therefore, that I
will be called upon to be a witness in court. So far, I have managed to avoid
that. On those few occasions where being called to testify was a possibility, I
had not, in fact, carried out an investigation. Since my mandate is clear about
my obligation to respect confidentiality, I feel reasonably certain that my
institution would protect me from having to disclose information which was
not in a written report.
Impartiality
As previously stated, I prefer “impartiality” to “neutrality.” I think a reasonable
question, and a question which is often raised, is the question of whether
impartiality or neutrality implies treating all parties in the same way. My current mandate is to serve students. In my first ombudsman position, the office
served the entire university community. Would I be “more neutral” if I served
all constituencies in the university? I don’t think so. I might be perceived as
more neutral, but that is not the same thing as being more neutral.
I find it helpful to compare my current position to that of a government
ombudsman who serves the citizen in relation to the government. She or he
does not serve the government officials in the same way as she serves the
citizen. The reason is that it is the government official making decisions
about the citizen, not vice versa. Similarly with students and deans.
Needs of Different Constituencies
If I consider the constituencies in the two universities where I have worked as
ombudsperson, I can place their needs and vulnerabilities on a continuum.
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The university president and the core group of administrators around
him or her are vulnerable to events that are likely to result in public or highprofile criticism, or to cost the institution a great deal of money. Insofar as I
am needed by the president’s office, it is to handle expeditiously the complaints and grievances of students and their families which might otherwise
end up in his office. I am also a gadfly and change agent, and someone to
consult on occasion.
Deans and department chairs are concerned to run things well in the
areas of their responsibility. They want to preserve their reputations with
their colleagues in their disciplines, and with their constituents. They are
vulnerable to attack from disgruntled faculty, who can eat up valuable hours
of their time with grievances. They are fearful of losing out on funds and
resources for their units. As ombudsperson, I have sometimes been in a position to save them some time and trouble, but not much more than that. The
main service I perform for deans and department chairs is to be a place to
which students can be referred for “another opinion.” Sometimes I am consulted about a particular problem. I am consulted about proposed policy
changes, too.
Individual faculty members are more of a challenge since they quite
often feel vulnerable, especially if they are not yet tenured. They are less
likely to trust in my impartiality and confidentiality and fairness than are
deans, probably since I contact them less often, but also because they do not
have the cloak of office to justify their actions. When I contact a faculty
member I have not met before, I think through my first words very carefully.
If my purpose is to raise an issue which is likely to be sensitive or difficult, I
avoid contacting him or her just before he is to teach a class. I try to make
myself available immediately if the faculty member is free then, so he or she
will not have to endure the suspense of wondering why I am coming to see
them. I give faculty members a choice of me going to their office or they
coming to mine.
Staff feel very vulnerable. They feel they are expendable, and that if
they cause trouble or are suspected of causing trouble, they will lose their
jobs. So staff have a very big need to be reassured of the confidentiality of
the office. I often contact staff for routine information, and that is not problematic for them. It is when a staff member contacts me, or when he or she
feels insecure about some action, that their vulnerability is most apparent. In
fact, the vulnerability of staff is so great I suspect it has influenced my organizational ombuds colleagues to espouse confidentiality as the basic principle
of ombuds practice.
Graduate students, like staff, need frequent reassurance that the office
is confidential and impartial, especially in conflicts within their own department or with their own advisors. They often realize that if things go wrong,
their career in their area will be at an end. This makes the graduate student a
prey to the unscrupulous or exploitative faculty member, and even to techni-
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77
cians and senior graduate students. The problems they bring to the office are
among the most difficult to manage. Interestingly, I almost never investigate
a graduate student problem because of the risks. We always choose to go
another way, usually with the ombudsman behind the scenes.
Undergraduate students are vulnerable in a different way. A single
course may be a source of terrible trauma, or an undergraduate may be sexually assaulted or suffer other hardship, but what undergraduates need from
my office is more straightforward than the needs of other constituents.
Above all, they need encouragement and they need respect. They need good
information and advice in appropriate amounts when they ask for it, and
they need to be able to ask without feeling foolish. They are less concerned
about confidentiality than other constituents, and more concerned with not
being made to feel stupid.
More than any other group in recent years, undergraduates have shaped
my practice, and not through the big problems, which they do sometimes
have, but by their fervor for even small causes. They are tremendously
appreciative of the efforts taken on their behalf. Their small causes are not
small to them: a grade of 88 that should be 91; a notation on the record that
should not be there; a refusal by someone to explain a decision; the denial of
a request for a special exam; rectifying an accounting error; being compensated for a loss which should not have happened; having a chance to meet
with a person and voice concerns about a lack of civility. To an individual,
these are important, and resolution allows that young person to move forward and to feel there is fairness after all.
When I read about the way an ombudsperson can surface serious systemic problems, or can save an institution or a company thousands or
millions of dollars, I wonder if I am doing something wrong, being so mindful of the small concerns of undergraduate students. I wonder if I were a
faculty member with tenure, and with a mandate to serve all constituents,
would I, too, save my institution thousands of dollars? Would I, too, correct
serious systemic problems?
I did surface a serious systemic problem, and get action on it.
Unchecked, the problem would sooner or later have resulted in a lawsuit.
Over the years, many recommendations for changes to policies have been
implemented, making lives a little smoother for students as well as others.
Another set of recommendations was effective in getting discriminatory patterns of behavior in a particular unit addressed. There, too, a lawsuit was
almost certain if the matter had not been resolved. But these events, important as they are, are the exceptions. Most cases affect only one or two
students. I think it is a particular strength of the office to deal with seemingly small concerns which are of great importance to individuals: a place on
the swim team; a pair of torn pants; a decision maker’s bias; an inappropriate
assignment.
The concerns of individuals, more than the well-being of the institution
or the needs of the employer, are what drive my practice. It is really impossi78
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ble to put a dollar value on the relief a person feels when a perceived unfairness is remedied. And the concern of those who come to an ombudsman is,
first and foremost, to be treated fairly.
NOTES
1. Gage Canadian Dictionary: 1983, Gage Publishing Limited.
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