Five Current Challenges That Pose Opportunities to Improve and Consolidate the Ombuds Profession
Bruce MacAllister, B.S., J.D.
Santa Fe, New Mexico
I first began working in the ombuds profession in 1995, when I was selected to serve as the first ombuds for Los Alamos National Laboratory. At the time, the Laboratory was managed exclusively by the University of California and had been since its inception during the Manhattan Project. While serving as the Ombuds Program Director for Los Alamos, I became deeply involved in IOA’s predecessor organization, The Ombudsman Association, “TOA.” I had the opportunity to serve on the TOA Board of Directors before and during its merger with the University and College Ombudsman Association, UCOA, (forming the IOA) and to serve as the TOA liaison to the American Bar Association when a section of the ABA developed standards for establishing and operating ombuds programs. In designing and implementing the Los Alamos Program and in working through the negotiation processes with UCOA and the ABA, I had the opportunity to delve deeply into the state of the profession’s Standards of Practice and Code of Ethics as they governed the practice at that time.
After leaving the Los Alamos ombuds program, although I helped create several new ombuds programs, I was more distanced from the status of the profession and its current challenges because my consulting practice involved a broader focus. I returned to full engagement and participation with our profession after a several year hiatus and was intrigued to discover that, in many key respects, the state of professional development for our profession is remarkably unchanged from what I observed twenty years ago. At the same time, there are many challenges coming from new directions that may pose more fundamental threats than we, as a profession, have ever faced.
I write this article to share some observations about the profession and its current challenges. I seek to identify some key areas of challenge and to explore the opportunities that they afford. These are points where, with focus and energy, the ombuds profession may at last move past some long-standing issues that have perhaps seemed chronic and intractable. I discuss of few of these issues and opportunities in this article and offer some thoughts on how we might push past them.
1. Unrealistic Standards of Practice: Asserting testimonial privilege.
The current IOA Standards of Practice purport to impose legally unsupported requirements, which undercut the credibility of other legitimate standards, such as the general concept of confidentiality. A key example of this is the Standard of Practice requirement included in paragraph 3.2, stating:
“Communications between the Ombudsman and others (made while the Ombudsman is serving in that capacity) are considered privileged [emphasis added]. The privilege belongs to the Ombudsman and the Ombudsman Office, rather than to any party to an issue. Others cannot waive this privilege.”
The commitment to “confidentiality” can be created in many different settings, by contract or by business practice and is widely recognized, within limits, by the courts. Unless compelled by a court or other authority, confidential information can generally be held private. However, “privilege” typically relates to the concept of testimonial privilege, which, when recognized, allows an individual a basis to refuse to share information in a formal proceeding such as a trial or criminal investigation. Testimonial privilege is invariably the purview of the courts or legislative entities to create, interpret, and sustain and, outside of a few narrowly construed but generally accepted categories, privilege is difficult to establish and maintain.
This provision ostensibly requires practicing ombuds to claim such a privilege in jurisdictions where it has not been created or recognized and often in venues that are clearly hostile to expansion of testimonial privilege. By so doing, we, as a profession, undercut our credibility to assert the more general and defensible concept of confidentiality and place the vast majority of our membership in the position of asserting a claimed status that is simply not supported by law. In my view, this approach undercuts our ability to assert appropriate and defensible levels of confidentiality because challengers look to aspects of the standards that are clearly unsupported and draw conclusions about the Standards of Practice in their entirety.
In my now-long tenure of ombuds practice, I have found that the average program user is typically not all that concerned about the remote potential that the ombuds might, at some vague point, be compelled to testify about a matter in court. Most people find this a generally remote potential. Rather, I find the average visitor is far more concerned about keeping their conversation with the ombuds confidential from their management or peers.
Our opportunity now is to update the standards to be realistic and recognize that the attempt to bootstrap testimonial privilege by boldly claiming it has failed after nearly forty years of effort. The Standards can now be re-written with the knowledge that our effort to secure a recognized privilege similar to a priest, doctor, lawyer, or psychologist has simply failed to gain any significant traction. Other aspects of the Standards of Practice can now be written with real life workplace and campus experience in mind.
2. The “you ombuds where you’re at” approach: Inclusivity at the expense of professional standards.Because ombuds are ombuds, we tend to be socialized to hold inclusivity as a very high value. We learn not to judge our visitors and we neutrally accept positions held by others as a part of our daily work. We tend to carry this approach forward into our interactions within our own professional community, and gladly welcome others in our working community who approach practice issues, by choice or by compulsion, very differently. And, as a profession, we accept within our professional community many whose practices vary widely from the aspired model espoused by our Standards of Practice. A dear former colleague from a leading university ombuds program used to refer to this phenomenon as “you ombuds where you’re at.”
Ombuds practicing to IOA Standards generally accept that there are three pillars to our practice: independence, neutrality, and confidentiality. As expressed in the current Standards of Practice, the fundamental elements of a practice are reasonably clear. However, as an ombuds community, we welcome and accept individuals and whole programs that clearly disregard even the most core concepts of the standards. Examples are prolific, but some of the most striking include:
- An individual who serves at their university as both its “Title IX Officer” and its “ombudsman;”
- A nationally recognized program that until recently also managed the formal review process, including gate-keeping and case processing;
- An individual who serves as the “EEO Officer” and “Ombudsman” for their university and who was directly responsible for “investigating and resolving” sexual harassment complaints.
- An ombudsman who also serves as the chief ethics officer for their organization;
- Ombuds who serve as voting members of policy-making committees within their organization;
- An individual who holds a senior management position while simultaneously carrying the title of “ombudsman” in their organization.
- Countless programs that report into structures that cannot be viewed as a neutral or independent reporting structure.
Note that I am not focusing on comparatively minor practice variations, such as mandatory reporting of sexual harassment or sexual assault, or whether a program does indeed secure separate counsel if confidentiality is challenged.
The problem is not that we do not want to welcome, educate, and include everyone in the ombuds community. Rather, the problem is that, in welcoming everyone, we undercut our ability to demonstrate to others that the title “ombudsman” means anything in any context. And, we place those who seek to assert and defend confidentiality and other practice requirements by linking them to the Standards in a real bind because critics of the approach can easily point to examples of positions with the same title that do not hold true to these values.
Part of the challenge is the perhaps regrettable choice to call practitioners “ombudsmen” in the first place, when there were already so many variations of the “ombuds” practice. Many challenges have been created by choosing a term, which historically refers to a hodge-podge of different roles and approaches – organizational ombuds, classical ombuds, long-term care ombuds, and many other program variations that creative and well-meaning people have put into place over many years.
One has only to look at other somewhat more mature professions to see that they each zealously define and defend their titles and practice requirements. Even in situations that lack legal enforcement, other professions have devised ways to define and defend their practice. For example, the common term “RealtorÒ” is a registered trade name and can only be used by those complying with the National Association of RealtorsÒ code of ethics and Standards of Practice.
The inclusivity approach will be tested soon with a vote to eliminate categories for ombuds within the IOA. While this may enhance IOA’s ability, as a professional organization to grow its membership, it does nothing to add value to those members who have hoped to use standards as leverage to secure their status as confidential offices that do not automatically serve to put their managers on notice when certain issues are reported. It may serve a legitimate purpose to allow those who do not practice to standards to participate in the organization, but, in my view, it will definitely dilute other members’ ability to leverage off of the Standards of Practice. Ironically, at the same time, the IOA is, in essence, actively encouraging distinct practitioner categories through the CO-OP program and the still-conceptual ombuds program certification processes.
In the face of the movement to eliminate categories, it may seem a bit radical, but I propose that the ombudsman association actually leverage off of the separate and distinct category of practitioners and programs that demonstrate that they clearly and completely practice to reasonable, updated Standards of Practice. The seeds for this approach are already sewn, in that the IOA has already established a CO-OP certification program and is moving to establish a program certification process. Currently, there is little incentive to pursue CO-OP status. It is expensive, and one can easily lose one’s hard-earned status as a result of policy decisions made by others. The stroke of a policy pen on a campus can eliminate CO-OP eligibility. I propose that, beyond certification approach, IOA should create a new and protected practitioner category name, similar to the approach that the Realtor community uses – it might even be a name such as Certified Organizational Ombuds Program (and Practitioner). If this approach is to be widely embraced, the IOA must be prepared to make the status available to campuses and workplaces, and rather than charging organizations for the privilege of the status, the IOA should invite programs to gain the status for little or no fee as a way of gaining wide acceptance. Naturally, the training program for individual practitioners could be provided for fees similar to the status quo. If established, the IOA must be prepared to aggressively protect the name and to zealously support its certified members when their practice tenants are challenged.
3. Standards don’t mean anything unless they are enforced.One of stated reasons for eliminating membership categories is that the criteria for full membership have not been policed or consistently enforced. Similar to the law, where laws and regulations are only effective as the ability of the system to enforce them, Standards of Practice are only relevant if enforced. If we update our Standards to make them more universally accepted and achievable, it will be imperative for IOA to put a system in place to ensure that they are actually followed. Compliance can only occur with some form of inducement or leverage. Currently, the only inducement for complying with IOA standards is to be able to make that claim in ombuds websites. It carries no real value. Yet those making that claim are not even screened or enforced. In 2014, with the help of a very gifted intern colleague, we conducted an extensive benchmarking process that entailed national research into the state of compliance with current IOA standards. What we discovered was a rather shocking proportion of ombuds programs across the nation – particularly in the higher education sector – that claimed to be in full compliance with the IOA standards, but went on to detail exception after exception to that compliance. Typical areas of non-compliance involved mandatory reporting of sexual assault or harassment and roles that vested the ombudsman with policy and/or management responsibilities beyond managing the ombuds program.
The concept of membership categories was carried forward from the days of TOA and perhaps earlier. During TOA’s existence, new members joining the organization were vetted by TOA to verify qualifying status for full membership. This process ceased at some point with IOA. To be clear, standards can be enforced through other mechanisms than membership categories, which, themselves, seem to carry little weight or inducement to organizations chartering ombuds programs.
The IOA Standards of Practice should be updated so that they are coherent and defensible. Once updated, the IOA should design a program accreditation process that includes reasonably rigorous vetting of programs and individual practitioners. The challenge to this approach is that there is currently little incentive for chartering organizations to commit to IOA accreditation and to abide by reasonable requirements. To create this inducement, we will need to develop an aggressive educational campaign to build support among ombuds constituencies for ombuds programs that are chartered true to the IOA Standards of Practice. (I discuss this further, below.)
4. Allowing other professions to define our profession. Almost from the inception of the concept of organizational ombudsmen practice, others outside the profession have sought to define what an ombudsman is and what an ombudsman does. In 1999 and 2000, IOA’s predecessor organization was involved in vigorous dialogue with the American Bar Association when the ABA decided it was appropriate for it to create “Guidelines for the Establishment and Operation of Ombuds Programs.” Imagine, if you will, what the reaction of the American Medical Association would be if the American Bar Association sought to define detailed medical practice standards. Imagine the reaction of the psychologists community, if the IOA sought to rewrite the Diagnostic and Statistical Manual of Mental Disorders! In 1999 and 2000 the Administrative Law Section of the American Bar Association undertook a project to define what an ombudsman is (identifying three major categories) and how ombuds should practice. While the TOA – the organizational ombudsman association at the time – was engaged in negotiations, the ABA took the position that the final word for defining an organizational ombudsman actually rested with the ABA!
Now we, as a profession, face a similar challenge along the same lines. The United States Department of Education has recently included university ombudspersons in its list of positions that it believes “generally meet the criteria for being campus security authorities” and who are therefore ostensibly required to report certain crimes under the Clery Act. The Department’s own communications demonstrate that its officials do not understand the neutral, independent and informal role of an ombuds on a college campus.
If the IOA is to add true value to its constituents, it must assume a more aggressive role and engage other professions, professional organizations, and government entities more assertively. One only needs to look to the AARP, or other similar entities for benchmarks for more aggressive lobbying, outreach and educational efforts. One of the major roadblocks to this approach to engagement is the value-set of our own membership. As a volunteer-driven organization populated by practicing neutrals, an approach of zealous advocacy often does not feel natural.
As an example of our own collective discomfort with zealous advocacy, in 1999/2000, I was designated as the board member liaison to the ABA in our negotiations with the ABA over the standards it was developing around our profession. As I sought to engage the ABA as a negotiator and advocate, I found that some of my fellow TOA board members found my advocacy “unombudsmanlike.” Of course it was “unombudsmanlike!” I was attempting to serve as an advocate and negotiator. As a collective group, we value constructive conformity, agreement, and neutrality. Yet these values have led the profession into the chronic position of pushing back rather passively at non-practitioners who presume to define the profession. If we are to survive as a profession using a fundamentally different approach to risk management, we must accept that, while we can be an independent, neutral resource in our ombuds settings, as a profession, we must embrace the role of zealous advocates.
5. Failing to develop a coherent approach to influencing the business and higher education communities.As a professional community, we have yet to coalesce around on a clear vision of how to wield our collective voice. At this point, the IOA has no coherent lobbying initiative, and is only now beginning the process to explore what our collective message should be, how best to convey that message, and to whom. If the IOA is to provide value on a strategic level, then it must accept that it currently wields very little influence in the larger worlds of legislative, legal, and professional communications. It must accept the reality that, while we are professional communicators in our own right, our communication approach is fundamentally a non-advocacy approach and few of us have the professional background, temperament, and skills to develop an aggressive, coherent professional advocacy message. We must come to the understanding that there are limits to effective volunteerism and that we have reached the point professionally that, if we are to sustain ourselves as a profession, we must convince others that our risk management approach is fundamentally sound and offers a viable, non-escalating alternative to the standard legal approach.
For the ombuds community to finally achieve professional recognition, many things must converge, as discussed in this article. We must recognize that we do a disservice to our profession when we rely on exclusively our membership to develop and convey our message. I believe the time has come for us to reach out and secure professional lobbying and messaging support similar to every other major profession.
In my view, the ombuds profession finds itself at a crossroads. We can either watch our profession slowly decline as others outside the profession determine what ombuds do and what their standards and limitations should be, or we can move out boldly to take back full ownership of our profession. This may involve operating in new ways that, to many, may feel somewhat counterintuitive. We cannot “ombuds” our way forward through gentle, neutral collaboration. We must accept that, to establish ourselves as a profession – at least in the American context – will require zealous advocacy and the help and alignment of many key institutions, which, at this point, are ambivalent at best about ombuds. The time and resources necessary to launch such an endeavor exceed those available using a purely volunteer model, and will require commitment to using professional resources outside of our own profession.
The world in general, and particularly the United States, is in desperate need of more widely embracing the different and more effective way of approaching conflict resolution and risk management that a high-performing ombuds approach can offer. Our professional challenge is to effectively communicate how this approach works and to demonstrate the proven results. If we, ourselves, embrace a new way of doing things collectively as a profession – a way that involves leveraging off of the skills and talents of others outside of our own relatively small professional realm, I believe we can see great results. If not, I fear that the ombuds profession will linger on the fringes, fighting the same battles repeatedly and gaining little ground in terms of growing the size of the profession and gaining more general acceptance of the model.
 The Manhattan Project was a research and development project that produced the first nuclear weapons during World War II. It was led by the United States with the support of the United Kingdom and Canada. From 1942 to 1946, the project was under the direction of Major General Leslie Groves of the U.S. Army Corps of Engineers; physicist J. Robert Oppenheimer was the director of the Los Alamos Laboratory that designed the actual bombs. See, https://en.wikipedia.org/wiki/Manhattan_Project for more information.
 I include informality within the category of independence because the nature of our approach to informal problem solving and the requirement of independence necessarily require avoiding participating in or limiting our problem-solving approaches through a formal process.
 Our review was limited to American college and university campuses.
 The IOA has challenged the Department of Education position and is actively developing its own best practices statement in response. Essentially, the IOA bases its position on two tenets: 1) that nothing in the underlying law has changed and ombuds practicing to IOA standards cannot be considered a “university official” under the department’s own definition, which states that a campus official “has the authority and the duty to take action or respond to particular issues on behalf of the institution,” which an ombuds, practicing to IOA standards clearly does not have; and, 2.) that for many reasons, it is bad public policy to require ombuds to report crimes.