by Suzanne Belson
Keynote speaker at The Ombudsman Association Conference
MONTREAL, MAY 14, 1997

The topic which I have been asked to speak to you about today is 'Changing Times in the Ombudsworld.' So what I'm going to look at is where we are now, how we got here and where we might be going.

So let's start with the beginning. In the beginning was a word - and the word was ombudsman - a Swedish word originating several centuries ago to describe a person who represented or protected the interests of another.

The word developed a more familiar meaning in 1809 when the Swedish government appointed an official to independently investigate public complaints against public administrators and it is this function, this definition of the ombudsman as someone who deals with citizens' grievances against the bureaucracy of government, that we have come, in recent years, to call the "classical model."

There is a quote I like from an article by Gerald Caiden, Niall McDermot and Ake Sandler, which I think nicely describes the thinking behind the classical model of ombudsing.

"The existence of an independent ombudsman office denotes a clear indication by the rulers that they recognize obligations and duties to the ruled, that the ruled should be treated justly, promptly and courteously, that they should be granted their due according to the law, and that public business should be conducted honestly and efficaciously."

The most important implication of the ombudsman institution is that, if the ruled feel aggrieved at the way their business has been handled (and aggrieved here refers to complaints that have not been settled, unanswered questions, and unheard cries for help), they have the legal right to complain and someone to complain to who will in turn have the legal right to investigate their complaints, mediate the dispute to resolution, and make their findings public. The ruled are placed on a more equal footing with the rulers and their agents. The ruled do not have to tolerate unjust treatment. If they are offended, they have recourse, they can appeal, protest or complain to the ombudsman if all else fails. The ombudsman office will use all its powers, resources, links and experience to challenge the actions of the rulers' agents. The ruled have their own defender and protector who can take on public officials and attain better satisfaction, even getting public officials to admit mistakes and reverse decisions. The ombudsman reminds them that

"They are public servants as well as public officials and that they have rights and duties not only to the state but also to the public generally, to their clients as members of that public, and to the individual as such." (this has been edited for flow)

So the classical ombudsman is a tool, a strategy, an acknowledgement that in a bureaucracy mistakes will happen, things will go wrong, not every citizen will be treated fairly or courteously or with respect, not every civil servant will always do his or her job honestly or diligently and even good systems can sometimes benefit from scrutiny and can sometimes be improved.

And the function of the ombudsman is to provide an avenue of recourse, to receive complaints, to determine whether they are justified and, when they are found to be justified, to recommend a solution.

Now, in a democracy, particularly a democracy with the historical and ideological foundations of the united states, it is easy to understand that the idea of an office whose function is to champion the rights of the individual in disputes with the state can be very appealing. Which is why it is a bit perplexing to me that Canada more readily adopted the idea of legislative ombudsmen, and had offices in place in all but prince edward island, our smallest province, before 1980 (although one has since been closed) while state government ombudsmen are still relatively few. I think this difference, as you will see later, is important.

But with that said, we can easily see that in the us, once it got started, the ombudsman idea spread relatively quickly over a couple of decades in the non-government sector where the rights of the individual (as patient, consumer, employee, student and so on) were often at the mercy of the much greater powers of universities, hospitals, public utilities, nursing homes and private corporations.

And as this idea of ombudsman was adopted to fit the particular needs and sensibilities of the non-government sector, a new twist on the old theme evolved and what is now called the organizational ombudsman was born. But, sometimes in that process, some of the key characteristics of the classical ombudsman, the power of independent impartial investigation and review, the power to make findings and recommend resolutions to individual grievances, seem to have been left behind.

A recent article by Mary Rowe and Dean Gottehrer called "Similarities and Differences Between Public and Private Sector Ombudsmen" is essentially a kind of conversation interspersing Dean's description of the classical ombudsman with Mary's text on the Options, Functions And Skills of organizational ombudsmen.

In that article, you will see many parallels but also material divergences. There are similar objectives, but different ways of getting to them. And, as I look at the two models, at the way government ombudsmen do their job, at the way organizational ombudsmen operate, I ask myself 'where do I fit? Where does this leave me?'

Because the truth is that, although in some sense I am an organizational ombudsman, because I am not appointed by a legislative body but rather, as in many universities, by a committee made up of representatives of the various constituencies in my institution, the terms of reference which define my office resemble very closely the role of a classical ombudsman. As you will see from the following extracts:

A) to inform university members about existing policies, rules and procedures and advise them as to the appropriate channel of redress for any concern or complaint they may have;

B) to assist university members to resolve complaints informally and quickly;

C) at the ombudsperson's discretion, to conduct an independent and objective inquiry into complaints when normal channels of recourse have been exhausted;

D) to explain decisions taken by university decision-makers when complaints are not substantiated;

E) at the ombudsperson's discretion, to recommend solutions when complaints are found to be valid;

F) to bring to the attention of those in authority any policies, rules or procedures which appeal unclear or inequitable or which might jeopardize the rights or freedoms of any members of the university. The ombudspersons may suggest changes to the existing policies, rules or procedures or offer advice on the development of new policies, rules or procedures.

The mandate goes on to say that

In dealing with inquiries, the ombudspersons shall be concerned that all members of the university are dealt with and deal with others fairly and more specifically that:

a) decisions affecting members are made with reasonable promptness;

b) procedures used to reach decisions are adequate and the criteria and rules upon which such decisions are based are appropriate;

c) procedures and criteria used in making decisions are clearly communicated to those affected.

And further, when an investigation is complete, the ombudsmen may bring their findings to the attention of those in authority and make whatever recommendations they deem appropriate and to whomever within the university they feel should receive them. Such recommendations may bear either on the actions or decisions of an individual or a group, or on the policies rules and procedures which gave rise to them. If, upon receipt of such findings or recommendations, a university authority proceeds to disciplinary action in order to resolve the matter, the procedure of any relevant university policy or collective agreement shall be followed.

And a mandate like this is true of most university ombudsmen in Canada. I think it is because when the early university offices were created (and in my university that's almost 30 years ago) they were set up to emulate the offices of the provincial ombudsmen. And, as time went on, universities and colleges borrowed from each other's terms of reference (as we often tend to do) and so the classical model was perpetuated in institution after institution.

Where it is not true, for example in offices which have been created by student associations rather than by the college or university itself, it is the classical model which provides guidance in doing the job and it is the classical model that the Association of Canadian College & University Ombudspersons has always aspired to.

So here I am - a hybrid, somewhere in the middle - as usual - but, on this issue, neither neutral or impartial. It's hard to do a job as long as I have without believing in it, without seeing the value in it and without knowing that most of the time at least, it works. And my sense is that a big part of the reason it works is because the classical model, as exemplified by the canadian provincial ombudsmen, is well-established, reasonably well-known and well-respected.

And this makes it not at all odd that I investigate on occasion, that I make findings, that I decide whether a complaint is justified or not, that I sometimes write case reports and that I use reasoned arguments as well as moral suasion to recommend solutions, both for individuals and to help improve university rules, regulations, policies and procedures.

At the same time, because I don't work in government but in a university, my office faces many of the practical challenges that also face you. So I am perhaps peculiarly able to comment on the differences between the classical model and the TOA organizational model - a difference I see as more profound than whether one works for government or for a non-governmental organization.

And this has led me to wonder how that difference came about. And I wonder where the missing unlink is, and I wonder what prompted it. I have never seen anything written about those questions. I have never heard them discussed. But I think they need discussing because my sense is that we ombudspeople, classical, organizational and those of us who find ourselves somewhere in between, may be coming to a critical juncture.

An obvious question is: why does it matter? Why does it matter if the classical types do their thing and the organizational types do something else? Why does it matter if, to a large extent we all do similar things but we may use different language to describe it? Why does it matter if there are some things that one model or the other includes or doesn't include?

We're all nice people, we all see the value of each other's work, we all have our roles to play, we're all concerned that justice is done, that the people who come to see us are treated fairly, that our employers do business - whatever their business - honestly, efficiently and with regard to the rights and sensibilities of the individual. And we all hope that the agencies or companies or governments or educational institutions we serve enjoy a concrete benefit as a result of our work.

Well, I think it does matter. And I believe that it will increasingly matter to all of us as we develop or reemphasize the body of theory that shapes what we do and how we do it. So what I want to try on you today are some very rudimentary hypotheses that go beyond just stating the differences between the classical and TOA models of ombudsing - which I think is what we have done so far - to look at explanations for the differences.

And it seems to me that this is important to do and important at this time. Why this time? Well, perhaps ironically, a large part of the reason is the success of your organization and the growth of non-government ombudsmen generally. Before you came along, ombudsmen were secure in knowing who they were and what they did. There was only one way to do it.

But the new body of theory that you've developed is provoking a reaction from people who have a commitment to the classical model. They are concerned, and understandably so, that the proliferation of non-classical ombudsmen with different powers and different functions may change the perception, even erode the very meaning and credibility of a concept that has stood the test of almost two centuries.

I saw a very clear example of this last October at the International Ombudsman Institute conference in Buenos Aires where Sir Brian Elwood, the Chief Ombudsman for New Zealand, told us about legislation which stipulates that in his country no one can use the name ombudsman without his prior consent, and further provides for a fine of up to $1,000 if anyone does.

I think there may also be restrictions on the use of the name ombudsman in Denmark and in Australia. And a few years ago here in Quebec, our provincial ombudsman, Protecteur du Citoyen Daniel Jacoby (who I understand will be joining us tonight), made a similar proposal, as part of a bill to redefine and broaden his jurisdiction. The project never went forward, not I'm sure because this particular issue was any kind of a sticking point. But I doubt that legislated control of the name could be implemented now anywhere in North America. It has spread too far. It would be, as I remarked in Buenos Aires, like trying to lock the barn door long after the horse was gone.

But these kind of concerns are not unique to other countries. They echo the worry and the sentiments of people closer to home who believe that left uncontrolled, the proliferation in the use of the ombudsman name will ultimately end up discrediting everyone. I understand that similar concerns were expressed at the recent American Bar Association conference in Washington.

Is this just what I call 'purity arguments'? Is it the belief that one definition of ombudsman is more effective, more virtuous, more valid, more legitimate than another, and that the model that has claim to being most effective is the classical model? In a sense it is.

But, another element in the mix, I suspect, is the change in the name of your organization from the Corporate Ombudsman Association to The Ombudsman Association. I know that the intention was to be more inclusive. But from another perspective, doesn't the imply that somehow the model TOA espouses is the only model or the real model or the best model? After all, it doesn't seem to need any modifier.

The same thing may be said for one of our sister organizations, the American legislative group USOA, the United States Ombudsman Association. How is anyone outside the profession to understand the nuances, to know who's who and what's what? How is anyone coming in to the profession able to distinguish which gospel to follow? Whether the mandate for his or her office is the appropriate one? Or whether they should be looking at something like my office - something in between? And how can any organization interested in creating an office easily figure out what the advantages and disadvantages of each model might be?

I don't have the answers. I only have questions and I hope we'll be able to discuss them. But let's turn now to why I think we may have evolved differently.

There are three areas I want to touch on:

Differences in power and independence
Differences in the complainant population, and
Differences in organizational culture

Differences in power and independence

In the classical model, the ombudsman is appointed by a legislative body to investigate the departments, ministries and agencies responsible to that body. Classical ombudsmen are legally constituted and, as Dean Gottehrer says "guaranteed independence by a web of controls and counter-balancing pressures."

Not so for us. Most of us are functionally independent - at least I have never heard of anyone trying to put pressure on a non-government ombudsman but we are, in fact, only independent on sufferance.

And actually, it might be easier for our organizations just to ignore our recommendations than attempt to corrupt our independence. Unless we have the right to publish, which I think only a few of us do, an unaccepted recommendation will just die a death or fall into a black hole. As well, because most of us are inside-outsiders, the bottom line is that we are just employees.

Moreover, we operate in relatively small communities. There is a finite group of people we can take our complainants' problems to, and we have to go back to the same people again and again. So we depend on goodwill more than a government ombudsman might.

And that means we sometimes have to play games, tippy-toe around an issue because, when all is said and done, it's easier to catch flies with honey. I've never known an ombudsmen who actually acknowledges getting into a situation where they'd make deals - I'll give you this if you give me that - but it's not hard to see potential for it.

Another problem is that the bases on which we review a case may be less clear than for government ombudsmen who usually deal with laws, statutes and formal, carefully defined processes. Instead, we deal with a lot of questions and complaints that may be covered by policy but often not so explicitly. There are also lots of cases that hinge on informal practices, unwritten rules and "this is the way we've always done it."

As well, ombudsmen who deal with employees deal primarily, I think with personal conflicts and relationship problems which may often lend themselves to mediated solutions but rarely find a resolution in policy.

There is another kind of power differential that may also be important. Legislative ombudsmen often get to deal with the big, high-level issues. They have the resources, human and financial, to sometimes undertake the sorts of major enquiries that hit the public press and create a positive public image.

They also do small things like finding the lost dentures of some poor unfortunate who spent the night in the county jail and woke up minus his teeth. My sense is that this mix of the big stuff and the small stuff creates a view of the classical ombudsman that doesn't always pertain to us.

While they may be applauded as a bit of a white knight, the champion of the little guy, we are often tainted because we deal primarily with the little guy. There may be a lot of satisfaction, but there's not a lot of cachet in it.

In my office, about 80% of our cases come from students, which is consistent with the population of the university. But you will remember from your own university days, that students are far from the real power base. Power is the purview of the faculty and the senior administration. And most senior administrators come from faculty ranks. So someone who often argues on behalf of students, especially someone who is not an academic, has to work to build credibility. And, in the collegial world of the university that can sometimes be very difficult.

And when it comes to really high-level enquiries, it's not the inside ombudsman who does the job - it's external academics. I'm not sure what the equivalent is in the corporate setting, but I imagine there is one.

Even when the reporting is at the highest level, a colleague of mine, Frances Bauer pointed out recently, that highest level is a governing body or an individual (such as a CEO) to whom others in the institution or the company have access and can make appeals and complaints.

So, to sum up, the power, status and authority of a government ombudsman is substantial because of the way they are appointed and function. Their independence is inherent in their structure and in the limited terms which any one person may usually serve. The organizational ombudsman has much less built-in indepencence and protection.

Differences in complainant population

I doubt that fear of complaining is very much a part of the world of government ombudsmen. I doubt that anyone will ask to meet a state or provincial ombudsman five blocks from the office or ask before sitting down "do you promise this will be absolutely confidential?" But concern for absolute confidentiality is sometimes very much a part of the world you and I work in.

Someone who goes to a government ombudsman probably doesn't see his or her future on the line if the ombudsman intervenes. But students, particularly graduate students, and employees are often convinced that any action on my part may result in a bigger problem than the one they walked in with.

Employees fear that their jobs and paycheques may be at risk. As well, they may see that an intervention by the ombudsman, no matter how justifiable, may just worsen relationships that are of necessity ongoing and often close.

Of course, there are exceptions to both sides. A prisoner complaining about poor conditions certainly has ongoing relationships to worry about. A single mother who claims her welfare benefits have been cut in error will clearly suffer financially until the problem is fixed. But on the whole, we deal with a potential complainant population that sees itself as more vulnerable and which really is, in fact, more vulnerable. And sometimes the best help we can offer is behind the scenes help. This is not the case with legislative ombudsmen.

Differences in culture

I've talked about power differences and complainant differences that may have contributed to the distinctions in the TOA and the classical models. But my sense is that there is more to it than that. It may be simplistic, but I venture to guess that if the only issues were appointment mechanisms and complainant populations it might make very good sense for all non-governmental offices, including corporate offices, to operate like those in canadian universities.

That this is not the case, I think has a good deal more to do with the culture and sensibilities of the organizations we work in than anything else. And this leads me to wonder whether the farther one gets from the public sector, or the farther one gets from the idea that the ombudsman deals with public grievances against public officials, the more the ombuds office may be inclined to diverge from the classical model.

This raises the question of what organizational interest an ombudsman serves. Why did your company create your office? And who defined your mandate? Whose needs does your mandate serve? Perhaps I am too cynical, but I don't think most of us are here because our employers are above all committed to truth and beauty, justice and fairness. I know that I am not.

The ombuds office was created at my university just after a student riot which began with an unsubstantiated and unresolved charge of racism against a professor, and ended with $2 million of computer equipment being smashed and torched - and those were $2 million 1969 dollars. And after the smoke had cleared the university decided that there was a better way.

Many university offices were created in the us around the same time in the wake of student unrest. Is there some kind of corporate parallel, more subtle perhaps but still there?

And then, is there something about the corporation that makes the idea of independent, impartial review more difficult to accept than it might be, for example, in the para-public sector or in a university where there is a long tradition of academic freedom, peer review, decentralization and departmental and individual autonomy?

Is liability the issue? I suspect that most government ombudsmen aren't terribly much concerned about liability. But liability might be a very important issue for a private sector corporation. How would an ombudsman's investigation, concluding that the corporation had erred, be received? Is there a lesson for us in what's happening with the tobacco companies?

So am I suggesting that the omission of classical ombuds-type investigations from the organization model is a capitalist plot? I'm not sure. But I'd like to hear from those of you who work in corporations and those who developed the organizational model? It's pretty plain to me that the jobs you do serve an important function for employees and for management as they stand. But what is the difficulty you see in investigating? How did that crucial task get left off the organization ombudsman menu?

I said a while ago that these were rudimentary hypotheses and I hope you take them as just that. We need to flesh out the ideas and see where they take us. Are there bridges that need building? Many people tell me that the differences between classical and organizational ombudsmen appear on paper much larger than they are in practice. So are they primarily a question of language? Or should there be a separation?

How do we accentuate our commonalities and minimize the differences? Should we do that? Or is this just an issue of labelling? If non-classical ombudsmen don't call themselves ombudsmen, will the problem just go away so everyone can do their jobs in peace?

I chose the title of my paper today 'Where Is Darwin Now We Need Him?' because one of Darwin's premises was that noticeable differences provide a select advantage or disadvantage to a species. So I leave you with a question: What are the advantages and disadvantages of the species "organizational ombudsman"?

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