Confidentiality and the Ombuds System: A Sensible Approach to an Important Service

The Penn State University Ombuds systems provides a valuable service to the University community. Yet it is one that is sometimes not well understood.  That has been especially true with respect to the confidentiality of discussions between ombuds and faculty.

 (Pix from What Is an Ombudsman? An Interview with Benson Nadell, Oct. 13, 2012)

My own frustration in this respect began at the October 2012 meeting of the Penn State University Faculty Council:

 The sole discussion item was the Ombudsperson Report for 2011-12.  University Ombudsperson Deborah Atwater presented the 2011-12 report which was included in the Senate Council agenda. This report will be posted on the Ombudsperson website and included in the Senate agenda. CLICK HERE for Ombuds Training Materials. The most interesting part of the discussion centered on the issue of confidentiality.  Discussions between Ombudspersons and faculty are confidential, in a loose sense--that is they will not be disclosed at the instance of the Ombudsperson, nor will the ombudsperson report on the conversation to anyone in the department.  However, the conversations are NOT confidential in the strict legal sense: the university retains the full authority to ask the ombudsperson for both recollection of conversations and any written materials produced in the course of the ombudsperson's duties. Neither conversations nor written materials are protected against discovery by University counsel or other university personnel.  That means that if the university's counsel asks, an ombudsperson must produce both recollections of conversations and any written materials made in the course of conversations or other interactions with faculty making use of the service.  Ombudsperson Atwater emphasized the training that specified the need to avoid taking notes and related matters or to take notes that are not intelligible except to the writer--but university officials are always free to both request such notes and to demand an explanation of their meaning. All of this was something of a surprise to Senate Councillors, who worried that faculty may not understand the limited nature of confidentiality. A request was made for the Ombuds office to make sure that they inform faculty thinking about using the system about the limits of confidentiality and the rights of the university to access both conversations and writings produced in the course of the use of an ombudsperson. Faculty, in particular, should be cautioned about making admissions or other statements that might be used against them in further and more formal proceedings. (Informal Notes of October 2 2012 Faculty Senate Council Meeting)

Since then, it has been something of an uphill battle to get our entrenched leadership of the Senate, either elected or unelected, to either hear this or to acknowledge its importance, much less to do something about it. Our senior administrators, however, have recently moved responsibly and sensibly on this problem.  I am grateful to them.  They have added clarity to a system that serves the university in important ways. This post  includes information that all Penn State Ombuds will now be provided.

University Faculty Senate Standing Rules SECTION 9 UNIVERSITY OMBUDSPERSON:

(a) Eligibility: Current or emeritus faculty member

(b) Election: By the Senate Council for a term of four (4) years (renewable). While University Ombudsperson, the incumbent may not serve on the Standing Joint Committee on Tenure, the Senate Committee on Faculty Rights and Responsibilities, or the University Promotion and Tenure Review Committee .

(c) Duties: The University Ombudsperson shall coordinate the training of all college and campus ombudspersons; shall provide for the appropriate dissemination of information among the various college and campus ombudspersons; and shall be the university-level contact for the various college and campus ombudspersons. The University Ombudsperson shall report periodically to the Senate Council and shall maintain liaison with the Office of the University Provost, the Office of Human Resources and the Senate Office. The University Ombudsperson shall have no appeal function.

University Ombudsperson (effective July 1, 2010)
Deborah F. Atwater, Associate Professor Emerita, Communication Arts and Sciences
and African and African American Studies, College of the Liberal Arts
email: dfa1 AT psu.edu
phone: 814-867-7467 (home) 8:00 a.m.-5:00 p.m. Monday-Friday

Unit Ombudspersons
Confidentiality and Liability: Memorandum from General Counsel Stephen S. Dunham February 21, 2013
Policy HR76 Faculty Rights and Responsibilities Selection and Responsibilities of Ombudspersons
Other Policies of Interest to Ombudspersons
Recent Ombudsperson Reports
Ombudsperson Legislation, March 31, 1998
Conflict Resolution Services (Affirmative Action Office)
Ombudsperson Workshop Resources:
August 31, 2012
October 18, 2011 (video recorded workshop)
Additional Ombudsperson Resources:
United States Ombudsman Association (Annual Conference)
International Ombudsman Association (Standards of Practice and Code of Ethics)
The Ombuds Blog: News and Information for and about Organizational Ombuds
Mediation Resources
Tools for Working With and Learning From Conflict in Higher Education
(Wayne State University)
Civility at Work: 20 Ways to Build a Kinder Workplace
Conflict Information Consortium

Of particular interest to faculty is the memorandum from our university counsel on confidentiality and liability, the confidentiality provisions of which are reproduced here:

With respect to confidentiality issues, the ombudsperson process should be conducted in the most confidential manner possible. However, there may be limited circumstances in which information exchanged or documents and notes created during the process would need to be disclosed during an investigation or litigation. In addition, the ombudsperson may refer matters that are not resolved to appropriate university officials. All participants in the ombudsperson process are expected to communicate in a professional and respectful manner throughout the process.

This is sound advice.  Ombudspersons should be required to remind faculty of this scope of confidentiality before starting conversation with them and they should in any case also be encouraged to share this memorandum when they interact with faculty.  Ombuds will perform a valuable service where their intervention can serve to mediate disputes that are, by their nature, appropriately resolved informally.  But faculty should always remember that when they speak to an ombuds they are speaking to a university official and effectively to their employer.  Ombuds paramount duty must remain with the university.  That does not mean that faculty should not take advantage of this valuable service; only that they should communicate in ways that are sensitive to these realities.  Care in communication is especially important where statements or admissions made carelessly might be used in ways unintended later.  Working together, however, faculty and ombuds will continue ot find appropriate ways to communicate to avoid small problems from unnecessarily becoming larger ones.