RESOURCES: EXEMPLE CLAUSES
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Developing Terms of Reference for the Ombuds:
a Sample of Clauses from Canadian College and University Ombuds Offices
There is considerable diversity in practice among Canadian College and University Ombudspersons. Some Offices are dedicated to serving only students, while others attend to the concerns of all groups on campus, including faculty and staff. Some of the Offices receive support entirely from either the Student Union or the University, while others are jointly funded by a number of groups. Ombudspersons, themselves, may be drawn from the faculty or staff of the University or may be students who work in the Office on a part-time basis. Notwithstanding these differences, most College and University Ombuds Offices in Canada are founded on the same basic principles, namely; independence, impartiality, confidentiality, the ability to investigate and recommend, the ability to promote change, informality, accessibility, accountability and a commitment to fair treatment and fair process (1). The Terms of Reference that govern these Offices clearly reflect both a commonality of principles and a diversity of practice. To this end, these documents contain many common themes but the specific provisions are often based on the unique nature of each Office and the community it serves. Ombudspersons pay close attention to their Terms of Reference and often rely on these documents to guide their practice and, if necessary, to defend their actions.
Bearing in mind the importance of the Terms of Reference, ACCUO members have long discussed the possibility of developing "model" terms to be used by new Offices and by others interested in revising and improving their existing Terms of Reference. However, it was felt that this approach might be too rigid, given the broad range of practices and the desire to produce a useful and practical resource tool. Therefore, it was decided that rather than produce one set of "model" terms, we would identify the fundamental "elements" that one might, ideally, wish to include in a College or University Ombuds Office's Terms of Reference. Where possible, we would indicate how each "element" supports one of the underlying principles (e.g. independence, confidentiality etc.) upon which our Offices are based. A selection of sample clauses, drawn directly from members Terms of Reference, would be included to demonstrate how the fundamental elements might be incorporated in different settings. Where appropriate, we have added some commentary and indicated which sample clauses most closely reflect the classical ombuds model. This document(2) is intended to be a "work in progress" that can be easily amended to include new ideas and clauses.
1. These underlying principles are based on the model of practice that most Canadian College and University Ombuds Offices aspire to – namely, the classical legislative ombuds role.
2. This document was developed by Shelley Lancaster, Ombuds at McMaster University and Marie-José Rivest, Ombudsman at University of Montreal and is modeled on an Occasional Paper by Dean M. Gottehrer entitled, "Ombudsman Legislative Resource Documents" (March 1998). The Occasional Paper (#65) may be obtained from the International Ombudman Institute, Faculty of Law, University of Alberta, Edmonton, Alberta T6G 2H5, Canada
Structure of the Office
Statement of Principles
Access to Information
Functions of the Office
Terms of Employment of the Ombudsperson
STRUCTURE OF THE OFFICE (Elements 1 to 4)
- Element: The process by which the office has been established is described
Sometimes the Terms of Reference contain historical information on the development of the office. Where offices have been jointly developed by the University and the Student Association, the terms may highlight the joint nature of the office. The more classical the orientation of the office, the more likely it is that the office was established through an act of the organization(s) official governing body.
- The University is committed to the just and fair treatment of each and every member of the University community. In keeping with this commitment, the University joined with the Student Union in 1998 to support the development of a jointly funded Ombuds Office.
- Element: The main purpose/mandate of the Office is set out.
Some offices have clearly defined mandates. Ideally, the essential characteristics of the Ombudsperson’s function (e.g. independence) will be included in this clause.
- The mandate of the Ombuds Office (hereinafter referred to as “the Office”) is twofold in nature. First, the Office is to provide an independent, impartial and confidential process through which members of the University community may pursue the just, fair and equitable resolution of any university-related concern. Secondly, the Office is to make recommendations, where appropriate, for changes in University policies and procedures and to promote discussion on institution-wide concerns.
- To investigate, in an impartial fashion, complaints that may arise against the University or against anyone in the University exercising authority.
- The Ombudsperson shall receive, investigate and seek to resolve complaints and grievances from the students of the University about matters which are under jurisdiction of the University and the Student Union.
- To provide the students of the University with a mechanism, which is independent of the administration, executive, and legislative organs of the Parties (the University and the Student Union), to assist students in the resolution of misunderstandings, disputes, and conflicts, which may arise from time to time between a student and one or both of the Parties, and to provide such information services as may be deemed appropriate from time to time to persons at the University about the processes of redress available at the University and in the community at large.
- To investigate, at the request of any student of the University or upon the Ombudsperson’s own motion, any grievances that may arise against the University or its boards, committees, academic or administrative departments, etc., or against anyone employed by the University exercising authority.
- The principle role of the Office is to provide an impartial mechanism of last resort for the review of all decisions and actions in respect of the administration of the College.
- Element: The Ombudsperson in the exercise of the Offices functions, duties and responsibilities shall not be subject to the direction or control of another person or authority.
Underlying Principle: Independence
It is essential to have a guarantee of independence included in the Terms of Reference. The office must be independent in structure, function and appearance. This independence protects the ombudsperson from interference or retaliation, and ensures the office’s control over its budget and resources.
- The Ombuds Office shall be independent of all existing administrative structures of the University.
- The Office of the Ombudsperson shall function independently of all decision-making structures of the University.
- The Office of the Ombudsperson shall be independent of all existing university and student administrative structures.
- The Ombudsperson shall carry out the responsibilities of the Office independently of all student, staff, faculty, and administrative bodies within the University.
- Element: The reporting structure is clearly stated.
Underlying Principle: Independence
The Ombudsperson is accountable to the entire community for implementation of the mandate. The Ombudsperson should report to the highest level possible within the organization (e.g., Board of Governors/Board of Directors of the Student Association). In addition, the Ombudsperson may receive support from an Advisory Committee.
- The Ombudsperson is appointed by the Governing Council on the recommendation of the President; is accountable to the Governing Council and has unrestricted access to all University authorities.
- The Office of the Ombudsperson will report to the President of the University and the President of the Student Union.
- The Ombuds Officer is appointed by the Student Union executive and is accountable to the Student Union’s Board of Directors.
- The Ombudsperson shall report to the President and Vice-Chancellor of the University.
- Note: If your Office is financially supported by the Student Union and you are concerned about maintaining the Office’s independence see Simon Fraser’s Terms of Reference for a unique setup.
STATEMENT OF PRINCIPLES (Elements 5 to 9)
Ombuds Offices are founded on a number of general principles including independence, impartiality, confidentiality, informality, the ability to investigate and accessibility. These principles are reflected in the structure and operation of the Office.
- Element: The office operates informally
Underlying Principle: Informality
The Office operates as informally as possible (e.g. less reliance on written communication). However, Canadian Offices do keep case files
- Informality shall be the prevailing atmosphere of dealings with the Office of the Ombudsperson, until such time as formal steps become a necessity.
- Element: The Office shall be easily accessible and adequately promoted.
Underlying Principle: Accessibility
The idea of accessibility may include: office hours, willingness of Ombudsperson to meet people outside the Office, physical accessibility of office and ease of confidential access. To make the Office truly accessible, Ombudspersons must promote the Office and make it known to the various University constituents.
- Emphasis shall be placed on the availability and accessibility of the Ombudsperson to the members of the University, in so far as the physical and procedural restraints placed upon his/her operations.
- The Office shall make every reasonable effort to inform the University Community of its existence and function.
- The Office shall publicize its operations using funds available for that purpose.
- Element: Standards of fairness are articulated.
Underlying Principle: Commitment to fair process
Some terms attempt to codify the types of concerns the Ombudsperson may try to address under the heading of “fair treatment and fair process.” This may be useful later, in bringing specific items to the attention of the University. It is also useful in educating the University on factors that may be considered in assessing whether an existing or proposed process meets basic standards of fairness.
- It shall be the special concern of the Ombudsperson that:
- Decisions affecting individual students are made with reasonable promptness; and that
- Procedures used to make decisions about students are fair and the criteria upon which they are based appropriate;
- The rights and responsibilities of members of the University community are adequately defined and publicized;
- Any gaps and inadequacies in existing University policies and procedures that affect the ability of individuals to function as members of the University community or which might jeopardize their human rights or natural justice be brought to the attention of the proper authority;
- Procedures used to reach decisions are adequate and that the criteria and rules on which the decisions in question are based are appropriate and adequately publicized;
- Procedures and policies used to reach decisions affecting students are adequate and consistently applied and that criteria and rules on which the decisions in questions are based are appropriate.
- In the cource of inquiry or investigation and in bringing recommendations forward, the Ombudsperson will seek to ensure that the principles of natural justice and procedural fairness are observed.
- It shall be the special concern of the Ombudsperson that decisions about individual students are made fairly. Among other things, that means:
- with reasonable promptness;
- in accordance with applicable policies and procedures;
- taking account of all relevant information
- Element: All concerns shall be assessed and investigated impartially.
Underlying Principle: Impartiality
Impartiality means that, prior to formulating an opinion or a recommendation, the Ombudsperson will look at the facts of the case brought to his or her attention or discovered through inquiry or investigation, objectively, without any bias for or against the issue under review or toward any party to the conflict or dispute. As an advocate for fairness, the Ombudsperson must take whatever steps necessary to ensure that there is no appearance of positive or negative bias toward any party involved in the conflict or dispute. Some Terms of Reference are written to reassure the University Community that individual interests will be balanced with the consideration of the good of the larger academic community. It is important to have a guarantee of impartiality included in the Terms of Reference.
- The Office shall assess and investigate all complaints with impartiality.
- The Ombudsperson acts in consideration of and with respect for the legitimate interests and concerns of all affected parties.
- Element: The Ombudsperson generally attempts to resolve issues closest to the source of the problem.
Underlying Principle: Informality
This supports the Ombudsperson’s commitment to informal resolution without resort to formal avenues of appeal. It is on this basis that many Ombudspersons encourage visitors to the Office to return to the individual/office where the problem originated to try and resolve the issues themselves. It is this principle that also guides the Ombudsperson back to the original parties before a higher authority is approached.
- Whenever practical, the Ombudsperson shall seek the resolution of a student’s grievance or problem at the lowest level within the organization.
CONFIDENTIALITY (Elements 10 to 11)
- Element: Any matter brought to the Office remains confidential unless there is a safety concern or the party gives the Ombudsperson permission to intervene. A party’s written or verbal consent may be required to intervene.
Underlying Principle: Confidentiality
All Terms of Reference contain provisions on confidentiality. The concept arises in two contexts. First, there are clauses dealing with he Ombudsperson’s responsibility to keep information obtained from a complainant confidential until authorized to divulge some or part, of this information to assist in the resolution of a case. Some offices require written permission to intervene and release confidential information; others proceed on verbal instructions.
Associated with these clauses, are the sections dealing with maintaining the records of the office securely. Secondly, there are clauses dealing with the Ombudsperson’s right to access confidential records located elsewhere in the University and the Ombudsperson’s obligation to keep these records confidential. In some cases, material in these records may be disclosed on a “need to know” basis or to support a recommendation
In all cases, there are limits on confidentiality including cases of imminent physical safety and cases where an Ombudsperson is legally required to disclose. Provincial privacy Legislation may govern certain records.
- Ensuring strict confidentiality of all personal information of clients, and undertaking no course of action on the clients’ behalf without the express consent of the client, except to the extent required by law.
- All dealings with The Office are deemed to be confidential, and may only be revealed on a “need to know” basis with the written consent of the complainant.
- The Ombudsperson shall maintain suitable records of inquiries and cases. The files of the office shall be for the exclusive use of the Ombudsperson and members of the staff of the office and shall not be released to anyone else for any purpose.
- The Ombudsperson shall not release any information regarding personal and personnel records, unless written permission has been received from the affected persons for releasing the information.
- Communicate clearly to a complainant the extent to which the Ombudsperson can respect a complainant’s request for confidentiality.
- Should the pursuit of an inquiry necessitate the disclosure of details that identify an applicant, the applicant shall be informed. Any disclosure shall be limited to those who have a need to know.
- Should an applicant decide to withdraw an application in order to protect his or her anonymity, the Ombudspersons shall respect this decision.
- Confidentiality will be respected even though acceding to such a request may prevent resolution of a problem.
- Communications with the Students Ombuds Services Office are deemed to be confidential:
- No member of the office will be compelled to give evidence about anything s/he learns in the exercise of his or her duties.
- Notwithstanding this guideline, the Ombuds may disclose a matter in order to establish grounds for conclusions or recommendations in a report provided the identity of the individuals involved is not made known without their permission.
- Nothing in this guideline is intended to affect the rights and responsibilities of any person under the law of British Columbia or Canada.
- The Ombudsperson shall meet with persons or groups on a confidential basis and shall not intervene without their express written or e-mail consent.
- Notwithstanding the foregoing, the Ombudsperson is not required to maintain confidentiality in cases involving the commission of a serious crime or where there is an imminent risk of physical harm or abuse.
- The Ombuds Office is not an office of record: advising the Ombuds Office of a situation is not a substitute for advising the appropriate authority.
- Element: The Ombudsperson will not be compelled to testify or produce evidence in any University proceedings. The University will attempt to protect the Ombudsperson from being subpoenaed..
Underlying Principle: Confidentiality, Independence
This provision protects the confidentiality of complainants and the Ombudsperson’s records.
- The Ombudsperson shall not be required to give evidence before a University tribunal about anything that he/she may have learned in the exercise of his/her duty. The University will endeavour to protect the Ombudsperson from subpoena by others, both inside and outside the University.
JURISDICTION (Elements 12 to 16)
- Element: This area describes categories of individuals or groups who may or may not bring a concern to the Office The categories are specified, such as students, ex-students, employees, professors, alumni, applicants, users of university services. The categories may differ from university to university and must be carefully drafted.
- The Ombudsperson shall investigate in such manner as she/he deems appropriate complaint(s) by any student, staff or faculty member of the University against the University or against anyone in the University exercising authority.
- The Ombudsperson shall deal with any enquiries, complaints and grievances on any matter primarily but not exclusively, from members of the Student Union.
- The Office may receive a complaint (excluding grievances falling within the scope of a Collective Agreement grievance procedure) from any member of the University Community, past or present, including students, faculty members, staff members, or administrators, or from persons outside the University Community, providing that the complaint relates to the University or University Community.
- Complaints may be made by any member holding status as a student of the University community, by former members of the student body or by student applicants to the University (dependent on the discretion of the Office of the Ombudsperson), whether accepted or not at the time of the complaint.
- Complaints may be made by any member of the University community (students and members of the teaching or administrative staffs) or by former members of the teaching or administrative staffs or student body (in respect of matters arising out of their former University employment or student status).
- The Ombuds Office may receive any University-related inquiry or concern from any member of the University community, including all faculty, staff and students. From time to time, there may be students in collaborative programmes who are specifically excluded from using the services of the Ombudsperson. At the Ombudsperson’s discretion, concerns may also be received from former students and previously employed staff and faculty in respect of matters arising out of their former student status or University employment. Concerns may also be received, at the discretion of the Ombudsperson, from University applicants whether accepted or not at the time of the initial contact.
- The Ombudsperson investigates, at the request of any member of the student body, any complaint that may arise between that student and the University or anyone in the University exercising authority.
- Element: This area describes who has standing to bring concerns to the Ombuds office. Concerns should not be brought to the Office by third parties who are not personally affected in the matter.
Many Terms of Reference require the complainant to be personally affected by the act that is the subject of the complaint.
- All matters submitted by an individual or a group to the Ombudsperson must be presented by the individual involved, and no third party shall have the authority to initiate an investigation by the Ombudsperson on another’s behalf.
- The Office of the Ombudsperson shall not deal with the complaints or grievances from any individuals who do not present that complaint or grievance personally. Any third party attempting to initiate action on behalf of another individual shall be informed of this policy and instructed to persuade the injured party to contact the Office of the Ombudsperson.
- Element: The types of matters the Ombudsperson can/cannot look at are delineated.
- The Ombudspersons may help to resolve problems informally and may inquire into any University-related concerns or complaints. As well, they may inquire into the application of any policy, rule or procedure of the University.
- The Ombudsperson shall be entitled to investigate any issue concerning the University or the Student Society which affects any member of the University community.
- This mandate includes the right of inquiry into the application of any policy, rule or procedure; with the exception of those covered by a Collective Agreement with a certified bargaining unit.
- The Ombudsperson shall not intervene in any matter covered by a collective agreement, unless all parties consent to the Ombudsperson’s informal involvement.
- The Ombudsperson shall not intervene if a matter is currently pending in a legal forum. In the event that both parties have retained a solicitor, the Ombudsperson may only intervene if both parties and their solicitors consent. The Ombudsperson may always provide information pertaining to University policies and procedures.
- Element: The Ombudsperson is generally the avenue of last resort and cannot be accessed before all other avenues have been exhausted.
The Ombudsperson will accept to give information and advice at any stage of an ongoing process. However, the Ombudsperson will generally ask complainants to exhaust their remedies before they will accept to intervene. Others have noted that the Ombudspersons should remain sensitive to times when exhausting local remedies would impose an undue burden on the complainant. Some Terms of Reference protect the Ombudsperson from acting on a complaint where an appeal process exists until the process has been used and completed.
- The Ombudsperson shall refuse to intervene if the person or group seeking the Ombuds intervention has not exhausted local remedies or existing avenues and recourses or has neglected to do so in due time.
- The Office of the Ombudsman is not meant to replace established channels of assistance but may be used if an individual needs assistance in identifying where to go, would prefer to discuss a problem with a neutral party, or has already gone through established channels without satisfaction.
- Where there may be another University office for the resolution of complaints or the provision of information, the Ombuds Officer shall direct enquiries to such offices and emphasize their responsibility for initiating the appropriate actions and for returning to the Ombuds Officer if not satisfied with the outcome.
- Formal action shall be taken by the Ombudsperson only after all existing channels have been exhausted by the client, and the Ombudsperson has received a formal, written complaint from the client.
- The Ombudsperson will not investigate issues where there is an alternate remedy, unless such remedy has not been appropriately applied. The Ombuds office is the office of last and final resort.
- Element: The Ombudsperson may refuse to intervene or may withdraw from a case on certain grounds.
The Ombudsperson must have discretion to act and enough flexibility to do so.
- If the Ombudsperson deems a case to be unjustified, frivolous, or premature the case may be refused or discontinued at the discretion of the Ombudsperson. If requested, a statement of reasons for the refusal or termination of the case shall be issued by the Office of the Ombudsperson to the party concerned.
- The Ombudsperson shall have the right to refuse or discontinue work on any case which the Ombudsperson is of the opinion is not worthy of investigation where such complaint is frivolous, vexatious, not brought in good faith, or is an abuse of the Ombudsman’s functions.
- If an Ombudsperson refuses to take up a case or withdraws from a case, he or she shall, on request, provide the applicant with a written statement of the reason.
- The Ombudsperson may refuse to inquire into or formally investigate a complaint or may withdraw from a case if s/he believes continued involvement is ill advised, for example, if the complaint is frivolous, vexatious (not made in good faith).
- Where the Ombudsperson is satisfied that the requirements of the principles of natural justice and procedural fairness have been met, the Ombudsperson has the right to terminate his or her involvement in a case.
- The complainant has had knowledge of the acts for more than one year before making a complaint and has no reasonable explanation for not pursuing a remedy or appeal or filing a complaint.
ACCESS TO INFORMATION (Element 17)
- Element: The Ombudsperson has access to all records, people and information. Access may be limited in the case of confidential information.
Underlying Principle: Ability to investigate independently and impartially
- The Ombudsperson shall have access to files, records, reports, documents and information needed in fulfilling the functions of the office. Requests by the Ombudsperson for information should be handled in a mutually convenient and expeditious manner by members of the university community.
- In order to fulfill the function of the office, the Ombudsperson shall have access to all official university files, records and information as required, in accordance with the University’s policy on Freedom of Information and Protection of Privacy. Requests for information from the Ombudsperson must be given priority by every employee of the University.
- The Ombudsperson shall have unrestricted access to all University authorities.
- University officials shall respond to all:
- reasonable requests for information pertinent to the mandate of the office as stated herein will be honoured;
- requests for copies of student academic records when accompanied by written authorization of the student(s) concerned, will be honoured.
- The Ombudspersons shall respect the confidentiality of any confidential information or materials to which they have access.
- The University and the Student Union agree to direct their officers, agents, employees, councils and committees to render all possible assistance to the Ombudsman in the performance of the duties of that office.
- The University and the Student Union agree to make all information available to the Ombudsman about a student subject to:
- permission having been given to the Ombudsman by the student concerned that the Ombudsman should have access to this information;
- the law governing privileged information;
- such policies, rules and regulations enacted by the University and the Student Union about the confidentiality of information; and should any information be withheld by officers or agents of the University and the Student Union, the Chief Executive Officer of the party from which the information is requested shall give reasons in writing to the Ombudsman as to why any information is withheld; and further, it is the intent of the University and the Student Union to make all available information required for the performance of the duties of the Ombudsman easily and readily available to the Ombudsman.
- “Access” to files shall be understood in its functional sense and will include the right of the Office to have copies of any document pertaining to the particular case under investigation, that it deems necessary for its file. The President may deny access to a document if he or she reasonably believes that there is a legal duty to deny access to the document. Copies will be made available only on the express understanding that they are in the sole custody of the Ombudsperson or Assistant Ombudsperson, that the contents will be well protected and that there will be strict adherence to the confidentiality of information of a personal or confidential nature.
- Should information be withheld by any member of the University community which is necessary for the proper performance of the Ombudsperson’s responsibilities, he/she may bring it to the attention of the appropriate Officer, who will use his/her office to assist in securing the release of the pertinent information.
- The Ombudsman will investigate complaints and concerns having broad access to members of the University community, and to University records and reports (with the exception of medical, psychiatric, and psychological records which will be released only upon presentation of a notarized waiver signed by the individual whose records are requested, or other records privileged by law).
- The Ombudsperson shall not be required to explain why the information is being sought. All reasonable requests for information pertinent to the functions and purposes of the Office of the Ombudsperson will be honoured and the Ombudsperson shall be expected to search actively for the answers to all such inquiries and provide them to the inquiring parties. The Ombudsperson may seek information from external contacts if it is warranted.
- Subject to the provisions of the “Freedom of Information of Protection of Privacy Act”, the Ombuds will have access to all people, files and records relevant to an inquiry or investigation.