M E M O R A N D U M
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TO:Participants in Conference Entitled
“Does a Report to An Ombuds Constitute
Notice to An Entity?”
FROM: Sharan Lee Levine and Paula A. Aylward
DATE: August 9, 2002
SUBJECT: Outline of Issues Relating to Ombuds and Notice
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This memorandum is intended to provide an overview of ombuds confidentiality as it relates to the issue of notice to the entity in which the ombuds works. Gathered here are public policy arguments and legal theories that support the authors’ contention that communications to an ombuds do not constitute notice to the entity, and which have helped this law firm guide ombuds in their day to day operation and helped protect ombuds’ communications from disclosure. It should be noted that in the more than ten years that this law firm has represented ombuds, there has not been any legal action brought on the basis of the issue of notice. Notwithstanding that fact, the discussion of the notice issue has been a lively and interesting one on an academic level. So far, however, the courts have not squarely addressed this issue.
Matters supporting the position that communications to the ombuds do not constitute notice to the entity:
1. Establishment of the ombuds office consistent with the American Bar Association Standards for the Establishment and Operation of Ombuds Offices, August 2001.
2. Adherence by ombuds to applicable standards/guidelines of professional ombuds societies, such as The Ombudsman Association and the University and College Ombudsman Association.
3.Routine practices observed by ombuds, such as use of scripts
and non-disclosure agreements, support a finding of confidentiality under Federal Rule of Evidence 406. Attached in the Appendix are two confidentiality agreements for use by ombuds offices.
4.The Implied Contract theory of confidentiality between the ombuds, the complainant and the entity.
5. The AWigmore@ Test for confidentiality supports the finding that communications to ombuds are confidential.
6.The fact that ombuds do not meet the definition of an “agent” of the entity, and agency principals, as articulated by state and federal courts in various decisions: Torres v Pisano, 116 F 3d 625 (2d Cir 1997); Karibian v Columbia University, 812 F Supp 413 (SDNY 993); Burlington Industries, Inc v Ellerth, 524 US 742 (1998); Faraghar v Boca Raton, 542 US 775 (1998).
7. Public Policy considerations (for example, those described in Mary Elizabeth McGarry article, in the goals of the Sentencing Guidelines, of the Administrative Dispute Resolution Act, and other federal policies and statutes).
For further information about ombuds, please visit the Administrative Law and Regulatory Practice Section’s website at:
1. The ABA Standards for the Establishment and Operation of Ombuds Offices (the AStandards@).
The Standards are a set of performance objectives for ombuds, which serve as guideposts for already established ombuds offices and which aid organizations to establish new ombuds offices. Section B of the Standards sets forth the qualifications that ombuds should possess, and Section C identifies the ombuds= essential characteristics of independence, impartiality and confidentiality. An ombuds office which is established and which functions in accordance with the Standards is in a very strong position to assert that it is not the recipient of notice to the entity.
The ombuds office is a voluntary resource and not a mandatory administrative channel within an organization. Ombuds are not required to take on every issue presented to them. When they do undertake to look into a matter, ombuds are required to operate by fair and timely procedures. This permits the complainant to make an informed decision whether to proceed with other available and more formal remedies before the matter becomes stale or time-barred.
The Standards also delimit the ombuds= authority. Thus, the Standards make clear that the ombuds may not (and the entity should not expect or authorize the ombuds to): make, change or set aside a law, policy or administrative decision; make final, binding decisions or determine rights; directly compel anyone to institute the ombuds= recommendations; conduct an investigation that substitutes for administrative or judicial proceedings; accept jurisdiction over an issue that is currently pending in a legal forum, among other limitations.
Another Alimitation@ on the scope of the ombuds= jurisdiction (though really it is a corollary to the ombuds’ essential characteristics) is that the ombuds is an agent to receive Anotice@ for the entity. The ombuds is not a member of Ahigher management@ in the organization. Section F of the Standards acknowledges, however, that the law in this area is evolving. The Standards state that:
“These standards do not address the issue whether a communication to the ombuds will be deemed notice to anyone else including any entity in or for which the ombuds acts. Important legal rights and liabilities may be affected by the notice issue.”
The Report to the Standards explain that courts have yet to provide clear guidance on the subject of when and if a complaint to an ombuds constitutes notice to the entity in which the ombuds works, though public policy supports the assertion that such communications should not be held to provide notice to the entity. Ombuds meet with people who wish to discuss a wide array of complaints and allegations of unfairness, maladministration, abuse of power. These persons fear retaliation or loss of privacy, among other negative repercussions. Further, the ombuds office operates on a voluntary basis. Other formal mechanisms for airing grievances and making complaints exist; the ombuds= office is not a formal channel for initiating investigations.
2. Ombuds Associations and professional rules of conduct.
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Both The Ombudsman Association and the University and College Ombuds Association have issued standards of professional conduct for ombuds. Both sets of the standards emphasize that an ombuds is to operate confidentially; in other words, an ombuds is not to serve as a conduit by which an agency or entity receives notice.
These Standards may be found in each organization’s website located at
3.Adherence to established practices, use of scripts, the understanding of non-disclosure and confidentiality agreements, create a presumption of confidentiality pursuant to federal law (Federal Rule of Evidence 406).
Federal Rule of Evidence 406 provides that: “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
To preserve and protect ombuds’ communications and notes, an ombuds is urged to establish a set of routine procedures and consistent practice methods in order to show that the ombuds office creates an expectation of confidentiality, that the ombuds assures a certain level of confidentiality and the parties -- the complainant, ombuds and the organization -- all expect confidentiality to be preserved under defined circumstances. These measures are set forth.
A. Use of Scripts:
To help the complainant understand the parameters of the ombuds function and the relationship with the ombuds, the first recommendation is for the ombuds to begin every new case by advising the complainant of certain ground rules and by establishing the understanding that the ombuds operates confidentially. Thus, the complainant is informed that the matters the complainant brings to the ombuds are and remain confidential, that confidentiality may not be waived by the complainant or the entity, and further that the ombuds= notes regarding matters discuss will not be released to anyone. The complainant is informed that all matters discussed with the ombuds are off the record and do not constitute formal notice to the entity.
The ombuds also advises the complainant that the ombuds does not make decisions with respect to the employment status of anyone, whether the complainant or alleged harasser, since the ombuds is not in the chain of command at management level. On the contrary, the ombuds makes clear that his/her authority is limited to making inquiries and recommendations.
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In cases where the complainant alleges illegal discrimination, the ombuds advises the complainant that there are entity employees who formally investigate such complaints. The complainant is reminded that he/she may choose from many options, such as communicating non-confidentially with supervisors, Human Resources representatives, Chief Compliance Officers, union representatives, or EEOC officers, among others, to express questions and concerns. The ombuds may also provide information to the employee as to how to report their problem to the appropriate case consultant and/or how to initiate a formal investigation.
The ombuds’ policy on confidentiality should be routinely expressed in employee or university manuals, handbooks, on the ombuds web sites and in the printed materials provided by the institution and the ombuds office.
The ombuds does not ask the complainant to sign an agreement defining the parameters of the relationship, such as seen in mediation agreements. Thus, other means have developed over time. Another way this policy is emphasized is in a statement found in the materials above, but also sometimes placed on the ombuds’ business card, brochure and/or web site making this clear statement of intention:
UNDERSTANDING OF NON DISCLOSURE
You and I agree:
To maintain strict confidentiality concerning the matter you brought to my attention unless you give me permission to talk with a third person about the matter or the exception being the imminent threat of harm.
You will not seek my notes or testimony regarding the matter for any reason.
I am the holder of a privilege of confidentiality that may not be waived by the organization, you or myself.
Your communication with this office does not give notice to the organization of your claim(s), nor does your communication with this office toll or extend any time limits by which you must give notice to the organization of your claim(s).
- Intra-Office Agreements:
Another means by which the ombuds establishes confidentiality as a policy, is through agreements in the ombuds office. Ombuds are urged to encourage staff to sign agreements separate from those signed as part of the organization=s confidentiality agreements. The first Agreement is designed to be signed by the staff member upon beginning employment with the ombuds office, the second upon exiting the office.
Several recommended Agreements are contained in the Appendix.
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4.Implied Contract.
In the course of the ombuds work, there are several implied contractual relationships which arise, and in which confidentiality is essential.
The first implied contract arises between the entity and the employee. All entity employees who use the ombuds resource are made aware of the confidential nature of the communications with the ombuds. Employees are informed of this fact through numerous written materials distributed by and through the entity and the ombuds office. This information is also expressed verbally by the ombuds when the individual first meets the ombuds. In these ways, the entity makes it clear that the opportunity to utilize the ombuds resource is available to every individual at the entity, with the understanding of confidentiality.
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The second implied contract is between the complainant and the ombuds. At the first meeting, the complainant is fully advised of the confidentiality requirements and makes the choice whether to continue to discuss the matter with the ombuds, with the assurance that both the substance of the communication and his/her identity will be kept confidential. The ombuds also confirms with the employee that if the ombuds explores options with other persons in the entity on the complainant=s behalf, each of the separate communications are accomplished only with the explicit permission of the complainant and those discussions too, will be held in confidence. At all times, the parties to this contract agree and understand that the communications between these individuals will remain confidential and that no one may waive this requirement except the ombuds.
The ombuds repeats this Ascript@ at every initial meeting with a complainant. Thus, ombuds and complainants to the ombuds office establish this contractual relationship based on the circumstances. Complainants understand that when they voluntarily choose to use this informal, off-the-record resource, they cannot later change the parameters of the contract and expect the ombuds to testify. The complainant is free to choose a formal channel of communication at any time.
Employees have a number of non-confidential and formal avenues available to them through which they may seek to resolve problems report concerns or to obtain information. The essential difference between those programs and the ombuds office is the promise of confidentiality.
Court decisions support the implied in contract theory of confidentiality and privilege to ombuds communications. In Roy v United Technologies, Inc,(Case No: CIVIL H-89-680 (JAC) (USDC Conn May 29, 1990)) for example, the court held that an implied contract arose in a situation involving an ombuds, and barred discovery of the ombuds= records and conversations. The Court held that Aa separate and independent basis for the Court=s ruling here in favor of the movant is provided by the theory of implied contract." See also Kozlowski v The Upjohn Company, File No: 94-5431-NZ (Mich Cir Ct Macomb County August 16, 1995) in which the court said:
ANo person is required to use the Ombudsman's services. Once they agree to use those services, all parties must accept the restrictions on subsequent testimony of the Ombudsman. Therefore, the Ombudsman has a privilege [that] the Plaintiff cannot waive."
Likewise, in Criado v ITT Corporation, (61 Fair Empl Prac Cases (BNA) 321 (SDNY 1993), the United States District Court recognized the implied contract argument and noted that the ombuds was identified in written and other company communications as a confidential resource.
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The third contract that would be violated if the ombuds were required to testify is the relationship between the entity and the ombuds. The ombuds is expected to maintain confidentiality and impartiality and to not divulge the identity or substance of communications. If the ombuds is required to testify, essentially the ombuds is precluded from performing his/her role and function at the entity. The ombuds breaches the promise made with the entity to maintain confidentiality.
In an article entitled, Should an Ombudsman Testify, Dr. Mary Rowe, Special Assistant to the President of MIT and Adjunct Professor at the Sloan School of Management, wrote:
AIf an Ombudsman appears as a witness in a specific case, in an apparently adversarial hearing, the image of the confidentiality of these practitioners will be damaged. I believe this is so, even in those cases where specific complainants to the Office have given permission for the Ombudsman to speak about them in a public hearing...
If an Ombudsman appears as a formal witness, the image of confidentiality is damaged. Observers may or may not hear that permission was given by each party to the case, and may simply see that an Ombudsman will, after all, break confidentiality.
If a workplace Ombudsman testifies in a way that appears to favor an employer against a worker or manager, it will appear to many observers that the Ombudsman is just a tool of management. If an Ombudsman testifies against the employer, it will sharply reduce the interest of employers to maintain, in their midst, this kind of in-house critic and change agent. And faced with this potential dilemma, practitioners themselves may lose their courage to be outspoken in raising problems to management, and in support of those who blow the whistle.@ "The Ombudsman News," Issue Seven, Winter 1989-90.
5. Wigmore confidentiality test and Federal Rule of Evidence 501.
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The courts have the authority to recognize, and have recognized, an ombuds privilege of confidentiality on the basis of Wigmore=s four-prong test as set forth in Kientzy v McDonnell Douglas Corp, 133 FRD 570 (ED Mo 1991) and as applied in McGuinness v Barnes, 294 NJ Super 519; 683 A2d 862 (L 1994); Van Martin v UTC, unpublished opinion per curiam of the United States District Court Southern District of Florida, decided 7/16/96 (Docket No. 95-8389-CIV-UNGARO-BENAGES). The test is as follows:
(1)The communications must originate in a confidence that they will not be disclosed.
(2)This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3)The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4)The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
8 Wigmore Evidence ' 2285, McNaughton rev 1961, cited in McGuinness.
Another basis for protecting ombuds= communications is found in Federal Rule of Evidence 501, which provides that:
Except as otherwise required by the Constitution of the United States or provided by act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof, shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
The first case in which the court adopted a common law Ombudsman privilege under FRE 501 was Shabazz v Scurr, 662 F Supp 90 (SD Iowa 1987). The court opined that communications made to or by ombuds while acting in their official capacity, were privileged and could not be revealed to third parties, even as part of a court proceeding. The Court determined that disclosure would Alimit the Office=s effectiveness in the long run and may restrict the spectrum of available information.@Id at 92.
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A common law privilege under FRE 501 specifically for corporate ombuds was recognized in other cases. In Monoranjan Roy v United Technologies Corporation, CIVIL H-89-680 (JAC) (D Conn 1990), the court found that the elements to establish a privilege were fulfilled by the ombuds seeking protection. In Kientzy v McDonnell Douglas Corporation, 133 FRD 570 (ED Mo 1991), the court found that A[t]he utility of the program and the Office, in resolving disputes in this workplace and thus diminishing the need for more formal resolution procedures, is founded on the confidentiality of its communications to and from company officials and employees.@ Id at 572.