U.S. Department of Agriculture
Recommendations and Options Available to the New Administration and Congress to Address Long-Standing Civil Rights Issues
Gao ID: GAO-09-650T April 29, 2009
For decades, there have been allegations of discrimination in the U.S. Department of Agriculture (USDA) programs and workforce. Reports and congressional testimony by the U.S. Commission on Civil Rights, the U.S. Equal Employment Opportunity Commission, a former Secretary of Agriculture, USDA's Office of Inspector General, GAO, and others have described weaknesses in USDA's programs--in particular, in resolving complaints of discrimination and in providing minorities access to programs. The Farm Security and Rural Investment Act of 2002 authorized the creation of the position of Assistant Secretary for Civil Rights (ASCR), giving USDA an executive that could provide leadership for resolving these long-standing problems. This testimony focuses on USDA's efforts to (1) resolve discrimination complaints, (2) report on minority participation in USDA programs, and (3) strategically plan its efforts. This testimony is based on new and prior work, including analysis of ASCR's strategic plan; discrimination complaint management; and about 120 interviews with officials of USDA and other federal agencies, as well as 20 USDA stakeholder groups. USDA officials reviewed the facts upon which this statement is based, and we incorporated their additions and clarifications as appropriate. GAO plans a future report with recommendations.
ASCR's difficulties in resolving discrimination complaints persist--ASCR has not achieved its goal of preventing future backlogs of complaints. At a basic level, the credibility of USDA's efforts has been and continues to be undermined by ASCR's faulty reporting of data on discrimination complaints and disparities in ASCR's data. Even such basic information as the number of complaints is subject to wide variation in ASCR's reports to the public and the Congress. Moreover, ASCR's public claim in July 2007 that it had successfully reduced a backlog of about 690 discrimination complaints in fiscal year 2004 and held its caseload to manageable levels, drew a questionable portrait of progress. By July 2007, ASCR officials were well aware they had not succeeded in preventing future backlogs--they had another backlog on hand, and this time the backlog had surged to an even higher level of 885 complaints. In fact, ASCR officials were in the midst of planning to hire additional attorneys to address that backlog of complaints including some ASCR was holding dating from the early 2000s that it had not resolved. In addition, some steps ASCR had taken may have actually been counter-productive and affected the quality of its work. For example, an ASCR official stated that some employees' complaints had been addressed without resolving basic questions of fact, raising concerns about the integrity of the practice. Importantly, ASCR does not have a plan to correct these many problems. USDA has published three annual reports--for fiscal years 2003, 2004, and 2005--on the participation of minority farmers and ranchers in USDA programs, as required by law. USDA's reports are intended to reveal the gains or losses that these farmers have experienced in their participation in USDA programs. However, USDA considers the data it has reported to be unreliable because they are based on USDA employees' visual observations about participant's race and ethnicity, which may or may not be correct, especially for ethnicity. USDA needs the approval of the Office of Management and Budget (OMB) to collect more reliable data. ASCR started to seek OMB's approval in 2004, but as of May 2008 had not followed through to obtain approval. ASCR staff will meet again on this matter in May 2008. GAO found that ASCR's strategic planning is limited and does not address key steps needed to achieve the Office's mission of ensuring USDA provides fair and equitable services to all customers and upholds the civil rights of its employees. For example, a key step in strategic planning is to discuss the perspectives of stakeholders. ASCR's strategic planning does not address the diversity of USDA's field staff even though ASCR's stakeholders told GAO that such diversity would facilitate interaction with minority and underserved farmers. Also, ASCR could better measure performance to gauge its progress in achieving its mission. For example, it counts the number of participants in training workshops as part of its outreach efforts rather than access to farm program benefits and services. Finally, ASCR's strategic planning does not link levels of funding with anticipated results or discuss the potential for using performance information for identifying USDA's performance gaps.
GAO-09-650T, U.S. Department of Agriculture: Recommendations and Options Available to the New Administration and Congress to Address Long-Standing Civil Rights Issues
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Testimony:
Before the Subcommittee on Department Operations, Oversight, Nutrition
and Forestry, Committee on Agriculture, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 10:30 a.m. EDT:
Wednesday, April 29, 2009:
U.S. Department Of Agriculture:
Recommendations and Options Available to the New Administration and
Congress to Address Long-Standing Civil Rights Issues:
Statement of Lisa Shames, Director:
Natural Resources and Environment:
GAO-09-650T:
GAO Highlights:
Highlights of GAO-09-650T, a testimony before the Subcommittee on
Department Operations, Oversight, Nutrition and Forestry, Committee on
Agriculture, House of Representatives.
Why GAO Did This Study:
For decades, there have been allegations of discrimination in the U.S.
Department of Agriculture‘s (USDA) programs and workforce. Numerous
federal reports have described serious weaknesses in USDA‘s civil
rights program”in particular, in resolving discrimination complaints
and providing minority farmers with access to programs. In 2002,
Congress authorized the position of Assistant Secretary for Civil
Rights (ASCR) at USDA to provide leadership for resolving these long-
standing problems.
This testimony focuses on ASCR‘s efforts to (1) resolve discrimination
complaints, (2) report on minority participation in farm programs, and
(3) strategically plan its efforts. GAO also reviewed the experiences
of other federal agencies to develop options for addressing management
deficiencies within ASCR. This testimony is based primarily on GAO‘s
May 2008 testimony (GAO-08-755T) on ASCR management deficiencies and
October 2008 report (GAO-09-62) that made a number of recommendations
to the Secretary of Agriculture and suggested certain matters for
congressional consideration. At the time, USDA agreed with most of the
recommendations but not with the matters for congressional
consideration. In April 2009, ASCR officials said USDA accepts all of
the recommendations and is beginning steps to implement them; these
officials also said they hope doing so will preclude the need for the
Congressional actions GAO suggested.
What GAO Found:
ASCR‘s difficulties in resolving discrimination complaints persist.
ASCR has not achieved its goal of preventing backlogs of complaints,
and this effort has been undermined by ASCR‘s faulty reporting and
disparities in ASCR data. Also, some steps ASCR took to speed up its
work may have adversely affected the quality of its work. Consequently,
we recommended that the Secretary of Agriculture implement plans to (1)
improve how USDA resolves discrimination complaints and (2) ensure the
reliability of ASCR‘s databases on customer and employee complaints. We
also recommended that USDA obtain an independent legal examination of a
sample of USDA‘s prior investigations and decisions on civil rights
complaints.
USDA considers much of its data on minority farmers‘ participation in
farm programs to be unreliable because they are based on employees‘
visual observations about participants‘ race and ethnicity that may not
be correct. USDA stated that it needs the Office of Management and
Budget‘s (OMB) approval to collect more reliable data. Consequently, in
October 2008, we recommended that the Secretary of Agriculture work
expeditiously to obtain OMB‘s approval to collect the demographic data
necessary for reliable reporting on race and ethnicity by USDA program.
ASCR‘s strategic planning does not address key steps needed to ensure
USDA provides fair and equitable services to all customers and upholds
the civil rights of its employees. In October 2008, we recommended that
the Secretary of Agriculture develop a strategic plan for civil rights
at USDA that unifies USDA‘s departmental approach with that of ASCR and
that is transparent about USDA‘s efforts to address the concerns of
stakeholders.
Three options that have been used at other agencies dealing with
significant performance issues are relevant to addressing certain long-
standing ASCR issues: statutory performance agreements, which could
help ASCR achieve specific expectations by providing additional
incentives and mandatory public reporting; an oversight board, which
could improve USDA‘s administration of civil rights activities and
provide transparency; and an ombudsman office, which could assist in
resolving civil rights concerns at USDA. In October 2008, we suggested
that Congress consider (1) making USDA‘s Assistant Secretary for Civil
Rights subject to a statutory performance agreement and (2)
establishing a USDA civil rights oversight board. In addition, we
recommended that the Secretary of Agriculture explore the potential for
an ombudsman office to help address the civil rights concerns of USDA
customers and employees.
View [hyperlink, http://www.gao.gov/products/GAO-09-650T] or key
components. For more information, contact Lisa Shames at (202) 512-2649
or shamesl@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the U.S. Department of
Agriculture's (USDA) progress in addressing long-standing civil rights
issues. For decades, USDA has been the focus of federal inquiries into
allegations of discrimination against minorities and women both in the
programs it administers and in its workforce. Numerous reports and
congressional testimony by officials of the U.S. Commission on Civil
Rights, the U.S. Equal Employment Opportunity Commission, USDA's Office
of Inspector General (OIG), GAO, and others have described extensive
concerns about discriminatory behavior in USDA's delivery of services
to program customers--in particular, minority farmers--and its
treatment of minority employees. Many of these reports and testimonies
described serious weaknesses in USDA's management of its civil rights
programs--in particular, weaknesses in providing minorities with access
to USDA programs and in resolving discrimination complaints. In
addition, USDA has been the subject of several large class-action
lawsuits claiming discriminatory behavior on the part of the
department. For example, the Pigford v. Glickman case has resulted in
the payment of about $1 billion in claims to African-American farmers.
The Farm Security and Rural Investment Act of 2002 (2002 Farm Bill)
authorized the Secretary of Agriculture to create the new position of
Assistant Secretary for Civil Rights, elevating responsibility within
USDA for carrying out USDA's civil rights efforts. Under the 2002 Farm
Bill, the Secretary may delegate responsibility to the Assistant
Secretary for Civil Rights for ensuring that USDA complies with all
civil rights-related laws and considers civil rights matters in all
USDA strategic planning initiatives. In 2003, the position of Assistant
Secretary for Civil Rights was created with these and other delegated
responsibilities, and these responsibilities are carried out through
the Office of the Assistant Secretary for Civil Rights (ASCR). In
addition, the 2002 Farm Bill and subsequent legislation require USDA to
report annually on minority participation in USDA programs.
The new Administration has indicated its commitment to improve the
management of civil rights at USDA. For example, the new Secretary of
Agriculture testified in March 2009 that improving this management is
one of his top priorities and he will dedicate the resources necessary
to achieve this improvement. And earlier this month, USDA's new
Assistant Secretary for Civil Rights was confirmed. This official, who
brings to the position prior civil rights experience, also has pledged
to improve this management. Furthermore, on April 21, 2009, the
Secretary issued a memorandum to all USDA employees reiterating that
civil rights is one of his top priorities and stating that he intends
to take definitive action to improve USDA's record on civil rights and
move USDA to a new era as a model employer and premier service
provider. Thus, this oversight hearing is particularly timely: it
provides an opportunity to briefly restate the scope of civil rights
problems at USDA, but more importantly it offers an opportunity to
discuss possible solutions to these problems for the benefit of these
new officials.
I will focus my testimony today on three primary issues: ASCR's (1)
resolution of discrimination complaints, (2) reporting on minority
participation in USDA programs, and (3) strategic planning for ensuring
USDA's services and benefits are provided fairly and equitably. I will
also discuss lessons learned from the experiences of other federal
agencies to develop options for addressing USDA's long-standing
problems. My statement is based primarily on our May 2008 testimony on
management deficiencies in ASCR and our October 2008 report on
recommendations and options to address these deficiencies.[Footnote 1]
To perform that work, we interviewed officials representing ASCR,
USDA's OIG, USDA's agency-level civil rights offices, the Equal
Employment Opportunity Commission, community-based organizations, and
minority groups. We examined ASCR's strategic plan and other relevant
planning documents, USDA documents about efforts to resolve
discrimination complaints, and USDA's reporting on minority
participation in its programs. In addition, we analyzed data provided
by ASCR and found it to be unreliable; we made recommendations
accordingly. We also considered our own guidance and reporting on
results-oriented management[Footnote 2] and reviewed our experience in
addressing the problems of high-risk, underperforming agencies.
[Footnote 3] We conducted this work in accordance with generally
accepted government auditing standards. Those standards require that we
plan and perform the audit to obtain sufficient, appropriate evidence
to provide a reasonable basis for our findings and conclusions based on
our audit objectives. We believe the evidence obtained provides this
reasonable basis.
In summary, I would like to make two observations. First, we found
numerous deficiencies in ASCR's management of civil rights, and we
offered a number of recommendations to address them. In April 2009,
ASCR officials said that USDA has begun to take steps to implement each
of these recommendations. Specifically:
* Regarding discrimination complaint resolution, we reported that ASCR
had not achieved its goal of preventing backlogs of complaints and that
this effort was undermined by ASCR's faulty reporting and disparities
in ASCR data. Also, some steps ASCR took to speed up its work may have
adversely affected the quality of its work. Consequently, we
recommended that USDA prepare and implement an improvement plan for
resolving discrimination complaints; develop and implement a plan to
ensure the accuracy, completeness, and reliability of ASCR's databases
on complaints; and obtain an independent legal examination of a sample
of USDA's prior investigations and decisions on civil rights
complaints. ASCR officials said that the department is taking steps to
set timeframe goals and establish proper management controls; move data
from ASCR's three complaint databases into one; and obtain independent
legal advice on its program complaints.
* Regarding minority participation in USDA programs, we reported that
much of the data that USDA provided to Congress and the public on
minority farmers' participation in farm programs are unreliable because
they are, for the most part, based on visual observation of program
applicants. Data gathered in this manner are considered unreliable
because individual traits, such as race and ethnicity, may not be
readily apparent to an observer. To address this inherent shortcoming,
USDA said it needs to collect standardized data directly from program
participants, which requires approval from the Office of Management and
Budget (OMB). Accordingly, we recommended that USDA work expeditiously
to obtain such approval from OMB. ASCR officials indicated that a draft
Federal Register notice requesting OMB's approval to collect these data
is being reviewed within the department.
* Regarding strategic planning, we reported that ASCR's planning was
limited and did not reflect the views of relevant stakeholders, such as
community-based organizations and minority interest groups; did not
link to the plans of other USDA agencies or the department; could
better measure performance to gauge its progress; did not discuss the
potential for using performance information for identifying USDA's
performance gaps; and did not link funding with anticipated results.
Consequently, we recommended that USDA develop a results-oriented
department-level strategic plan for civil rights that unifies USDA's
departmental approach with that of ASCR and the newly created Office of
Advocacy and Outreach and that is transparent about USDA's efforts to
address stakeholder concerns. ASCR officials said they plan to
implement this recommendation during the next department-wide strategic
planning process.
Moving forward, my second observation is that the experience of other
agencies in addressing significant performance issues provides options
that are relevant for addressing certain long-standing ASCR issues. We
identified three options that are relevant for consideration.
* Option 1: Congress could require USDA's Assistant Secretary for Civil
Rights to be subject to a statutory performance agreement. Congress
previously required executives at several other federal agencies to be
subject to these agreements. Such an agreement can be transmitted to
congressional committees and made public, and the office in question
can be required to report to Congress annually on its performance,
including the extent to which it met its performance goals. Such an
agreement for ASCR could assist in achieving specific expectations by
providing additional incentives and mandatory public reporting.
* Option 2: Congress could authorize an oversight board for USDA civil
rights activities. Oversight boards have been used for a wide variety
of purposes by the federal government, including oversight of public
accounting, intelligence matters, civil liberties, and drug safety. A
USDA civil rights oversight board could be authorized to independently
monitor, evaluate, approve, and report on USDA's administration of
civil rights activities, thereby identifying weaknesses that need to be
addressed and providing transparency.
* Option 3: USDA could explore establishing an ombudsman office to
address customer and employee concerns about civil rights, including
determining whether legislation is a prerequisite for an ombudsman to
be effective at USDA. Many other agencies have created ombudsman
offices for addressing employees' concerns. A USDA ombudsman who is
independent, impartial, fully capable of conducting meaningful
investigations and who can maintain confidentiality could assist in
resolving civil rights concerns at USDA.
In October 2008, we suggested that Congress consider (1) making USDA's
Assistant Secretary for Civil Rights subject to a statutory performance
agreement and (2) establishing a USDA civil rights oversight board.
USDA initially disagreed with these suggestions; in April 2009,
however, ASCR officials said that, while the department no longer
disagrees with these suggestions, they hope that the actions they are
taking or planning to improve the management of civil rights at USDA
will preclude the need for these mechanisms. In addition, we
recommended that USDA explore the potential for an ombudsman office to
contribute to addressing the civil rights concerns of USDA customers
and employees. In April 2009, ASCR officials indicated that the
Assistant Secretary for Civil Rights has convened a team to study the
ombudsman concept and to make recommendations by September 30, 2009, to
the Secretary of Agriculture for establishing an ombudsman office.
Problems in Resolving Discrimination Complaints Persist:
The credibility of USDA's efforts to correct long-standing problems in
resolving customer and employee discrimination complaints has been
undermined by faulty reporting of complaint data, including disparities
we found when comparing various ASCR sources of data. When ASCR was
created in 2003, there was an existing backlog of complaints that had
not been adjudicated. In response, the Assistant Secretary for Civil
Rights at that time called for a concerted 12-month effort to reduce
this backlog and to put lasting improvements in place to prevent future
complaint backlogs. In July 2007, ASCR reported that it had reduced its
backlog of 690 complaints and held the complaint inventory to
manageable levels through fiscal year 2005.[Footnote 4] However, the
data ASCR reported lack credibility because they were inconsistent with
other complaint data it reported a month earlier to a congressional
subcommittee. The backlog later surged to 885 complaints, according to
ASCR data. Furthermore, the Assistant Secretary's letter transmitting
these data stated that while they were the best available, they were
incomplete and unreliable. In addition, GAO and USDA's OIG have
identified other problems with ASCR's data, including the need for
better management controls over the entry and validation of these data.
In addition, some steps that ASCR took to speed up its investigations
and decisions on complaints in 2004 may have adversely affected the
quality of its work. ASCR's plan called for USDA's investigators and
adjudicators, who prepare agency decisions, to nearly double their
normal pace of casework for about 12 months. ASCR's former Director,
Office of Adjudication and Compliance, stated that this increased pace
led to many "summary" decisions on employees' complaints that did not
resolve questions of fact, with the result that many decisions were
appealed to the Equal Employment Opportunity Commission. This official
also said these summary decisions "could call into question the
integrity of the process because important issues were being
overlooked." In addition, inadequate working relationships and
communications within ASCR, as well as fear of retaliation for
reporting management-related problems, complicated ASCR's efforts to
produce quality work products. In August 2008, ASCR officials stated
they would develop standard operating procedures for the Office of
Adjudication and Compliance and had provided USDA staff training on
communication and conflict management, among other things. While these
are positive steps, they do not directly respond to whether USDA is
adequately investigating complaints, developing thorough complaint
decisions, and addressing the problems that gave rise to discrimination
complaints within ASCR.
The Food, Conservation, and Energy Act of 2008 (2008 Farm Bill),
enacted in June 2008, states that it is the sense of Congress that all
pending claims and class actions brought against USDA by socially
disadvantaged farmers and ranchers should be resolved in an expeditious
and just manner. In addition, the 2008 Farm Bill requires USDA to
report annually on, among other things, the number of customer and
employee discrimination complaints filed against each USDA agency, and
the length of time the agency took to process each complaint.
In October 2008, we recommended that the Secretary of Agriculture take
the following actions related to resolving discrimination complaints:
* Prepare and implement an improvement plan for resolving
discrimination complaints that sets time frame goals and provides
management controls for resolving complaints from beginning to end.
* Develop and implement a plan to ensure the accuracy, completeness and
reliability of ASCR's databases on customer and employee complaints,
and that provides for independent validation of ASCR's data quality.
* Obtain an expert, independent, and objective legal examination of the
basis, quality, and adequacy of a sample of USDA's prior investigations
and decisions on civil rights complaints, along with suggestions for
improvement.
USDA agreed with the first two recommendations, but initially disagreed
with the third, asserting that its internal system of legal sufficiency
addresses our concerns, works well, and is timely and effective. Given
the substantial evidence of civil rights case delays and questions
about the integrity of USDA's civil rights casework, we believe this
recommendation remains valid and necessary to restore confidence in
USDA's civil rights decisions. In April 2009, ASCR officials said that
USDA now agrees with all three of the recommendations and that the
department is taking steps to implement them. These steps include
hiring a consultant to assist ASCR with setting timeframe goals and
establishing proper management controls; a contractor to help move data
from ASCR's three complaint databases into one; and a firm to provide
ASCR with independent legal advice on developing standards on what
constitutes a program complaint and actions needed to adjudicate those
complaints.
Reports on Minority Participation Are Unreliable and of Limited
Usefulness:
As required by the 2002 farm bill, ASCR has published three annual
reports on the participation rate of socially disadvantaged farmers and
ranchers in USDA programs. The reports are to provide statistical data
on program participants by race and ethnicity, among other things.
However, much of these data are unreliable because USDA lacks a uniform
method of reporting and tabulating race and ethnicity data among its
component agencies. According to USDA, to collect standardized
demographic data directly from participants in many of its programs, it
must first obtain OMB's approval. In the meantime, most of USDA's
demographic data are gathered by visual observation of program
applicants, a method that is inherently unreliable and subjective,
especially for determining ethnicity. To address this problem, ASCR
published a notice in the Federal Register in 2004 seeking public
comment on its plan to collect standardized data on race, ethnicity,
gender, national origin, and age for all its programs. However, while
it received some comments, ASCR has not moved forward to finalize this
rulemaking and obtain OMB's approval to collect these data.
The 2008 Farm Bill contains several provisions related to reporting on
minority farmers' participation in USDA programs. First, it requires
USDA to annually compile program application and participation rate
data for each program serving those farmers. These reports are to
include the raw numbers and participation rates for the entire United
States and for each state and county. Second, it requires USDA to
ensure, to the maximum extent practicable, that the Census of
Agriculture and studies by USDA's Economic Research Service accurately
document the number, location, and economic contributions of minority
farmers in agricultural production.
In October 2008, to address underlying data reliability issues, as
discussed, and potential steps USDA could take to facilitate data
analysis by users, we recommended that the Secretary of Agriculture
work expeditiously to obtain OMB's approval to collect the demographic
data necessary for reliable reporting on race and ethnicity by USDA
program. USDA agreed with the recommendation. In April 2009, ASCR
officials indicated that a draft Federal Register notice requesting
OMB's approval to collect these data for Farm Service Agency, Natural
Resources Conservation Service, and Rural Development programs is being
reviewed within USDA. These officials said they hoped this notice,
which they considered an initial step toward implementing our
recommendation, would be published and implemented in time for USDA's
field offices to begin collecting these data by October 1, 2009.
According to these officials, USDA also plans to seek, at a later time,
authority to collect such data on participants in all USDA programs.
Strategic Planning Is Limited and Lacks Needed Components:
In light of USDA's history of civil rights problems, better strategic
planning is vital. Results-oriented strategic planning provides a road
map that clearly describes what an organization is attempting to
achieve and, over time, it can serve as a focal point for communication
with Congress and the public about what has been accomplished. Results-
oriented organizations follow three key steps in their strategic
planning: (1) they define a clear mission and desired outcomes, (2)
they measure performance to gauge progress, and (3) they use
performance information for identifying performance gaps and making
program improvements.
ASCR has started to develop a results-oriented approach as illustrated
in its first strategic plan, Assistant Secretary for Civil Rights:
Strategic Plan, Fiscal Years 2005-2010, and its ASCR Priorities for
Fiscal Years 2007 and 2008. However, ASCR's plans do not include
fundamental elements required for effective strategic planning. In
particular, we found that the interests of ASCR's stakeholders--
including representatives of community-based organizations and minority
interest groups--are not explicitly reflected in its strategic plan.
For example, we found that ASCR's stakeholders are interested in
improvements in (1) USDA's methods of delivering farm programs to
facilitate access by underserved producers; (2) the county committee
system, so that stakeholders are better represented in local decisions;
and (3) the diversity of USDA employees who work with minority
producers. A more complete list of these interests is included in the
appendix.
In addition, ASCR's strategic plan does not link to the plans of other
USDA agencies or the department and does not discuss the potential for
linkages to be developed. ASCR could also better measure performance to
gauge progress, and it has not yet started to use performance
information for identifying USDA performance gaps. For example, ASCR
measures USDA efforts to ensure USDA customers have equal and timely
access to programs by reporting on the numbers of participants at USDA
workshops rather than measuring the results of its outreach efforts on
access to benefits and services. Moreover, the strategic plan does not
make linkages between levels of funding and ASCR's anticipated results;
without such a discussion, it is not possible to determine whether ASCR
has the resources needed to achieve its strategic goal of, for example,
strengthening partnerships with historically black land-grant
universities through scholarships provided by USDA.
To help ensure access to and equitable participation in USDA's programs
and services, the 2008 Farm Bill provided for establishing the Office
of Advocacy and Outreach and charged it with, among other things,
establishing and monitoring USDA's goals and objectives to increase
participation in USDA programs by small, beginning, and socially
disadvantaged farmers and ranchers. As of April 2009, ASCR officials
indicated that the Secretary of Agriculture plans to establish this
office, but has not yet done so.
In October 2008, we recommended that USDA develop a results-oriented
department-level strategic plan for civil rights that unifies USDA's
departmental approach with that of ASCR and the newly created Office of
Advocacy and Outreach and that is transparent about USDA's efforts to
address stakeholder concerns. USDA agreed with this recommendation. In
April 2009, ASCR officials said they plan to implement this
recommendation during the next department-wide strategic planning
process, which occurs every 5 years. Noting that the current plan runs
through 2010, these officials speculated that work on the new plan will
start in the next few months.
Lessons Learned That Could Benefit USDA's Civil Rights Performance:
Our past work in addressing the problems of high-risk, underperforming
federal agencies, as well as our reporting on results-oriented
management, suggests three options that could benefit USDA's civil
rights performance. These options were selected based on our judgment
that they (1) can help address recognized and long-standing problems in
USDA's performance, (2) have been used previously by Congress to
improve aspects of agency performance, (3) have contributed to improved
agency performance, and (4) will result in greater transparency over
USDA's civil rights performance. These options include (1) making
USDA's Assistant Secretary for Civil Rights subject to a statutory
performance agreement, (2) establishing an agriculture civil rights
oversight board, and (3) creating an ombudsman for agriculture civil
rights matters.
A Statutory Performance Agreement Could Help Define Accountability for
Results:
Our prior assessment of performance agreements used at several agencies
has shown that these agreements have potential benefits that could help
improve the performance of ASCR.[Footnote 5] Potential benefits that
performance agreements could provide USDA include (1) helping to define
accountability for specific goals and align daily operations with
results-oriented programmatic goals, (2) fostering collaboration across
organizational boundaries, (3) enhancing use of performance information
to make program improvements, (4) providing a results-oriented basis
for individual accountability, and (5) helping to maintain continuity
of program goals during leadership transitions.
Congress has required performance agreements in other federal offices
and the results have been positive. For example, in 1998, Congress
established the Department of Education's Office of Federal Student Aid
as the government's first performance-based organization.[Footnote 6]
This office had experienced long-standing financial and management
weaknesses and we had listed the Student Aid program as high-risk since
1990. Congress required the office's Chief Operating Officer to have a
performance agreement with the Secretary of Education that was
transmitted to congressional committees and made publicly available. In
addition, the office was required to report to Congress annually on its
performance, including the extent to which it met its performance
goals. In 2005, because of the sustained improvements made by the
office in its financial management and internal controls, we removed
this program from our high-risk list. More recently, Congress has
required statutory performance agreements for other federal executives,
including for the Commissioners of the U.S. Patent and Trademark Office
and the Under Secretary for Management of the Department of Homeland
Security.[Footnote 7]
A statutory performance agreement could benefit ASCR. The
responsibilities assigned to USDA's Assistant Secretary for Civil
Rights were stated in general terms in both the 2002 Farm Bill and the
Secretary's memorandum establishing this position within USDA. The
Secretary's memorandum stated that the Assistant Secretary reports
directly to the Secretary and is responsible for (1) ensuring USDA's
compliance with all civil rights laws and related laws, (2)
coordinating administration of civil rights laws within USDA, and (3)
ensuring that civil rights components are incorporated in USDA
strategic planning initiatives. This set of responsibilities is broad
in scope, and it does not identify specific performance expectations
for the Assistant Secretary. A statutory performance agreement could
assist in achieving specific expectations by providing additional
incentives and mandatory public reporting.
In October 2008, we suggested that Congress consider the option of
making USDA's Assistant Secretary for Civil Rights subject to a
statutory performance agreement. USDA initially disagreed with this
suggestion, in part stating that the Assistant Secretary's
responsibilities are spelled out in the 2002 and 2008 farm bills. In
response, we noted, in part, that a statutory performance agreement
would go beyond the existing legislation by requiring measurable
organizational and individual goals in key performance areas. In April
2009, ASCR officials indicated that the department no longer disagrees
with this suggestion. However, these officials expressed the hope that
the actions they are taking or planning to improve the management of
civil rights at USDA, such as obtaining an independent external
analysis of program delivery, will preclude the need for this
mechanism.
An Oversight Board Could Improve ASCR Management:
Congress could also authorize a USDA civil rights oversight board to
independently monitor, evaluate, approve, and report on USDA's
administration of civil rights activities, as it has for other federal
activities. Oversight boards have often been used by the federal
government--such as for oversight of public accounting, intelligence
matters, civil liberties, and drug safety--to provide assurance that
important activities are well done, to identify weaknesses that may
need to be addressed, and to provide for transparency.
For example, Congress established the Internal Revenue Service (IRS)
Oversight Board in 1998 to oversee IRS's administration of internal
revenue laws and ensure that its organization and operation allow it to
carry out its mission. At that time, IRS was considered to be an agency
that was not effectively serving the public or meeting taxpayer needs.
The board operates much like a corporate board of directors, tailored
to fit the public sector. The board provides independent oversight of
IRS administration, management, conduct, and the direction and
supervision of the application of the internal revenue code. We have
previously noted the work of the Internal Revenue Service Oversight
Board--including, for example, the board's independent analysis of IRS
business systems modernization.[Footnote 8] Currently, there is no
comparable independent oversight of USDA civil rights activities.
In October 2008, we suggested that Congress consider the option of
establishing a USDA civil rights oversight board to independently
monitor, evaluate, approve, and report on USDA's administration of
civil rights activities. Such a board could provide additional
assurance that ASCR management functions effectively and efficiently.
USDA initially disagreed with this suggestion, stating that it would be
unnecessarily bureaucratic and delay progress. In response, we noted
that a well-operated oversight board could be the source of timely and
wise counsel to help raise USDA's civil rights performance. In April
2009, ASCR officials said that the department no longer disagrees with
this suggestion. However, these officials expressed the hope that the
actions they are taking or planning to address our recommendations to
improve the management of civil rights at USDA will preclude the need
for this mechanism.
An Ombudsman Could Address Concerns of USDA Customers and Employees:
An ombudsman for USDA civil rights matters could be created to address
the concerns of USDA customers and employees. Many other agencies have
created ombudsman offices for addressing employees' concerns, as
authorized by the Administrative Dispute Resolution Act. However, an
ombudsman is not merely an alternative means of resolving employees'
disputes; rather, the ombudsman is a neutral party who uses a variety
of procedures, including alternative dispute resolution techniques, to
deal with complaints, concerns, and questions.
Ombudsmen who handle concerns and inquiries from the public--external
ombudsmen--help agencies be more responsive to the public through
impartial and independent investigation of citizens' complaints,
including those of people who believe their concerns have not been
dealt with fairly and fully through normal channels. For example, we
reported that ombudsmen at the Environmental Protection Agency serve as
points of contact for members of the public who have concerns about
certain hazardous waste cleanup activities. We also identified the
Transportation Security Administration ombudsman as one who serves
external customers and is responsible for recommending and influencing
systemic change where necessary to improve administration operations
and customer service.[Footnote 9]
Within the federal workplace, ombudsmen provide an informal alternative
to existing and more formal processes to deal with employees' workplace
conflicts and other organizational climate issues. USDA faces concerns
of fairness and equity from both customers and employees--a range of
issues that an ombudsman could potentially assist in addressing. A USDA
ombudsman who is independent, impartial, fully capable of conducting
meaningful investigations and who can maintain confidentiality could
assist in resolving these civil rights concerns. As of April 2007, 12
federal departments and 9 independent agencies reported having 43
ombudsmen.
In October 2008, we recommended that USDA explore the potential for an
ombudsman office to contribute to addressing the civil rights concerns
of USDA customers and employees, including seeking legislative
authority, as appropriate, to establish such an office and to ensure
its effectiveness, and advise USDA's congressional oversight committees
of the results. USDA agreed with this recommendation. In April 2009,
ASCR officials indicated that the Assistant Secretary for Civil Rights
has convened a team to study the ombudsman concept and to make
recommendations by September 30, 2009, to the Secretary of Agriculture
for establishing an ombudsman office.
Concluding Observations:
USDA has been addressing allegations of discrimination for decades and
receiving recommendations for improving its civil rights functions
without achieving fundamental improvements. One lawsuit has cost
taxpayers about a billion dollars in payouts to date, and several other
groups are seeking redress for similar alleged discrimination. While
ASCR's established policy is to fairly and efficiently respond to
complaints of discrimination, its efforts to establish the management
system necessary to implement the policy have fallen short, and
significant deficiencies remain.
Unless USDA addresses several fundamental concerns about resolving
discrimination complaints--including the lack of credible data on the
numbers, status, and management of complaints; the lack of specified
time frames and management controls for resolving complaints; questions
about the quality of complaint investigations; and concerns about the
integrity of final decision preparation--the credibility of USDA
efforts to resolve discrimination complaints will be in doubt. In
addition, unless USDA obtains accurate data on minority participation
in USDA programs, its reports on improving minority participation in
USDA programs will not be reliable or useful. Furthermore, without
better strategic planning and meaningful performance measures, it
appears unlikely that USDA management will be fully effective in
achieving its civil rights mission.
Given the new Administration's commitment to giving priority attention
to USDA's civil rights problems, various options may provide a road map
to correcting long-standing management deficiencies that have given
rise to these problems. Specifically, raising the public profile for
transparency and accountability through means such as a statutory
performance agreement between the Secretary of Agriculture and the
Assistant Secretary for Civil Rights, a civil rights oversight board,
and an ombudsman for addressing customers' and employees' civil rights
concerns would appear to be helpful steps because they have proven to
be effective in raising the performance of other federal agencies.
These options could lay a foundation for clarity about the expectations
USDA must meet to restore confidence in its civil rights performance.
Mr. Chairman, this concludes my prepared statement. I would be pleased
to respond to any questions that you or other Members of the
Subcommittee may have.
Contacts and Staff Acknowledgments:
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this statement. For further
information about this testimony, please contact Lisa Shames, Director,
Natural Resources and Environment, (202) 512-2649 or ShamesL@gao.gov.
Key contributors to this statement were James R. Jones, Jr., Assistant
Director; Kevin S. Bray; Nancy Crothers; Nico Sloss; and Alex M.
Winograd.
[End of section]
Appendix I: Interests of Selected USDA Stakeholders in Civil Rights-
Related Matters as Identified by GAO in 2007 and 2008:
Category of interest: Outreach programs;
Stakeholder interests:
* USDA outreach programs for underserved producers could be much
better.
* Systematic data on minority participation in USDA programs are not
available.
* The 10708 Report and Minority Farm Register have been ineffective.
* Partnerships with community-based organizations could be better used.
Category of interest: Program delivery;
Stakeholder interests:
* Methods of USDA program delivery need to better facilitate the
participation of underserved producers and address their needs.
* USDA could do more to provide assistance in accessing markets and
programs.
* USDA could better address cultural and language differences for
providing services.
* Some USDA program rules and features hinder participation by
underserved producers.
* Some USDA employees have little incentive to work with small and
minority producers.
* County offices working with underserved producers continue to lack
diversity, and some have poor customer service or display
discriminatory behaviors toward underserved producers.
* USDA lacks a program that addresses farmworker needs.
* There continue to be reports of cases where USDA has not processed
loans for underserved producers.
* Some Hmong poultry farmers with guaranteed loans facilitated by USDA
are experiencing foreclosures.
Category of interest: County system;
Stakeholder interests:
* The county committee system does not represent minority producers
well.
* Minority advisers are ineffective because they have no voting power.
* USDA has not done enough to make underserved producers fully aware of
county committee elections, and underserved producers have difficulties
winning elections.
Category of interest: Investment;
Stakeholder interests:
* There is a lack of USDA investment in research and extension services
that would determine the extent of minority needs.
Category of interest: Census of Agriculture;
Stakeholder interests:
* The Census of Agriculture needs to better count minority producers.
Category of interest: Foreclosure;
Stakeholder interests:
* USDA may continue to be foreclosing on farms belonging to producers
who are awaiting decisions on discrimination complaints.
Category of interest: Authority;
Stakeholder interests:
* ASCR needs authority to exercise leadership for making changes at
USDA.
Category of interest: Resources;
Stakeholder interests:
* USDA and ASCR need additional resources to carry out civil rights
functions.
Category of interest: Diversity;
Stakeholder interests:
* Greater diversity among USDA employees would facilitate USDA's work
with minority producers.
Category of interest: Access;
Stakeholder interests:
* Producers must still access services through some USDA employees who
discriminated against them.
Category of interest: Management structure;
Stakeholder interests:
* The Office of Adjudication and Compliance needs better management
structure and function.
* Backlogs of discrimination complaints need to be addressed.
* Alternative dispute resolution techniques to resolve informal
employee complaints should be used consistently and documented.
* Civil rights compliance reviews of USDA agencies are behind schedule
and should be conducted.
Category of interest: General Counsel Review;
Stakeholder interests:
* USDA's Office of General Counsel continues to be involved in
complaint cases.
Source: GAO analysis of documents and interviews.
[End of table]
[End of section]
Related GAO Products:
U.S. Department of Agriculture: Recommendations and Options to Address
Management Deficiencies in the Office of the Assistant Secretary for
Civil Rights. [hyperlink, http://www.gao.gov/products/GAO-09-62].
Washington, D.C.: October 22, 2008.
U.S. Department of Agriculture: Management of Civil Rights Efforts
Continues to Be Deficient Despite Years of Attention. [hyperlink,
http://www.gao.gov/products/GAO-08-755T]. Washington, D.C.: May 14,
2008.
Pigford Settlement: The Role of the Court-Appointed Monitor.
[hyperlink, http://www.gao.gov/products/GAO-06-469R]. Washington, D.C.:
March 17, 2006.
Department of Agriculture: Hispanic and Other Minority Farmers Would
Benefit from Improvements in the Operations of the Civil Rights
Program. [hyperlink, http://www.gao.gov/products/GAO-02-1124T].
Washington, D.C.: September 25, 2002.
Department of Agriculture: Improvements in the Operations of the Civil
Rights Program Would Benefit Hispanic and Other Minority Farmers.
[hyperlink, http://www.gao.gov/products/GAO-02-942]. Washington, D.C.:
September 20, 2002.
U.S. Department of Agriculture: Resolution of Discrimination Complaints
Involving Farm Credit and Payment Programs. [hyperlink,
http://www.gao.gov/products/GAO-01-521R]. Washington, D.C.: April 12,
2001.
U.S. Department of Agriculture: Problems in Processing Discrimination
Complaints. [hyperlink, http://www.gao.gov/products/T-RCED-00-286].
Washington, D.C.: September 12, 2000.
[End of section]
Footnotes:
[1] GAO, U.S. Department of Agriculture: Management of Civil Rights
Continues to Be Deficient Despite Years of Attention, [hyperlink,
http://www.gao.gov/products/GAO-08-755T] (Washington, D.C.: May 14,
2008) and U.S. Department of Agriculture: Recommendations and Options
to Address Management Deficiencies in the Office of the Assistant
Secretary for Civil Rights, [hyperlink,
http://www.gao.gov/products/GAO-09-62] (Washington, D.C.: October 22,
2008).
[2] GAO, Executive Guide: Effectively Implementing the Government
Performance and Results Act, [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-118] (Washington, D.C.: June
1996); Agencies' Strategic Plans Under GPRA: Key Questions to
Facilitate Congressional Review, [hyperlink,
http://www.gao.gov/products/GAO/GGD-10.1.16] (Washington, D.C.: May
1997); The Results Act: An Evaluator's Guide to Assessing Agency Annual
Performance Plans, [hyperlink,
http://www.gao.gov/products/GAO/GGD-10.1.20] (Washington, D.C.: April
1998); and Results-Oriented Government: GPRA Has Established a Solid
Foundation for Achieving Greater Results, [hyperlink,
http://www.gao.gov/products/GAO-04-38] (Washington, D.C.: Mar. 10,
2004).
[3] For example, see most recently GAO, High-Risk Series: An Update,
[hyperlink, http://www.gao.gov/products/GAO-09-271] (Washington, D.C.:
January 2009).
[4] USDA, First 1,000 Days, 2003-2006 (Washington, D.C.: July 2007).
[5] GAO, Managing for Results: Emerging Benefits from Selected
Agencies' Use of Performance Agreements, [hyperlink,
http://www.gao.gov/products/GAO-01-115] (Washington, D.C.: Oct. 30,
2000).
[6] Higher Education Amendments of 1998, Pub. L. No. 105-244 § 101(a),
112 Stat. 1581 (amending 20 U.S.C. § 1018).
[7] Pub. L. No. 106-113, § 1000(a)(9) (§ 4713), 113 Stat. 1501, 1536,
1501A-21, 1501A-575 (1999) (amending 35 U.S.C. § 3); Implementing
Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53
§ 2405(b), 121 Stat. 266, 548 (amending 6 U.S.C. §341(c)).
[8] GAO, Business Systems Modernization: Internal Revenue Service Needs
to Further Strengthen Program Management, [hyperlink,
http://www.gao.gov/products/GAO-04-438T] (Washington, D.C.: Feb.12,
2004).
[9] GAO, Transportation Security Administration: Actions and Plans to
Develop a Results-Oriented Culture, [hyperlink,
http://www.gao.gov/products/GAO-03-190] (Washington, D.C.: Jan. 17,
2003).
[End of section]
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