Environmental Protection
Issues for Consideration in the Reorganization of EPA's Ombudsman Function Gao ID: GAO-02-947T July 16, 2002The Environmental Protection Agency's (EPA) hazardous waste ombudsman was first established within the Office of Solid Waste and Emergency Response as a result of the 1984 amendments to the Resource Conservation and Recovery Act. Over time, EPA expanded the national ombudsman's jurisdiction to include Superfund and other hazardous waste programs managed by the Office of Solid Waste and Emergency Response, and, by March 1996, EPA had designated ombudsmen in each of its 10 regional offices. Although the national ombudsman's activities ranged from providing information to investigating the merits of complaints, in recent years, the ombudsman played an increasingly prominent role through his investigations of citizen complaints. Pending legislation would reauthorize an office of the ombudsman within EPA. In November 2001, the EPA Administrator announced that the national ombudsman would be relocated from the Office of Solid Waste and Emergency Response to the Office of Inspector General (OIG) and would address concerns across the spectrum of EPA programs. Although there are no federal requirements or standards specific to the operation of ombudsman offices, several professional organizations have published standards of practice relevant to ombudsmen who deal with inquiries from the public. If EPA intends to have an ombudsman function that is consistent with the way the position is typically defined in the ombudsman community, placing the national ombudsman within the OIG does not achieve that objective. The national ombudsman, as the position is currently envisioned, still will not be able to exercise independent control over the budget and staff resources needed to implement the function. Prior to the reorganization, the national ombudsman could independently determine which cases to pursue; however, according to EPA, the Inspector General has the overall responsibility for the work performed by the Office, and no single staff member has the authority to select and prioritize his or her own caseload independent of all other needs. Finally, placing the ombudsman in the OIG could also affect the activities of the Inspector General.
GAO-02-947T, Environmental Protection: Issues for Consideration in the Reorganization of EPA's Ombudsman Function
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Testimony:
Before the Subcommittee on Environment and Hazardous Materials,
Committee on Energy and Commerce, House of Representatives:
United States General Accounting Office:
GAO:
For Release on Delivery Expected at 10:00 EDT,
Tuesday, July 16, 2002:
Environmental Protection:
Issues for Consideration in the Reorganization of EPA‘s Ombudsman
Function:
Statement of John B. Stephenson, Director
Natural Resources and Environment:
GAO-02-947T:
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss our work relating to the
national hazardous waste ombudsman function at the Environmental
Protection Agency (EPA). EPA‘s hazardous waste ombudsman was first
established within the Office of Solid Waste and Emergency Response as
a result of the 1984 amendments to the Resource Conservation and
Recovery Act.[Footnote 1] Recognizing that the ombudsman provides a
valuable service to the public, EPA retained the ombudsman function as
a matter of policy after its legislative authorization expired in 1988.
Over time, EPA expanded the national ombudsman‘s jurisdiction to
include Superfund[Footnote 2] and other hazardous waste programs
managed by the Office of Solid Waste and Emergency Response and, by
March 1996, EPA had designated ombudsmen in each of its 10 regional
offices. While the national ombudsman‘s activities ranged from
providing information to investigating the merits of complaints, in
recent years, the ombudsman played an increasingly prominent role
through his investigations of citizen complaints referred by Members of
Congress. Legislation now pending before the Congress would reauthorize
an office of the ombudsman within EPA.[Footnote 3]
In November 2001, the EPA Administrator announced that the ombudsman
function would be reorganized, effective in January 2002.[Footnote 4]
Specifically, the agency announced that the national ombudsman would be
relocated from the Office of Solid Waste and Emergency Response to the
Office of Inspector General (OIG) and would address concerns across the
spectrum of EPA programs, not just hazardous waste programs. The agency
also retained the ombudsmen located in its regional offices. In
response to a request letter from Representative Diana DeGette raising
concerns about placing the national ombudsman within EPA‘s OIG, we have
recently initiated work to examine various issues related to the
reorganization.
My testimony today, which is based on our 2001 report on EPA‘s
ombudsman[Footnote 5] and on the work now under way,
* describes the professional standards for independence and other key
factors relevant to ombudsmen, including those located within federal
agencies; and:
* provides our preliminary observations on issues raised by the
reorganization of EPA‘s ombudsman function.
For our 2001 report, we examined relevant standards of practice,
including those published by the American Bar Association (ABA), The
Ombudsman Association, and the U.S. Ombudsman Association. We also
looked at four federal agencies whose ombudsmen deal with inquiries
from the public: the Agency for Toxic Substances and Disease Registry
(an agency of the Department of Health and Human Services), the Federal
Deposit Insurance Corporation, the Food and Drug Administration, and
the Internal Revenue Service. In preparing this testimony, we met with,
and obtained information from, key EPA officials involved in the
reorganization of the agency‘s ombudsman function. However, because the
agency has not yet developed detailed operating policies and procedures
or an official description of the national ombudsman position within
the OIG, and because we have only recently initiated work related to
the reorganization, our observations are preliminary.
In summary:
* Although there are no federal requirements or standards specific to
the operation of ombudsman offices, several professional organizations
have published standards of practice relevant to ombudsmen who deal
with inquiries from the public. These standards incorporate the core
principles of independence, impartiality, and confidentiality. For
example, an effective ombudsman must have both actual and apparent
independence from any person who may be the subject of a complaint or
inquiry. According to ABA guidelines, key indicators of independence
include a budget funded at a level sufficient to carry out the
ombudsman‘s responsibilities; the ability to spend funds independent of
any approving authority; and the power to appoint, supervise, and
remove staff. The Ombudsman Association‘s standards of practice define
independence as functioning independent of line management, and
advocate that the ombudsman report to the highest authority in the
organization. Impartiality requires ombudsmen to conduct inquiries and
investigations in a manner free from initial bias and conflicts of
interest. Confidentiality requires, with some exceptions, that
ombudsmen not disclose, and not be required to disclose, any
information provided in confidence. While federal agencies face some
legal and practical constraints in implementing some aspects of these
standards, ombudsmen at the federal agencies we reviewed for our 2001
report reflected aspects of the standards. For example, at the Federal
Deposit Insurance Corporation, the Food and Drug Administration, and
the Internal Revenue Service, the ombudsman‘s office had its own budget
and reported directly to the head of the agency.
* If EPA intends to have an ombudsman function that is consistent with
the way the position is typically defined in the ombudsman community,
placing the national ombudsman within the OIG does not achieve that
objective. Specifically, the role of an ombudsman typically includes
program operating responsibilities, such as helping to informally
resolve program-related issues and mediating disagreements between the
agency and the public. Including these responsibilities in the national
ombudsman‘s role within the OIG would likely conflict with the
Inspector General Act, as amended, which prohibits the transfer of
program operating responsibilities to the Inspector General; yet,
omitting these responsibilities would result in establishing an
’ombudsman“ that is not fully consistent with the function as defined
within the ombudsman community. Further, while EPA‘s reorganization
removes the national ombudsman from the Office of Solid Waste and
Emergency Response--whose programs the ombudsman is charged with
investigating--it may not result in a degree of structural or
functional independence that is consistent with professional standards
for ombudsmen for several reasons.
* The national ombudsman, as the position is currently envisioned,
still will not be able to exercise independent control over the budget
and staff resources needed to implement the function. According to EPA,
authority for budget and staffing for the national ombudsman function
will rest with the Assistant Inspector General for Congressional and
Public Liaison.
* Prior to the reorganization, the national ombudsman could
independently determine which cases to pursue; however, according to
EPA, the Inspector General has the overall responsibility for the work
performed by the Office, and no single staff member--including the
national ombudsman--has the authority to select and prioritize his or
her own caseload independent of all other needs.
* In addition, the reorganization does not appear to address concerns
we raised in our 2001 report about the independence of the regional
ombudsmen, whose position is generally seen as a collateral duty within
EPA. They will continue to have a dual role in fulfilling some
ombudsman responsibilities while also serving in line management
positions, primarily within the Superfund program.
Finally, placing the ombudsman in the OIG could affect the activities
of the Inspector General; for example, the OIG could no longer
independently audit or investigate the ombudsman, as the OIG can at
other federal agencies where the ombudsman function and the OIG are
separate entities.
Relevant Professional Standards for Ombudsmen:
Through the impartial and independent investigation of citizens‘
complaints, federal ombudsmen help agencies be more responsive to the
public, including people who believe that their concerns have not been
dealt with fully or fairly through normal channels. Ombudsmen may
recommend ways to resolve individual complaints or more systemic
problems, and may help to informally resolve disagreements between the
agency and the public.
While there are no federal requirements or standards specific to the
operation of federal ombudsman offices,[Footnote 6] the Administrative
Conference of the United States recommended in 1990 that the President
and the Congress support federal agency initiatives to create and fund
an external ombudsman in agencies with significant interaction with the
public.[Footnote 7] In addition, several professional organizations
have published relevant standards of practice for ombudsmen. Both the
recommendations of the Administrative Conference of the United States
and the standards of practice adopted by various ombudsman associations
incorporate the core principles of independence, impartiality
(neutrality), and confidentiality. For example, the ABA‘s
standards[Footnote 8] define these characteristics as follows:
* Independence--An ombudsman must be and appear to be free from
interference in the legitimate performance of duties and independent
from control, limitation, or penalty by an officer of the appointing
entity or a person who may be the subject of a complaint or inquiry.
* Impartiality--An ombudsman must conduct inquiries and investigations
in an impartial manner, free from initial bias and conflicts of
interest.
* Confidentiality--An ombudsman must not disclose and must not be
required to disclose any information provided in confidence, except to
address an imminent risk of serious harm. Records pertaining to a
complaint, inquiry, or investigation must be confidential and not
subject to disclosure outside the ombudsman‘s office.
Relevant professional standards contain a variety of criteria for
assessing an ombudsman‘s independence, but in most instances, the
underlying theme is that an ombudsman should have both actual and
apparent independence from persons who may be the subject of a
complaint or inquiry. According to ABA guidelines, for example, a key
indicator of independence is whether anyone subject to the ombudsman‘s
jurisdiction can (1) control or limit the ombudsman‘s performance of
assigned duties, (2) eliminate the office, (3) remove the ombudsman for
other than cause, or (4) reduce the office‘s budget or resources for
retaliatory purposes. Other factors identified in the ABA guidelines on
independence include a budget funded at a level sufficient to carry out
the ombudsman‘s responsibilities; the ability to spend funds
independent of any approving authority; and the power to appoint,
supervise, and remove staff. The Ombudsman Association‘s standards of
practice define independence as functioning independent of line
management; they advocate that the ombudsman report to the highest
authority in the organization.
According to the ABA‘s recommended standards, ’the ombudsman‘s
structural independence is the foundation upon which the ombudsman‘s
impartiality is built.“ One aspect of the core principle of
impartiality is fairness. According to an article published by the U.S.
Ombudsman Association on the essential characteristics of an ombudsman,
an ombudsman should provide any agency or person being criticized an
opportunity to (1) know the nature of the criticism before it is made
public and (2) provide a written response that will be published in
whole or in summary in the ombudsman‘s final report.[Footnote 9]
In addition to the core principles, some associations also stress the
need for accountability and a credible review process. Accountability
is generally defined in terms of the publication of periodic reports
that summarize the ombudsman‘s findings and activities. Having a
credible review process generally entails having the authority and the
means, such as access to agency officials and records, to conduct an
effective investigation. The ABA recommends that an ombudsman issue and
publish periodic reports summarizing the findings and activities of the
office to ensure its accountability to the public. Similarly,
recommendations by the Administrative Conference of the United States
regarding federal ombudsmen state that they should be required to
submit periodic reports summarizing their activities, recommendations,
and the relevant agency‘s responses.
Federal agencies face legal and practical constraints in implementing
some aspects of these standards because the standards were not designed
primarily with federal agency ombudsmen in mind. However, ombudsmen at
the federal agencies we reviewed for our 2001 report reflected aspects
of the standards. We examined the ombudsman function at four federal
agencies in addition to EPA and found that three of them--the Federal
Deposit Insurance Corporation, the Food and Drug Administration, and
the Internal Revenue Service--had an independent office of the
ombudsman that reported to the highest level in the agency, thus giving
the ombudsmen structural independence.[Footnote 10] In addition, the
ombudsmen at these three agencies had functional independence,
including the authority to hire, supervise, discipline, and terminate
their staff, consistent with the authority granted to other offices
within their agencies. They also had control over their budget
resources. The exception was the ombudsman at the Agency for Toxic
Substances and Disease Registry, who did not have a separate office
with staff or a separate budget. This ombudsman reported to the
Assistant Administrator of the agency instead of the agency head.
Issues Raised by EPA‘s Reorganization of the Ombudsman Function:
In our July 2001 report, we recommended, among other things, that EPA
modify its organizational structure so that the function would be
located outside of the Office of Solid Waste and Emergency Response,
whose activities the national ombudsman was charged with reviewing. EPA
addresses this recommendation through its placement of the national
ombudsman within the OIG, where the national ombudsman will report to a
newly-created position of Assistant Inspector General for Congressional
and Public Liaison. OIG officials also told us that locating the
national ombudsman function within the OIG offers the prospect of
additional resources and enhanced investigative capability. According
to the officials, the national ombudsman will likely have a small
permanent staff but will also be able to access OIG staff members with
expertise in specific subject matters, such as hazardous waste or water
pollution, on an as-needed basis. Further, OIG officials anticipate
that the ombudsman will adopt many of the office‘s existing
recordkeeping and reporting practices, which could help address the
concerns we noted in our report about accountability and fairness to
the parties subject to an ombudsman investigation.
Despite these aspects of EPA‘s reorganization, several issues merit
further consideration. First and foremost is the question of intent in
establishing an ombudsman function. The term ’ombudsman,“ as defined
within the ombudsman community, carries with it certain expectations.
The role of an ombudsman typically includes program operating
responsibilities, such as helping to informally resolve program-related
issues and mediating disagreements between the agency and the public.
Assigning these responsibilities to an office within the OIG would
conflict with statutory restrictions on the Inspector General‘s
activities. Specifically, the Inspector General Act, as amended,
prohibits an agency from transferring any function, power, or duty
involving program responsibilities to its OIG.[Footnote 11] However, if
EPA omits these responsibilities from the position within the OIG, then
it will not have established an ’ombudsman“ as the function is defined
within the ombudsman community. In our April 2001 report, we noted that
some federal experts in dispute resolution were concerned that among
the growing number of federal ombudsman offices there are some
individuals or activities described as ’ombuds“ or ’ombuds offices“
that do not generally conform to the standards of practice for
ombudsmen.
A related issue is that ombudsmen generally serve as a key focal point
for interaction between the government, or a particular government
agency, and the general public. By placing the national ombudsman
function within its OIG, EPA appears to be altering the relationship
between the function and the individuals that make inquiries or
complaints. Ombudsmen typically see their role as being responsive to
the public, without being an advocate. However, EPA‘s reorganization
signals a subtle change in emphasis: OIG officials see the ombudsman
function as a source of information regarding the types of issues that
the OIG should be investigating. Similarly, rather than issue reports
to complainants, OIG officials expect that the national ombudsman‘s
reports will be addressed to the EPA Administrator, consistent with the
reporting procedures for other OIG offices. The officials told us that
their procedures for the national ombudsman function, which are still
being developed, could provide for sending a copy of the final report
or a summary of the investigation to the original complainant along
with a separate cover letter when the report is issued to the
Administrator.
Based on the preliminary information available from EPA, the
reorganization raises other issues regarding the consistency of the
agency‘s ombudsman function with relevant professional standards. For
example, under EPA‘s reorganization, the national ombudsman will not be
able to exercise independent control over budget and staff resources,
even within the general constraints that are faced by federal agencies.
According to OIG officials, the national ombudsman will have input into
the hiring, assignment, and supervision of staff, but overall authority
for staff resources and the budget allocation rests with the Assistant
Inspector General for Congressional and Public Liaison. OIG officials
pointed out that the issue our July 2001 report raised about control
over budget and staff resources was closely linked to the ombudsman‘s
placement within the Office of Solid Waste and Emergency Response. The
officials believe that once the national ombudsman function was
relocated to the OIG, the inability to control resources became much
less significant as an obstacle to operational independence. They
maintain that although the ombudsman is not an independent entity
within the OIG, the position is independent by virtue of the OIG‘s
independence.
Despite the OIG‘s argument, we note that the national ombudsman will
also lack authority to independently select and prioritize cases that
warrant investigation. According to EPA, the Inspector General has the
overall responsibility for the work performed by the OIG, and no single
staff member--including the ombudsman--has the authority to select and
prioritize his or her own caseload independent of all other needs.
Decisions on whether complaints warrant a more detailed review will be
made by the Assistant Inspector General for Congressional and Public
Liaison in consultation with the national ombudsman and staff. EPA
officials are currently reviewing the case files obtained from the
former ombudsman, in part to determine the anticipated workload and an
appropriate allocation of resources. According to OIG officials, the
national ombudsman will have access to other OIG resources as needed,
but EPA has not yet defined how decisions will be made regarding the
assignment of these resources. Under the ABA guidelines, one measure of
independence is a budget funded at a level sufficient to carry out the
ombudsman‘s responsibilities. However, if both the ombudsman‘s budget
and workload are outside his or her control, then the ombudsman would
be unable to assure that the resources for implementing the function
are adequate. Ombudsmen at other federal agencies must live within a
budget and are subject to the same spending constraints as other
offices within their agencies, but they can set their own priorities
and decide how their funds will be spent.
EPA has also not yet fully defined the role of its regional ombudsmen
or the nature of their relationship with the national ombudsman in the
OIG. EPA officials told us that the relationship between the national
and regional ombudsmen is a ’work in progress“ and that the OIG will be
developing procedures for when and how interactions will occur.
Depending on how EPA ultimately defines the role of its regional
ombudsmen, their continued lack of independence could remain an issue.
In our July 2001 report, we concluded that the other duties assigned to
the regional ombudsmen--primarily line management positions within the
Superfund program--hamper their independence. Among other things, we
cited guidance from The Ombudsman Association, which states that an
ombudsman should serve ’no additional role within an organization“
because holding another position would compromise the ombudsman‘s
neutrality. According to our discussions with officials from the Office
of Solid Waste and Emergency Response and the OIG, the investigative
aspects of the ombudsman function will be assigned to the OIG, but it
appears that the regional ombudsmen will respond to inquiries and have
a role in informally resolving issues between the agency and the public
before they escalate into complaints about how EPA operates. For the
time being, EPA officials expect the regional ombudsmen to retain their
line management positions. [Footnote 12]
Finally, including the national ombudsman function within the Office of
the Inspector General raises concerns about the effect on the OIG, even
if EPA defines the ombudsman‘s role in a way that avoids conflict with
the Inspector General Act. By having the ombudsman function as a part
of the OIG, the Inspector General could no longer independently audit
and investigate that function, as is the case at other federal agencies
where the ombudsman function and the OIG are separate entities. As we
noted in a June 2001 report on certain activities of the OIG at the
Department of Housing and Urban Development, under applicable
government auditing standards the OIG cannot independently and
impartially audit and investigate activities it is directly involved
in.[Footnote 13]
A related issue concerns situations in which the national ombudsman
receives an inquiry or complaint about a matter that has already been
investigated by the OIG. For example, OIG reports are typically
transmitted to the Administrator after a review by the Inspector
General. A process that requires the Inspector General to review an
ombudsman-prepared report that is critical of, or could be construed as
reflecting negatively on, previous OIG work could pose a conflict for
the Inspector General. OIG officials are currently working on detailed
procedures for the national ombudsman function, including criteria for
opening, prioritizing, and closing cases, and will have to address this
issue as part of their effort.
In conclusion, Mr. Chairman, we believe that several issues need to be
considered in EPA‘s reorganization of its ombudsman function. The first
is perhaps the most fundamental--that is, the need to clarify the
intent. We look forward to working with Members of the Subcommittee as
you consider the best way of resolving these issues.
This concludes my prepared statement. I would be happy to respond to
any questions that you or other Members of the Subcommittee may have at
this time.
Contact and Acknowledgments
For further information, please contact John B. Stephenson at
(202) 512-3841. Individuals making key contributions to this testimony
included Ellen Crocker, Rich Johnson, Les Mahagan, and Cynthia Norris.
FOOTNOTES
[1] The Resource Conservation and Recovery Act governs the management
of solid and hazardous waste.
[2] The Superfund program was established under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 to
clean up highly contaminated hazardous waste sites.
[3] See S. 606 and H.R. 1431, The Ombudsman Reauthorization Act of
2001.
[4] The transfer of the ombudsman function to EPA‘s Office of Inspector
General actually took place on April 13, 2002, following the dismissal
by a federal district court of a legal challenge to the reorganization.
[5] U.S. General Accounting Office, Hazardous Waste: EPA‘s National and
Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813
(Washington, D.C.;
July 27, 2001).
[6] The federal Interagency Alternative Dispute Resolution Working
Group will be developing guidance on standards of practice for federal
ombudsmen, as recommended in a GAO report entitled, Human Capital: The
Role of Ombudsmen in Dispute Resolution,
GAO-01-466 (Washington, D.C.; Apr. 13, 2001).
[7] The Administrative Conference of the United States was an
independent advisory agency in the executive branch that issued
recommendations and statements on the improvement of the federal
administrative process. The agency was terminated by the Treasury,
Postal Service, and General Government Appropriations Act for fiscal
year 1996.
[8] To help develop the standards, ABA‘s Sections of Administrative Law
and Regulatory Practice and Dispute Resolution appointed a steering
committee, which included representatives from several ombudsman
associations: the Coalition of Federal Ombudsmen, The Ombudsman
Association, the U.S. Ombudsman Association, and the University and
College Ombuds Association.
[9] Gottehrer, Dean M. and Hostina, Michael, ’Essential Characteristics
of a Classical Ombudsman“ (U.S. Ombudsman Association, 1998), http://
www.usombudsman.org/References/Essential.pdf, (downloaded June 19,
2001).
[10] For example, the ombudsmen from the Food and Drug Administration
and the Internal Revenue Service each reported to the Office of the
Commissioner in their respective agencies.
[11] See 5 U.S.C. Appx. 3 § 9(a)(2).
[12] EPA officials told us that they are piloting a new approach in
three regional offices in which the ombudsmen will be increasing their
level of involvement in the ombudsman role, although the individuals
will continue to have other responsibilities.
[13] U.S. General Accounting Office, HUD Inspector General: Actions
Needed to Strengthen Management and Oversight of Operation Safe Home,
GAO-01-794 (Washington, D.C.: June 29, 2001)
