U.S. Department of Agriculture: Recommendations and Options Available to the New Administration and Congress to Address Long-Standing Civil Rights Issues
Published: 2009-04-29T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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. 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 and reviewed our experience in  addressing the problems of high-risk, underperforming agencies. 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.
subsections: section_title: Problems in Resolving Discrimination Complaints Persist
paragraphs: 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. 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.
section_title: Reports on Minority Participation Are Unreliable and of Limited Usefulness
paragraphs: 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.
section_title: Strategic Planning Is Limited and Lacks Needed Components
paragraphs: 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.
section_title: Lessons Learned That Could Benefit USDA’s Civil Rights Performance
paragraphs: 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.
subsections: section_title: A Statutory Performance Agreement Could Help Define Accountability for Results
paragraphs: 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. 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. 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.
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.
section_title: An Oversight Board Could Improve ASCR Management
paragraphs: 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. 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.
section_title: An Ombudsman Could Address Concerns of USDA Customers and Employees
paragraphs: 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.
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.
section_title: Concluding Observations
paragraphs: 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.
section_title: Contacts and Staff Acknowledgments
paragraphs: 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.
section_title: Appendix: Interests of Selected USDA Stakeholders in Civil Rights-Related Matters as Identified by GAO in 2007 and 2008
paragraphs: 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.
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.
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.
There is a lack of USDA investment in research and extension services that would determine the  extent of minority needs.
The Census of Agriculture needs to better count minority producers.
USDA may continue to be foreclosing on farms belonging to producers who are awaiting  decisions on discrimination complaints.
ASCR needs authority to exercise leadership for making changes at USDA.
USDA and ASCR need additional resources to carry out civil rights functions.
Greater diversity among USDA employees would facilitate USDA’s work with minority producers.
Producers must still access services through some USDA employees who discriminated against  them.
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.
USDA’s Office of General Counsel continues to be involved in complaint cases.
section_title: Related GAO Products
paragraphs: U.S. Department of Agriculture: Recommendations and Options to  Address Management Deficiencies in the Office of the Assistant  Secretary for Civil Rights. 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. GAO-08-755T.  Washington, D.C.: May 14, 2008.
Pigford Settlement: The Role of the Court-Appointed Monitor.  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. 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.  GAO-02-942. Washington, D.C.: September 20, 2002.
U.S. Department of Agriculture: Resolution of Discrimination  Complaints Involving Farm Credit and Payment Programs.  GAO-01-521R. Washington, D.C.: April 12, 2001.
U.S. Department of Agriculture: Problems in Processing Discrimination  Complaints. T-RCED-00-286. Washington, D.C.: September 12, 2000.