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

Letter

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. 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. 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.

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. 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.

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.

Appendix: Interests of Selected USDA Stakeholders in Civil Rights-Related Matters as Identified by GAO in 2007 and 2008

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.

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. 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.