Environmental Protection: Issues Raised by the Reorganization of EPA's Ombudsman Function
Released: 2002-11-14T00:00:00

Letter

Background

While there are no federal requirements or standards specific to the operation of federal ombudsman offices, several professional organizations have published relevant standards of practice for ombudsmen, such as those published by the American Bar Association (ABA), The Ombudsman Association, and the U.S. Ombudsman Association. For example, the ABA’s standards define the core 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.

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.

Our July 2001 report made a number of recommendations to strengthen the independence, impartiality, and accountability of the national hazardous waste ombudsman and to address impairments to the independence of the regional ombudsmen. Specifically, we recommended that EPA (1) modify its organizational structure so that the ombudsman is located outside of the Office of Solid Waste and Emergency Response and (2) provide the ombudsman with a separate budget and, subject to applicable civil service requirements, the authority to hire, fire, and supervise his own staff. To ensure the adequacy of the ombudsman’s resources and provide greater accountability, we recommended that EPA require the ombudsman to (1) develop written criteria for selecting and prioritizing cases for investigation; (2) maintain records on his investigations and other activities sufficient to serve as a basis for a reasonable estimate of resource needs; (3) establish a consistent policy for preparing written reports on investigations, consulting with agency officials and other affected parties to obtain their comments before findings are made public, and including written agency comments when reports are published; and (4) file an annual report summarizing his activities and make it available to the public. With regard to the regional ombudsmen, we recommended that EPA (1) assess the demand for ombudsman services nationwide to determine where these resources are needed and, (2) in those locations where regional ombudsmen are warranted, ensure that their operations are consistent with the relevant professional standards for independence.

The Status of EPA’s Reorganization of Its Ombudsman Function

In general, EPA is implementing its reorganization of the ombudsman function by adapting the OIG’s organizational framework to include the national ombudsman and applying the OIG’s existing policies and procedures to the ombudsman’s operations. EPA is still considering how the national ombudsman will interact with the ombudsmen located in the agency’s 10 regional offices. While EPA’s reorganization is still in its early stages, discussions with OIG officials, their recent testimony, and other documents provided the following insights on key aspects of the ombudsman function: Organizational location. Within the OIG, the national ombudsman will report to a newly created Assistant Inspector General for Congressional and Public Liaison. In addition to the ombudsman function, the new Assistant Inspector General has responsibility for the OIG hotline and congressional and media relations. According to EPA, the national ombudsman was moved from the Office of Solid Waste and Emergency Response to the OIG to strengthen the ombudsman’s independence. EPA officials believe that certain characteristics of the OIG—independence, credibility, experience, and freedom from political influence—are also important elements of an effective ombudsman function. While EPA officials acknowledge that the ombudsman is not an independent entity within the OIG, they maintain that the position is independent by virtue of the OIG’s independence. EPA did not include the regional ombudsmen in the transfer of the ombudsman function to the OIG, but retained them in the positions they were in prior to the reorganization.

Scope of responsibilities. Prior to the reorganization, the national ombudsman’s jurisdiction was limited to the hazardous waste programs managed by EPA’s Office of Solid Waste and Emergency Response. When the ombudsman was relocated to the OIG, EPA decided to expand the scope of the ombudsman’s responsibilities across the spectrum of EPA- administered programs, including those related to air pollution, water pollution, safe drinking water, and others. EPA and the OIG have not explicitly clarified the programmatic jurisdiction of regional ombudsmen, but their position is referred to as “regional Superfund ombudsman” and most of them are located within units responsible for Superfund and other waste management programs.

Authority over budget resources. According to OIG officials, the national ombudsman will not have a separate budget allocation. Rather, the Office of Congressional and Public Liaison will have a specific allocation within the OIG budget, consistent with budget operations for similar OIG offices. The ombudsman’s resource needs will be determined in conjunction with the needs of the new Office of Congressional and Public Liaison—and the OIG as a whole—in the context of the priorities identified in the OIG’s annual work planning process. EPA officials noted that in a broader sense, relocating the ombudsman to the OIG increases the function’s financial independence; in effect, the ombudsman’s budget is outside EPA’s control because the OIG’s budget appropriation is separate from EPA’s.

Authority over staff resources. Within the OIG, each Assistant Inspector General is responsible for assigning staff resources, including hiring. According to OIG officials, decisions on staff resources are largely based on the advice and recommendations of senior staff or project leads, such as the national ombudsman. Initially, the OIG assigned eight full-time staff to inventory and organize the case files transferred from the former ombudsman’s office—more than double the staff that had been assigned to the ombudsman function when it was located within the Office of Solid Waste and Emergency Response. In part, this exercise will help determine the ombudsman’s caseload and an appropriate allocation of resources. OIG officials noted that the ombudsman now has access to other OIG resources as needed, including scientists, auditors, attorneys, engineers, and investigators as well as staff with expertise in specific subject matters, such as hazardous waste and water pollution. At the time of our review, OIG officials were still finalizing operating policies and procedures for the ombudsman function in a number of areas, including the assignment of other OIG resources to ombudsman cases. However, in testimony before the Senate Committee on Environment and Public Works, the Inspector General stated that the OIG is a matrix organization in which staff and other resources are assigned to projects on a priority basis, drawing from the pool of OIG resources. In addition, according to draft operating procedures for the ombudsman, staff will be temporarily assigned from OIG Resource Centers (field offices) to perform detailed field work on ombudsman assignments under the technical direction of the ombudsman or a designee.

Case selection and prioritization. In general, OIG officials told us that the Inspector General has the overall responsibility for the work performed by the OIG, 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. Prior to the reorganization, the ombudsman had authority to determine which cases warrant further investigation. According to the OIG’s draft operating procedures for the ombudsman, all complaints, allegations, concerns, and inquiries submitted to the ombudsman will be logged into a tracking system, subject to initial screening, and, ultimately, assessed against the OIG’s priorities, as established in its annual work planning process. Informational inquiries will be referred to the appropriate EPA office or to other federal or state agencies if the inquiries are not related to EPA programs or operations. Decisions on which matters 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 other OIG staff. Complaints, allegations, and concerns deemed to warrant further investigation will be assessed to determine if they can be incorporated into ongoing or planned OIG assignments. Otherwise, the cases will be proposed as new work, evaluated, and prioritized for staffing according to the OIG’s work planning evaluation criteria to ensure that staff are assigned to the highest priority work. The criteria include potential environmental risk; fraud, waste, or abuse risk; the potential for increasing EPA’s economy, efficiency, and effectiveness; and the extent of interest by external stakeholders, among other things.

Recordkeeping and accountability. In testimony before the Senate Committee on Environment and Public Works, the Inspector General agreed that public reporting on the ombudsman’s caseload, activities, and accomplishments is a vital and important responsibility. She also endorsed public accountability as a means of strengthening the credibility of a reviewer’s findings and stated that the OIG would publish, at least annually, a report summarizing the ombudsman’s work, including a status report on cases opened and recommendations or findings made to the agency. The OIG’s draft operating procedures for the ombudsman indicate that they incorporate existing OIG operating policy and procedures, including those for tracking, documenting, and reporting the results of investigations. For example, the current tracking system will be used to separately track the status of ombudsman cases and provide annual or semiannual activity reports on the ombudsman’s activities. With regard to reporting on individual cases, OIG officials indicated that rather than issue reports to complainants, the national ombudsman’s reports will be addressed to the EPA Administrator, consistent with the reporting procedures for other OIG offices.

Status of the regional ombudsman. 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. According to officials from the Office of Solid Waste and Emergency Response and the OIG and draft operating procedures for the ombudsman, the investigative aspects of the ombudsman function will be assigned to the OIG and 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. EPA officials told us that the relationship between the national ombudsman and regional ombudsmen is a “work in progress” and that EPA and the OIG will be developing procedures for when and how interactions will occur.

Issues Raised by EPA’s Reorganization of the Ombudsman Function

EPA’s reorganization of the ombudsman function does not fully address the issues we raised in our July 2001 report and, as noted in our subsequent testimonies, raises some new concerns as well. First, several aspects of EPA’s reorganized ombudsman function are not consistent with existing professional standards for ombudsmen. For example, among the key indicators of independence identified in the ABA standards are 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. However, 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. While the national ombudsman will be consulted about the hiring, assignment, and supervision of staff, overall authority for staff resources and the budget allocation rests with the Assistant Inspector General for Congressional and Public Liaison, to whom the ombudsman reports.

OIG officials pointed out that the concern 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 ombudsman’s 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. Nonetheless, we note that the national ombudsman will also lack authority to independently select and prioritize cases that warrant investigation. If both the ombudsman’s budget and workload are outside his or her control, then the ombudsman will be unable to ensure that the resources for implementing the function are adequate.

As we noted in our July 2001 report, the ombudsmen in the other federal agencies we looked at—including the Agency for Toxic Substances and Disease Registry, the Federal Deposit Insurance Corporation, the Food and Drug Administration, and the Internal Revenue Service—report to the highest levels of the agency. In addition, although ombudsmen at other federal agencies must live within a budget and are subject to the same spending constraints as other offices within their agencies, they can set their own priorities and decide how their funds will be spent.

Depending on how EPA ultimately defines the role of its regional ombudsmen, concerns about their independence could remain. 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. Although it appears that EPA’s regional ombudsmen will not participate in investigations, perceptions about their lack of independence could affect their ability to play a role in informally mediating disagreements between the agency and the public.

When we looked at how other federal agencies dealt with regional ombudsmen as part of our July 2001 report, we found that the ombudsmen in two of the other four federal agencies we examined, the Federal Deposit Insurance Corporation and the Internal Revenue Service, had staff located in regional offices. In both instances, the regional staffs devote 100 percent of their time to the ombudsman function; they are considered part of the national ombudsman’s office for budget purposes and report directly to the national ombudsman.

From a broader perspective, EPA’s reorganization of the ombudsman function also raises issues about consistency with the way the role is typically defined within the ombudsman community. 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. However, EPA has chosen to omit such responsibilities from the national ombudsman’s role within the OIG. Including them would have conflicted with the Inspector General Act, as amended, which prohibits an agency from transferring any function, power, or duty involving program responsibilities to its OIG.According to OIG officials, the national ombudsman’s role will be limited to reviewing complaints about EPA’s programs and operations; the ombudsman will not be disseminating basic information about the agency’s programs and operations or become an advocate for individuals or groups. OIG officials acknowledge that the reorganized ombudsman function differs from the accepted definition in some respects, but say that they do not intend to have a “traditional” ombudsman function. Under similar circumstances, having an ombudsman function that is not consistent with the way the position is typically defined has raised concerns within ombudsman community. In an April 2001 report on the role of ombudsmen in dispute resolution, we noted that some federal experts in the field were concerned that among the growing number of federal “ombuds” or “ombuds offices,” there are some individuals or activities 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 persons who 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. In addition, where possible, the OIG plans to incorporate complaints made to the ombudsman into ongoing or planned OIG investigations. Finally, as noted earlier, OIG officials expect that the national ombudsman’s reports will be addressed to the EPA Administrator rather than to complainants, consistent with the reporting procedures for the OIG. However, 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.

Finally, EPA’s reorganization of the ombudsman function raises issues about consistency with the role of the OIG. In reorganizing the ombudsman function, EPA had to consider statutory restrictions on the Inspector General’s activities. However, although it appears that EPA has successfully defined the ombudsman’s role in a way that avoids conflict with the Inspector General Act, the reorganization raises concerns about the effect on the OIG. With the ombudsman function a part of the OIG, the Inspector General can 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 in which it is directly involved. Also of potential concern are 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 EPA 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.

Conclusions

EPA’s reorganization of its ombudsman function has addressed some of the recommendations contained in our July 2001 report. For example, the agency modified its organizational structure so that the national ombudsman is located outside of the Office of Solid Waste and Emergency Response. In addition, as we recommended, EPA’s ombudsman function now has written criteria for selecting and prioritizing cases for investigation and, by virtue of its relocation to the OIG, will be adopting many of that office’s existing procedures for tracking, documenting, and reporting the results of investigations and summarizing annual activities in a public report.

Notwithstanding the positive aspects of EPA’s reorganization, other concerns remain. While the move to the OIG provides a measure of budgetary independence, the national ombudsman will continue to lack independent control over budget and staff resources. In addition, EPA has not yet resolved concerns about the independence of its regional ombudsmen. Moreover, in relocating the national ombudsman to the OIG, EPA has created a position that will not function as a “true” ombudsman in interactions with the public and may adversely affect the independence of the OIG.

Recommendations for Executive Action

To ensure that EPA’s national ombudsman (1) is consistent with what the ombudsman community and the public have come to expect from that position and (2) does not adversely affect the independence of the agency’s OIG, we recommend that the Administrator, EPA, reconsider placement of the national ombudsman in the OIG.

Agency Comments

EPA and the OIG commented on a draft of this report. Specifically, we received comments from the Assistant Administrator of the Office of Solid Waste and Emergency Response and the Inspector General. These comments are contained in appendix I and appendix II, respectively. In addition, we incorporated technical comments from the OIG as appropriate throughout the report.

EPA commented that its reorganization of the ombudsman function achieves the “spirit” of the ABA standards for ombudsmen and cited the OIG’s independence, objectivity, and quality of work as reasons why the relocation of the national ombudsman to the OIG was a sound and correct decision. More specifically, EPA said that locating the ombudsman in the OIG ensures that the function operates within ABA’s standards of practice for ombudsmen: independence, impartiality, and confidentiality. Similarly, the comments from the OIG raised a number of points relating to the appropriateness of housing the ombudsman in the OIG. Among other things, the OIG said that it intends to perform the ombudsman function in the same manner in which the office performs its audit, program evaluation, and investigative functions. The OIG also maintained that its independence—in terms of controlling budget and staff resources, selecting and prioritizing cases, and reporting—are characteristics that also surround the ombudsman function by virtue of the function’s location within the OIG. In response to our concerns about the reorganization’s impact on the role of the OIG, the office commented that its framework of internal and external checks and balances is adequate to ensure that OIG officials can objectively monitor the quality of internal work processes, including those of the ombudsman, and address problems if necessary. These checks and balances would also ensure objectivity in the OIG’s review of any ombudsman reports critical of OIG work, according to the Inspector General.

We disagree with the premise underlying the comments by EPA and the OIG—that there is little or no distinction between the functions performed by ombudsmen and the OIG. We believe that these functions are fundamentally different and, as such, should not be housed together. The OIG intends to perform its ombudsman function in the same manner in which the office performs its audit, program evaluation, and investigative functions, but doing so means that EPA will have an ombudsman in name only. ABA’s standards clearly define the ombudsman’s role as including certain responsibilities that have been omitted from the OIG’s conception of the ombudsman function. Specifically, according to ABA, ombudsmen “work for the resolution of particular issues” and, among other things, are engaged in “developing, evaluating, and discussing options available to affected individuals” and “facilitating, negotiating, and mediating.” If EPA and the OIG are intent on maintaining their reorganization, we concur with ABA’s position that “those who are now called ombudsmen but do not meet these Standards may provide important or valuable services. But, it would be far better if entities that established these positions were to call them a term more fitting of the function they provide and to reserve the term ‘ombudsman’ for those who do in fact meet certain basic authorities and essential characteristics.”

EPA also commented that based on its preliminary research, some of the ombudsmen in other federal agencies we contacted may not have as much independence as our report suggests. Specifically, EPA stated that the ombudsmen at the Food and Drug Administration and the Internal Revenue Service (1) do not have independence from agency decision- making processes and (2) do not have independent budgets because their budgets are allocated according to decisions by their respective commissioners and subject to competing demands from other priorities. We disagree. Both the Food and Drug Administration and the Internal Revenue Service, whose ombudsmen report to their respective commissioners, have adopted measures to help ensure that the ombudsmen are isolated from agency decision-making processes likely to be the subject of investigations. Consistent with the ABA standards, these ombudsmen have both “sufficient stature in the organization to be taken seriously by senior officials” and “placement in an organization at the highest possible level and at least above the heads of units likely to generate the most complaints.” Regarding budgetary independence, our report acknowledges that ombudsmen at other federal agencies must live within a budget and are subject to the same spending constraints as other offices within their agencies. In contrast to EPA’s national ombudsman, however, the other federal ombudsmen have a specifically allocated budget, can set their own priorities, and can decide how their funds will be spent.

Finally, EPA commented that its Community Involvement and Outreach Center provides “an avenue for active community involvement and participation in Superfund issues” and is specifically charged with responding to community concerns. However, we believe that the center serves a different purpose than an ombudsman. While the center may help alleviate community concerns, its focus is limited to Superfund issues and providing greater community access and participation, not fulfilling an ombudsman role, particularly with respect to the independent investigation and resolution of individual complaints.

Scope and Methodology

To determine how EPA is implementing its reorganization of the ombudsman function, we met with key officials from EPA’s Office of Inspector General and Office of Solid Waste and Emergency Response. We also reviewed relevant testimony by EPA and OIG officials and other pertinent documents, such as the OIG’s new case selection criteria for the ombudsman and EPA’s response to congressional inquiries about the reorganization.

To identify issues raised by the reorganization, we followed up on preliminary observations provided in our testimony of June 2002 and July 2002. As part of this effort, we used information developed for our July 2001 report, including information on relevant professional standards for ombudsmen, such as those published by ABA, The Ombudsman Association, and the U.S. Ombudsman Association. We also reviewed legislation applicable to Inspector General offices and other relevant GAO reports.

We conducted our review from June 2002 through September 2002 in accordance with generally accepted government auditing standards.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the Administrator, EPA, and other interested parties. We will also make copies available to others upon request. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov. If you or your staff have questions about this report, please call me at (202) 512-3841. Key contributors to this assignment were Ellen Crocker, Les Mahagan, Richard Johnson, and Cynthia Norris.

Appendix I: Comments from the Environmental Protection Agency

Appendix II: Comments from the Environmental Protection Agency

The following are GAO’s comment on the Office of Inspector General’s letter dated October 11, 2002.

GAO Comment