Environmental Protection: Issues Raised by the Reorganization of
EPA's Ombudsman Function (31-OCT-02, GAO-03-92).
Federal ombudsmen help their agencies be more responsive to the
public through the impartial investigation of citizens'
complaints. Professional standards for ombudsmen incorporate
certain core principles, such as independence and impartiality.
In July 2001, GAO reported that key aspects of EPA's hazardous
waste ombudsman were not consistent with professional standards,
particularly with regard to independence. (See GAO-01-813.)
Partly in response to GAO's recommendations, EPA reorganized its
ombudsman function and removed the national ombudsman from the
Office of Solid Waste and Emergency Response. GAO made
preliminary observations on these changes in testimony in June
and July 2002. (See GAO-02-859T and GAO-02-947T). This report
provides information on (1) the current status of EPA's
reorganization of the ombudsman function and (2) issues
identified in our prior report and testimonies that have not yet
been addressed.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-03-92
ACCNO: A05437
TITLE: Environmental Protection: Issues Raised by the
Reorganization of EPA's Ombudsman Function
DATE: 10/31/2002
SUBJECT: Federal agency reorganization
Inspectors general
Public relations
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GAO-03-92
Report to the Honorable Diana DeGette, House of Representatives
United States General Accounting Office
GAO
October 2002 ENVIRONMENTAL PROTECTION
Issues Raised by the Reorganization of EPA's Ombudsman Function
GAO- 03- 92
EPA moved the national ombudsman from the Office of Solid Waste and
Emergency Response, whose decisions the ombudsman was responsible for
investigating, to the Office of Inspector General (OIG). In the OIG, the
ombudsman reports to a newly created Assistant Inspector General for
Congressional and Public Liaison, unlike in other federal agencies where
the ombudsmen report to the highest levels of the agency. Moreover, the
Assistant Inspector General and not the ombudsman controls the ombudsman*s
budget and staff. In addition, the ombudsman no longer has authority to
decide which complaints warrant further review, as was the case prior to
the reorganization. The OIG*s draft operating procedures indicate that
many of the office*s existing procedures for tracking, documenting, and
reporting the results of investigations will apply to the ombudsman.
While EPA*s reorganization addresses some of the concerns raised in GAO*s
July 2001 report and subsequent testimonies, other issues remain. For
example, the ombudsman*s independence is constrained because he does not
control his own budget, staff, or workload. Relocating the ombudsman to
the OIG also raises some issues regarding (1) the extent to which the
function will serve as a *true* ombudsman in interactions with the public
and (2) the potential impact of the reorganization on the OIG*s role.
Although the role of an ombudsman typically includes program operating
responsibilities, such as helping to informally resolve disagreements
between the agency and the public, such responsibilities have been omitted
from the ombudsman*s role within the OIG for legal reasons. In addition,
with the ombudsman function a part of the OIG, the Inspector General can
no longer independently audit and investigate that function, as the OIG
can at other federal agencies where the ombudsman and the OIG are
separate.
ENVIRONMENTAL PROTECTION
Issues Raised by the Reorganization of EPA*s Ombudsman Function
www. gao. gov/ cgi- bin/ getrpt? GAO- 03- 92. To view the full report,
including the scope and methodology, click on the link above. For more
information, contact John Stephenson (202) 512- 3841. Highlights of GAO-
03- 92, a report to the
Honorable Diana DeGette, House of Representatives
October 2002
Federal ombudsmen help their agencies be more responsive to the public
through impartial investigation of citizens* complaints. Professional
standards for ombudsmen incorporate certain core principles, such as
independence. In July 2001, GAO reported that aspects of EPA*s national
ombudsman were not consistent with professional standards, particularly
for independence. (See GAO- 01- 813.) Partly in response to GAO*s report,
EPA reorganized its ombudsman function. GAO made preliminary observations
on these changes in testimony in June and July 2002. (See GAO- 02- 859T
and GAO- 02- 947T). This report provides information on (1) the status of
the reorganization and (2) issues identified in our report or testimonies
that have not yet been addressed.
GAO recommends that EPA reconsider placement of the national ombudsman in
the OIG. EPA and the OIG disagreed with GAO*s conclusion that the
ombudsman function still is not consistent with the position*s typical
definition, which includes informally resolving disagreements. GAO
continues to believe that the ombudsman and OIG functions are
fundamentally different and should not be housed together.
Page i GAO- 03- 92 Reorganization of EPA's Ombudsman Letter 1
Results in Brief 3 Background 5 The Status of EPA*s Reorganization of Its
Ombudsman Function 6 Issues Raised by EPA*s Reorganization of the
Ombudsman
Function 10 Conclusions 13 Recommendations for Executive Action 14 Agency
Comments 14 Scope and Methodology 16
Appendix I Comments from the Environmental Protection Agency 18
Appendix II Comments from the Environmental Protection Agency 20
Abbreviations
ABA American Bar Association EPA Environmental Protection Agency GAO
General Accounting Office OIG Office of Inspector General Contents
Page 1 GAO- 03- 92 Reorganization of EPA's Ombudsman
October 31, 2002 The Honorable Diana DeGette House of Representatives
Dear Ms. DeGette: The Congress is currently considering legislation to
reauthorize the Environmental Protection Agency*s (EPA*s) hazardous waste
ombudsman and strengthen the ombudsman*s authority. EPA*s ombudsman was
first established in 1984 to assist the public and the regulated community
by providing information, responding to concerns, and investigating the
merits of complaints relating to the implementation of waste management
programs under the Resource Conservation and Recovery Act. 1 Over time,
EPA expanded the ombudsman*s jurisdiction to include Superfund 2 and other
hazardous waste programs managed by the Office of Solid Waste and
Emergency Response. Although legislative authorization for the ombudsman
function expired in 1988, EPA recognizes that the ombudsman provides a
valuable service to the public and has retained the function as a matter
of policy. In addition to having a national hazardous waste ombudsman, as
of 1996, EPA had installed ombudsmen in each of its 10 regional offices,
where the function is generally seen as a collateral duty.
Through the impartial and independent investigation of citizens*
complaints, federal ombudsmen help agencies be more responsive to the
public and, in particular, people who believe that their concerns have not
been dealt with fully or fairly through normal channels. As the ombudsman
function is typically defined within the ombudsman community, ombudsmen
recommend ways to resolve individual complaints or more systemic problems
and help to informally resolve disagreements between agencies and the
public. In 1990, the Administrative Conference of the United States
recommended that the
1 The Congress established the ombudsman function in 1984 amendments to
the Resource Conservation and Recovery Act, which governs the management
of solid and hazardous waste.
2 The Superfund program was established under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 to clean
up highly contaminated hazardous waste sites.
United States General Accounting Office Washington, DC 20548
Page 2 GAO- 03- 92 Reorganization of EPA's Ombudsman
President and the Congress support initiatives to create and fund
*external* ombudsmen 3 *ombudsmen who handle concerns and inquiries from
the public* in federal agencies with significant public interaction. 4 In
addition to EPA, a number of other federal agencies have established an
ombudsman function, including the Agency for Toxic Substances and Disease
Registry of the Department of Health and Human Services, the Federal
Deposit Insurance Corporation, the Food and Drug Administration, and the
Internal Revenue Service.
In a July 2001 report, 5 we compared the hazardous waste ombudsman
function at EPA with relevant professional standards for ombudsmen,
including those developed by the American Bar Association, and found that
it was not consistent with the standards in several areas, particularly
with regard to independence. For example, we found that EPA*s national
ombudsman was located within the Office of Solid Waste and Emergency
Response, the organizational unit whose decisions the ombudsman was
responsible for investigating, and that his budget and staff resources
were controlled by unit managers. We also raised concerns about the extent
to which other aspects of the ombudsman*s operations, such as procedures
for documenting and reporting on the results of investigations, were
consistent with standards for impartiality and accountability. Finally, we
found that the part- time status and other duties assigned to EPA*s
regional ombudsmen compromised their independence. We made a number of
recommendations to strengthen the independence, impartiality, and
accountability of the national ombudsman and to address impairments to the
independence of the regional ombudsmen.
Partly in response to our recommendations, EPA, in November 2001,
reorganized its ombudsman function and relocated the national ombudsman to
the Office of Inspector General (OIG). As you know, we
3 In contrast, internal or *workplace* ombudsmen provide an alternative to
more formal processes to deal with conflicts and other issues that arise
in the workplace. See U. S. General Accounting Office, Human Capital: The
Role of Ombudsmen in Dispute Resolution, GAO- 01- 466 (Washington, D. C.:
Apr. 13, 2001) for information on the role of ombudsmen in resolving
workplace issues.
4 The Administrative Conference of the United States was an independent
advisory agency in the executive branch that issued recommendations and
statements on the improvement of the federal administrative process. The
agency was terminated in fiscal year 1996.
5 U. S. General Accounting Office, Hazardous Waste: EPA*s National and
Regional Ombudsmen Do Not Have Sufficient Independence, GAO- 01- 813
(Washington, D. C.: July 27, 2001).
Page 3 GAO- 03- 92 Reorganization of EPA's Ombudsman
provided some preliminary observations on EPA*s reorganization in
testimony before the Senate Committee on Environment and Public Works and
the House Committee on Energy and Commerce, Subcommittee on Environment
and Hazardous Materials and Subcommittee on Health, in June 2002 and July
2002, respectively. 6 While EPA is still finalizing the detailed operating
policies and procedures to implement its reorganization, the agency has
made some decisions about the overall operating framework for the
ombudsman function. This report provides information on (1) the current
status of EPA*s reorganization of its ombudsman function and (2) issues
identified in our prior report and testimonies that have not yet been
addressed.
EPA has moved its national ombudsman from the Office of Solid Waste and
Emergency Response to the OIG under a newly created Assistant Inspector
General for Congressional and Public Liaison. As the reorganization takes
effect, detailed policies and operating procedures for the ombudsman
function have been drafted, but have not yet been finalized. However,
control over the budget and staff resources for the ombudsman function is
exercised by the Assistant Inspector General for Congressional and Public
Liaison and not the ombudsman. Similarly, the ombudsman no longer has the
authority to decide which complaints warrant further investigation, as was
the case prior to the reorganization. Overall responsibility for the work
performed by the OIG rests with the Inspector General, 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.
Regarding recordkeeping and accountability, the OIG*s draft operating
procedures for the ombudsman indicate that the office*s existing
procedures for tracking, documenting, and reporting on individual
investigations and overall caseload will be used by the ombudsman. EPA did
not include the 10 regional ombudsmen in the transfer of the function to
the OIG, but retained them in the positions they held prior to the
reorganization. EPA and OIG officials are still working out how the
regional ombudsmen will be utilized and how they will interact with the
national ombudsman. For now, the regional ombudsmen will continue to have
a dual role in fulfilling some
6 U. S. General Accounting Office, Environmental Protection: Issues for
Consideration in the Reorganization of EPA*s Ombudsman Function, GAO- 02-
859T and GAO- 02- 947T (Washington, D. C.: June 25, 2002, and July 16,
2002, respectively). Results in Brief
Page 4 GAO- 03- 92 Reorganization of EPA's Ombudsman
ombudsman responsibilities while also serving in line management
positions, primarily within the Superfund program.
While EPA*s decision to remove the national ombudsman from the Office of
Solid Waste and Emergency Response is consistent with our earlier
recommendations, placement of the ombudsman in the OIG does not fully
address the concerns we identified in July 2001 and, as noted in our
subsequent testimonies, raises issues that have not yet been addressed.
EPA*s reorganization does not provide the degree of structural or
functional independence that is (1) typical of ombudsmen in other federal
agencies or (2) consistent with the relevant professional standards for
ombudsmen, as shown in the following examples:
Ombudsmen at other federal agencies report to the highest levels of the
agency, such as the Office of the Commissioner in case of the Food and
Drug Administration and the Internal Revenue Service, and can decide how
their funds will be spent. EPA*s national ombudsman, as the position is
currently envisioned, still
will not be able to exercise independent control over the budget and staff
resources needed to implement the function and can no longer independently
determine which cases to pursue, as he was able to do prior to the
reorganization. In addition, EPA*s reorganization does not address
concerns we raised in
our 2001 report about the independence of the regional ombudsmen, whose
position is generally seen as a collateral duty within EPA. In other
agencies, the staff assigned to the regional ombudsman function devote 100
percent of their time to that responsibility and report directly to the
national ombudsman.
Further, the ombudsman function as typically defined within the ombudsman
community includes program operating responsibilities, such as informally
resolving disagreements between the agency and the public, but EPA has
chosen to omit these responsibilities from the national ombudsman*s role.
Including them would have conflicted with the Inspector General Act, as
amended, which prohibits the transfer of program operating
responsibilities to the Inspector General. As a result, however, the
agency has established an *ombudsman* that is not fully consistent with
the typical definition. In addition, placing the ombudsman in the OIG
could affect the activities of the Inspector General. For example, the OIG
could no longer independently audit or investigate the ombudsman, as the
OIG can at other federal agencies where the ombudsman function and the OIG
are separate entities.
Page 5 GAO- 03- 92 Reorganization of EPA's Ombudsman
This report includes a recommendation that EPA reconsider placement of the
national ombudsman in the OIG. In commenting on a draft of this report,
EPA and OIG officials disagreed with our conclusions that, under EPA*s
reorganization, the ombudsman function is not consistent with the position
as typically defined within the ombudsman community and lacks sufficient
independence. We continue to believe that ombudsman and OIG functions are
fundamentally different and should not be housed together.
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 7 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
7 American Bar Association, Standards for the Establishment and Operation
of Ombudsman Offices, (Aug. 2001) http:// www. abanet. org/ adminlaw/
ombuds/ ostdsfinal. doc (downloaded October 21, 2002). To help develop the
standards, ABA*s Sections of Administrative Law and Regulatory Practice
and Dispute Resolution appointed a steering committee, which included
representatives from several ombudsman associations: the Coalition of
Federal Ombudsmen, The Ombudsman Association, the U. S. Ombudsman
Association, and the University and College Ombuds Association. Background
Page 6 GAO- 03- 92 Reorganization of EPA's Ombudsman
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.
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
The Status of EPA*s
Reorganization of Its Ombudsman Function
Page 7 GAO- 03- 92 Reorganization of EPA's Ombudsman
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 EPAadministered
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
Page 8 GAO- 03- 92 Reorganization of EPA's Ombudsman
hiring. 8 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. 9 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
8 In April 2002, the OIG appointed an acting ombudsman; OIG officials said
that once an official position description has been prepared, they will
issue a vacancy announcement to fill the position permanently.
9 Testimony of Nikki L. Tinsley, Inspector General, U. S. Environmental
Protection Agency, before the Senate Committee on Environment and Public
Works, June 25, 2002.
Page 9 GAO- 03- 92 Reorganization of EPA's Ombudsman
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. 10 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
10 Testimony of Nikki L. Tinsley, June 25, 2002.
Page 10 GAO- 03- 92 Reorganization of EPA's Ombudsman
into complaints about how EPA operates. For the time being, EPA officials
expect the regional ombudsmen to retain their line management positions.
11 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.
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
11 EPA officials told us that they are piloting a new approach in three
regional offices in which the ombudsmen will be increasing their level of
involvement in the ombudsman role, although the individuals will continue
to have other responsibilities. Issues Raised by
EPA*s Reorganization of the Ombudsman Function
Page 11 GAO- 03- 92 Reorganization of EPA's Ombudsman
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. 12 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
12 For example, the ombudsmen from the Food and Drug Administration and
the Internal Revenue Service each report to the Office of the Commissioner
in their respective agencies.
Page 12 GAO- 03- 92 Reorganization of EPA's Ombudsman
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. 13 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, 14 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
13 See 5 U. S. C. Appx. 3 S: 9( a)( 2). 14 See U. S. General Accounting
Office, Human Capital: The Role of Ombudsmen in Dispute Resolution, GAO-
01- 466 (Washington, D. C.: Apr. 13, 2001).
Page 13 GAO- 03- 92 Reorganization of EPA's Ombudsman
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. 15 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.
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
15 U. S. General Accounting Office, HUD Inspector General: Actions Needed
to Strengthen Management and Oversight of Operation Safe Home, GAO- 01-
794 (Washington, D. C.: June 29, 2001). Conclusions
Page 14 GAO- 03- 92 Reorganization of EPA's Ombudsman
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.
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.
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
Recommendations for
Executive Action Agency Comments
Page 15 GAO- 03- 92 Reorganization of EPA's Ombudsman
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. 16 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
16 Similarly, in comments on S. 606, the Ombudsman Reauthorization Act of
2001, The Ombudsman Association cited concerns about the placement of the
ombudsman function within the OIG, saying that the tenets of the inspector
general and ombudsman professions are not compatible. For example, the
association pointed out that inspectors general serve a compliance
function while the ombudsman function is specifically designated as an
alternative to formal compliance channels.
Page 16 GAO- 03- 92 Reorganization of EPA's Ombudsman
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.
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
Scope and
Methodology
Page 17 GAO- 03- 92 Reorganization of EPA's Ombudsman
2002. 17 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.
Sincerely yours, John B. Stephenson Director, Natural Resources and
Environment
17 GAO- 02- 859T and GAO- 02- 947T.
Appendix I: Comments from the Environmental Protection Agency
Page 18 GAO- 03- 92 Reorganization of EPA's Ombudsman
Appendix I: Comments from the Environmental Protection Agency
Appendix I: Comments from the Environmental Protection Agency
Page 19 GAO- 03- 92 Reorganization of EPA's Ombudsman
Appendix II: Comments from the Environmental Protection Agency
Page 20 GAO- 03- 92 Reorganization of EPA's Ombudsman
Appendix II: Comments from the Environmental Protection Agency
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
Appendix II: Comments from the Environmental Protection Agency
Page 21 GAO- 03- 92 Reorganization of EPA's Ombudsman
See comment 1.
Appendix II: Comments from the Environmental Protection Agency
Page 22 GAO- 03- 92 Reorganization of EPA's Ombudsman
Appendix II: Comments from the Environmental Protection Agency
Page 23 GAO- 03- 92 Reorganization of EPA's Ombudsman
The following are GAO*s comment on the Office of Inspector General*s
letter dated October 11, 2002.
1. The enclosures provided by the OIG indicate that EPA and the OIG are
still developing policies and procedures for the regional ombudsmen and
how they will interact with the national ombudsman within the OIG. For
example, the enclosure concerning the OIG*s review of the regional
ombudsman program states that the review, which was scheduled to begin in
September 2002, includes questions on the roles and responsibilities of
the regional ombudsmen and actions taken by EPA to address GAO*s
recommendations regarding the regional ombudsmen GAO Comment
(360226)
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