U.S. Department of Agriculture: Management of Civil Rights
Efforts Continues to Be Deficient Despite Years of Attention
(14-MAY-08, GAO-08-755T).
For decades, there have been allegations of discrimination in the
U.S. Department of Agriculture (USDA) programs and workforce.
Reports and congressional testimony by the U.S. Commission on
Civil Rights, the U.S. Equal Employment Opportunity Commission, a
former Secretary of Agriculture, USDA's Office of Inspector
General, GAO, and others have described weaknesses in USDA's
programs--in particular, in resolving complaints of
discrimination and in providing minorities access to programs.
The Farm Security and Rural Investment Act of 2002 authorized the
creation of the position of Assistant Secretary for Civil Rights
(ASCR), giving USDA an executive that could provide leadership
for resolving these long-standing problems. This testimony
focuses on USDA's efforts to (1) resolve discrimination
complaints, (2) report on minority participation in USDA
programs, and (3) strategically plan its efforts. This testimony
is based on new and prior work, including analysis of ASCR's
strategic plan; discrimination complaint management; and about
120 interviews with officials of USDA and other federal agencies,
as well as 20 USDA stakeholder groups. USDA officials reviewed
the facts upon which this statement is based, and we incorporated
their additions and clarifications as appropriate. GAO plans a
future report with recommendations.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-08-755T
ACCNO: A82114
TITLE: U.S. Department of Agriculture: Management of Civil
Rights Efforts Continues to Be Deficient Despite Years of
Attention
DATE: 05/14/2008
SUBJECT: Agricultural programs
Civil rights
Civil rights law enforcement
Claims
Claims processing
Claims settlement
Data collection
Data integrity
Discrimination
Employees
Employment discrimination
Employment of minorities
Fair employment programs
Minorities
Performance measures
Program evaluation
Program management
Racial discrimination
Reporting requirements
Strategic planning
Program goals or objectives
Program implementation
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GAO-08-755T
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Testimony before the Subcommittee on Government Management,
Organization, and Procurement, Committee on Oversight and Government
Reform, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 2:00 p.m. EDT:
Wednesday, May 14, 2008:
U.S. Department of Agriculture:
Management of Civil Rights Efforts Continues to Be Deficient Despite
Years of Attention:
Statement of Lisa Shames:
Director:
Natural Resources and Environment:
GAO-08-755T:
GAO Highlights:
Highlights of GAO-08-755T, a testimony before the Subcommittee on
Government Management, Organization, and Procurement, Committee on
Oversight and Government Reform, House of Representatives.
Why GAO Did This Study:
For decades, there have been allegations of discrimination in the U.S.
Department of Agriculture (USDA) programs and workforce. Reports and
congressional testimony by the U.S. Commission on Civil Rights, the
U.S. Equal Employment Opportunity Commission, a former Secretary of
Agriculture, USDA�s Office of Inspector General, GAO, and others have
described weaknesses in USDA�s programs�in particular, in resolving
complaints of discrimination and in providing minorities access to
programs. The Farm Security and Rural Investment Act of 2002 authorized
the creation of the position of Assistant Secretary for Civil Rights
(ASCR), giving USDA an executive that could provide leadership for
resolving these long-standing problems.
This testimony focuses on USDA�s efforts to (1) resolve discrimination
complaints, (2) report on minority participation in USDA programs, and
(3) strategically plan its efforts. This testimony is based on new and
prior work, including analysis of ASCR�s strategic plan; discrimination
complaint management; and about 120 interviews with officials of USDA
and other federal agencies, as well as 20 USDA stakeholder groups.
USDA officials reviewed the facts upon which this statement is based,
and we incorporated their additions and clarifications as appropriate.
GAO plans a future report with recommendations.
What GAO Found:
ASCR�s difficulties in resolving discrimination complaints persist�ASCR
has not achieved its goal of preventing future backlogs of complaints.
At a basic level, the credibility of USDA�s efforts has been and
continues to be undermined by ASCR�s faulty reporting of data on
discrimination complaints and disparities in ASCR�s data. Even such
basic information as the number of complaints is subject to wide
variation in ASCR�s reports to the public and the Congress. Moreover,
ASCR�s public claim in July 2007 that it had successfully reduced a
backlog of about 690 discrimination complaints in fiscal year 2004 and
held its caseload to manageable levels, drew a questionable portrait of
progress. By July 2007, ASCR officials were well aware they had not
succeeded in preventing future backlogs�they had another backlog on
hand, and this time the backlog had surged to an even higher level of
885 complaints. In fact, ASCR officials were in the midst of planning
to hire additional attorneys to address that backlog of complaints
including some ASCR was holding dating from the early 2000s that it had
not resolved. In addition, some steps ASCR had taken may have actually
been counter-productive and affected the quality of its work. For
example, an ASCR official stated that some employees� complaints had
been addressed without resolving basic questions of fact, raising
concerns about the integrity of the practice. Importantly, ASCR does
not have a plan to correct these many problems.
USDA has published three annual reports�for fiscal years 2003, 2004,
and 2005�on the participation of minority farmers and ranchers in USDA
programs, as required by law. USDA�s reports are intended to reveal the
gains or losses that these farmers have experienced in their
participation in USDA programs. However, USDA considers the data it has
reported to be unreliable because they are based on USDA employees�
visual observations about participant�s race and ethnicity, which may
or may not be correct, especially for ethnicity. USDA needs the
approval of the Office of Management and Budget (OMB) to collect more
reliable data. ASCR started to seek OMB�s approval in 2004, but as of
May 2008 had not followed through to obtain approval. ASCR staff will
meet again on this matter in May 2008.
GAO found that ASCR�s strategic planning is limited and does not
address key steps needed to achieve the Office�s mission of ensuring
USDA provides fair and equitable services to all customers and upholds
the civil rights of its employees. For example, a key step in strategic
planning is to discuss the perspectives of stakeholders. ASCR�s
strategic planning does not address the diversity of USDA�s field staff
even though ASCR�s stakeholders told GAO that such diversity would
facilitate interaction with minority and underserved farmers. Also,
ASCR could better measure performance to gauge its progress in
achieving its mission. For example, it counts the number of
participants in training workshops as part of its outreach efforts
rather than access to farm program benefits and services. Finally,
ASCR�s strategic planning does not link levels of funding with
anticipated results or discuss the potential for using performance
information for identifying USDA�s performance gaps.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-755T]. For more
information, contact Lisa Shames at (202) 512-2649 or [email protected].
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the U.S. Department of
Agriculture's (USDA) progress in addressing long-standing civil rights
issues. My comments today are based on prior work as well as new work
nearing completion resulting from a request from Senator Harkin,
Chairman of the Senate Committee on Agriculture, Nutrition, and
Forestry; Senators Grassley and Lugar; and Chairman Baca of the
Subcommittee on Department Operations, Oversight, Nutrition, and
Forestry, House Committee on Agriculture; as well as you, Chairman
Towns.
USDA is responsible for enforcing statutes, regulations, and policies
that prohibit discrimination in its programs and workplace. USDA's
responsibilities extend to the programs that it delivers directly to
customers through local offices throughout the country, such as the
farm loan programs, as well as to programs that USDA and the states
administer jointly, such as the Food Stamp Program. USDA's workplace
civil rights responsibilities cover about 100,000 employees at
headquarters and at USDA offices around the country.
For decades, USDA has been the focus of federal inquiries into
allegations of discrimination against minorities and women both in the
programs it administers and in its workforce. Numerous reports and
congressional testimony by officials of the U.S. Commission on Civil
Rights, the U.S. Equal Employment Opportunity Commission, USDA, GAO,
and others have described extensive concerns about discriminatory
behavior in USDA's delivery of services to program customers--in
particular, minority farmers--and its treatment of minority employees.
Many of these reports and testimonies described serious weaknesses in
USDA's management of its civil rights programs--in particular,
weaknesses in providing minorities access to USDA programs and in
resolving discrimination complaints.
Notable among these many reports was the 1997 report of the Secretary
of Agriculture's Civil Rights Action Team.[Footnote 1] The Secretary's
team--composed of senior USDA officials--held a dozen "listening
sessions" with USDA customers and employees throughout the country
before issuing a report. The team's report discussed USDA's customers'
and employees' concerns about patterns of discrimination in USDA
programs and operations, and minority farmers' concerns that USDA had
played a part in the severe decline in minority farm ownership since
the mid-1900s. Among other things, the report noted that USDA's civil
rights program had been in a "persistent state of chaos" because of
numerous changes since the 1980s and declared that USDA's process for
resolving complaints about the delivery of program benefits and
services was a "failure." The report made many recommendations in four
major areas--organizational structure, management commitment, program
delivery and outreach, and workforce diversity and employment
practices.
In addition to reports about USDA's civil rights shortcomings,
individuals and groups claiming discriminatory behavior on the part of
USDA have sought redress through the courts--USDA has been and
continues to be involved in large class action civil rights lawsuits.
[Footnote 2] In 1997, three African-American farmers, on behalf of
themselves and others similarly situated, filed a lawsuit-- Pigford v.
Glickman--that charged USDA with discrimination in the department's
lending and other farm programs between 1983 and 1997, as well as with
failure to properly investigate discrimination complaints.[Footnote 3]
The case went forward as a class action, and in January 1999 a
settlement agreement was announced. In approving the consent decree
settling the case, the court stated that for decades USDA had
discriminated against African-American farmers by denying or delaying
their applications for farm loan and other credit and benefit programs.
The court also noted that USDA had disbanded its Office of Civil Rights
in 1983 and stopped responding to claims of discrimination. The consent
decree established a mechanism for members of the class to file claims
to obtain relief. Over 97,000 people have filed claims--more than five
times the number of claims anticipated. However, only about 23,000
people met the filing deadline of October 12, 1999, and about 74,000
people requested permission from the court to file a claim after the
deadline. Except for a relatively few extraordinary cases, the court
denied the claims received after the filing deadline as not timely.
Overall, as of April 7, 2008, more than 15,400 claims had been approved
for payments and benefits totaling about $972 million, and almost 7,000
claims had been denied.[Footnote 4] In addition, USDA is currently
defending itself against similar lawsuits brought by other customers--
Native American, Hispanic, and women farmers--alleging discrimination
in the delivery of farm programs and lending.[Footnote 5]
A congressional hearing during 2002 focused on the need for USDA to
ensure that, among other things, farm programs are accessible to
minority and socially disadvantaged farmers and ranchers, complaints of
discrimination against USDA by customers and employees are resolved
fairly and timely, and civil rights activities are conducted
transparently so that public scrutiny is possible. That year, as you
know, the Farm Security and Rural Investment Act of 2002 (2002 Farm
Bill) authorized the Secretary of Agriculture to create the new
position of Assistant Secretary for Civil Rights, elevating
responsibility within USDA for carrying out USDA's civil rights
efforts. Under the 2002 Farm Bill, the Secretary could delegate
responsibility for ensuring that USDA complies with all civil rights-
related laws and considers civil rights matters in all USDA strategic
planning initiatives to the Assistant Secretary for Civil Rights. In
2003, the Assistant Secretary position was created with these and other
delegated responsibilities, and the Office of the Assistant Secretary
for Civil Rights (ASCR) was established. In addition, the 2002 Farm
Bill requires USDA to report annually on minority participation in USDA
programs.[Footnote 6]
In 2002, we reported that USDA's Office of Civil Rights continued to
face significant problems in processing discrimination complaints in a
timely manner.[Footnote 7] We reported that the office had made only
modest progress in processing complaints from customers and employees
because (1) it had not established time frames for resolving complaints
and (2) it had not addressed its severe human capital problems. For
example, the office had long-standing problems in hiring and retaining
staff with the right mix of skills, and severe morale problems were
exacerbating problems with staff productivity and retention. At that
time, we recommended that USDA establish time frames for all stages of
the complaint process and develop an action plan to address its staff
turnover and morale problems. In commenting on the report, USDA stated
that it had a long-term improvement plan that would address the human
capital problems and agreed to formalize time frames for all phases of
the process.
My testimony today focuses on (1) ASCR's continuing problems in
resolving discrimination complaints, (2) USDA's reporting on minority
participation in USDA programs, and (3) ASCR's strategic planning for
ensuring USDA's services and benefits are provided fairly and
equitably.
In summary, I would like to make three observations. First, ASCR's
difficulties in resolving discrimination complaints persist--ASCR has
not achieved its goal of preventing future backlogs of discrimination
complaints. At a basic level, the credibility of USDA's efforts to
correct long-standing problems in resolving discrimination complaints
has been and continues to be undermined by faulty reporting of data on
discrimination complaints and disparities we found when comparing
various ASCR sources of data. Even such basic information as the number
of discrimination complaints is subject to wide variation in ASCR's
reports to the public and the Congress. For example, fiscal year 2005
data that ASCR reported to the public and to this congressional
subcommittee varied by hundreds of complaint cases, and data reported
to GAO on its complaint cases varied from one report to another.
Moreover, ASCR's public claim in July 2007 that it had successfully
reduced a backlog of about 690 discrimination complaints in fiscal year
2004 and held its caseload to manageable levels drew a questionable
portrait of progress. By July 2007, ASCR officials were well aware the
plan to prevent future backlogs had not succeeded. ASCR had another
backlog on hand, and this time the backlog had surged to an even higher
level of 885 complaints. In fact, before ASCR made its report to the
public in 2007, ASCR officials were in the midst of planning to hire
additional attorneys to address the backlog of complaints, including
some complaints that ASCR was holding dating from the early 2000s that
it had not resolved. In addition, steps that ASCR had taken to speed up
its investigations and decisions on complaints may actually have been
counter-productive and affected the quality of its work. For example,
an ASCR official stated that some employees' complaints had been
addressed without resolving basic questions of fact, raising concerns
about the integrity of the practice. Importantly, ASCR does not have a
plan to correct these many problems.
Second, the data that USDA reported to the Congress and the public on
the participation of minority farmers in USDA programs are unreliable,
according to USDA. USDA has published three annual reports on the
participation of socially disadvantaged farmers and ranchers in USDA
programs for fiscal years 2003, 2004, and 2005. However, much of the
data that USDA reports are unreliable, according to the statements in
USDA's reports, because USDA's data on racial identity and gender are,
for the most part, based on visual observation of program applicants.
Data gathered in this manner are considered unreliable because
individual traits such as race and ethnicity may not be readily
apparent to an observer, especially ethnicity. To address this inherent
shortcoming, according to USDA's report, the agency needs standardized
data collection directly from program participants, which requires the
approval of the Office of Management and Budget (OMB). ASCR began the
process of seeking OMB's approval to collect these data in 2004, but
did not follow through and has not obtained final approval. ASCR staff
will meet again on this matter in May 2008. In addition, we found the
data in ASCR's reports to be of limited usefulness because, for
example, ASCR did not include basic reference data such as the numbers
of farmers in each county. Moreover, the data do not facilitate
analysis because they are published in about 1,370 separate tables and
146 maps that are not searchable files. If the data were searchable, it
could be possible to more easily compare minority participation by
program, location, and year.
Finally, ASCR's strategic planning is limited and does not address key
steps needed to achieve its mission. While ASCR has articulated a
compelling strategic goal--to ensure USDA provides fair and equitable
services to all customers and upholds the civil rights of its
employees--its implementation will require further development. For
example, a key step in strategic planning is to discuss the
perspectives of stakeholders. Yet, ASCR's plans vary from ASCR's
stakeholders' interests which include such things as improving USDA's
methods of delivering farm programs to facilitate access by under-
served producers. Also, while ASCR's stakeholders are interested in
assuring the diversity of USDA field office staff to facilitate their
interaction with minority and underserved farmers, ASCR's strategic
planning does not address the diversity of USDA's field staff. In
addition, ASCR could better measure performance to gauge its progress,
and ASCR has not started to use performance information for identifying
USDA performance gaps.
We provided USDA officials with an opportunity to comment on a
statement of facts which was the basis for my statement today. We
incorporated their additions and clarifications as appropriate. We plan
to issue a final report later in 2008 that will include recommendations
to address the matters that I discuss in my testimony today.
This testimony is based on new and previously issued work. To assess
ASCR's efforts to resolve USDA's persistent problems in handling
discrimination complaints, we conducted interviews with officials of
ASCR, USDA's Office of Inspector General (OIG), USDA's agency-level
civil rights offices, and the Equal Employment Opportunity Commission;
examined USDA documents about efforts to resolve discrimination
complaints, and analyzed data provided by ASCR. To evaluate USDA's
reporting on minority participation in USDA's programs, we reviewed
USDA reports and interviewed officials of USDA, community-based
organizations, and minority groups. To analyze ASCR's strategic
planning, we examined ASCR's strategic plan and other relevant planning
documents, and interviewed USDA officials and representatives of
community-based organizations and minority groups, among others. In
addition, we considered GAO's guidance for results-oriented management.
We conducted our work from December 2006 through May 2008, in
accordance with generally accepted government auditing standards. These
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. While our
efforts were impeded by delays in gaining access to documents, we
believe the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives. Additional
details on our scope, methodology, and access to USDA records is
included in appendix I.
Background:
The Office of the Assistant Secretary for Civil Rights (ASCR) was
created in 2003. For fiscal year 2007, ASCR had 129 staff and an annual
budget of about $24 million. ASCR is composed of multiple offices, some
of which were in existence within USDA prior to the creation of ASCR.
Figure 1: Organization of USDA's Office of the Assistant Secretary for
Civil Rights:
[See PDF for image]
This figure is an organizational chart depicting the following
hierarchy:
Assistant Secretary for Civil Rights:
* Deputy Assistant Secretary;
* Associate Assistant Secretary;
- Planning and Performance;
- Budget and Finance;
- Coordination and Analysis;
* Office of Adjudication and Compliance;
* Conflict Prevention and Resolution Center;
* Office of Outreach and Diversity.
Source: USDA.
[End of figure]
ASCR's Office of Adjudication and Compliance (formerly the Office of
Civil Rights) is to resolve customers' and employees' complaints of
discrimination and to conduct civil rights compliance reviews of USDA's
agencies. The Conflict Prevention and Resolution Center is to provide
guidance to USDA agencies on using Alternative Dispute Resolution
methods to resolve conflicts. The Office of Outreach and Diversity is
to develop ASCR's diversity initiatives, and oversee the 1890 and 1994
Programs. The 1890 Program offers educational scholarships to people
seeking degrees at one of the 18 historically black land-grant
institutions and requires one year of USDA service for each year of
financial support. Similarly, through the 1994 Program, there is a
comparable program operated with the 33 tribal colleges and
universities designated as 1994 land-grant institutions. Within the
Office of Outreach and Diversity, the Office of Outreach is to provide
coordination for USDA agencies on outreach efforts and produce a
required annual report on the rates at which minorities participate in
USDA programs.
The first USDA Assistant Secretary for Civil Rights-Mr. Vernon Parker-
was sworn in on April 1, 2003, and served about 3 years until resigning
in January 2006. At the outset of Mr. Parker's tenure, over a 4 month
period, a few ASCR staff developed 13 initiatives to guide ASCR's
actions through fiscal year 2004 and beyond. These initiatives were
intended to address the most immediate problems occurring at the time
and concentrated on eliminating backlogs of unresolved discrimination
complaints and taking certain steps to reduce complaints in the future.
Most notably, ASCR established annual "Partners Meetings" to create,
for the first time, a substantive and ongoing dialogue between USDA and
representatives of community-based organizations as a basis for
improving the delivery of USDA benefits and services. A list of ASCR's
initiatives for fiscal year 2004 is included in appendix II. The second
and current Assistant Secretary for Civil Rights--Ms. Margo McKay--was
sworn in on August 21, 2006. A list of Assistant Secretary McKay's
priorities and initiatives are also included in appendix II.
Problems Resolving Discrimination Complaints Persist:
The credibility of USDA's efforts to correct long-standing problems in
resolving discrimination complaints has been and continues to be
undermined by faulty reporting of data on discrimination complaints and
disparities we found when comparing various ASCR sources of data.
[Footnote 8] For example, fiscal year 2005 data that ASCR reported to
the public and to this congressional subcommittee varied by hundreds of
complaint cases, and data reported to GAO on its complaint cases varied
from one report to another. Moreover, ASCR's public claim in July 2007
that it successfully reduced a backlog of about 690 discrimination
complaints in fiscal year 2004 and held its caseload to manageable
levels through fiscal year 2005 drew a questionable portrait of
progress. By July 2007, ASCR officials were well aware that the plan to
prevent future backlogs had not succeeded. ASCR had another backlog on
hand, and this time the backlog had surged to an even higher level of
885 complaints. In fact, before ASCR made its report to the public in
2007, ASCR officials were in the midst of planning to hire attorneys to
address the backlog of complaints, including some complaints that ASCR
was holding dating from the early 2000s that it had not resolved. In
addition, some steps that ASCR had taken to speed up its investigations
and decisions on complaints appear to have affected the quality of its
work. These on-going problems are a continuation of the inadequate
conditions that we and USDA's OIG have reported for over a decade.
ASCR reporting on backlogs of discrimination complaints has been faulty
and contains disparities. When ASCR was created, there was an existing
backlog of complaints. In recognition of this problem, USDA's Assistant
Secretary for Civil Rights made discrimination complaint inventory
reduction ASCR's highest priority initiative. This initiative called
for ASCR's senior managers and employees to make a concerted 12-month,
$1.5 million effort to reduce the backlog of complaints that they had
inherited. Moreover, according to a briefing book ASCR prepared for the
Senate Committee on Agriculture, Nutrition, and Forestry, this
complaint inventory reduction initiative was to put lasting
improvements in place to prevent future complaint backlogs. It also
stated that USDA's Office of Civil Rights would focus substantial
resources on fair, equitable, and legally supportable resolution of
cases.
About 4 years later, in July 2007, ASCR released a report to the public
stating that its fiscal year 2004 backlog reduction initiative was a
success.[Footnote 9] The report stated that the backlog of 573
complaints from employees and 120 complaints from customers had been
resolved, and that ASCR had held the complaint inventory to manageable
levels through fiscal year 2005. However, the data ASCR reported lack
credibility because a month earlier the Office had reported different
data to this congressional subcommittee (see Table 1). Specifically,
according to the June report, the numbers of complaints at the
beginning of fiscal year 2005 was 552; according to the July report,
the number was 363. Moreover, the June report cited the number of
complaints at the end of fiscal year 2005 as 1,275, and the July report
said it was 404. The lower numbers reported to the public were not
qualified and provided a more favorable impression than the data
reported to this subcommittee. However, the Assistant Secretary's
letter transmitting data to the subcommittee contained a footnote
qualification stating that USDA's statistics on customers' complaints
were the best available, although they were incomplete and unreliable.
Before that letter was sent, ASCR's former Director, Office of
Adjudication and Compliance[Footnote 10] (former Office of Civil
Rights), who had responsibility for the data, cautioned the Assistant
Secretary about the poor data quality and stated that, if questioned,
USDA would not be able to explain its data.
Table 1: Fiscal Year 2005 Customer Complaint Inventory as Reported by
ASCR in June and July 2007:
Number of complaints: At the beginning of FY 2005;
Report to congressional subcommittee, June 2007[A]: 552;
USDA's 1,000 Days Report, July 2007[B]: 363.
Number of complaints: At the end of FY 2005;
Report to congressional subcommittee, June 2007[A]: 1,275;
USDA's 1,000 Days Report, July 2007[B]: 404.
Number of complaints: Resolved during FY 2005;
Report to congressional subcommittee, June 2007[A]: N/A[C];
USDA's 1,000 Days Report, July 2007[B]: 120.
[A] Letter of Margo M. McKay, Assistant Secretary for Civil Rights,
USDA, to the Chairman, Subcommittee on Government Management,
Organization, and Procurement, House Committee on Oversight and
Government Reform, June 29, 2007.
[B] USDA, First 1,000 Days, 2003-2006 (Washington, D.C.: July 2007).
[C] As reported by USDA, without explanation.
[End of table]
Moreover, ASCR's July 2007 report claiming success in addressing the
backlog of complaints is questionable because at least 2 months
earlier, officials of ASCR and USDA's Office of General Counsel (USDA
OGC) had started discussing a plan of "triage" to address a backlog of
complaints by hiring additional attorneys to draft final decisions on
those cases. Also, in July 2007, the Assistant Secretary for Civil
Rights informed us that she was to brief the Secretary on her plan to
reduce that backlog, but was not comfortable sharing the plan with GAO.
We later learned that ASCR had identified a backlog of 885 customer and
employee discrimination complaints, according to ASCR data.
Furthermore, while claiming success, ASCR was holding old complaints
from customers that it had not resolved. ASCR data show, for example,
that it had 46 complaints dating from 2002 and before, which remained
open at least until August 2007.[Footnote 11]
Based on our interviews, we attribute the growth of the latest backlog
to the lack of adequate management controls and vigilance. In December
2006, we asked ASCR's former Director, Office of Adjudication and
Compliance, to provide us with management reports on the status of
discrimination complaint cases. The former Director stated that she had
no such management reports; that management reports on customer
complaints were not required by law; and that since a backlog had been
addressed in 2004, she was confident that the handling of complaints
since then had been timely. However, according to a briefing document
that ASCR used within USDA:
* The inventory of customer complaints had grown from 552 cases to
1,356 cases from the end of fiscal year 2004 to the end of fiscal year
2007. ASCR identified 395 customer complaints as backlogged.
* The inventory of employee complaints stood at 1,444 cases and 1,306
cases at the end of fiscal years 2004 and 2007, respectively. ASCR
identified 490 employee complaints as backlogged.
To address the customers' complaints, in August 2007 USDA contracted
for six attorneys to draft final agency decisions and expected that
this effort would be completed by the end of 2007. To address the
employees' complaints, USDA anticipated using these attorneys and to
contract with the U.S. Postal Service as well, expecting that these
cases would be completed by the end of fiscal year 2008.
ASCR's tardy case processing of certain customer complaints may prevent
USDA from compensating a farmer even though USDA may find sufficient
evidence of discrimination. This is because USDA believes it cannot
settle certain claims filed with USDA once a 2-year period for filing
in federal court has expired if the individual did not also file their
claim in federal court, and regardless of whether the individual timely
filed their claim with USDA.[Footnote 12] We are aware of one such case
in which USDA found discrimination in 2005, but the farmer has not
received a compensatory damage payment from USDA because the 2-year
period for filing in federal court had expired. In addition, even
though USDA's final decision on the case stated that the farmer's 1997
farm loan debt would be forgiven, a USDA official informed us that has
not yet occurred.
In addition, an ASCR document identified 92 cases that were being held
in abeyance--that is, ASCR had set these cases aside from receiving a
final decision on the merits because the complainant is, or could be, a
member of a class action lawsuit. If these cases are not certified as
class actions, then ASCR will consider each complaint individually. Of
the 92 cases, 58 appear to be complaints involving farm program
litigation.
* 31 cases were classified as Keepseagle-related cases filed with USDA
between November 1996 and January 2003. The Keepseagle case was filed
in November 1999 and is certified as a class action case.
* 25 cases were classified as Garcia-related cases filed with USDA
between March 1991 and January 2006. The Garcia case was filed in
October 2000.
* 2 cases were classified as Love-related cases filed with USDA in
1997. The Love case was filed in October 2000.
We also identified one active discrimination complaint filed in 1990,
18 years ago. This complaint involves the American Indians of the Fort
Berthold Reservation in North Dakota.[Footnote 13] USDA investigated
this case of alleged discrimination in farm lending in 1999. The lead
complainant has requested USDA action many times, and in March 2008, a
USDA administrative law judge approved this case for a decision. The
judge has scheduled a June 2008 hearing on compensation, should he find
in favor of the complainants.
Data ASCR provided contains additional disparities. In addition to its
reporting to the Congress and the public, we identified other instances
of disparities in the data reported by ASCR on its inventories of
customer complaints, as illustrated in the following two tables. Table
2 shows that ASCR reported case resolution data differently to us than
it did in an internal departmental briefing document 5 months later.
Specifically, for fiscal year 2006, data we were given showed 290
complaints were resolved, while an internal briefing showed 991.
Disparities were evident in the earlier fiscal years as well. Table 3
shows disparities in the dates of 10 discrimination complaint cases
that ASCR provided us on two occasions. For example, in case number 7,
data we were given first indicated that the case was open in May 2003,
and subsequent data indicated 1998 or 1999, a 4-or 5-year variance.
Table 2: USDA Customers' Complaints of Discrimination Resolved by ASCR,
Fiscal Years 2004 through 2006:
FY 2004:
Data provided to GAO August 2007: 953;
USDA briefing document January 2008: 1,561.
FY 2005:
Data provided to GAO August 2007: 258;
USDA briefing document January 2008: N/A[A].
FY 2006:
Data provided to GAO August 2007: 290;
USDA briefing document January 2008: 991.
Sources: ASCR data provided to GAO in August 2007 and an ASCR briefing
document of January 2008.
[A] As reported by USDA, without explanation.
[End of table]
Table 3: Examples of Variations in Opening Dates of Customers'
Discrimination Complaint Cases Provided by ASCR to GAO:
Case number assigned by GAO: 1;
Opening date reported to GAO in August 2007: December 2005;
Opening date reported to GAO in January 2008: March 1991;
Variance: 14 years;
Case age based on January 2008 data: 17 years.
Case number assigned by GAO: 2;
Opening date reported to GAO in August 2007: [A];
Opening date reported to GAO in January 2008: November 1996;
Variance: [A];
Case age based on January 2008 data: 11 years.
Case number assigned by GAO: 3;
Opening date reported to GAO in August 2007: [A];
Opening date reported to GAO in January 2008: February 1998;
Variance: [A];
Case age based on January 2008 data: 10 years.
Case number assigned by GAO: 4;
Opening date reported to GAO in August 2007: [A];
Opening date reported to GAO in January 2008: October 1998;
Variance: [A];
Case age based on January 2008 data: 10 years.
Case number assigned by GAO: 5;
Opening date reported to GAO in August 2007: [A];
Opening date reported to GAO in January 2008: October 1998;
Variance: [A];
Case age based on January 2008 data: 10 years.
Case number assigned by GAO: 6;
Opening date reported to GAO in August 2007: [A];
Opening date reported to GAO in January 2008: October 1998;
Variance: [A];
Case age based on January 2008 data: 10 years.
Case number assigned by GAO: 7;
Opening date reported to GAO in August 2007: May 2003;
Opening date reported to GAO in January 2008: 1998-1999;
Variance: 4-5 years;
Case age based on January 2008 data: 9 years.
Case number assigned by GAO: 8;
Opening date reported to GAO in August 2007: September 2001;
Opening date reported to GAO in January 2008: October 2000;
Variance: 11 months;
Case age based on January 2008 data: 7 years.
Case number assigned by GAO: 9;
Opening date reported to GAO in August 2007: June 2003;
Opening date reported to GAO in January 2008: June 2001;
Variance: 2 years;
Case age based on January 2008 data: 6 years.
Case number assigned by GAO: 10;
Opening date reported to GAO in August 2007: April 2003;
Opening date reported to GAO in January 2008: July 2002;
Variance: 11 months;
Case age based on January 2008 data: 5 years.
Source: Data provided by USDA.
Note: These cases are being held in abeyance by USDA (not being
resolved at this time) because they have been associated with a class
action lawsuit, or a potential class action lawsuit.
[A] No data on this case were provided in August 2007.
[End of table]
ASCR officials and staff recognize that the data they use are
unreliable. They provided us with examples of known data inaccuracies,
including (1) data that are being transferred into the new ASCR
database, which is intended to address the existing data management
problems, and (2) data that USDA reports to the Equal Employment
Opportunity Commission on employees' complaints. Other ASCR officials
and staff told us that erroneous data had been migrated to the new
database, and start-up problems with the new system have further
contributed to data inaccuracies. Furthermore, ASCR staff reported that
occasionally customers' case files cannot be readily found, the files
are missing documents, and sometimes the files contain documents that
pertain to other cases. Nevertheless, while correspondence from the
former Director, Office of Adjudication and Compliance, to USDA's OIG
said that only verified data were entered into the new system to
prevent "garbage in, garbage out," USDA's OIG reported that ASCR had
not implemented a process to validate the accuracy of its data and did
not have sufficient controls over the entry and validation of data into
its new system.
Steps ASCR took to speed up its work affected quality. We found that as
ASCR accelerated the pace of its work to reduce its backlogs of
discrimination complaints in 2004, it took steps may have affected the
quality of its work. First, ASCR's plan to accelerate its work did not
address how the quality of its work would be maintained.
* 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. For example, ASCR's investigators were
expected to increase their productivity from about 16 to 30 cases per
year.
* One technique that ASCR adopted was to have its investigators conduct
interviews and interrogatories by phone and email whenever possible.
Civil rights investigative standards indicate that interviews by
telephone are acceptable under certain circumstances, such as when
there is good reason to conclude that the complainant is the only
person affected by the allegations of discrimination.[Footnote 14] ASCR
employees told us that it is now usual for ASCR investigations to be
conducted by phone.
* Another feature called for one employee to respond to about 3,000
"claims and inquiries" submitted as a result of a letter writing
campaign. However, the plan did not make clear what procedures ASCR
staff were to use for reviewing and responding to these cases or the
quality controls that were to be applied. ASCR employees reported to us
that an unknown portion of these claims and inquiries were either lost
or disregarded.
Second, ASCR's former Director, Office of Adjudication and Compliance,
commented in writing on the quality of USDA's work on employees'
complaints in fiscal year 2004. The former Director stated that
contractors' work in preparing draft decisions was fair to average and
required much revision. In addition, the former Director related that
USDA issued many "summary" decisions on employees' complaints that did
not resolve questions of fact, leading to the appeal of many USDA
decisions to the Equal Employment Opportunity Commission. The former
Director expressed concern that such summary decisions by USDA "could
call into question the integrity of the process because important
issues were being overlooked."
Finally, as in the past, inadequate working relationships and
communications within ASCR have complicated its efforts to produce
quality work products, and adversely affected employees. According to
ASCR documents and our interviews, instability in ASCR's civil rights
offices resulting from reorganizations, management and staff turnover,
low morale, and concerns about the treatment of staff in ASCR's civil
rights offices have been a serious obstacle to improving the management
of these programs. Over the past 5 years, many complaints of
discrimination have been filed against ASCR program managers and
officials. In addition, some staff have feared retaliation for
reporting program and management related problems, or for raising
questions about management actions.
USDA's OIG and GAO have long reported on problems in resolving
discrimination complaints. USDA's stated policy is to efficiently
respond to discrimination complaints, but over the past years it has
not done so. USDA's OIG and GAO have together invested heavily in
reporting on and developing recommendations to overcome USDA's untimely
handling of discrimination complaints. In 1999, for example, while we
reported that USDA had exceeded four target dates for closing backlogs
of customers' complaints and three for employees' complaints, we made
recommendations to address USDA's continual management turnover in
civil rights offices, frequent reorganizations, inadequate staff and
managerial expertise, and poor working relationships and communication
within the Office of Civil Rights.[Footnote 15] USDA management agreed
with these reports and committed to implement our recommendations.
However, by 2000, USDA's OIG stated that it was making its seventh
attempt to provide USDA's Office of Civil Rights with constructive ways
to overcome its case processing inefficiencies.[Footnote 16] The OIG
also stated that officials of the Office of Civil Rights had agreed to
a major transformation of the system for processing complaints, but, in
fact, the office did not make any significant changes. The OIG stated
that unless the Office of Civil Rights provided effective leadership,
changed the organizational culture, and addressed its customer focus
and process engineering, it would be questionable whether further
complaints of discrimination would receive due care. In 2002, USDA
officials again committed to setting and meeting time frames for
processing discrimination complaints. In 2003, we identified the
processing of discrimination complaints as a significant management
challenge for USDA.[Footnote 17] Four years later, in August 2007,
USDA's OIG designated civil rights as a major management challenge at
USDA.[Footnote 18] The OIG commented that because of the conditions it
had found, public confidence in USDA's upholding of civil rights might
be lost.
In addition, in 2007, USDA's OIG reported that material weaknesses
persisted in ASCR's civil rights control structure and environment for
processing employees' discrimination complaints.[Footnote 19] The OIG
found that although USDA's Office of Civil Rights had reduced the
average time for processing employees' complaints, the average exceeded
the Equal Employment Opportunity Commission's standard of 270 days.
According to the OIG, 67 cases took, on average, over 500 days, which
the OIG considered to be representative of cases in which ASCR had to
issue a decision on the merits of the complaint. In addition, the OIG
reported that:
* 13 of the 64 case files that the OIG selected to review could not be
located for a month; one required 6 months to locate; and one had to be
recreated;
* 21 of the 64 case files had missing documentation; and:
* 11 of the 64 cases had incorrect data recorded in ASCR's database,
including one case in which the complainant was incorrectly identified
as white rather than African-American.
ASCR's former Director, Office of Adjudication and Compliance,
responded that there were several causes for these conditions: the
Equal Employment Opportunity Commission standards were unrealistic,
there was a substantial backlog of cases, there had been an influx of
new cases, there were staffing and resource shortages, and individual
USDA agencies were not meeting their responsibilities. ASCR's former
Director also claimed that these weaknesses in resolving employees'
discrimination complaints would be addressed in 5 years. However, the
OIG observed that ASCR did not have an effective plan to get this done.
ASCR's Reports on Minority Participation in Programs Are Unreliable and
of Limited Usefulness:
ASCR has published three annual reports on the participation rate of
socially disadvantaged farmers and ranchers in USDA programs, which are
required by section 10708 of the 2002 Farm Bill.[Footnote 20] Over
time, these reports could help make more transparent the progress made
by socially disadvantaged farmers and ranchers in accessing USDA
programs. However, as USDA discloses in these reports, the data USDA
has reported are statistically unreliable. In addition, our analysis of
the USDA reports shows that they do not include basic reference data
needed for understanding the reports and examining trends.
The reports are to provide statistical data on the participation of
farmers and ranchers in USDA programs by race, ethnicity, and gender,
and in addition, USDA has included descriptions of its success stories
in providing outreach and assistance to socially disadvantaged farmers
and ranchers. USDA has stated that through these reports, it intends to
make clear that it is committed to and accountable for fair and
equitable service to all customers. However, the statistical data USDA
reports on program participation are unreliable. USDA stated that it
does not have a uniform method of reporting and tabulating race and
ethnicity data among its component agencies. More specifically,
according to USDA, it does not have approval from OMB to implement
standardized data collection of demographic information directly from
program participants. For example, according to USDA, the Cooperative
State Research, Education, and Extension Service; the Rural Business
and Cooperative Service; and the Risk Management Agency are not
authorized to collect race and ethnicity data for 18 programs. USDA
reported that only the Farm Service Agencies' farm loan program
collects reliable and complete information on socially disadvantaged
farmers and ranchers. Except for the data of the Farm Service Agency,
most of USDA's demographic data are gathered by visual observation of
the applicants, and USDA states in its reports that it considers visual
observation to be unreliable, especially for ethnicity. Individual
traits, such as ethnicity, may not be readily evident to an observer.
In addition, for some Farm Service Agency programs, applicants who
chose not to identify their race were, until 2004, designated as "white
male." When taken together, according to USDA, the mixture of data
available for reporting is statistically unreliable.
In 2004, to overcome these conditions, ASCR published a notice in the
Federal Register seeking public comment on its plan to collect
additional data on race, ethnicity, gender, national origin, and age.
While ASCR received some public comments, it did not follow through and
obtain OMB's approval to collect the data. In a January 2008 briefing
document, an ASCR work group stated that ASCR does not have the staff
or financial resources to proceed with this project. On May 8, 2008,
ASCR officials said that they plan to meet again in the near future to
further discuss this matter.
In addition, our analysis of these USDA reports shows that they are of
limited usefulness because they do not include the basic reference data
needed for understanding the reports and examining trends. USDA has
published its demographic data as the percentage of program
participants by county and state. While observers can track the
percentage changes in program participation over time, the data are of
limited usefulness without knowing the actual number of program
participants and the census data for each county and state. For
example, USDA would now report that in a particular county, 20 percent
of the farm program participants were minority farmers and 80 percent
were nonminority farmers. Greater insight would be provided if USDA
also reported that there were 100 program participants in the county--
the report reader would then know that 20 were minority program
participants. Further insight would be provided if USDA reported from
census data that in this county, 125 of the 1,000 farmers were minority
farmers. By including census data, USDA could also facilitate the
observation of population shifts along with changes in program
participation. Furthermore, USDA's Web-based tables that contain data
on program participation do not facilitate analysis. USDA publishes its
data in about 1,370 separate tables and 146 maps that are not
searchable files. Because the underlying data are not searchable,
readers cannot make simple comparisons that would enhance data
interpretation. If the data were searchable, it could be possible to
compare minority participation by program, geographic location, and
year.
Finally, a section of the report includes highlights of 16 USDA
agencies' efforts to reach out to minority and socially disadvantaged
farmers. While these highlights provide useful perspective on agency
activities to serve socially disadvantaged farmers and ranchers, the
information is somewhat limited because the many positive agency
activities are reported as anecdotes, which do not reveal the full
extent of USDA agency outreach activities. The following examples
illustrate USDA's reporting of its outreach efforts for fiscal year
2005.
* Farm Bill Forums. USDA reported that in anticipation of the 2007 Farm
Bill, the Office of Outreach assisted with planning and conducting
"listening sessions" in various locations with minority farmers and
ranchers.
* Partners Meetings. USDA reported that a second annual partners
meeting was held in August 2005. The meeting provided opportunities for
more than 125 representatives of community-based organizations for
farmers and ranchers to engage with USDA officials about issues that
affect the continued well-being of the minority and small farm and
ranch community.
* The Tobacco Buyout Program. USDA reported that a comprehensive
multimedia campaign was conducted to inform tobacco quota holders and
farmers of the buyout program, and to encourage them to sign up for the
buyout program. The Office of Outreach participated in the design of
communication strategies to help ensure that small and limited-resource
producers received accurate information about the buyout in a timely
manner and the office also called attention to the need to promote
financial investment planning and transitioning to alternative crops.
ASCR's Strategic Planning Is Limited and Does Not Address Key Steps
Needed to Achieve Its Mission:
In light of USDA's history involving significantly controversial
issues, including allegations of systemic discrimination against USDA
customers carried out through the design and delivery of USDA programs
as well as discriminatory treatment of USDA employees, strategic
planning is vital for providing proactive ASCR leadership. Results-
oriented strategic planning provides a roadmap that clearly describes
what an organization is attempting to achieve, and over time, it can
serve as a focal point for communication with the 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 decision making to hone the strategic
plan. Taken together, ASCR has started to develop a results-oriented
approach as illustrated in its first strategic plan entitled Assistant
Secretary for Civil Rights: Strategic Plan, Fiscal Years 2005-2010 and
its ASCR Priorities for Fiscal Years 2007 and 2008. The elements of
these plans are summarized in appendix II. However, ASCR has a long
distance to go before its approach and plans can be effective.
ASCR has designed its missions and strategic goal. We found that ASCR
has made progress by describing a compelling mission and strategic
goal, but has not involved stakeholders, assessed the environment, and
aligned its activities, core processes, and resources to achieve its
mission and strategic goal.
* One of ASCR's missions is to ensure that USDA is in compliance with
civil rights laws and regulations. This mission calls for ASCR to
process employees' discrimination complaints as required by the Equal
Employment Opportunity Commission, and to review USDA agencies'
implementation of civil rights laws and regulations.
* ASCR's second mission is to provide leadership to promote equal
opportunity, equal access, and fair treatment for all USDA employees
and customers.
ASCR also has a strategic goal--to ensure USDA provides fair and
equitable services to all customers and upholds the civil rights of its
employees. This two-part strategic goal was the basis for the
development of ASCR's strategic plan.
Results-oriented organizations take several steps to effectively
implement their mission and achieve their desired outcomes. They (1)
involve stakeholders, (2) assess the environment, and (3) align
activities, core processes, and resources. However, we found that
ASCR's planning has several shortcomings. First, while results-oriented
organizations base their strategic planning, to a large extent, on the
interests and expectations of their stakeholders, ASCR's strategic plan
states that ASCR relied on input from a variety of internal and
external customers in developing its strategic plan. However, the plans
do not identify who provided input or contain a discussion of the
interests and perspectives of ASCR's stakeholders. For example, while
ASCR's stakeholders are interested in assuring the diversity of USDA
field office staff to facilitate their interaction with minority and
underserved farmers, ASCR's strategic planning does not address the
diversity of USDA's field staff. ASCR's external stakeholders said that
they have a high degree of interest in ASCR's planning, and several
discussed their involvement in ASCR's annual meetings. ASCR refers to
its stakeholders as "partners"--which include representatives of
community-based organizations and minority interest groups. These
partners have attended ASCR's annual partners meetings and discussed
their wide ranging interests in ASCR's mission. However, ASCR's
partners' interests vary from ASCR's strategic plan. We developed a
summary of ASCR's partners' interests based on interviews with the
representatives of a selection of USDA's partners' groups, and we also
considered issues identified in past studies of USDA. For example,
ASCR's partners 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 they are better represented in
local decisions, and (3) the diversity of USDA employees who work with
minority producers. A list of these interests is included in appendix
III.
In response, ASCR's Director of Outreach stated that some of ASCR's
fiscal year 2008 priorities for outreach respond to particular
interests of ASCR's partners. The Director referred, for example, to
ASCR's initiatives to coordinate and report on USDA-wide outreach
activities, to help ensure that USDA agencies have formal outreach
programs with full-time staff, to train outreach coordinators, and to
improve ASCR's annual reporting on minority participation in USDA
programs.
Second, by building an environmental assessment into the strategic
planning process, results-oriented organizations identify external and
internal factors that can influence the achievement of their long-term
goals. For example, some information about the civil rights environment
as it affects farmers is described in a study of the Mississippi Delta
area by the U.S. Civil Rights Commission, and in a report on minority
and women farmers by USDA's Economic Research Service.[Footnote 21]
ASCR's report does not discuss the development or use of such
information. An assessment of the external environment is especially
important because ASCR's Office of Outreach is to provide national
leadership and coordination for USDA programs and services to ensure
equal and timely access for all of USDA's constituents, especially the
underserved. As for the internal environment, ASCR recognizes that the
efforts of various USDA agencies and offices that perform critical
functions are necessary for full implementation of ASCR's strategic
goal. However, ASCR's planning does not identify the most critical
agency functions that relate to ASCR's strategic goal including their
culture, management practices, and business processes. While this is a
significant endeavor, getting a good understanding of these facets of
USDA operations could help contribute to determining what ASCR may need
to accomplish and how ASCR could best work with other USDA agencies and
offices. ASCR's Director of Outreach reported that her office is making
some progress in developing relationships with USDA's agencies in their
efforts to improve outreach to minority farmers.
Third, results-oriented organizations align their activities, core
processes, and resources to support their mission and desired outcomes.
Such organizations start by assessing the extent to which their
programs and activities contribute to meeting their mission and make
linkages between levels of funding and their anticipated results. ASCR
used an organizational framework for developing its planning, according
to an ASCR official, and developed objectives for each of ASCR's
existing offices. However, these plans do not reflect consideration of
the extent to which each of its office's activities is to contribute to
ASCR's missions. For example, one ASCR strategic objective is to
strengthen partnerships with historically black land-grant universities
through scholarships provided by USDA, but it is not clear how
scholarships bear significantly on ASCR's mission. Moreover, the plans
do 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.
ASCR could better measure performance to gauge progress. Results-
oriented organizations establish performance measures that demonstrate
results, are limited to the vital few performance measures, respond to
multiple priorities, and link to responsible programs. In addition,
they pay special attention to issues relating to data collection.
Moreover, they have to balance the cost of collecting data against the
need for data that are complete, accurate and consistent enough to
document performance and support decision making at various
organizational levels. In this area, ASCR's plans leave room for many
forward steps.
* While ASCR identified its Office of Outreach as having responsibility
for providing national leadership and coordination for programs and
services across USDA agencies to ensure customers have equal and timely
access, the measures it adopted focus on counting participants at USDA
training workshops, rather than on the outcome of its outreach efforts
on access to benefits and services.
* ASCR's planning does not link to the plans of USDA agencies or
department as a whole, and does not discuss the potential for linkages
to be developed.
* To measure progress that USDA agencies make in compliance with
relevant USDA government regulations and laws, ASCR states it will use
a percentage of agencies in compliance, but had not established the
baseline and targets.
ASCR's plans have an important gap in the area of performance
measurement, especially in an era of limited resources.They do not
discuss the kinds of data that USDA agencies collect or analyze that
would demonstrate progress towards ASCR's strategic goal. To leverage
resources, potential sources of data may be USDA's National
Agricultural Statistics Service, which conducts the Census of
Agriculture, and the Economic Research Service, which analyzes and
reports on trends in agriculture, including social changes.
ASCR's planning has not considered the use of performance information
for identifying performance gaps. Results-oriented organizations--
after building a performance measurement system--put performance data
to work to identify gaps in their performance, report on that
performance, and finally use that information to improve their
performance to better support their missions. However, the data that
ASCR now identifies in its plans, such as the number of persons who are
aware of USDA programs, will contribute relatively little to an
understanding of USDA's performance gaps in meeting ASCR's strategic
goal. For example, such data will not provide any insight into how well
USDA staff work with and assist minority and limited-resource
customers, whether the programs provide for equitable treatment, and
how well USDA upholds the civil rights of its employees. Also, ASCR
will need to work closely with other USDA agencies, such as the Farm
Service Agency, the Natural Resources Conservation Service, Cooperative
State Research, Extension, and Education Service, and the Rural
Development Mission Area, but the ASCR plans do not discuss how their
data can be used to contribute to identifying gaps in USDA's
performance. Nevertheless, ASCR officials said that they have taken
steps in this direction through annual reviews of the performance of
USDA agency heads. Through these reviews, ASCR officials said they are
making some recommendations for agency change, although the USDA
agencies are not required to follow those recommendations.
Concluding Observations:
USDA has been addressing allegations of discrimination for decades. One
lawsuit has cost taxpayers nearly a billion dollars in payouts to date,
and several other groups are seeking redress for similar alleged
discrimination. While ASCR's 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 far
short. For example, both we and USDA's OIG have observed that ASCR does
not have oversight and control over its inventory of discrimination
complaints--controls that are vital to effective management. Despite
the numerous past efforts to provide this office with constructive
analysis, including recommendations to set timeframes for resolving
complaints from beginning to end, significant management deficiencies
remain. Such resistance to improve its management system calls into
question USDA's commitment to more efficiently and effectively address
discrimination complaints both within the department and in its
programs.
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.
Contact 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 at (202) 512-3841 or [email protected].
Key contributors to this statement were Charles M. Adams, Kevin Bray,
Robert Cramer, Nancy Crothers, Richard Egan, Ronald Fecso, Bart
Fischer, Cardell Johnson, Elizabeth Johnston, Karen Keegan, Kerry
Lipsitz, Nhi Nguyen, Andrew O'Connell, Terry Richardson, and Susan
Sawtelle.
[End of section]
Appendix I: Scope and Methodology:
During this performance audit, we reviewed relevant reports prepared by
the U.S. Department of Agriculture (USDA), USDA's Office of Inspector
General (OIG), the U.S. Civil Rights Commission, the U.S. Equal
Employment Opportunity Commission, and GAO, among others. We also
conducted over 50 interviews with officials and staff of USDA's Office
of the Assistant Secretary for Civil Rights (ASCR); over 65 interviews
with staff of USDA's Farm Service Agency, Natural Resources
Conservation Service, Rural Development Mission Area, Cooperative State
Research, Extension, and Education Service, the National Agricultural
Statistical Service, and USDA field offices in California, Florida,
North Carolina, Texas, and Washington; 20 interviews with USDA
stakeholder groups, including The Rural Coalition, United Farmers USA,
the Federation of Southern Cooperatives, South East Asian American
Farmers Association, the Intertribal Agricultural Council, the National
Tribal Development Association, the Hispanic Farmers and Ranchers of
America, the National Black Farmers Association, National Hmong
American Farmers, and the Coalition of USDA Minority Employees; and
three interviews with officials of the U.S. Commission on Civil Rights
and the U.S. Equal Employment Opportunity Commission. In addition, we
considered GAO and the Office of Management and Budget's (OMB) guidance
on strategic planning and performance.[Footnote 22]
Unlike our prior reviews of USDA civil rights activities when we
readily obtained access to records that were necessary for our work, in
this case our efforts were impeded by delays in obtaining records. We
made repeated requests for USDA records--including requests directly to
the Assistant Secretary for Civil Rights and the Deputy Secretary.
These requests concerned records relating to ASCR's priorities, ASCR's
strategic plan, ASCR civil rights related performance assessments of
agency heads, correspondence between ASCR and USDA's Office of General
Counsel, unresolved discrimination complaints, outreach, ASCR office
budgets, and USDA's request for OMB approval to collect data needed for
reporting on minority farmer participation in USDA programs, among
others. In January 2008, we requested the Deputy Secretary's
cooperation and assistance in arranging for access to USDA records, and
we subsequently received many, but not all, of the records we sought.
Nevertheless, the records we received were sufficient for our work to
meet generally accepted government auditing standards. These standards
require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives.
Furthermore, starting in January 2008, several USDA employees contacted
us with certain allegations pertinent to our work, such as the possible
destruction of records and manipulation of discrimination complaint
data related to GAO's engagement. Consequently, we and USDA's OIG
conducted a number of additional interviews with agency staff. Based on
the interviews we conducted, we learned of additional deficiencies in
the handling of discrimination complaints, among other things, but did
not find evidence that our work had been purposely undermined. Also,
several allegations not directly related to our work came to our
attention that we will refer to USDA's OIG and the Department of
Justice for further investigation.
[End of section]
Appendix II: USDA ASCR Initiatives, and Strategic and Priority Plans:
Table 4: ASCR Initiatives for Fiscal Year 2004:
Challenges: Organization;
Initiatives/Accomplishments: Consolidated USDA offices with civil
rights focus into ASCR;
Status as of Dec. 2007: Complete.
Challenges: Organization;
Initiatives/Accomplishments: Staff were temporarily assigned to address
discrimination complaints;
Status as of Dec. 2007: Complete.
Challenges: Systems; Initiatives/Accomplishments:
Develop a professional system for managing discrimination complaints;
Status as of Dec. 2007: On-going.
Challenges: Procedural;
Initiatives/Accomplishments: Regulations are being drafted to address
the relationship between USDA's Office of General Counsel and ASCR's
Office of Adjudication and Compliance;
Status as of Dec. 2007: On-going.
Challenges: Operational;
Initiatives/Accomplishments: Created a unit to handle incoming phone
calls for ASCR;
Status as of Dec. 2007: Complete.
Challenges: Operational;
Initiatives/Accomplishments: Reduced backlogs of customer and employee
discrimination complaints;
Status as of Dec. 2007: Complete.
Challenges: Operational;
Initiatives/Accomplishments: USDA's alternative dispute resolution
policy was amended in April 2006 to enhance the use of alternative
dispute resolution;
Status as of Dec. 2007: Complete.
Challenges: Operational;
Initiatives/Accomplishments: Conduct a public awareness campaign--
several public forums and "listening sessions" have been held to
discuss partnerships, the Minority Farm Registry, the Notice of Farm
Loan Application Receipts, and the next Farm Bill;
Status as of Dec. 2007: On-going.
Challenges: Accountability;
Initiatives/Accomplishments: Prevent program complaints--ASCR has
convened three Partners Meetings with community based organizations and
groups representing minority and limited resource farmers to address
concerns about access to farm programs;
Status as of Dec. 2007: On-going.
Challenges: Accountability;
Initiatives/Accomplishments: Prevent employee complaints-- training for
managers on equal employment opportunity is mandatory, and employee
development programs are being implemented;
Status as of Dec. 2007: On-going.
Challenges: Accountability;
Initiatives/Accomplishments: Implement the "No Fear Act"-- Public Law
107-174 requires federal agencies to be held accountable for violations
of anti-discrimination laws--USDA's quarterly reports are being posted
on time, and all employees have received training;
Status as of Dec. 2007: Complete.
Challenges: Accountability;
Initiatives/Accomplishments: ASCR completed an accountability policy
for USDA--USDA's Office of Human Resources will ensure that all USDA
managers are held accountable for discriminatory actions;
Status as of Dec. 2007: Complete.
Challenges: Accountability;
Initiatives/Accomplishments: An annual civil rights conference has been
established;
Status as of Dec. 2007: Complete.
Source: USDA ASCR briefing document as of November 2007.
[End of table]
Table 5: ASCR Strategic Objectives for Fiscal Years 2005 through 2010:
Objective: Strengthen partnerships between USDA and 1890 Community
(historically black land-grant institutions);
Selected Key Performance Indicator for 2010: Increase student
scholarships provided by USDA from 25 to 33.
Objective: Strengthen partnerships between USDA and 1994 land-grant
institutions (Native American tribal colleges);
Selected Key Performance Indicator for 2010: Increase student
scholarships provided by USDA from 5 to 9 by 2010.
Objective: Enhance the Office of the Secretary and Departmental Office
employees' knowledge of the fairness, neutrality, and confidentiality
of alternative dispute resolution (ADR) usage;
Selected Key Performance Indicator for 2010: Increase the knowledge of
employees familiar with alternative dispute resolution from 100 to 950.
Objective: Ensure USDA agencies and offices are in compliance with USDA
regulations and government-wide ADR laws and regulations;
Selected Key Performance Indicator for 2010: Percentage of agencies in
compliance-- baseline and targets to be determined.
Objective: Achieve an efficient USDA-wide outreach program for all
customers;
Selected Key Performance Indicator for 2010: Numbers of socially and
economically disadvantaged persons who received training for the first
time--baseline and targets to be determined.
Objective: Create and strengthen partnerships with community and faith-
based organizations, corporations, foundations, educational
institutions and other targeted communities to build coalitions for
USDA programs and opportunities;
Selected Key Performance Indicator for 2010: Increase number of
partnerships and coalitions from 10 to 50.
Objective: Increase the awareness of USDA programs and opportunities
for the socially and economically disadvantaged persons and also under-
represented persons;
Selected Key Performance Indicator for 2010: Increase number of
individuals aware of participation requirements from 100,000 to
160,000.
Objective: Develop and implement an efficient complaint process that
adheres to civil rights laws and regulations;
Selected Key Performance Indicator for 2010: Increase the number of
cases processed within regulatory timeframe from 40 to 100 percent for
employee complaints and from 16 to 100 percent for customer complaints.
Objective: Ensure USDA agencies and offices are in compliance with EEO
laws;
Selected Key Performance Indicator for 2010: Percentage of USDA
agencies brought into compliance--baseline and targets to be
determined.
Objective: Meet EEOC standards for a Model EEO Program;
Selected Key Performance Indicator for 2010: Increase percentage of
EEOC indicators that are met from 33 to 100 percent by 2009.
Source: USDA.
[End of table]
Table 6: List of Civil Rights Priorities and Selected Initiatives for
Fiscal Years 2007 and 2008:
Diversity:
Fill senior executive position to lead ASCR's Outreach and Diversity
Division.
Diversity:
Add workplace diversity as a core value.
Diversity:
Develop and conduct mandatory Diversity Awareness Training for all
supervisors and employees.
Diversity:
Offer training, including a disability training conference and an
AgLearn training module on sexual orientation.
Diversity:
Establish a diversity forum to foster communication between USDA senior
management and internal customers of USDA.
Outreach:
Develop and implement a comprehensive USDA-wide outreach plan.
Outreach:
Provide oversight and coordination of minority participation data.
Outreach:
Conduct a joint review with USDA's Agricultural Research Service of the
Hispanic Serving Institutions National Program.
Conflict Prevention and Resolution:
Create an Alternative Dispute Resolution (ADR) video on mediation.
Conflict Prevention and Resolution:
Recommend establishing dedicated ADR Director positions in USDA
agencies.
Conflict Prevention and Resolution:
Conduct a USDA-wide ADR awareness survey.
Continuing Civil Rights Initiatives:
Comply with No FEAR Act requirements.
Continuing Civil Rights Initiatives:
Update civil rights directives, regulations, and policies as needed.
Continuing Civil Rights Initiatives:
Continue to strive to ensure that Final Agency Decisions meet legal
sufficiency standards and time requirements.
Continuing Civil Rights Initiatives:
Convene biennial USDA Civil Rights Conference in 2008.
Communications and Public Awareness:
Create a strategic marketing campaign focused on ASCR goals and civil
rights accomplishments by USDA agencies.
Communications and Public Awareness:
Recognize and award internal and external stakeholders for civil rights
best practices.
Source: USDA.
[End of table]
[End of section]
Appendix III: Interests of Selected USDA Stakeholders in Civil Rights
Related Matters as Identified by GAO in 2007 and 2008:
USDA Program: Outreach Programs:
USDA outreach programs for underserved producers could be much better.
USDA Program: Outreach Programs:
Systematic data on minority participation in USDA programs are not
available.
USDA Program: Outreach Programs:
The 10708 Report and Minority Farm Register have been ineffective.
USDA Program: Outreach Programs:
Partnerships with community-based organizations could be better used.
USDA Programs: Program Delivery:
Methods of USDA program delivery need to better facilitate the
participation of underserved producers and address their needs.
USDA Programs: Program Delivery:
USDA could do more to provide assistance in accessing markets and
programs.
USDA Programs: Program Delivery:
USDA could better address cultural and language differences for
providing services.
USDA Programs: Program Delivery:
Some USDA program rules and features hinder participation by
underserved producers.
USDA Programs: Program Delivery:
Some USDA employees have little incentive to work with small and
minority producers.
USDA Programs: Program Delivery:
County offices working with underserved producers continue to lack
diversity, and some have poor customer service and/or display
discriminatory behaviors towards underserved producers.
USDA Programs: Program Delivery:
USDA lacks a program that addresses farm worker needs.
USDA Programs: Program Delivery:
There continues to be reports of cases where USDA is not processing
loans for underserved producers.
USDA Programs: Program Delivery:
Some Hmong poultry farmers with guaranteed loans facilitated by USDA
are experiencing foreclosures.
USDA Programs: County System:
The county committee system does not well represent minority producers.
USDA Programs: County System:
Minority advisors are ineffective because they have no voting power.
USDA Programs: County System:
USDA has not done enough to make underserved producers fully aware of
county committee elections, and underserved producers have difficulties
winning elections.
USDA Programs: Investment:
There is a lack of USDA investment in research and extension services
that would determine the extent of minority needs.
USDA Programs: Census of Agriculture:
The Census of Agriculture needs to better count minority producers.
USDA Programs: Foreclosure:
USDA may continue to be foreclosing on farms belonging to producers who
are awaiting decisions on discrimination complaints.
USDA Internal Issues: Authority:
ASCR needs authority to exercise leadership for making changes at USDA.
USDA Internal Issues: Resources:
USDA and ASCR need additional resources to carry out civil rights
functions.
USDA Internal Issues: Diversity:
Greater diversity among USDA employees would facilitate USDA's work
with minority producers.
USDA Internal Issues: Access:
Producers must still access services through some USDA employees who
discriminated against them.
USDA Internal Issues: Management Structure:
The Office of Adjudication and Compliance needs better management
structure and function.
USDA Internal Issues: Management Structure:
Backlogs of discrimination complaints need to be addressed.
USDA Internal Issues: Management Structure:
Alternative dispute resolution techniques to resolve informally
employee complaints should be used consistently and documented.
USDA Internal Issues: Management Structure:
Civil rights compliance reviews of USDA agencies are behind schedule
and should be conducted.
USDA Internal Issues: General Counsel Review:
USDA's Office of General Counsel continues to be involved in complaint
cases.
Source: GAO Analysis of 18 interviews with USDA stakeholders and review
of 16 reports related to civil rights at USDA.
[End of table]
[End of section]
Footnotes:
[1] Civil Rights at the United States Department of Agriculture: A
Report by the Civil Rights Action Team, U.S. Department of Agriculture
(Washington, D.C.: February 1997).
[2] A class action lawsuit is one in which a party sues on behalf of
him or herself and a larger group similarly situated.
[3] Pigford v. Schafer, Civil Action No. 97-1978 (D.D.C. filed Oct. 23,
1997) (formerly Pigford v. Glickman).
[4] Legislation has been introduced in the Congress to allow further
consideration of claims that were not filed timely.
[5] These cases include Keepseagle v. Schafer, Civil Action No. 99-
03119 (D.D.C.); Garcia v. Schafer, Civil Action No. 00-02445 (D.D.C.);
and Love v. Schafer, Civil Action No. 00-02502 (D.D.C.)
[6] Pub. L. No. 107-171, 116 Stat. 134 �10708, 522 (2002).
[7] GAO, 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.: Sept. 20, 2002).
[8] ASCR's backlogs of discrimination complaints generally consist of
numbers of complaints for which ASCR has insufficient capacity to
adjudicate promptly.
[9] USDA, First 1,000 Days, 2003-2006 (Washington, D.C.: July 2007).
[10] We conducted our interviews with the former Director, Office of
Adjudication and Compliance, prior to her resignation at about the end
of August 2007.
[11] In addition, during this time period ASCR held in abeyance
complaints associated with pending and potential class action
litigation.
[12] A customer may file a complaint (1) with the agency, (2) in
federal court, or (3) both. He or she need not file a claim with the
agency before filing in federal court. Following a January 29, 1998
legal memorandum from the Department of Justice's Office of Legal
Counsel, USDA will not award administrative settlements for Equal
Credit Opportunity Act claims once the 2-year statute of limitations
for filing such a claim in federal court has passed, unless the farmer
has timely filed a complaint in federal court.
[13] A second and separate case involving American Indians of the Fort
Berthold Reservation has been incorporated within the Keepseagle class
action case.
[14] Department of Justice, Civil Rights Division, Investigation
Procedures Manual for the Investigation and Resolution of Complaints
Alleging Violations of Title VI and Other Nondiscrimination Statutes
(Washington, D.C.: September 1998). In addition, the President's
Council on Integrity and Efficiency, Quality Standards for
Investigations (December 2003) calls for due professional care in
performing investigations by, among other things, achieving
thoroughness through the application of appropriate techniques.
[15] GAO, U.S. Department of Agriculture: Problems Continue to Hinder
the Timely Processing of Discrimination Complaints, GAO/RCED-99-38
(Washington, D.C.: Jan. 29, 1999).
[16] USDA Office of Inspector General, Office of Civil Rights Status of
the Implementation of Recommendations Made in Prior Evaluations of
Program Complaints, Audit Report No. 60801-4-Hq (Washington, D.C.: Mar.
10, 2007).
[17] GAO, Major Management Challenges and Program Risks: Department of
Agriculture, GAO-03-96 (Washington, D.C.: January 2003).
[18] USDA Office of Inspector General, Management Challenges
(Washington, D.C.: Aug. 1, 2007). USDA's OIG previously identified
civil rights as a major management challenge for USDA in August 2004.
[19] USDA Office of Inspector General, Review of the U.S. Department of
Agriculture's Accountability for Actions Taken on Civil Rights
Complaints, Audit Report No. 60601-04-Hy (Washington, D.C.: May 14,
2007).
[20] USDA, Bridges to the Future: 2003 Annual Report of the
Participation of Socially Disadvantaged Farmers and Ranchers in USDA
Programs, The Section 10708 Report (Washington, D.C.: December 2004);
Bridges to the Future: 2004 Annual Report of the Participation of
Socially Disadvantaged Farmers and Ranchers in USDA Programs, The
Section 10708 Report (Washington, D.C.: December 2005); and, Bridges to
the Future: 2005 Annual Report of the Participation of Socially
Disadvantaged Farmers and Ranchers in USDA Programs, The Section 10708
Report (Washington, D.C.: June 2007).
[21] U.S. Civil Rights Commission, Racial and Ethnic Tensions in
American Communities: Poverty, Inequality, and Discrimination, Volume
VII: The Mississippi Delta Report (Washington, D.C.: February 2001) and
U.S. Department of Agriculture, Economic Research Service, Minority &
Women Farmers in the U.S. (Washington, D.C.: May 1998).
[22] Measuring racial discrimination is important to understanding
where it occurs, the extent of its impact, and what to do about it.
Researchers have recommended that agencies explore the use of field
studies, such as has been done since the 1970s to detect racially based
discrimination in housing. See National Research Council, National
Academy of Sciences, Measuring Racial Discrimination (Washington, D.C.:
2004).
[23] GAO, Executive Guide: Effectively Implementing the Government
Performance and Results Act, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/GGD-96-118] (Washington, D.C.: June 1996).
[End of section]
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