Section G. Classical Ombuds A Classical Ombuds operates in the public sector addressing issues raised by the general public or internally, usually concerning the actions or policies of government entities or individuals. A Classical Ombuds may conduct inquiries or investigations and suggest modifications in policies or procedures. To ensure access to all pertinent facts, a Classical Ombuds should be granted subpoena power for testimony and evidence relevant to an investigation. In addition, a Classical Ombuds should be authorized to issues public reports and to advocate for change both within the entity and publicly. To ensure the essential independence, the standards provide that whenever a classical ombuds has general jurisdiction over two or more agencies, that position should be established by legislative action and the ombuds should be regarded as part of the legislative branch of government. Thus, for example, it would be appropriate for an agency to establish an ombuds who has jurisdiction over a single program, but the agency should provide the essential independence in the charter establishing the program. To the extent that an agency has established ombuds offices with jurisdiction over a single agency or program but that do not comply with the essential characteristics as described in Paragraph C of the Standards, it should take prompt steps to remedy any deficiency and to provide the requisite independence. If, however, the ombuds has jurisdiction over multiple agencies, experience has shown that it is extraordinarily difficult to provide independence if the ombuds reports to someone in the executive branch. Section H. Organizational Ombuds An Organizational Ombuds ordinarily addresses problems presented by members, employees or contractors of an entity concerning its actions or policies. An Organizational Ombuds may undertake inquiries and advocate for modifications in policies or procedures. Section I. Advocate Ombuds The Advocate Ombuds may be located in either the public or private sectors, and like the Classical and Organizational Ombuds, also evaluates claims objectively. However, unlike other ombuds, the Advocate Ombuds is authorized or required to advocate on behalf of individuals or groups found to be aggrieved. Because of the unique role, the Advocate Ombuds must have a basic understanding of the nature and role of advocacy. In addition, the Advocate Ombuds should provide information, advice, and assistance to members of the population identified in the law or publicly available written policy. Further, the Advocate Ombuds represents the interests of a designated population with respect to policies implemented or adopted by the establishing entity and government agencies. CONCLUSION Government, academia, and the private sector are answering demands for fairness and responsiveness by establishing ombuds. Ombuds receive complaints and questions concerning the administration of the establishing entity. However, the basic authorities of these persons called ombuds and the independence, impartiality, and confidentiality with which they operate vary markedly. An ombuds works for the resolution of a particular issue, and where necessary, makes recommendations for the improvement of the general administration of the entity. To be credible and effective, the office of the ombuds must be independent in structure, form, and appearance. The ombuds's structural independence is the foundation upon which the ombuds's impartiality is built. The ombuds must conduct investigations and inquiries in an impartial manner, free from initial bias and conflicts of interest. Confidentiality is a widely accepted characteristic of ombuds, which helps ombuds perform the functions of the office. Without these Standards, individuals may be reluctant to seek the ombuds's assistance because of fear of personal, professional, or economic retaliation, loss of privacy, and loss of relationships. This Resolution and the Standards for the Establishment and Operation of Ombuds Offices are appropriate now to ensure that ombuds can protect individual rights against the excesses of public and private bureaucracies. Respectfully submitted, RONALD M. LEVIN, CHAIR, Section of Administrative Law and Regulatory Practice. BENJAMIN F. OVERTON, CHAIR, Section of Dispute Resolution. PI-PA-TAG, INC. Hon. JAMES M. JEFFORDS, Chair, U.S. Senate Environment and Public Works Committee, DEAR SENATOR JEFFORDS: On August 30, 2000, a St. Petersburg Times Editorial began with the following words: "No one will ever accuse the U.S. Environmental Protection Agency of learning a lesson the easy way. While seeking judicial approval of a controversial cleanup plan for the Stauffer Chemical Superfund Site, EPA officials offended U.S. Rep. Mike Bilirakis, fought with the Florida Department of Environmental Protection, ignored Pinellas County health officials and angered Tarpon Springs residents." The editorial then went on to describe a few of the many events which have led to the loss of public confidence in this Federal agency. As secretary for Pi-Pa-TAG, Inc., a community group holding an EPA Technical Assistance Grant for the Stauffer Chemical Superfund Site, I would like to tell you our story, as it applies to the EPA National Ombudsman Office. STAUFFER CHEMICAL SUPERFUND SITE The State of Florida rests on a base made up largely of limestone, a soft rock, which on exposure to water filtering through it, dissolves, forming craters, caverns and tunnels. As Florida is a watery place, surrounded by the Gulf of Mexico and the Atlantic Ocean, and replenished heavily with water during the summer rainy season, the conditions for these geological transformations are both regular and frequent. In specific areas, the formation of sinkholes is very common. At the heart of this foundation formed of limestone, clay and sand lies the Aquifer System which serves as the drinking water supply for the vast majority of Florida residents. The Stauffer Chemical Superfund Site is located in Tarpon Springs, Florida, one of the areas which has often been subject to the formation of sinkholes. Situated in the midst of a thriving residential community, the site sits on the bank of a small waterway, the Anclote River, just before it empties into the Gulf of Mexico. This phosphate ore processing plant closed down in 1981, but left behind huge amounts of chemical and radiological processing wastes, buried in drums, poured into unlined pits, and sometimes directly onto the ground. For years, these contaminants have washed into the Anclote River and filtered down toward the main Aquifer System. Stauffer Management Company (SMC), with the approval of EPA Region 4 personnel, proposed containing all the contaminants onsite, rather than removing them. They did this without first completing the geophysical studies needed to properly characterize the site and to determine the potential for sinkholes. They did this without first completing the hydrogeological studies needed to determine exactly which directions the already contaminated water in the superficial layers of the Aquifer System was flowing. They did this without even determining whether or not the semi-cement mixture, which is known to break down upon exposure to salt water, and which was intended to be mixed with the contaminated soil below the water table, could keep the contaminants from leaching out. Residents repeatedly questioned the safety of these plans, and were told that their questions would be answered later. What they were not told was that EPA Region 4 and SMC planned to go ahead and sign a Čonsent Decree in court, which would establish the containment method, chosen on the basis of inadequate data, as the valid cleanup plan for this site. While EPA Region 4 would continue to communicate with local residents, the important decisions would have already been finalized. Involved residents were outraged. The community was being effectively barred from any further meaningful participation in the process that would determine the fate of precious community resources. EPA was asked to withdraw the Consent Decree until crucial studies had been completed and valid scientific questions had been answered. They refused. OMBUDSMAN INVESTIGATION Three months later, in December 1999, the EPA National Ombudsman Office began an investigation into issues related to the Stauffer Chemical Superfund Site. As a result of information brought to light as part of the ongoing Ombudsman Investigation: (1) EPA Region 4 & Stauffer Management Company (SMC) agreed to withdraw the Consent Decree from the Department of Justice, and to begin drawing up workplans for the additional geophysical and hydrogeological studies which need to be completed for accurate site characterization. These workplans were to be reviewed in the course of the Ombudsman Investigation. (2) EPA Region 4 agreed to include the U.S. Geological Survey (USGS) as reviewers of the workplans and additional study data, when it was completed. (3) EPA Region 4 & Stauffer Management Company (SMC) agreed to honor the State of Florida's Arsenic Soil Cleanup Level for industrial use (3.7 ppm), which is much more protective than the level initially proposed (21.1 ppm). (4) It was revealed that corporate and financial maneuverings had recently taken place, and that EPA Region 4 had allowed a "new company" to sign the Amended Consent Decree, without first performing a thorough investigation into the financial standing and reliability of the new company to assume the responsibility of covering the costs of the cleanup. Residents in the community and their elected officials believed that much progress was being made. After years of conflict and delays, communication was finally being facilitated between all the involved parties, and the Superfund process was finally getting back on track. Then, in June 2000, the system fell apart. First, the Ombudsman Office's Request for Funding Approval, in order to continue with the ongoing investigation, was denied. It was only reinstated due to the intercession of Congressman Bilirakis and elected officials from other affected sites. Second, agency personnel refused to cooperate with the ombudsman investigation. In June 2000, EPA Region 4 staff walked out of a public meeting, refusing to answer any further questions. Third, the agency denied the Ombudsman the right to maintain his own staff. In December 2000, the Chief Investigator in the Ombudsman Office was denied permission to do any more work for that office, and the Ombudsman was informed (or reminded) that he did not have the right or the authority to control his own staff. With the expulsion of the Chief Investigator, who was intimately involved in the cases, the office struggled and foundered, and ultimately had to suspend work on most of their current investigations. Two years have now passed since what we refer to as "The Walk Out Meeting" occurred, the occasion when EPA's initial resistance to the Ombudsman Investigation in our community gave way to outright obstruction, to be followed by the eventual crippling of that office. After a brief period of hope, when through the Ombudsman Hearings we saw EPA finally becoming responsive to the concerns expressed by the TAG Advisors, the Florida Department of Environmental Protection (FDEP), the Pinellas County Health Dept. and members of the community, we now have no faith in this agency. The Independence of the EPA National Ombudsman Office has been a fantasy. GAO REPORT In July 2001, the General Accounting Office (GAO) issued a Report entitled: "EPA's National and Regional Ombudsmen Do Not Have Sufficient Independence" On the first page of the GAO report, it states that, "In particular, ombudsmen help Federal agencies be more responsive to persons who believe that their concerns have not been dealt with fully or fairly through normal problem-solving channels." And why would normal, problem-solving channels not be sufficient? Perhaps there are many reasons. One important reason has to do with what Professor Larry B. Hill (Professor of Political Science, University of Oklahoma) refers to as, "the institution's relevance to the issue of the emerging relationship between bureaucracy and democracy." While on the one hand, we extol the importance and benefits to society which can only be gained through participatory democracy, the immense size and complexity of our governmental structures threaten to dwarf and crowd out the role played by individual citizens. The fortress-like structure of a bureaucracy can become impenetrable to private citizens. A bureaucracy can sometimes function with the cold, unreasoning efficiency of a machine which has been rigidly programmed, remaining unresponsive to any new or unfamiliar input. For this reason alone, there need to be mechanisms which can, in the words of the GAO Report, "provide the public an informal and accessible avenue of redress". EPA Administrator Christie Whitman's decision to transfer the EPA National Ombudsman Office to a position within the EPA Inspector General's Office is not a step in the right direction. Faced with a GAO Report indicating the need for Independent Ombudsmen, the agency seems to be desperately attempting to avoid establishing a truly Independent Office, by announcing this pseudo-compliance with the recommendations made in the GAO Report. We do not believe that this move would establish an Independent Ombudsman Office-by a long shot. It does not give the Ombudsman control over prioritizing and choosing cases, over deciding what level of involvement the Ombudsman Office will have in each case chosen, over how the Ombudsman Office budget will be allocated, or over the hiring, supervising and dismissing of office staff. EPA has stated that the Inspector General Office is the only independent office within the agency. Our response to this is that it is time for them to establish another one. B 606 To these ends, we respectfully request that you give your full support to the Ombudsman Reauthorization Act (SB 606). This piece of legislation is well-deserving of complete bipartisan support, as everyone can agree with the concept that, in a democracy, government agencies must remain accountable to the citizens they were created to serve. An Independent National EPA Ombudsman Office can be one of the most valuable and powerful tools we are able to establish in seeking to ensure that the Federal EPA exhibits this accountability. It would be a commitment to maintaining a system of Quality Control, and where needed, would help to legitimize the Superfund Process in communities where the agency has assumed jurisdiction for remediating toxic waste sites. ST. PETERSBURG TIMES EDITORIAL The St. Petersburg Times ends their August 30, 2000 Editorial with the words, We now know there is no substitute for vigilance in the Superfund process. Please support this Ombudsman Office which has acknowledged public vigilance and worked to safeguard, not only community resources, but also the process of democracy-in-action at the community level. Thank you for your consideration of this matter of such great importance to affected citizens. Respectfully, HEATHER MALINOWSKI, Hon. JAMES M. JEFFORDS, U.S. OMBUDSMAN ASSOCIATION, Chairperson, Environment and Public Works Committee, Washington, DC. Re: Written Testimony for Hearing of Committee on Environment and Public Works June 25, 2002 DEAR SENATOR JEFFORDS: As President of the United States Ombudsman Association (USOA), I am submitting this written testimony in regard to S. 606, the bill which proposes the reauthorization of the Office of the Ombudsman of the Environmental Protection Agency. As our Nation's oldest and largest organization of ombudsmen working in government to address citizen complaints, the membership of the USOA includes practicing ombudsmen at all levels of government, some of whom have general jurisdiction, and others who have jurisdiction over a specified subject matter or agency. (Detailed information regarding the USOA can be found at the Association's website: http://www.usombudsman.org/.) As a matter of good public policy, the USOA supports the establishment of independent ombudsman's offices for the investigation and resolution of complaints involving administrative agencies in government at all levels. An ombudsman can serve as an independent office not only to address individual concerns, but also to identify systemic problems and recommend improvements in policies, practices, and procedures. An ombudsman can also help in the important effort to provide public and, indeed, legislative oversight of administrative agencies in government. In view of recent developments regarding the operation of the EPA's Ombudsman's Office, the USOA believes that it is critical that Congress act now to reauthorize and strengthen that office. To the extent that S. 606 would accomplish this end, the USOA supports that bill, in principle. However, the USOA also believes that S. 606 will have to be substantially changed from its present form, if the bill is to meet the need for a truly independent and effective ombudsman in the EPA. Based upon our collective years of experience as practicing ombudsmen in government, we are writing today to offer our suggestions for improvements to that bill. Our Association believes that the most important element in the design an effective ombudsman's office in government is structural independence, that is, structurally separating the ombudsman from the agency under the ombudsman's jurisdiction. Under S. 606 in its current form, however, the EPA Ombudsman would continue be structurally situated within the EPA. The EPA Ombudsman would report directly to the EPA Administrator and would presumably be subject to being hired and fired by that official. In addition, the Administrator would have oversight authority to direct the work of the Ombudsman, including activities and decisions related to investigations and reports. This structure makes it extremely difficult for the Ombudsman to feel free to criticize, when appropriate, the actions of the Administrator or other officials under the Administrator's supervision. In light of these features, the USOA is concerned that S. 606 in its current form would not provide the EPA Ombudsman with the independence necessary for that office to function effectively. It is widely understood by students and practitioners of the ombudsman institution in government that structural independence is a critical element in the design of any effective ombudsman's office. Our experience has shown that it is crucial that the ombudsman be protected from the potential of interference by officials who might be inconvenienced or embarrassed by the ombudsman's investigations and criticisms. Indeed, we believe that the recent events involving the previous EPA Ombudsman offer a textbook example of how administrators will interfere with the operation of internal agency ombudsmen. Thus, the USOA believes that, to the greatest extent possible, an ombudsman in government should be structurally separated from the entities that are subject to the ombudsman's review or investigations. This independence allows the ombudsman to act, and to be viewed by the public as acting, as an impartial official who reports findings and recommendations based on an objective review of the facts and the applicable law. The USOA believes that the best way to make an ombudsman truly independent is by situating the ombudsman's office in the legislative branch of government. Indeed, the model for an ombudsman's office in government that is internationally recognized as the preferred model is one that situates the ombudsman in the legislative branch, as opposed to making the ombudsman a part of the administrative agency itself. This model has worked remarkably well, not only in scores of countries around the world, but also in our country in the States of Alaska, Arizona, Hawaii, Iowa and Nebraska. In light of this, the USOA would recommend that Congress explore the possibility of changing S. 606 to create a truly independent legislative ombudsman for the EPA, perhaps by situating the office in the GAO. If an arrangement situating the ombudsman in the legislative branch is not viewed to be feasible, then our Association would recommend that everything reasonably possible should be done to maximize an ombudsman's independence within the agency where the office is situated. To that end, the USOA would recommend that S. 606 be amended by making the following changes: Appointment of the Ombudsman.-We would suggest that the Ombudsman should not be appointed by anyone within the EPA, the EPA Administrator included. With that in mind, our Association would recommend that the bill be amended to provide that, similarly to Inspectors General, the EPA Ombudsman "shall be appointed by the President, by and with the advice and consent of the Senate." We would also suggest that S. 606 be amended to specify that the EPA Ombudsman shall be appointed for a specific term of years, as is typically done with ombudsmen in government. Removal of the Ombudsman.-We would also suggest that S. 606 be amended to make it clear that neither the EPA Administrator, nor any other officer in the EPA, for that matter, shall have the authority to remove the Ombudsman from office. Specifically, we would recommend that S. 606 be amended to provide that the Ombudsman "may be removed from office only by the President," and that the "President shall communicate the reasons for any such removal to both Houses of Congress." Interference with the Ombudsman.-While S. 606 does require "cooperation" with the EPA Ombudsman, the USOA believes that, consistent with provisions of Federal law relating to Inspectors General, there also needs to be a specific clause in the bill forbidding interference with the Ombudsman. In that regard, we would recommend the addition of a provision stipulating that "neither the Administrator nor any other officer or employee of the Environmental Protection Agency shall prevent or prohibit the Ombudsman from initiating, carrying out, or completing any investigation, or from issuing any report, or from issuing any subpoena during the course of any investigation." |