June 19, 2002

The Honorable James M. Jeffords, Chairperson

Environment and Public Works Committee

The United States Senate

410 Dirksen Senate Office Building

Washington, DC 20510-6175

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.”

Again, our Association would stress that we believe that the best approach to protecting the independence of the Ombudsman is through situating the office in the legislative branch of government. The recommendations outlined above are offered only as an alternative, if it is determined that a true legislative ombudsman for the EPA is not feasible.

In addition to these recommendations on the subject of ombudsman independence, the USOA has a few additional suggestions for changes that we feel would improve S. 606. Specifically, the USOA would further recommend that S. 606 be amended by making the following changes:

Access to the Administrator: The USOA believes that an agency ombudsman, like an agency inspector general, should be guaranteed quick and easy access to the chief executive of the agency. With that in mind, our Association would suggest that a provision be added to S. 606 to specify “the Ombudsman shall have direct and prompt access to the Administrator, when necessary for any purpose pertaining to the performance of functions and responsibilities under this Act.”

Subpoena Power: As drafted, S. 606 requires the EPA Ombudsman to ask the EPA Inspector General for the issuance of a subpoena needed in connection with an Ombudsman’s investigation. Typically, ombudsmen in government have unilateral subpoena power. Our Association believes that requiring the EPA Ombudsman to go through the Inspector General to obtain a subpoena would invite the IG’s office to second guess and, perhaps, to interfere with Ombudsman investigations. As an alternative, the USOA would suggest that Section 2008(d)(3) of S. 606 be amended to state that “in a case in which the Ombudsman experiences difficulty in gathering information pertaining to an investigation conducted by the Ombudsman, the Ombudsman may require by subpoena the production of all information, documents, reports, answers, records, papers, and other data and documentary evidence necessary in the performance of the functions assigned to the Ombudsman by this Act, which subpoena, in the case of contumacy or refusal to obey, shall be enforced by order of any appropriate United States district court.”

Special Reports: Section 2008(e)(4) of S. 606 requires the EPA Ombudsman “at least annually” to publish a report “on the status of health and environmental concerns addressed in complaints and cases brought before the Ombudsman.” Typically, ombudsman legislation also makes it clear that the ombudsman is empowered to publish special or “critical” reports, when the ombudsman deems it necessary to do so to bring an issue to the attention of the public and the policy makers. With that in mind, the USOA would suggest that Section 2008(e)(4) of S. 606 be amended to specify that “the Ombudsman shall also be authorized to publish such special reports as are, in the judgment of the Ombudsman, necessary or desirable.”

In summary, the USOA enthusiastically supports action by Congress to reauthorize and strengthen the EPA Ombudsman. In addition, the USOA urges that, as S. 606 is being considered, Congress give particular attention to changing the bill in ways that would maximize the independence of the ombudsman to the extent feasible. Our Association would suggest that this focus upon independence, together with the other changes that we have outlined in this letter, would give the EPA Ombudsman the best chance to function effectively.

If the USOA can provide any information or assistance as your Committee considers and evaluates S. 606, then please contact either Mr. Marshall Lux or me. The United States Ombudsman Association appreciates and thanks you for the time and resources you are devoting to this important issue.

Sincerely,

Robin K. Matsunaga, President

United States Ombudsman Association

c: Members – Environment & Public Works Committee

Co-Sponsors – S. 606

Contact Information:

Marshall Lux, Ombudsman

State of Nebraska – Office of the Ombudsman

Tel: 1-402-471-2035; Fax: 1-402-471-4277

E-mail: mlux@unicam.state.ne.us

Robin K. Matsunaga, Ombudsman

State of Hawaii – Office of the Ombudsman

Tel: 1-808-587-0770; Fax: 1-808-587-0773

E-mail: robin.matsunaga@ombudsman.state.hi.us