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Letters to the 107th Congress

July 2, 2002

The Honorable James M. Jeffords
Chairman
Committee on Environment and Public Works
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

On behalf of the American Bar Association ("ABA") and its more than 400,000 members throughout the country, I write to express our support for the greater use of ombuds1 to receive, review, and resolve complaints involving public and private entities and of your committee's efforts to clarify the role of the EPA Ombudsman. Accordingly, we are pleased to submit these comments regarding S. 606, the "Ombudsman Reauthorization Act of 2002," and we ask that this letter and attachment be included in the record of the June 25, 2002, hearing regarding this legislation.

S. 606 instructs the EPA Administrator to establish the Office of the Ombudsman of the Environmental Protection Agency (EPA) and then defines the duties, powers, and responsibilities of the ombudsman. As the ABA examined the establishment of ombuds in federal, state, and local governments, academic institutions, and private organizations, it found that the role of the ombuds in these entities, how they function, and the issues they address vary widely and significantly. Individuals who come to ombuds for help cannot know what to expect, and the offices may be established in ways that compromise their effectiveness. In August 2001, the ABA House of Delegates adopted a formal policy endorsing Standards for the Establishment and Operation of Ombuds Offices (ABA Standards). Attached for your consideration is a copy of the ABA's resolution and report. The resolution expresses the ABA's official policy; the accompanying report is included for informational purposes only.

The ABA adopted this policy to provide advice and guidance on the structure and operation of ombuds offices so that ombuds may better fulfill their functions and so that individuals who avail themselves of their aid may do so with greater confidence in the integrity of the process. All ombuds must operate with certain basic authorities and essential characteristics. The Standards clarify that independence, impartiality in conducting inquiries and investigations, and confidentiality are essential characteristics of all ombuds.

The Role of the Ombudsman

An ombuds is a person who is authorized to receive complaints or questions confidentially about alleged acts, omissions, improprieties, and broader, systemic problems within the ombuds' defined jurisdiction and to address, investigate or otherwise examine these issues independently and impartially. The ABA believes that in order to properly fulfill its important functions, the ombuds must be given the appropriate power and authority.

S. 606 contains a number of useful provisions designed to create a strong and effective EPA Ombudsman office. In particular, the ABA supports the provisions of S. 606 authorizing the ombudsman to examine records and documents (Sec. 2008(d)(2) and (3)) and requiring the ombudsman to publish periodic reports on the status of complaints filed with the ombudsman (Sec. 2008(e)(4)). The ABA also supports the provision granting the ombudsman the discretion to initiate action without receiving a complaint or question (Sec. 2008(d)(1)). While these provisions are useful as far as they go, the ABA believes that S. 606 should be amended to grant the ombudsman greater discretion in determining whether to accept or act on a particular complaint or question, because the ombudsman is in the best position to determine whether a complaint has any merit. The ABA also suggests that the committee amend S. 606 to expressly authorize the ombudsman to initiate litigation when necessary to enforce a subpoena or to otherwise enforce or protect the responsibilities of the office.

The ABA Standards state that an ombuds office should be established by a legislative enactment or publicly available written document "which clearly sets forth the role and jurisdiction of the ombuds" and which authorizes the ombuds to engage in a variety of enumerated activities. To clearly set forth the role of the ombudsman, the ABA also recommends that S. 606 state whether the EPA Ombudsman is a "classical" or "advocate" 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. An advocate ombuds, like a classical, evaluates claims objectively but is authorized or required to advocate on behalf of individuals or groups found to be aggrieved and may issue reports to the legislature or a specific agency. In addition to stating whether the EPA Ombudsman is a classical or advocate ombuds, S. 606 should also more clearly enumerate the activities that the ombudsman is expected to perform.

Although an ombuds should be granted clear and appropriate powers, the ABA also believes that in order to ensure the ombuds' independence, impartiality, and confidentiality, it is necessary to establish certain limitations on the ombuds' authority. An ombuds works outside of line management structures and has no direct power to compel any decision. An ombuds should not, nor should an entity expect or authorize an ombuds to make, change, or set aside a law, policy, or administrative/managerial decision nor to directly compel an entity or any person to make those changes. While an ombuds may expedite and facilitate the resolution of a complaint and recommend individual and systemic changes, an ombuds cannot compel an entity to implement the recommendations.

The ABA also believes that when defining the powers of an ombuds, care must be taken to protect the rights of those who may be affected by the actions of the ombuds. Furthermore, since due process rights could well be implicated, it would not be appropriate for the ombuds' review to serve as the final determination for any disciplinary activity or civil action, nor as a determination of a violation of law or policy. An ombuds' inquiry or investigation is not a substitute for an administrative or judicial proceeding, and in such proceedings, the deciding official should not consider the ombuds' review or recommendations to be controlling. Instead, the deciding official must conduct a de novo examination of the matter.

The ABA supports those provisions in S. 606 that seek to protect the existing due process rights of claimants, including the provisions stating that the legislation shall not limit any remedy or right of appeal (Sec. 2008(g)(1)) and the provision stating that the establishment of the EPA Office of Ombudsman shall not affect any procedure concerning grievances, appeals, or administrative matters under the legislation or any other law, including regulations (Sec. 2008(g)(2)). In order to further protect the due process rights of the parties, however, the ABA recommends that S. 606 be amended to expressly state that the ombuds' review shall not make, change, or set aside a law, policy or administrative decision, make binding decisions or determine rights, or directly compel an entity or any person to implement the ombuds' recommendations. In addition, S. 606 should expressly state that the ombuds should not accept jurisdiction over an issue that is currently pending in a legal forum unless all parties and the presiding officer in that action explicitly consent, and it should state that an ombuds' inquiry or investigation does not substitute for an administrative or judicial proceeding.

Essential Characteristic

The ABA believes that in order to permit an ombuds to properly discharge his or her duties, an ombuds program must promote the core qualities of independence, impartiality, and confidentiality. Although various provisions of S. 606 seek to address these issues regarding the EPA Office of Ombudsman, the ABA encourages the committee to amend the bill to reflect these characteristics more fully. Great care has to be exercised in establishing the structure of the ombuds to ensure that the independence, impartiality, and confidentiality essential to the ombuds are, in fact, achieved.

(1) Independenc

To be credible and effective, the office of the ombuds must be independent in its structure, function, and appearance. Independence means that the ombuds must be free from interference in the legitimate performance of duties. In assessing whether an ombuds is independent, one key factor to consider is whether anyone subject to the ombuds' jurisdiction or anyone directly responsible for a person under the ombuds' jurisdiction can control or limit the ombuds' performance of duties. In addition, other key factors are whether such a person can, for retaliatory purposes, (1) eliminate the office, (2) remove the ombuds, or (3) reduce the office's budget or resources.

As currently written, S. 606 includes a number of provisions aimed at promoting the independence of the EPA Ombudsman. In particular, S. 606 grants the EPA Ombudsman the power to investigate any action of the EPA's Assistant Administrator for Solid Waste and Emergency Response on receipt of a complaint or in the ombudsman's discretion (Sec. 2008 (d)(1)) and the power to examine any documents of the EPA and enter and inspect, without notice, any property under the EPA's administrative jurisdiction (Sec. 2008(d)(2)). In addition, S. 606 grants the EPA Ombudsman authority to request that the EPA Inspector General subpoena material documents or testimony (Sec. 2008(d)(3)), as well as the authority to administer a budget (Sec. 2008(d)(6)), appoint Associate Ombudsmen and evaluate and carry out personnel actions (Sec. 2008(e)(1)), and maintain contact information different from other EPA offices (Sec. 2008(e)(2)), among other things.

While these provisions will help promote the independence of the EPA Ombudsman, the ABA is concerned that they do not go far enough to guarantee the independence of the ombudsman. For example, the ABA is concerned that in order to subpoena persons or records, the ombudsman must request the assistance of the EPA Inspector General (Sec. 2008(d)(3)). Because we believe that this is inconsistent with the ombudsman's independence, we encourage the committee to amend S. 606 to provide the ombudsman with independent subpoena authority. In addition, the ABA encourages the committee to consider other amendments that would contribute to the ombudsman's independence including new provisions that would create a set term of office, access to and resources for independent legal advice and counsel, prohibition of disciplinary actions against the ombudsman for performing the duties of the office, and removal only for cause.

(2) Impartiality

The ABA also believes that in order to be effective, an ombuds must be impartial. The ombuds' structural independence is the foundation upon which the ombuds' impartiality is built. If the ombuds is independent from line management and does not have administrative or other obligations or functions, the ombuds can act in an impartial manner. Acting in an impartial manner, as a threshold matter, means that the ombuds is free from initial bias and conflicts of interest in conducting inquiries and investigations. Impartiality does not, however, preclude the ombuds from developing an interest in securing the changes that are deemed necessary where the process demonstrates a need for change or from otherwise being an advocate on behalf of a designated constituency when the ombuds position is created as an "advocate" ombuds. The ombuds, therefore, has the authority to become an advocate for change where the results of the inquiry or investigation demonstrate the need for such change.

While S. 606 provides some structural independence, as noted above, the bill is silent with regard to the type of ombuds being created. The ABA encourages the clarification of the intended ombuds role by specifying whether the EPA Ombudsman is to be a classical or an advocate ombuds, and hence, whether the EPA Ombudsman is to be totally impartial or is to serve as an advocate for the designated constituency.

(3) Confidentiality

The American Bar Association also believes that confidentiality is an essential characteristic of ombuds that permits the process to work effectively. Confidentiality promotes disclosure from reluctant complainants, elicits candid discussions by all parties, and provides an increased level of protection against retaliation to or by any party.

Confidentiality must extend to all communications with the ombuds and all notes and records maintained by the ombuds in the performance of assigned duties. It begins when a communication is initiated with the ombuds to schedule an appointment or make a complaint or inquiry. Confidentiality may apply to the source of the communications and to the content of the communications. Individuals may not want the ombuds to disclose their identity but may want the ombuds to act on the information presented. An ombuds should discuss confidentiality and any exceptions with individuals who communicate with the office.

S. 606 contains a sweeping confidentiality provision that states that the EPA Ombudsman "shall maintain as confidential and privileged any and all communications concerning any matter pending, and the identities of any parties or witnesses appearing before the Ombudsman." (Sec. 2008(d)(5)). Unfortunately, this provision may be overly broad and appears to conflict with the Administrative Dispute Resolution Act (ADRA)2 .

In creating a confidentiality section in ADRA that is the most detailed of any federal or state ADR statute, Congress explicitly stated its intent to give parties in federally-related ADR proceedings assurance that their dispute resolution communications would generally be immune from discovery. Congress went on to define these protections in detail. ADRA forbids neutrals from disclosing such communications, and also states that the neutrals shall not "be compelled to disclose" the communications. The existing statute also guarantees certain due process protections, including prior notice to parties in any case where protected data are sought, an opportunity for the parties to contest disclosure before a federal court, and a decision by the court reached under a balancing test based on specific statutory criteria. The ADRA goes on to say that a dispute resolution communication which is between a neutral and a party and which may not be disclosed under the confidentiality provisions of the ADRA shall also be exempt from disclosure under the Freedom of Information Act.

While the ABA supports the general confidentiality principle outlined in S. 606, we believe that Section 2008(d)(5) should be amended to comport with the confidentiality provisions of the ADRA. ADRA represents a careful balance between open government, oversight, and confidentiality, in which Congress makes clear the standards and procedures that should govern whenever disputed issues of confidentiality arise in agency-related ADR, which includes the activities of an agency ombuds. The ADRA's stated intent is clear: to assure parties to ADR proceedings involving federal programs that communications they make in those proceedings will not later be used against them. Its language precluding voluntary and compulsory disclosure is explicit, its coverage broad, its exceptions narrowly drawn, and its procedures spelled out in detail.

Congress established the EPA Ombudsman to provide help to the public in resolving issues and concerns about EPA's solid and hazardous waste programs. Because an ombuds works for the resolution of an individual issue and, where necessary, makes recommendations for the improvement of the general administration of the entity, establishing an ombuds is appropriate. In order to be credible and effective, the ABA believes that the EPA Office of the Ombudsman must be truly independent in structure, form, and appearance; must be impartial; and must promote and protect confidentiality consistent with the ADRA. In order to ensure the effectiveness of the EPA Ombudsman, we urge you to adopt the amendments outlined above.

Thank you for considering the views of the ABA on these important matters. If you would like more information regarding the ABA's positions on these issues, please contact our legislative counsel for administrative law issues, Larson Frisby, at (202) 662-1760.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office

cc: All members of the Senate Environment and Public Works Committe

Attachment

 

1 The term ombuds in this letter is intended to encompass all other forms of the word such as ombudsperson, ombuds officers, and ombudsman.

2  5 U.S.C. § 574

107th Congress Letters Home

AMERICAN BAR ASSOCIATION
Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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