Senators Daschle and Lott – p. 1
United States Ombudsman Association
Business Office – P.O. Box 210661
Nashville, TN 37221
Phone 615.662.1906
Fax – 616.673.7071
Email –
November 18, 2002
The Honorable Thomas A. DaschleThe Honorable Trent Lott
The United States SenateThe United States Senate
Washington, D.C. 20510Washington, D.C. 20510
Re: Establishment of Citizenship and Immigration Services Ombudsman
Dear Senators Daschle and Lott:
I am writing on behalf of the United States Ombudsman Association (USOA) as a member of its Board of Directors and chairperson of its Outreach and Development Committee. The Senate is now taking up H.R.5710, the Homeland Security Act of 2002, as passed by the House. Section 452 of the Act establishes a Citizenship and Immigration Services Ombudsman (Ombudsman). While the USOA supports the creation of the Ombudsman, we urge the Senate to amend the ombudsman provisions to enhance the position’s independence and authority.
The reasons in the October 2002 GAO Report ( for giving the EPA Ombudsman greater independence and authority apply equally to the Citizenship and Immigration Services Ombudsman. There is significant bi-partisan support in the Senate for a stronger EPA Ombudsman in S.606. We hope similar support will extend to H.R.5710.
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:
Independence
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 of providing public and legislative oversight of administrative agencies in government.
To the extent that H.R.5710 accomplishes that, the USOA supports it in principle. However, the USOA also believes revisions to the provisions are necessary to make the ombudsman a truly independent and effective office. Based upon our collective years of experience as practicing ombudsmen in government, the USOA offers the following comments and recommendations for improvements in the bill or amendment.
Key to the ability of an ombudsman to function effectively is independence. Several elements contribute to ensuring the independence of the ombudsman. An ombudsman whose position, budget, staff, and investigations can be controlled or supervised by persons who may be the subject of an investigation is not truly independent and will not be perceived as being independent. The degree of independence correlates with the extent of the control or oversight over the office.
The most important element in the design of an effective ombudsman’s office in government is structural independence, that is, structurally separating the ombudsman from the agency under the ombudsman’s jurisdiction. 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. 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.
For that reason, we believe that, to the extent possible, an ombudsman in government should be located outside of the agencies that are subject to the ombudsman’s review.
Structural Location
Under H.R.5710, the Ombudsman is structurally situated in the Department of Homeland Security (DHS), and reports directly to the Deputy Secretary. The Deputy Secretary has oversight authority to oversee the Ombudsman’s work, including actions and decisions related to investigations and reports. The Deputy Secretary presumably has authority to terminate the Ombudsman from employment. This structure makes it extremely difficult for the Ombudsman to feel free to criticize, when appropriate, the actions of the Deputy Secretary or any officials under him/her, including the Director of the Bureau of Citizenship and Immigration Services.
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.
The USOA recommends amending H.R.5710 to create a truly independent Office of Ombudsman, by structurally placing it within the legislative branch of government. The Office could also include other agency ombudsmen who address complaints concerning the administrative acts of those agencies. One option is placing the Office of Ombudsman within the General Accounting Office (GAO).
If situating the Ombudsman in the legislative branch is not feasible, and if the office remains within the DHS, then the USOA recommends structurally placing the Office of Ombudsman directly under the Secretary (similar to the Office of Inspector General).
In addition to structural location, other factors related to the position, staff, budget, and oversight can affect the Ombudsman’s independence. In order to maximize the Ombudsman’s independence, the USOA recommends amending H.R.5710 to incorporate the following changes:
Appointment of Ombudsman
The USOA recommends that the Ombudsman not be appointed by the DHS Secretary or any other official with the DHS. A better option is for the Ombudsman to be appointed in the same way the GAO’s Comptroller General or the Inspector Generals are appointed, by the President with the advice and consent of the Senate.
The USOA further recommends adding a provision stating selection of the Ombudsman be based on integrity, demonstrated abilities and qualifications and without regard to political affiliation.
Removal
H.R.5710 does not have a provision regarding the term of office or how the Ombudsman may be removed. The term of office for the Comptroller General of the GAO is 15 years. An Inspector General may only be removed from office by the President, and the President must communicate the reasons to both Houses of Congress. The USOA recommends adding a provision to create a term of office and/or process for removal that could lessen the chance that the Ombudsman would be subject to removal for political or retaliatory reasons.
Supervision or Oversight
If the Deputy Secretary must oversee the Ombudsman’s work, then the USOA recommends that language be added (similar to that in the Inspector General Act) providing that no official in the DHS “shall prevent or prohibit the Ombudsman from initiating, carrying out, or completing any investigation, nor in making any reports or recommendations related to an investigation, nor from issuing any subpoena that the Ombudsman determines is necessary in the course of an investigation.” It may be desirable to set out exceptions similar to the reasons and process applicable to the Inspector General as spelled out under Sec. 106(d).
[As a check on the Ombudsman, see “Authority to Issue Public Reports” regarding the agency’s opportunities to consult with the Ombudsman as part of any investigation and to submit a reply to be included with any investigative report that is critical of the agency.]
Employment and Supervision of Staff
H.R.5710 provides for the Ombudsman to appoint local or regional representatives. The USOA recommends also stating the Ombudsman shall have direct oversight of those employees.
Powers and Protections
In addition to the recommendations to enhance the Ombudsman’s independence, the USOA offers other recommendations related to the authority and protection of the office.
Authority to Investigate
Historically, the one word that defines the primary responsibility and authority of governmental ombudsmen in statute is “investigate.” It is that function that sets an ombudsman apart from other forms of informal dispute or complaint resolution process (e.g., mediation, consultative or referral service). It is through an investigation, whether it be done informally (the usual method) or formally (when necessary), that allows the Ombudsman to reach a determination of what the problem is and whether it has merit, before seeking a resolution or recommending a change in policy or practice. The USOA recommends that the “Functions” of the Ombudsman include a provision that the Ombudsman is “to investigate, on complaint or referral from any individual, problems related to the Directorate or any component thereof.”
Discretionary Authority to Decline to Investigate
The USOA further recommends that the Ombudsman be given discretionary authority to decline to investigate a matter for a number of reasons generally followed by practicing ombudsmen. These include:
- The individual could reasonably be expected to use another remedy or channel;
- The individual is not personally aggrieved by the subject matter of the complaint;
- Resources are insufficient for an adequate investigation;
- The complaint is trivial, frivolous, vexatious, or not made in good faith;
- The complaint has been too long delayed to justify present examination.
Access to the Secretary
The USOA believes an ombudsman, like an Inspector General, should be guaranteed quick and easy access to the head of the agency over which the ombudsman has jurisdiction. The USOA recommends adding a provision specifying that “the Ombudsman shall have direct and prompt access to the Secretary, when necessary for the purpose pertaining to the performance of functions and responsibilities under this Act.”
Access to Information and Subpoena Power
The investigative and recommendations functions serve to resolve complaints or disputes informally (as opposed to contested case proceedings). Practicing ombudsmen generally have been able to obtain information from an agency on an informal basis. However, there have been occasions where an agency has resisted or denied information the ombudsman needed to complete an ombudsman. In such instances, it is beneficial for the ombudsman to have subpoena power. The fact an ombudsman has the ability to exercise that power also promotes agency cooperation with informal requests for information.
The USOA recommends that a provision be added to clearly state that the Ombudsman shall have assistance and access to all information relevant to an investigation. The USOA also further recommends that the Ombudsman be given power to subpoena testimony or documentary information when necessary (similar to the authorities granted to the Inspector General).
Authority to Issue Public Reports
H.R.5710 requires the Ombudsman to file an annual report. However, it contains no provision regarding the issuance of investigative reports or other reports. An ombudsman should have the authority to issue public reports regarding any investigation or any other information the ombudsman determines to be beneficial. Because an ombudsman does not have enforcement authority, he or she will rely on the ability to persuade an agency to take corrective action. The option to publicly criticize an agency enhances that ability. In addition, public reports, whether they are critical or not, often provide more detail than what is generally provided in an annual report, and help to educate and inform those interested in or may be affected by the issues involved.
An ombudsman typically consults with an agency as part of an investigation or inquiry. This helps to ensure accuracy and thoroughness in gathering and reviewing the relevant information and also affords the agency the opportunity to resolve or correct the problem. In those instances where an ombudsman issues a report that is critical of the agency, the agency should have the opportunity to submit a reply to be appended as part of the report.
The USOA recommends amending H.R. 5710 to authorize the Ombudsman to issue investigative and other periodic reports as the Ombudsman deems appropriate. In addition, the USOA recommends that the amendment provide for the Ombudsman to consult with the agency prior to issuing any public report that is critical of the agency and to allow the agency to submit a written reply to be appended as part of the report.
Confidentiality and Immunity
H.R.5710 does not contain any provision protecting the Ombudsman from being compelled through legal process to disclose information relevant to complaints or investigations. Confidentiality is needed for an ombudsman to resolve complaints or disputes informally. An ombudsman needs both the complainant and the agency officials to speak candidly, without fear that certain admissions or information may be used against them in any other legal proceeding.
The USOA recommends inclusion of a provision authorizing the Ombudsman to keep complaint and investigative records confidential, except as necessary to perform the investigative and reporting functions required of the Ombudsman. There should also be a provision granting the Ombudsman immunity from being compelled to testify or produce such records in any legal proceedings, except as necessary to enforce or defend the authority of the Ombudsman.
Summary
The USOA strongly supports the establishment of an Ombudsman to address complaints and concerns related to the administrative acts (including actions or omissions, policies, and decisions) of the Bureau of Citizenship and Immigration Services. The USOA believes H.R.5710 is a good step in that effort. The USOA believes, however, that revisions are needed to further maximize the Ombudsman’s independence and to give the Ombudsman the authorities and protections necessary to function effectively. The USOA respectfully urges you to further amend H.R.5710 to incorporate as many of the USOA’s recommendations as possible.
Thank you very much for considering these comments and recommendations.
Sincerely,
Ruth H. Cooperrider
On Behalf of the United States Ombudsman Association
Member - USOA Board of Directors
Chairperson - Outreach and Development Committee
Contact Information
Ruth Cooperrider, Deputy Ombudsman and Legal Counsel
State of Iowa - Office of Citizens' Aide/Ombudsman
Ola Babcock Miller Building, 1112 E. Grand Avenue
Des Moines, Iowa 50319 - 0231
Tel: 515-281-3592; 1-888-426-6283; Fax: 515-242-6007
E-mail: