[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
HEARING TO REVIEW THE U.S. DEPARTMENT OF AGRICULTURE'S OFFICE OF THE
ASSISTANT SECRETARY FOR CIVIL RIGHTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS,
OVERSIGHT, NUTRITION, AND FORESTRY
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 29, 2009
__________
Serial No. 111-11
Printed for the use of the Committee on Agriculture
agriculture.house.gov
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COMMITTEE ON AGRICULTURE
COLLIN C. PETERSON, Minnesota, Chairman
TIM HOLDEN, Pennsylvania, FRANK D. LUCAS, Oklahoma, Ranking
Vice Chairman Minority Member
MIKE McINTYRE, North Carolina BOB GOODLATTE, Virginia
LEONARD L. BOSWELL, Iowa JERRY MORAN, Kansas
JOE BACA, California TIMOTHY V. JOHNSON, Illinois
DENNIS A. CARDOZA, California SAM GRAVES, Missouri
DAVID SCOTT, Georgia MIKE ROGERS, Alabama
JIM MARSHALL, Georgia STEVE KING, Iowa
STEPHANIE HERSETH SANDLIN, South RANDY NEUGEBAUER, Texas
Dakota K. MICHAEL CONAWAY, Texas
HENRY CUELLAR, Texas JEFF FORTENBERRY, Nebraska
JIM COSTA, California JEAN SCHMIDT, Ohio
BRAD ELLSWORTH, Indiana ADRIAN SMITH, Nebraska
TIMOTHY J. WALZ, Minnesota ROBERT E. LATTA, Ohio
STEVE KAGEN, Wisconsin DAVID P. ROE, Tennessee
KURT SCHRADER, Oregon BLAINE LUETKEMEYER, Missouri
DEBORAH L. HALVORSON, Illinois GLENN THOMPSON, Pennsylvania
KATHLEEN A. DAHLKEMPER, BILL CASSIDY, Louisiana
Pennsylvania CYNTHIA M. LUMMIS, Wyoming
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
BETSY MARKEY, Colorado
FRANK KRATOVIL, Jr., Maryland
MARK H. SCHAUER, Michigan
LARRY KISSELL, North Carolina
JOHN A. BOCCIERI, Ohio
EARL POMEROY, North Dakota
TRAVIS W. CHILDERS, Mississippi
WALT MINNICK, Idaho
------
______
Professional Staff
Robert L. Larew, Chief of Staff
Andrew W. Baker, Chief Counsel
April Slayton, Communications Director
Nicole Scott, Minority Staff Director
______
Subcommittee on Department Operations, Oversight, Nutrition, and
Forestry
JOE BACA, California, Chairman
HENRY CUELLAR, Texas JEFF FORTENBERRY, Nebraska,
STEVE KAGEN, Wisconsin Ranking Minority Member
KURT SCHRADER, Oregon STEVE KING, Iowa
KATHLEEN A. DAHLKEMPER, JEAN SCHMIDT, Ohio
Pennsylvania CYNTHIA M. LUMMIS, Wyoming
TRAVIS W. CHILDERS, Mississippi
Lisa Shelton, Subcommittee Staff Director
(ii)
C O N T E N T S
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Page
Baca, Hon. Joe Baca, a Representative in Congress from
California, opening statement.................................. 1
Fortenberry, Hon. Jeff, a Representative in Congress from
Nebraska, opening statement.................................... 2
Prepared statement........................................... 3
Kagen, Hon. Steve, a Representative in Congress from Wisconsin,
opening statement.............................................. 4
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, prepared statement.................................. 6
Scott, Hon. David, a Representative in Congress from Georgia,
opening statement.............................................. 4
Witnesses
Leonard, Jr., Ph.D., Hon. Joe, Assistant Secretary, Office for
Civil Rights, U.S. Department of Agriculture, Washington, D.C.. 7
Prepared statement........................................... 8
Shames, Lisa, Director, Natural Resources and Environment, U.S.
Government Accountability Office, Washington, D.C.............. 11
Prepared statement........................................... 13
HEARING TO REVIEW THE U.S. DEPARTMENT OF AGRICULTURE'S OFFICE OF THE
ASSISTANT SECRETARY FOR CIVIL RIGHTS
----------
WEDNESDAY, APRIL 29, 2009
House of Representatives,
Subcommittee on Department Operations, Oversight,
Nutrition, and Forestry
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:40 a.m., in
Room 1300, Longworth House Office Building, Hon. Joe Baca
[Chairman of the Subcommittee] presiding.
Members present: Representatives Baca, Kagen, Dahlkemper,
Childers, Scott, and Fortenberry.
Staff present: Claiborn Crain, Adam Durand, Tyler Jameson,
John Riley, Lisa Shelton, Anne Simmons, Rebekah Solem, Kristin
Sosanie, Brent Blevins, and Jamie Mitchell.
OPENING STATEMENT OF HON. JOE BACA, A REPRESENTATIVE IN
CONGRESS FROM CALIFORNIA
The Chairman. The Subcommittee on Department Operations,
Oversight, Nutrition, and Forestry hearing to review the Office
of the Assistant Secretary for Civil Rights will come to order.
Before we begin, I would like to welcome Mr. Scott, a
Member of the full Committee, who has joined us.
Without any objection, Mr. Scott may participate in today's
hearing. I welcome the gentleman from Georgia. Thank you very
much for being here and being interested in the subject matter.
I would like to begin the hearing with opening statements.
I will begin with my opening statement, and then I will call on
the Ranking Member, Mr. Fortenberry, to give his statement and
then allow the other individuals starting with the Members of
the Committee and then the gentleman from Georgia.
I start off by saying, good morning, and thank all of you
for being here before the Subcommittee today. I am pleased
that, finally, we have the opportunity to conduct an oversight
hearing of the USDA Office of Assistant Secretary for Civil
Rights.
I congratulate and welcome our new Under Secretary, Dr.
Leonard.
And I also welcome Ms. Shames from the GAO.
Thank you both for being here this morning.
I hoped when I first was elected to the Subcommittee chair
that we would have this hearing. However, the farm bill and the
general election and the transition to a new Administration,
plus waiting for the completion of the GAO investigation, have
all delayed this hearing.
For too long, the reputation of the USDA has been marred by
discrimination. Minority producers and employees alike have
fought for equal consideration from the Department without full
satisfaction. In spite of what I believe to be mostly good-
faith efforts, there are decades of failed attempts to
successfully establish and enforce equality within and without
the Department.
In fact, of the 14,000 complaints that have been filed,
since 2000, with the ASCR, only four were actively being
investigated. This number is shockingly low. The Committee and
others heard firsthand the account of the abuse suffered by
African Americans, Hispanics, Native Americans and other
minority farmers, and I remember that hearing we had. It was
about a 7 to 8 hour hearing. Congresswoman Clayton and I were
here at that point.
And last May, many African American farmers testified
before Congress on this very issue. Their strong voices played
a key role in the initiation of the GAO report that we will be
reviewing today.
Let me be clear, discrimination is unacceptable. I repeat,
discrimination is unacceptable.
It is long past time to get to work on fixing the problem.
To that end, I recognize the commitment of President Obama and
Secretary Vilsack, and I appreciate their desire to heal the
deep wounds of the USDA's poor civil rights record through the
new era of civil rights initiative.
But I believe today's review of the problem outlined in the
October 2008 GAO report will be constructive to us all. I want
to be very clear, I will conduct an active oversight of ASCR to
make sure that the goals set out in the new initiative are
fully met. And I state, fully met.
One final note: We made some important changes in the 2008
Farm Bill to help minority producers, including a provision
that permits refiling of claims in the Pigford discrimination
suit. I am proud of this action and await the decision of our
court system to ensure that these claims are adjudicated
fairly.
Again, I want to thank our witnesses for being here this
morning. Today we will listen and learn about some of the
problems that have plagued USDA in the past. I am hopeful that
we will also learn some of the concrete steps that the
Department plans to take, in the right direction, to ensure
equitable treatment of all producers and the USDA employees
moving forward.
I now yield to Ranking Member Congressman Fortenberry for
his opening statement.
OPENING STATEMENT OF HON. JEFF FORTENBERRY, A REPRESENTATIVE IN
CONGRESS FROM NEBRASKA
Mr. Fortenberry. Thank you, Mr. Chairman.
I appreciate your interest in calling this hearing today.
And I would also like to take the opportunity to welcome our
witnesses: Ms. Shames, who is the author of the Government
Accountability Office report; and Dr. Joe Leonard, Assistant
Secretary for Civil Rights at the Department of Agriculture.
Dr. Leonard, I congratulate you on your recent appointment
and confirmation to this post. I look forward to working with
you in the future.
Today we will hear testimony from the GAO regarding their
October report on challenges facing the Office of Civil Rights
at USDA. Specifically we will hear their recommendations and
options available to Congress to address these ongoing issues.
I am also looking forward to hearing from you, Dr. Leonard,
about what steps USDA will take to respond to the GAO
recommendations.
Mr. Chairman, it is absolutely clear, and I agree with your
statement, that all farmers deserve equal access to USDA
programs regardless of race, ethnicity or gender. USDA has been
the subject of extensive litigation regarding claims of
discrimination over the last decade with the Pigford settlement
resulting in payments of nearly a billion dollars. This
Committee feels strongly about making sure that USDA is
administering all of its programs in an equitable and just
manner.
In last year's farm bill, as referenced, we included--we
authorized funds to be spent on late filers to the Pigford
settlement. We also mandated that USDA provide annual reports
to our Committee on the number of civil rights complaints made
to the Department and the length of time to resolve them, which
allows us to better monitor this situation at USDA.
Again, I want to thank our witnesses for appearing before
us. I look forward to the testimony.
[The prepared statement of Mr. Fortenberry follows:]
Prepared Statement of Hon. Jeff Fortenberry, a Representative in
Congress from Nebraska
Thank you Mr. Chairman for calling this hearing. I would like to
take this opportunity to welcome our witnesses: Lisa Shames, author of
the GAO report, and Dr. Joe Leonard, Assistant Secretary for Civil
Rights at USDA. Dr. Leonard, I want to take this opportunity to
congratulate you on your recent confirmation to this important post. I
look forward to working with you in the future.
We will hear testimony today from GAO regarding their October
report on challenges facing the Office of Civil Rights at USDA.
Specifically, we will hear their recommendations and options available
to the Congress to address these ongoing issues. I am anxious to hear
from Dr. Leonard about what steps USDA will take to respond to GAO's
recommendations.
Mr. Chairman, I speak for everyone when I say that all farmers
deserve equal access to USDA programs regardless of race, ethnicity or
gender. As we all know, USDA has been the subject of extensive
litigation regarding claims of discrimination over the last decade,
with the Pigford settlement resulting in payments of nearly a billion
dollars.
This Committee feels strongly about making sure that USDA is
administering all of its programs in an equitable and just manner. In
last year's farm bill, we included an authorization for $100 million to
be spent on payments to late-filers as part of the Pigford settlement.
We also mandated that USDA provide annual reports to our Committee on
the number of Civil Rights complaints made to the Department and the
length of time to resolve them, which allows us to better monitor the
situation at USDA.
I want to thank our witnesses for appearing before us today and I
look forward to their testimony. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Mr. Fortenberry.
Votes are expected by 11:00, so I just wanted to warn us.
I recognize Mr. Kagen for an opening statement.
OPENING STATEMENT OF HON. STEVE KAGEN, A REPRESENTATIVE IN
CONGRESS FROM WISCONSIN
Mr. Kagen. Thank you, Mr. Chairman.
I want to thank you for holding this hearing on this very
important subject. It matters not just to me; it matters to
everybody in Wisconsin and in the country.
The history of the USDA with regard to the lack of
enforcement of our civil rights is a long history of failure--
failure to comply. I will just report some of the numbers that
I am sure you are already familiar with.
In 1969, of the 4,100 employees with the ASCS, the
Agriculture Stabilization Conservation Service, of 4,100 people
working there, there were two people of African American
descent. In 1920, there were 925,000 farms owned by people of
darker skin than Caucasians; and in 2000, 18,000. So let the
numbers speak for themselves.
But, look not just at the numbers, take a look at the
record. When President Nixon was in office, he had Earl Butz
working at the Department of Agriculture, and it was under the
direction of Earl Butz that he secretly helped seven states
avoid decreasing funding that would have come to those states
because of violations of Title VI of the Civil Rights Act.
It didn't stop there. President Reagan with John Block
idled the Civil Rights Office and stopped investigations of
complaints coming from black farmers.
So the history of our civil rights being applied to the
institution of the USDA is a sorry one, and I think you all
have a lot of work to do.
It is not just about applying all of the laws. It is making
sure that the people who are in positions of power apply them
equally, and develop a process wherein we can feel reassured
that the funding that we provide to the USDA gets to the people
on the lands who need it the most and in an equitable fashion.
It is not about reorganization. It shouldn't be about
forming another commission or an ombudsman. It is not about
forming another committee to oversee someone else. It is just
about getting the job done. It is about results. I echo the
Chairman's view; there should be no discrimination anywhere
along the line.
I yield back the balance of my time.
The Chairman. The gentleman from Georgia, Mr. Scott, for an
opening statement.
OPENING STATEMENT OF HON. DAVID SCOTT, A REPRESENTATIVE IN
CONGRESS FROM GEORGIA
Mr. Scott. I thank you, Mr. Chairman, for your longstanding
advocacy of civil rights and equal treatment for all American
citizens. Your record speaks to that during your long
distinguished career, and I wanted to recognize you for your
leadership in the civil rights area.
Nowhere is this more significant now than with black
farmers. As my colleague, Mr. Kagen, so very aptly described,
the history is there. It is replete with discrimination.
As one who grew up on a black farm in rural South Carolina,
one who comes from a long line of black farmers, as many of our
people do, we know and have witnessed firsthand the inequitable
treatment.
Also, Mr. Chairman, as you and I served on the Conference
Committee for the farm bill, we were very, very adamant in
strengthening the Civil Rights Department in the United States
Department of Agriculture. At that time, we pointed out the
absolute need for it. Also, as part of that bill, farm bill,
Mr. Chairman, you and I both made sure that the Pigford
situation was addressed and that we put in funding of $100
million as a start, not an end, as we move forward to address
that situation.
We are making progress. First of all, I want to commend Dr.
Joe Leonard who is now the Assistant Secretary of Civil Rights
for the Department of Agriculture. What a stirring appointment
that is. Your tenure as Executive Director of the Congressional
Black Caucus is an extraordinary one, and I am sure if you just
match that service as the Director of the Congressional Black
Caucus, you are going to do an excellent job in here. And you
have the full support of this Congress in carrying out your
very challenging and important piece of work.
I also feel compelled to say that, thus far, in the short
period of time that he has been in office, Secretary Vilsack
has done a tremendous job, especially in his outreach to the
minority farmer community, and understanding and having a full
grasp of the dimensions of the past vestiges of prejudice and
discrimination that have been applied to black farmers. So I
want to commend Secretary Vilsack for his aggressive efforts to
reverse course at the United States Department of Agriculture
and correct its shameful civil rights legacy. We all applaud
the direction that Secretary Vilsack is taking, and his
commitment to civil rights, as far as black farmers are
concerned.
In fact, within days of his confirmation, one of Secretary
Vilsack's first official actions was to travel to my own State
of Georgia. Certainly, we have our share of black farmers. He
traveled to Georgia to address civil rights concerns at a
conference of the Federation of Southern Cooperatives in
Albany, Georgia. That is a sign of his commitment in this area.
One of the first trips he took was into the deep South to grab
a firsthand impression of the challenges facing black farmers.
And we are so grateful to the Secretary for doing that.
By now, I am sure we have all seen the Department-wide memo
that Secretary Vilsack has recently sent to all United States
Department of Agriculture employees laying out his vision for,
as he called it, a ``new civil rights era'' at the United
States Department of Agriculture. That is an example of the
commitment of this new Secretary of the Department of
Agriculture.
Make no mistake about it, challenges remain. We have to do
everything we can to make sure that all available Federal funds
can get to these black farmers. However, given that President
Obama has been in office only 100 days, Secretary Vilsack even
less, and Dr. Leonard barely having had time to unpack his
bags, I am comfortable with the direction of the new leadership
of the United States Department of Agriculture is headed in
with respect to civil rights.
I greatly look forward to working with Secretary Vilsack on
this, certainly with your Subcommittee, Mr. Chairman.
Dr. Leonard, as we look to these issues in the future, I
look forward to a very informative and productive hearing.
Thank you, Mr. Chairman, for having me.
The Chairman. Thank you, Mr. Scott, for your statement. The
chair requests that other Members submit their opening
statements for the record.
[The prepared statement of Mr. Peterson follows:]
Prepared Statement of Hon. Collin C. Peterson, a Representative in
Congress from Minnesota
I thank the Chairman and the Ranking Member for their leadership on
this issue.
For the past few decades, there have been civil rights violations
and concerns in the U.S. Department of Agriculture. Whether it be
violations against Department employees or clients of USDA programs,
the complaints are troublesome and minority producers deserve better.
The farm bill has been a vehicle to try and correct some of these
problems in the past. The 2002 Farm Bill first established the Office
of the Assistance Secretary for Civil Rights at the U.S. Department of
Agriculture, and the most recent farm bill included a provision (under
the jurisdiction of the Judiciary Committee) to permit re-filing of
claims in the Pigford discrimination suit.
Both of these actions were important steps in assisting and
encouraging opportunity for minority farmers and ranchers, just as the
oversight hearing this Subcommittee is conducting today is an important
step to increase awareness and ensure that the ASCR is doing what it is
supposed to. I have spoken to the new Assistant Secretary, Dr. Leonard,
and it's clear to me that he is committed to ensuring that minority
farmers and ranchers get the fair and equal treatment that they've been
waiting for all these years.
USDA's difficulties in resolving discrimination complaints have
been the focus of investigative reports from USDA's Office of the
Inspector General and the Government Accountability Office (GAO)--the
most recent of which was published in October last year and will be an
integral part of today's discussion.
The findings are dramatic:
As of July 2007, more than 850 complaints still had not been
addressed, and there is not enough staff to tackle the backlog;
the efforts made to resolve complaints have consistently
been hindered by disparities in data and reporting;
many of the steps ASCR has taken to address these problems
were actually counterproductive;
and currently, there is no plan on how to correct the
problems in the future.
It is important to get these problems resolved in order to restore
public and producer confidence in USDA's ability to uphold civil
rights. I thank the witnesses for coming today and look forward to
hearing the testimony.
The Chairman. Again, I would like to introduce both of
them. Each of you will have 5 minutes, and then we will proceed
with questions from the Members here.
I would like to introduce the Honorable Joe Leonard, Jr.,
Assistant Secretary for Civil Rights, U.S. Department of
Agriculture, from Washington, D.C.
After him will be Lisa Shames, Director, Natural Resources
and Environment, U.S. Government Accountability Office,
Washington, D.C.
Dr. Leonard, please begin when you are ready.
STATEMENT OF THE HON. JOE LEONARD, JR., Ph.D.,
ASSISTANT SECRETARY FOR CIVIL RIGHTS, U.S.
DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.
Dr. Leonard. Mr. Chairman, Members of the Subcommittee, and
my former boss, Representative Scott, thank you for the
opportunity to appear before this Subcommittee today.
I want to thank President Obama for his confidence in
nominating me to this esteemed position, and also Members of
Congress and Secretary Vilsack for their support.
I am honored to be able to discuss with you my initial
review of the Office of the Assistant Secretary for Civil
Rights. As of today, I have been in the position of Assistant
Secretary for Civil Rights at USDA for a total of 23 days. In
those 23 days, I have met several times with Secretary Vilsack
and other senior leadership and Office of Civil Rights
employees.
My initial assessment of the Civil Rights Department has
been wide and varied. After several sessions with the
Secretary, I can assure you he is committed and is the driving
force to turn around civil rights at USDA. Secretary Vilsack
expressed his commitment to civil rights in his first meeting
with USDA employees when he told them that civil rights is one
of his top three priorities.
In addition, Secretary Vilsack has charged me with being
the conduit for making sure that the civil rights priority is
met and that we forever close the chapter of USDA as the last
plantation. I am confident that, under Secretary Vilsack's
leadership, we will achieve this goal.
I sincerely believe my career experiences in social justice
and civil rights, and my background in American history, have
prepared me to handle the challenges and mitigate the barriers
facing the Office of the Assistant Secretary for Civil Rights.
History only repeats itself if we are not vigilant, and we will
be vigilant.
USDA has a documented chaotic history in civil rights for
which we plan to address. Frequent changes in leadership and
reorganizations and lack of resources, human and fiscal, have
contributed much to the chaos. To address this situation and
elevate civil rights within USDA, the 2002 Farm Bill authorized
the establishment of the position of Assistant Secretary for
Civil Rights. Clearly, this was a step in the right direction,
to move civil rights forward, but the full intent for the
office is yet to be realized. There still remains the challenge
of addressing a ballooning inventory of complaints in a timely
manner and in efficient complaint processing.
Many farmers and ranchers have not received adequate due
process in the handling of their complaints. Complaints were
held beyond the expiration of the statute of limitations under
the Equal Credit Opportunity Act, resulting in complainants
being ineligible to receive compensatory damages for the
findings of discrimination.
Our initial assessment has disclosed that complaints were
closed without a proper investigation, resulting in the
foreclosure moratorium being lifted and complainants' farms
being foreclosed on without proper determination on their
complaint.
This matter raised a serious concern for Secretary Vilsack.
And to ensure that it does not occur in the future on his
watch, and in response to economic challenges facing farmers,
he has temporarily suspended all foreclosures on farm loans for
approximately 90 days. And I assure you that I will not allow
improper closures of civil rights complaints to occur on my
watch.
Along with the assistance of Lloyd Wright, Adviser to the
Secretary of Civil Rights Programs Complaint, we have developed
a plan of action to ensure that those individuals whose
complaints were closed in error are reviewed and fairly
investigated.
I am aware of the initial response to the GAO report
recommendations. I have revised the original response to
comport with GAO's recommendations and to address many of the
root causes of the deficiencies in the management of civil
rights at USDA.
My written testimony includes a more in-depth discussion on
how I plan to address the recommendations, including the
creation of an ombudsman office.
On April 21, 2009, Secretary Vilsack issued a memorandum to
all USDA employees outlining his initial steps to change the
direction of equal employment opportunity, civil rights, and
program delivery in the Department. I am confident that under
Secretary Vilsack's leadership, civil rights at the Department
will be improved in a transparent and ethical manner, which
will lead the way in making USDA a model organization.
We will implement, in an expeditious manner, GAO's
recommendations and the results of my initial assessment of
civil rights matters at the Department. It is Secretary
Vilsack's and my top priority to ensure that all USDA
constituents, customers, stakeholders, employees and applicants
are provided equal access to the opportunities, programs and
services available through the people's Department.
We would like to acknowledge our constituents, customers,
stakeholders and Congress in supporting the Secretary's actions
to address civil rights challenges at USDA.
Again, I would like to thank you for the opportunity to
share the Department's plans to address the challenges and
barriers facing civil rights at USDA.
Thank you for your time.
[The prepared statement of Dr. Leonard follows:]
Prepared Statement of Hon. Joe Leonard, Jr., Ph.D., Assistant
Secretary, Office for Civil Rights, U.S. Department of Agriculture,
Washington, D.C.
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to submit this statement on the review of the United States
Department of Agriculture's (USDA) Office of the Assistant Secretary
for Civil Rights (OASCR).
I have been in the position of the Assistant Secretary for Civil
Rights at USDA for 23 days. During this time, I have met several times
with Secretary Vilsack and other senior leadership, OASCR employees,
and begun my initial assessment of civil rights in the Department.
After several sessions with the Secretary, I can assure you he is
committed and is the driving force to turn around civil rights at USDA.
Secretary Vilsack expressed his commitment to improving civil rights in
his first meeting with USDA employees when he told them civil rights is
one of his top priorities.
I share Secretary Vilsack's dedication and commitment to civil
rights. My career in social justice and civil rights is a testament to
that end and I foresee that commitment playing a vital role in
overseeing civil rights at USDA. I am confident that I, along with the
staff that Secretary Vilsack has put together at USDA, will be able to
tackle the barriers and challenges facing civil rights at the
Department.
The recent Government Accountability Office (GAO) report on the
``Management Deficiencies in the Office of the Assistant Secretary for
Civil Rights'' lists six recommendations that I plan to begin
implementing immediately. During its review, GAO assessed USDA's
efforts to (1) resolve discrimination complaints, (2) report on
minority participation in farm programs, and (3) strategically plan its
efforts. The report is based on new and prior reports, including an
analysis of OASCR's discrimination complaint management and strategic
planning, and interviews with officials of USDA and other agencies, as
well as 20 USDA stakeholder groups. GAO made recommendations for
executive action to USDA to resolve discrimination complaints; improve
data reliability; develop a civil rights strategic plan; obtain an
independent review of USDA processes; obtain approval for data
collection; and explore establishing an ombudsman.
Below is how I plan to address the recommendations made
specifically to USDA:
GAO Recommendation: Prepare and implement an improvement plan for
resolving discrimination complaints that sets timeframe goals and
provides management controls for resolving complaints from beginning to
end.
USDA Response: USDA's improvement plan includes:
1. Evaluate and adjust staffing levels to ensure resolution of
discrimination complaints in a timely manner.
Continue the interagency agreement with the National Equal
Employment Opportunity Investigative Services in the U.S.
Postal Service to assist with the overflow of employment
complaint cases that cannot be timely processed by OASCR
staff, and continue to utilize contract attorneys to
prepare final agency decisions (FADs). By June 30, 2009,
conduct an internal workload analysis to determine if
additional contract attorneys are needed.
OASCR has procured the services of a special advisor,
Lloyd Wright, to conduct a workload analysis and to develop
a plan for required staffing to review program complaints
that have been processed since Fiscal Year 2000 and those
currently being processed. The staffing plan includes staff
needed to conduct the quality assurance review of
complaints processed since the Fiscal Year 2000, as well as
permanent staff to conduct investigations and adjudication
of complaints. A task force will be immediately created to
begin to carry out the plan developed by Mr. Wright.
2. Improve the quality control procedures.
By October 1, 2009, review and revise performance
standards based on the results of the workload analysis for
all employees who process complaints to ensure reasonable
quantity is achieved while not sacrificing quality.
Continue quality control reviews of complaint FADs, and
monitor case inventory and workload productivity. Every FAD
is currently reviewed by OASCR for quality control.
Implement Lloyd Wright's task force plan recommendations,
which include quality assurance for program complaints
processed since Fiscal Year 2000.
Design and implement management controls to ensure
complaints are received, stored and processed in a
consistent manner, within specific timeframes. The first
phase of this process has been implemented by a contract to
review and design a state of the art electronic records
system.
Create and institute a correspondence management policy
and plan for all OASCR correspondence.
In response to the economic challenges, the Secretary will
continue to use his existing authority to temporarily
suspend all current foreclosures within the Farm Service
Agency's farm loan program for approximately 90 days. This
time also affords the Department the opportunity to review
the loans for any problems associated with possible
discriminatory conduct. USDA is also in discussions with
the Department of Justice regarding their exercising their
authority to review existing litigation over these loans,
so that such a review might be conducted.
OASCR will review the organization and roles of the OASCR
and ensure that appropriate emphasis and staffing is being
placed on enforcement of EEO and Civil Rights laws
regarding employment and program delivery by July 1, 2009.
3. Establish a state-of-the-art records management system.
OASCR has hired a trained Records Manager and is
implementing procedures to ensure that the records
management program is in compliance with applicable
departmental regulations.
OASCR will design and implement management controls to
ensure complaints are received, stored and processed in a
consistent manner, within specific timeframes. The first
phase of this process has been implemented by a contract to
review and design a state of the art electronic records
system.
4. Hold agency heads accountable for their performance in program
and employment complaint processing.
Each year OASCR evaluates agency heads using the Agency
Head Civil Rights Performance Assessment Plan. USDA agency
heads will be held accountable for their timely submission
of counselor reports, agency position statements and
employment reports of investigation.
5. Strengthen Alternative Dispute Resolution (ADR) across the
Department.
By December 30, 2009, develop a plan for the
organizational structure of ADR and best practices based on
the results of the ombudsman study.
GAO Recommendation: Develop and implement a plan to ensure the
accuracy, completeness and reliability of OASCR's databases on customer
and employee complaints, and that provides for independent validation
of OASCR's data quality.
USDA Response: USDA will take immediate action to migrate all
program complaint data to one data system; add additional data elements
to ensure usefulness of the system; and develop departmental policy and
training for agency Civil Rights directors to ensure consistent use of
the system. Quality assurance will be an integral part of this process.
GAO Recommendation: Obtain an expert, independent and objective
legal examination of the basis, quality, and adequacy of a sample of
USDA's prior investigations and decisions on civil rights complaints,
along with suggestions for improvement.
USDA Response: Through the creation of the earlier mentioned task
force, USDA will immediately create a Task Force to conduct a review of
program civil rights complaints that have been processed since the year
2000 or that are currently being processed. The efforts of the task
force will be supported with assistance from an independent legal
counsel with additional resources to conduct the review,
investigations, and complaint adjudication. Agencies will be asked to
contribute detailees for both short- and long-term phases of the task.
GAO Recommendation: To improve USDA efforts to address civil rights
issues and the participation of minority farmers and ranchers in USDA
programs, work expeditiously to obtain OMB's approval to collect the
demographic data necessary for reliable reporting on race and ethnicity
by USDA program.
USDA Response: OASCR will, in collaboration with OMB and other
relevant agencies, fully implement automated corporate race, ethnicity,
and sex, national origin, disability, and age data collection for NRCS,
FSA, and RD at the field office level. The second phase will be the
development of a corporate proposal across USDA. OASCR, in
collaboration with the service center agencies, will implement all
provisions of the 2008 Farm Bill related to tracking and monitoring of
client services, including ``Receipt for Services'' by October 1, 2009.
GAO Recommendation: Develop a results-oriented Department-level
strategic plan for civil rights at USDA that unifies USDA's
departmental approach with that of OASCR and the newly created Office
of Advocacy and Outreach and that is transparent about USDA's efforts
to address the concerns of stakeholders.
USDA Response: USDA will ensure that its strategic plan
incorporates a comprehensive, results-oriented, Department-wide
strategy for civil rights, including outreach, and addresses the
concerns of constituents and stakeholders. USDA will:
Publish a Request for Proposals (RFP) to obtain an
independent external analysis of program delivery in our field
offices of Natural Resources Conservation Service, Farm Service
Agency and Rural Development which will provide specific
recommendations and methodologies that will ensure that
programs are delivered equitably and that access is afforded to
all constituents, with particular emphasis on socially
disadvantaged farmers, ranchers, and other constituents. While
this study will apply to these three agencies, the results may
be implemented in all USDA agencies to ensure that all USDA
programs are accessible.
Establish separate outreach, advocacy and diversity
functions and the completion of the study of the field office
delivery system.
Draft a final report summarizing the information gleaned
from the previous partners' meetings to be published by June
30, 2009 and to be considered in the field office delivery
system study.
GAO Recommendation: Further explore the potential for an ombudsman
office to contribute to addressing the civil rights concerns of USDA
customers and employees, including seeking legislative authority, as
appropriate, to establish such an office and to ensure its
effectiveness, and advise USDA's Congressional oversight Committees of
the results.
USDA Response: USDA has convened a team to study the creation of an
ombudsman office, including Alternative Dispute Resolution (ADR)
services in the Department, and to make recommendations for
establishing the office and strengthening the ADR function by September
30, 2009.
I am confident that under Secretary Vilsack's leadership, civil
rights at the Department will be improved in a transparent and ethical
manner which will lead the way in making USDA a model organization. We
will implement in an expeditious manner, GAO's recommendations and
initiatives that result from my final assessment of civil rights
matters at the Department. It is Secretary Vilsack's and my top
priority to ensure that all USDA applicants, customers, constituents
and stakeholders, as well as all USDA employees, are provided equal
access to the opportunities, programs and services available through
``the People's Department.''
Again, I would like to thank you for the opportunity to share the
Department's plan on how to address challenges and barriers facing
civil rights at USDA.
The Chairman. Thank you very much, Dr. Leonard.
Ms. Shames.
STATEMENT OF LISA SHAMES, DIRECTOR, NATURAL
RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE, WASHINGTON, D.C.
Ms. Shames. Thank you, Chairman Baca, and Members of the
Subcommittee. I am pleased to be here today to discuss USDA's
management of civil rights issues.
Today's hearing is especially timely. It provides an
opportunity for the new Administration to discuss solutions to
these issues.
This morning I would like to make two observations. First,
while GAO found numerous deficiencies in USDA's management of
civil rights, we have also made constructive recommendations.
On a positive note, as Dr. Leonard just mentioned, USDA is
beginning to take steps on all of our recommendations.
Second, we have identified additional options that are
relevant for USDA. These options, a statutory performance
agreement, and oversight board, and an ombudsman have held
other Federal agencies accountable and helped them improve
their performance.
First, let me recap our findings. We found that backlogs
and discrimination complaints persist, and steps to speed up
investigations may have adversely affected quality. In response
to our recommendation, USDA told us they are beginning to
develop an improvement plan with timeframes for resolving
complaints. USDA also plans to obtain an independent, legal
review of a sample of USDA's prior decisions. We believe this
last step in particular will help build confidence in USDA's
management.
We also reported that much of the data on minority
participation in USDA programs are unreliable. These data are
unreliable because they are mostly based on visual observation,
so traits such as race and ethnicity may not be apparent. USDA
needs approval from OMB to collect data directly from program
participants, and published a notice in the Federal Register in
2004 to obtain this approval. However, USDA did not follow
through. Accordingly, we made the recommendation in our recent
report. USDA officials indicated a new notice is under review.
Last, we found that USDA's strategic planning was limited.
A key element is to involve stakeholders, but the interest of
USDA stakeholders are not explicitly reflected in its strategic
plan. For example, our interviews with community-based
organizations and minority interest groups show they would like
better access to farm programs, more diversity among USDA
employees who work with minority producers and better access to
farm programs. USDA told us it will develop a results-oriented
Department level strategic plan in the next planning cycle.
Moving forward, our work on high-risk, underperforming
Federal agencies has identified options that could benefit
USDA. These options include making USDA's Assistant Secretary
for Civil Rights subject to a statutory performance agreement,
establishing an oversight board, and creating an ombudsman for
USDA civil rights matters.
Congress has required performance agreements in other
Federal offices, and the results have been positive. For
example, the Education Department's Office of Student Aid had
experienced longstanding financial and management weaknesses.
Congress required its Chief Operating Officer to have a
performance agreement with the Secretary of Education that was
to be transmitted to Congress and made publicly available. In
addition, the office was required to report to Congress
annually on its performance. Subsequently, GAO removed this
program from our high-risk list because of the improvements.
More recently, Congress has required statutory performance
agreements for the Commissioners at the Patent and Trademark
Office and the Under Secretary for Management at the Department
of Homeland Security.
Congress could also authorize an oversight board, as it has
for other Federal activities, including public accounting and
drug safety. Oversight boards can provide assurance that
activities are well done, identify weaknesses that may need to
be addressed, and provide for transparency. For example,
Congress established the IRS Oversight Board to oversee the
fair administration of tax collections. At that time, IRS was
considered to be an agency that was not effectively serving the
public or meeting taxpayer needs.
Finally, establishing an ombudsman for USDA civil rights
matters could help address the concerns of USDA employees and
customers. There are currently 43 ombudsmen in Federal
agencies. External ombudsmen can help agencies be more
responsive to the public through impartial and independent
investigation of complaints. For example, we reported that the
EPA ombudsmen are points of contact for those who have concerns
about hazardous waste cleanups. We also identified that the
Transportation Security Administration ombudsman is one who can
recommend changes to improve customer service.
USDA officials indicated that a team was convened to study
the ombudsman concept and will make recommendations by
September 30, 2009.
In summary, USDA has been addressing allegations of
discrimination for decades without achieving fundamental
improvements. GAO and others have offered recommendations for
improving civil rights management. It appears that USDA is
taking steps to implement them. Nevertheless, the options GAO
has identified can make it clear that Congress and the public
hold USDA accountable for improving its longstanding
deficiencies in civil rights.
Mr. Chairman, this concludes my prepared statement, and I
am pleased to answer any questions you or Members of the
Subcommittee may have.
[The prepared statement of Ms. Shames follows:]
Prepared Statement of Lisa Shames, Director, Natural Resources and
Environment, U.S. Government Accountability Office, Washington, D.C.
Recommendations and Options Available to the New Administration and
Congress to Address Long-Standing Civil Rights Issues
Highlights
Highlights of GAO-09-650T (http://www.gao.gov/new.items/
d09650t.pdf), a testimony before the Subcommittee on Department
Operations, Oversight, Nutrition and Forestry, Committee on
Agriculture, House of Representatives.
Why GAO Did This Study
For decades, there have been allegations of discrimination in the
U.S. Department of Agriculture's (USDA) programs and workforce.
Numerous Federal reports have described serious weaknesses in USDA's
civil rights program--in particular, in resolving discrimination
complaints and providing minority farmers with access to programs. In
2002, Congress authorized the position of Assistant Secretary for Civil
Rights (ASCR) at USDA to provide leadership for resolving these long-
standing problems.
This testimony focuses on ASCR's efforts to (1) resolve
discrimination complaints, (2) report on minority participation in farm
programs, and (3) strategically plan its efforts. GAO also reviewed the
experiences of other Federal agencies to develop options for addressing
management deficiencies within ASCR. This testimony is based primarily
on GAO's May 2008 testimony (GAO-08-755T) on ASCR management
deficiencies and October 2008 report (GAO-09-62) that made a number of
recommendations to the Secretary of Agriculture and suggested certain
matters for Congressional consideration. At the time, USDA agreed with
most of the recommendations but not with the matters for Congressional
consideration. In April 2009, ASCR officials said USDA accepts all of
the recommendations and is beginning steps to implement them; these
officials also said they hope doing so will preclude the need for the
Congressional actions GAO suggested.
View GAO-09-650T (http://www.gao.gov/products/GAO-09-650T) or key
components.
For more information, contact Lisa Shames at [Redacted] or
[Redacted].
What GAO Found
ASCR's difficulties in resolving discrimination complaints persist.
ASCR has not achieved its goal of preventing backlogs of complaints,
and this effort has been undermined by ASCR's faulty reporting and
disparities in ASCR data. Also, some steps ASCR took to speed up its
work may have adversely affected the quality of its work. Consequently,
we recommended that the Secretary of Agriculture implement plans to (1)
improve how USDA resolves discrimination complaints and (2) ensure the
reliability of ASCR's databases on customer and employee complaints. We
also recommended that USDA obtain an independent legal examination of a
sample of USDA's prior investigations and decisions on civil rights
complaints.
USDA considers much of its data on minority farmers' participation
in farm programs to be unreliable because they are based on employees'
visual observations about participants' race and ethnicity that may not
be correct. USDA stated that it needs the Office of Management and
Budget's (OMB) approval to collect more reliable data. Consequently, in
October 2008, we recommended that the Secretary of Agriculture work
expeditiously to obtain OMB's approval to collect the demographic data
necessary for reliable reporting on race and ethnicity by USDA program.
ASCR's strategic planning does not address key steps needed to
ensure USDA provides fair and equitable services to all customers and
upholds the civil rights of its employees. In October 2008, we
recommended that the Secretary of Agriculture develop a strategic plan
for civil rights at USDA that unifies USDA's departmental approach with
that of ASCR and that is transparent about USDA's efforts to address
the concerns of stakeholders.
Three options that have been used at other agencies dealing with
significant performance issues are relevant to addressing certain long-
standing ASCR issues: statutory performance agreements, which could
help ASCR achieve specific expectations by providing additional
incentives and mandatory public reporting; an oversight board, which
could improve USDA's administration of civil rights activities and
provide transparency; and an ombudsman office, which could assist in
resolving civil rights concerns at USDA. In October 2008, we suggested
that Congress consider (1) making USDA's Assistant Secretary for Civil
Rights subject to a statutory performance agreement and (2)
establishing a USDA civil rights oversight board. In addition, we
recommended that the Secretary of Agriculture explore the potential for
an ombudsman office to help address the civil rights concerns of USDA
customers and employees.
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. 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's Office
of Inspector General (OIG), 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 with access
to USDA programs and in resolving discrimination complaints. In
addition, USDA has been the subject of several large class-action
lawsuits claiming discriminatory behavior on the part of the
Department. For example, the Pigford v. Glickman case has resulted in
the payment of about $1 billion in claims to African American farmers.
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 may delegate responsibility to the Assistant
Secretary for Civil Rights for ensuring that USDA complies with all
civil rights-related laws and considers civil rights matters in all
USDA strategic planning initiatives. In 2003, the position of Assistant
Secretary for Civil Rights was created with these and other delegated
responsibilities, and these responsibilities are carried out through
the Office of the Assistant Secretary for Civil Rights (ASCR). In
addition, the 2002 Farm Bill and subsequent legislation require USDA to
report annually on minority participation in USDA programs.
The new Administration has indicated its commitment to improve the
management of civil rights at USDA. For example, the new Secretary of
Agriculture testified in March 2009 that improving this management is
one of his top priorities and he will dedicate the resources necessary
to achieve this improvement. And earlier this month, USDA's new
Assistant Secretary for Civil Rights was confirmed. This official, who
brings to the position prior civil rights experience, also has pledged
to improve this management. Furthermore, on April 21, 2009, the
Secretary issued a memorandum to all USDA employees reiterating that
civil rights is one of his top priorities and stating that he intends
to take definitive action to improve USDA's record on civil rights and
move USDA to a new era as a model employer and premier service
provider. Thus, this oversight hearing is particularly timely: it
provides an opportunity to briefly restate the scope of civil rights
problems at USDA, but more importantly it offers an opportunity to
discuss possible solutions to these problems for the benefit of these
new officials.
I will focus my testimony today on three primary issues: ASCR's (1)
resolution of discrimination complaints, (2) reporting on minority
participation in USDA programs, and (3) strategic planning for ensuring
USDA's services and benefits are provided fairly and equitably. I will
also discuss lessons learned from the experiences of other Federal
agencies to develop options for addressing USDA's long-standing
problems. My statement is based primarily on our May 2008 testimony on
management deficiencies in ASCR and our October 2008 report on
recommendations and options to address these deficiencies.\1\ To
perform that work, we interviewed officials representing ASCR, USDA's
OIG, USDA's agency-level civil rights offices, the Equal Employment
Opportunity Commission, community-based organizations, and minority
groups. We examined ASCR's strategic plan and other relevant planning
documents, USDA documents about efforts to resolve discrimination
complaints, and USDA's reporting on minority participation in its
programs. In addition, we analyzed data provided by ASCR and found it
to be unreliable; we made recommendations accordingly. We also
considered our own guidance and reporting on results-oriented
management \2\ and reviewed our experience in addressing the problems
of high-risk, underperforming agencies.\3\ We conducted this work in
accordance with generally accepted government auditing standards. Those
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 this reasonable basis.
---------------------------------------------------------------------------
\1\ GAO, U.S. Department of Agriculture: Management of Civil Rights
Continues to Be Deficient Despite Years of Attention, GAO-08-755T
(http://www.gao.gov/new.items/d08755t.pdf) (Washington, D.C.: May 14,
2008) and U.S. Department of Agriculture: Recommendations and Options
to Address Management Deficiencies in the Office of the Assistant
Secretary for Civil Rights, GAO-09-62 (http://www.gao.gov/new.items/
d0962.pdf) (Washington, D.C.: October 22, 2008).
\2\ GAO, Executive Guide: Effectively Implementing the Government
Performance and Results Act, GAO/GGD-96-118 (http://www.gao.gov/
archive/1996/gg96118.pdf) (Washington, D.C.: June 1996); Agencies'
Strategic Plans Under GPRA: Key Questions to Facilitate Congressional
Review, GAO/GGD-10.1.16 (http://www.gao.gov/archive/1997/gg1016.pdf)
(Washington, D.C.: May 1997); The Results Act: An Evaluator's Guide to
Assessing Agency Annual Performance Plans, GAO/GGD-10.1.20 (http://
www.gao.gov/special.pubs/gg10120.pdf) (Washington, D.C.: April 1998);
and Results-Oriented Government: GPRA Has Established a Solid
Foundation for Achieving Greater Results, GAO-04-38 (http://
www.gao.gov/new.items/d0438.pdf) (Washington, D.C.: Mar. 10, 2004).
\3\ For example, see most recently GAO, High-Risk Series: An
Update, GAO-09-271 (http://www.gao.gov/new.items/d09271.pdf)
(Washington, D.C.: January 2009).
---------------------------------------------------------------------------
In summary, I would like to make two observations. First, we found
numerous deficiencies in ASCR's management of civil rights, and we
offered a number of recommendations to address them. In April 2009,
ASCR officials said that USDA has begun to take steps to implement each
of these recommendations. Specifically:
Regarding discrimination complaint resolution, we reported
that ASCR had not achieved its goal of preventing backlogs of
complaints and that this effort was undermined by ASCR's faulty
reporting and disparities in ASCR data. Also, some steps ASCR
took to speed up its work may have adversely affected the
quality of its work. Consequently, we recommended that USDA
prepare and implement an improvement plan for resolving
discrimination complaints; develop and implement a plan to
ensure the accuracy, completeness, and reliability of ASCR's
databases on complaints; and obtain an independent legal
examination of a sample of USDA's prior investigations and
decisions on civil rights complaints. ASCR officials said that
the Department is taking steps to set timeframe goals and
establish proper management controls; move data from ASCR's
three complaint databases into one; and obtain independent
legal advice on its program complaints.
Regarding minority participation in USDA programs, we
reported that much of the data that USDA provided to Congress
and the public on minority farmers' participation in farm
programs are unreliable because they 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. To address this inherent
shortcoming, USDA said it needs to collect standardized data
directly from program participants, which requires approval
from the Office of Management and Budget (OMB). Accordingly, we
recommended that USDA work expeditiously to obtain such
approval from OMB. ASCR officials indicated that a draft
Federal Register notice requesting OMB's approval to collect
these data is being reviewed within the Department.
Regarding strategic planning, we reported that ASCR's
planning was limited and did not reflect the views of relevant
stakeholders, such as community-based organizations and
minority interest groups; did not link to the plans of other
USDA agencies or the Department; could better measure
performance to gauge its progress; did not discuss the
potential for using performance information for identifying
USDA's performance gaps; and did not link funding with
anticipated results. Consequently, we recommended that USDA
develop a results-oriented Department-level strategic plan for
civil rights that unifies USDA's departmental approach with
that of ASCR and the newly created Office of Advocacy and
Outreach and that is transparent about USDA's efforts to
address stakeholder concerns. ASCR officials said they plan to
implement this recommendation during the next Department-wide
strategic planning process.
Moving forward, my second observation is that the experience of
other agencies in addressing significant performance issues provides
options that are relevant for addressing certain long-standing ASCR
issues. We identified three options that are relevant for
consideration.
Option 1: Congress could require USDA's Assistant Secretary
for Civil Rights to be subject to a statutory performance
agreement. Congress previously required executives at several
other Federal agencies to be subject to these agreements. Such
an agreement can be transmitted to Congressional Committees and
made public, and the office in question can be required to
report to Congress annually on its performance, including the
extent to which it met its performance goals. Such an agreement
for ASCR could assist in achieving specific expectations by
providing additional incentives and mandatory public reporting.
Option 2: Congress could authorize an oversight board for
USDA civil rights activities. Oversight boards have been used
for a wide variety of purposes by the Federal Government,
including oversight of public accounting, intelligence matters,
civil liberties, and drug safety. A USDA civil rights oversight
board could be authorized to independently monitor, evaluate,
approve, and report on USDA's administration of civil rights
activities, thereby identifying weaknesses that need to be
addressed and providing transparency.
Option 3: USDA could explore establishing an ombudsman
office to address customer and employee concerns about civil
rights, including determining whether legislation is a
prerequisite for an ombudsman to be effective at USDA. Many
other agencies have created ombudsman offices for addressing
employees' concerns. A USDA ombudsman who is independent,
impartial, fully capable of conducting meaningful
investigations and who can maintain confidentiality could
assist in resolving civil rights concerns at USDA.
In October 2008, we suggested that Congress consider (1) making
USDA's Assistant Secretary for Civil Rights subject to a statutory
performance agreement and (2) establishing a USDA civil rights
oversight board. USDA initially disagreed with these suggestions; in
April 2009, however, ASCR officials said that, while the Department no
longer disagrees with these suggestions, they hope that the actions
they are taking or planning to improve the management of civil rights
at USDA will preclude the need for these mechanisms. In addition, we
recommended that USDA explore the potential for an ombudsman office to
contribute to addressing the civil rights concerns of USDA customers
and employees. In April 2009, ASCR officials indicated that the
Assistant Secretary for Civil Rights has convened a team to study the
ombudsman concept and to make recommendations by September 30, 2009, to
the Secretary of Agriculture for establishing an ombudsman office.
Problems in Resolving Discrimination Complaints Persist
The credibility of USDA's efforts to correct long-standing problems
in resolving customer and employee discrimination complaints has been
undermined by faulty reporting of complaint data, including disparities
we found when comparing various ASCR sources of data. When ASCR was
created in 2003, there was an existing backlog of complaints that had
not been adjudicated. In response, the Assistant Secretary for Civil
Rights at that time called for a concerted 12 month effort to reduce
this backlog and to put lasting improvements in place to prevent future
complaint backlogs. In July 2007, ASCR reported that it had reduced its
backlog of 690 complaints and held the complaint inventory to
manageable levels through Fiscal Year 2005.\4\ However, the data ASCR
reported lack credibility because they were inconsistent with other
complaint data it reported a month earlier to a Congressional
subcommittee. The backlog later surged to 885 complaints, according to
ASCR data. Furthermore, the Assistant Secretary's letter transmitting
these data stated that while they were the best available, they were
incomplete and unreliable. In addition, GAO and USDA's OIG have
identified other problems with ASCR's data, including the need for
better management controls over the entry and validation of these data.
---------------------------------------------------------------------------
\4\ USDA, First 1,000 Days, 2003-2006 (Washington, D.C.: July
2007).
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In addition, some steps that ASCR took to speed up its
investigations and decisions on complaints in 2004 may have adversely
affected the quality of its work. 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. ASCR's former
Director, Office of Adjudication and Compliance, stated that this
increased pace led to many ``summary'' decisions on employees'
complaints that did not resolve questions of fact, with the result that
many decisions were appealed to the Equal Employment Opportunity
Commission. This official also said these summary decisions ``could
call into question the integrity of the process because important
issues were being overlooked.'' In addition, inadequate working
relationships and communications within ASCR, as well as fear of
retaliation for reporting management-related problems, complicated
ASCR's efforts to produce quality work products. In August 2008, ASCR
officials stated they would develop standard operating procedures for
the Office of Adjudication and Compliance and had provided USDA staff
training on communication and conflict management, among other things.
While these are positive steps, they do not directly respond to whether
USDA is adequately investigating complaints, developing thorough
complaint decisions, and addressing the problems that gave rise to
discrimination complaints within ASCR.
The Food, Conservation, and Energy Act of 2008 (2008 Farm Bill),
enacted in June 2008, states that it is the sense of Congress that all
pending claims and class actions brought against USDA by socially
disadvantaged farmers and ranchers should be resolved in an expeditious
and just manner. In addition, the 2008 Farm Bill requires USDA to
report annually on, among other things, the number of customer and
employee discrimination complaints filed against each USDA agency, and
the length of time the agency took to process each complaint.
In October 2008, we recommended that the Secretary of Agriculture
take the following actions related to resolving discrimination
complaints:
Prepare and implement an improvement plan for resolving
discrimination complaints that sets timeframe goals and
provides management controls for resolving complaints from
beginning to end.
Develop and implement a plan to ensure the accuracy,
completeness and reliability of ASCR's databases on customer
and employee complaints, and that provides for independent
validation of ASCR's data quality.
Obtain an expert, independent, and objective legal
examination of the basis, quality, and adequacy of a sample of
USDA's prior investigations and decisions on civil rights
complaints, along with suggestions for improvement.
USDA agreed with the first two recommendations, but initially
disagreed with the third, asserting that its internal system of legal
sufficiency addresses our concerns, works well, and is timely and
effective. Given the substantial evidence of civil rights case delays
and questions about the integrity of USDA's civil rights casework, we
believe this recommendation remains valid and necessary to restore
confidence in USDA's civil rights decisions. In April 2009, ASCR
officials said that USDA now agrees with all three of the
recommendations and that the Department is taking steps to implement
them. These steps include hiring a consultant to assist ASCR with
setting timeframe goals and establishing proper management controls; a
contractor to help move data from ASCR's three complaint databases into
one; and a firm to provide ASCR with independent legal advice on
developing standards on what constitutes a program complaint and
actions needed to adjudicate those complaints.
Reports on Minority Participation Are Unreliable and of Limited
Usefulness
As required by the 2002 Farm Bill, ASCR has published three annual
reports on the participation rate of socially disadvantaged farmers and
ranchers in USDA programs. The reports are to provide statistical data
on program participants by race and ethnicity, among other things.
However, much of these data are unreliable because USDA lacks a uniform
method of reporting and tabulating race and ethnicity data among its
component agencies. According to USDA, to collect standardized
demographic data directly from participants in many of its programs, it
must first obtain OMB's approval. In the meantime, most of USDA's
demographic data are gathered by visual observation of program
applicants, a method that is inherently unreliable and subjective,
especially for determining ethnicity. To address this problem, ASCR
published a notice in the Federal Register in 2004 seeking public
comment on its plan to collect standardized data on race, ethnicity,
gender, national origin, and age for all its programs. However, while
it received some comments, ASCR has not moved forward to finalize this
rulemaking and obtain OMB's approval to collect these data.
The 2008 Farm Bill contains several provisions related to reporting
on minority farmers' participation in USDA programs. First, it requires
USDA to annually compile program application and participation rate
data for each program serving those farmers. These reports are to
include the raw numbers and participation rates for the entire United
States and for each state and county. Second, it requires USDA to
ensure, to the maximum extent practicable, that the Census of
Agriculture and studies by USDA's Economic Research Service accurately
document the number, location, and economic contributions of minority
farmers in agricultural production.
In October 2008, to address underlying data reliability issues, as
discussed, and potential steps USDA could take to facilitate data
analysis by users, we recommended that the Secretary of Agriculture
work expeditiously to obtain OMB's approval to collect the demographic
data necessary for reliable reporting on race and ethnicity by USDA
program. USDA agreed with the recommendation. In April 2009, ASCR
officials indicated that a draft Federal Register notice requesting
OMB's approval to collect these data for Farm Service Agency, Natural
Resources Conservation Service, and Rural Development programs is being
reviewed within USDA. These officials said they hoped this notice,
which they considered an initial step toward implementing our
recommendation, would be published and implemented in time for USDA's
field offices to begin collecting these data by October 1, 2009.
According to these officials, USDA also plans to seek, at a later time,
authority to collect such data on participants in all USDA programs.
Strategic Planning Is Limited and Lacks Needed Components
In light of USDA's history of civil rights problems, better
strategic planning is vital. Results-oriented strategic planning
provides a road map that clearly describes what an organization is
attempting to achieve and, over time, it can serve as a focal point for
communication with 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 making
program improvements.
ASCR has started to develop a results-oriented approach as
illustrated in its first strategic plan, Assistant Secretary for Civil
Rights: Strategic Plan, Fiscal Years 2005-2010, and its ASCR Priorities
for Fiscal Years 2007 and 2008. However, ASCR's plans do not include
fundamental elements required for effective strategic planning. In
particular, we found that the interests of ASCR's stakeholders--
including representatives of community-based organizations and minority
interest groups--are not explicitly reflected in its strategic plan.
For example, we found that ASCR's stakeholders 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 stakeholders are better represented in local decisions;
and (3) the diversity of USDA employees who work with minority
producers. A more complete list of these interests is included in the
appendix.
In addition, ASCR's strategic plan does not link to the plans of
other USDA agencies or the Department and does not discuss the
potential for linkages to be developed. ASCR could also better measure
performance to gauge progress, and it has not yet started to use
performance information for identifying USDA performance gaps. For
example, ASCR measures USDA efforts to ensure USDA customers have equal
and timely access to programs by reporting on the numbers of
participants at USDA workshops rather than measuring the results of its
outreach efforts on access to benefits and services. Moreover, the
strategic plan does 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 of, for example, strengthening partnerships with
historically black land-grant universities through scholarships
provided by USDA.
To help ensure access to and equitable participation in USDA's
programs and services, the 2008 Farm Bill provided for establishing the
Office of Advocacy and Outreach and charged it with, among other
things, establishing and monitoring USDA's goals and objectives to
increase participation in USDA programs by small, beginning, and
socially disadvantaged farmers and ranchers. As of April 2009, ASCR
officials indicated that the Secretary of Agriculture plans to
establish this office, but has not yet done so.
In October 2008, we recommended that USDA develop a results-
oriented Department-level strategic plan for civil rights that unifies
USDA's departmental approach with that of ASCR and the newly created
Office of Advocacy and Outreach and that is transparent about USDA's
efforts to address stakeholder concerns. USDA agreed with this
recommendation. In April 2009, ASCR officials said they plan to
implement this recommendation during the next Department-wide strategic
planning process, which occurs every 5 years. Noting that the current
plan runs through 2010, these officials speculated that work on the new
plan will start in the next few months.
Lessons Learned That Could Benefit USDA's Civil Rights Performance
Our past work in addressing the problems of high-risk,
underperforming Federal agencies, as well as our reporting on results-
oriented management, suggests three options that could benefit USDA's
civil rights performance. These options were selected based on our
judgment that they (1) can help address recognized and long-standing
problems in USDA's performance, (2) have been used previously by
Congress to improve aspects of agency performance, (3) have contributed
to improved agency performance, and (4) will result in greater
transparency over USDA's civil rights performance. These options
include (1) making USDA's Assistant Secretary for Civil Rights subject
to a statutory performance agreement, (2) establishing an agriculture
civil rights oversight board, and (3) creating an ombudsman for
agriculture civil rights matters.
A Statutory Performance Agreement Could Help Define Accountability for
Results
Our prior assessment of performance agreements used at several
agencies has shown that these agreements have potential benefits that
could help improve the performance of ASCR.\5\ Potential benefits that
performance agreements could provide USDA include (1) helping to define
accountability for specific goals and align daily operations with
results-oriented programmatic goals, (2) fostering collaboration across
organizational boundaries, (3) enhancing use of performance information
to make program improvements, (4) providing a results-oriented basis
for individual accountability, and (5) helping to maintain continuity
of program goals during leadership transitions.
---------------------------------------------------------------------------
\5\ GAO, Managing for Results: Emerging Benefits from Selected
Agencies' Use of Performance Agreements, GAO-01-115 (http://
www.gao.gov/new.items/d01115.pdf) (Washington, D.C.: Oct. 30, 2000).
---------------------------------------------------------------------------
Congress has required performance agreements in other Federal
offices and the results have been positive. For example, in 1998,
Congress established the Department of Education's Office of Federal
Student Aid as the government's first performance-based
organization.\6\ This office had experienced long-standing financial
and management weaknesses and we had listed the Student Aid program as
high-risk since 1990. Congress required the office's Chief Operating
Officer to have a performance agreement with the Secretary of Education
that was transmitted to Congressional Committees and made publicly
available. In addition, the office was required to report to Congress
annually on its performance, including the extent to which it met its
performance goals. In 2005, because of the sustained improvements made
by the office in its financial management and internal controls, we
removed this program from our high-risk list. More recently, Congress
has required statutory performance agreements for other Federal
executives, including for the Commissioners of the U.S. Patent and
Trademark Office and the Under Secretary for Management of the
Department of Homeland Security.\7\
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\6\ Higher Education Amendments of 1998, Pub. L. No. 105-244
101(a), 112 Stat. 1581 (amending 20 U.S.C. 1018).
\7\ Pub. L. No. 106-113, 1000(a)(9) ( 4713), 113 Stat. 1501,
1536, 1501A-21, 1501A-575 (1999) (amending 35 U.S.C. 3); Implementing
Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53
2405(b), 121 Stat. 266, 548 (amending 6 U.S.C. 341(c)).
---------------------------------------------------------------------------
A statutory performance agreement could benefit ASCR. The
responsibilities assigned to USDA's Assistant Secretary for Civil
Rights were stated in general terms in both the 2002 Farm Bill and the
Secretary's memorandum establishing this position within USDA. The
Secretary's memorandum stated that the Assistant Secretary reports
directly to the Secretary and is responsible for (1) ensuring USDA's
compliance with all civil rights laws and related laws, (2)
coordinating administration of civil rights laws within USDA, and (3)
ensuring that civil rights components are incorporated in USDA
strategic planning initiatives. This set of responsibilities is broad
in scope, and it does not identify specific performance expectations
for the Assistant Secretary. A statutory performance agreement could
assist in achieving specific expectations by providing additional
incentives and mandatory public reporting.
In October 2008, we suggested that Congress consider the option of
making USDA's Assistant Secretary for Civil Rights subject to a
statutory performance agreement. USDA initially disagreed with this
suggestion, in part stating that the Assistant Secretary's
responsibilities are spelled out in the 2002 and 2008 Farm Bills. In
response, we noted, in part, that a statutory performance agreement
would go beyond the existing legislation by requiring measurable
organizational and individual goals in key performance areas. In April
2009, ASCR officials indicated that the Department no longer disagrees
with this suggestion. However, these officials expressed the hope that
the actions they are taking or planning to improve the management of
civil rights at USDA, such as obtaining an independent external
analysis of program delivery, will preclude the need for this
mechanism.
An Oversight Board Could Improve ASCR Management
Congress could also authorize a USDA civil rights oversight board
to independently monitor, evaluate, approve, and report on USDA's
administration of civil rights activities, as it has for other Federal
activities. Oversight boards have often been used by the Federal
Government--such as for oversight of public accounting, intelligence
matters, civil liberties, and drug safety--to provide assurance that
important activities are well done, to identify weaknesses that may
need to be addressed, and to provide for transparency.
For example, Congress established the Internal Revenue Service
(IRS) Oversight Board in 1998 to oversee IRS's administration of
internal revenue laws and ensure that its organization and operation
allow it to carry out its mission. At that time, IRS was considered to
be an agency that was not effectively serving the public or meeting
taxpayer needs. The board operates much like a corporate board of
directors, tailored to fit the public sector. The board provides
independent oversight of IRS administration, management, conduct, and
the direction and supervision of the application of the internal
revenue code. We have previously noted the work of the Internal Revenue
Service Oversight Board--including, for example, the board's
independent analysis of IRS business systems modernization.\8\
Currently, there is no comparable independent oversight of USDA civil
rights activities.
---------------------------------------------------------------------------
\8\ GAO, Business Systems Modernization: Internal Revenue Service
Needs to Further Strengthen Program Management, GAO-04-438T (http://
www.gao.gov/new.items/d04438t.pdf) (Washington, D.C.: Feb. 12, 2004).
---------------------------------------------------------------------------
In October 2008, we suggested that Congress consider the option of
establishing a USDA civil rights oversight board to independently
monitor, evaluate, approve, and report on USDA's administration of
civil rights activities. Such a board could provide additional
assurance that ASCR management functions effectively and efficiently.
USDA initially disagreed with this suggestion, stating that it would be
unnecessarily bureaucratic and delay progress. In response, we noted
that a well-operated oversight board could be the source of timely and
wise counsel to help raise USDA's civil rights performance. In April
2009, ASCR officials said that the Department no longer disagrees with
this suggestion. However, these officials expressed the hope that the
actions they are taking or planning to address our recommendations to
improve the management of civil rights at USDA will preclude the need
for this mechanism.
An Ombudsman Could Address Concerns of USDA Customers and Employees
An ombudsman for USDA civil rights matters could be created to
address the concerns of USDA customers and employees. Many other
agencies have created ombudsman offices for addressing employees'
concerns, as authorized by the Administrative Dispute Resolution Act.
However, an ombudsman is not merely an alternative means of resolving
employees' disputes; rather, the ombudsman is a neutral party who uses
a variety of procedures, including alternative dispute resolution
techniques, to deal with complaints, concerns, and questions.
Ombudsmen who handle concerns and inquiries from the public--
external ombudsmen--help agencies be more responsive to the public
through impartial and independent investigation of citizens'
complaints, including those of people who believe their concerns have
not been dealt with fairly and fully through normal channels. For
example, we reported that ombudsmen at the Environmental Protection
Agency serve as points of contact for members of the public who have
concerns about certain hazardous waste cleanup activities. We also
identified the Transportation Security Administration ombudsman as one
who serves external customers and is responsible for recommending and
influencing systemic change where necessary to improve administration
operations and customer service.\9\
---------------------------------------------------------------------------
\9\ GAO, Transportation Security Administration: Actions and Plans
to Develop a Results-Oriented Culture, GAO-03-190 (http://www.gao.gov/
new.items/d03190.pdf) (Washington, D.C.: Jan. 17, 2003).
---------------------------------------------------------------------------
Within the Federal workplace, ombudsmen provide an informal
alternative to existing and more formal processes to deal with
employees' workplace conflicts and other organizational climate issues.
USDA faces concerns of fairness and equity from both customers and
employees--a range of issues that an ombudsman could potentially assist
in addressing. A USDA ombudsman who is independent, impartial, fully
capable of conducting meaningful investigations and who can maintain
confidentiality could assist in resolving these civil rights concerns.
As of April 2007, 12 Federal departments and nine independent agencies
reported having 43 ombudsmen.
In October 2008, we recommended that USDA explore the potential for
an ombudsman office to contribute to addressing the civil rights
concerns of USDA customers and employees, including seeking legislative
authority, as appropriate, to establish such an office and to ensure
its effectiveness, and advise USDA's Congressional oversight Committees
of the results. USDA agreed with this recommendation. In April 2009,
ASCR officials indicated that the Assistant Secretary for Civil Rights
has convened a team to study the ombudsman concept and to make
recommendations by September 30, 2009, to the Secretary of Agriculture
for establishing an ombudsman office.
Concluding Observations
USDA has been addressing allegations of discrimination for decades
and receiving recommendations for improving its civil rights functions
without achieving fundamental improvements. One lawsuit has cost
taxpayers about a billion dollars in payouts to date, and several other
groups are seeking redress for similar alleged discrimination. While
ASCR's established 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 short, and
significant deficiencies remain.
Unless USDA addresses several fundamental concerns about resolving
discrimination complaints--including the lack of credible data on the
numbers, status, and management of complaints; the lack of specified
timeframes and management controls for resolving complaints; questions
about the quality of complaint investigations; and concerns about the
integrity of final decision preparation--the credibility of USDA
efforts to resolve discrimination complaints will be in doubt. In
addition, unless USDA obtains accurate data on minority participation
in USDA programs, its reports on improving minority participation in
USDA programs will not be reliable or useful. Furthermore, without
better strategic planning and meaningful performance measures, it
appears unlikely that USDA management will be fully effective in
achieving its civil rights mission.
Given the new Administration's commitment to giving priority
attention to USDA's civil rights problems, various options may provide
a road map to correcting long-standing management deficiencies that
have given rise to these problems. Specifically, raising the public
profile for transparency and accountability through means such as a
statutory performance agreement between the Secretary of Agriculture
and the Assistant Secretary for Civil Rights, a civil rights oversight
board, and an ombudsman for addressing customers' and employees' civil
rights concerns would appear to be helpful steps because they have
proven to be effective in raising the performance of other Federal
agencies. These options could lay a foundation for clarity about the
expectations USDA must meet to restore confidence in its civil rights
performance.
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.
Contacts 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, [Redacted] or [Redacted].
Key contributors to this statement were James R. Jones, Jr., Assistant
Director; Kevin S. Bray; Nancy Crothers; Nico Sloss; and Alex M.
Winograd.
Appendix: Interests of Selected USDA Stakeholders in Civil Rights-
Related Matters as Identified by GAO in 2007 and 2008
------------------------------------------------------------------------
------------------------------------------------------------------------
Category of interest Stakeholder interests
------------------------------------------------------------------------
Outreach programs USDA outreach programs for underserved
producers could be much better.
------------------------------------------------------------------------
Program delivery Methods of USDA program delivery need
to better facilitate the
participation of underserved
producers and address their needs.
------------------------------------------------------------------------
County system The county committee system does not
represent minority producers well.
------------------------------------------------------------------------
Investment There is a lack of USDA investment in
research and extension services that
would determine the extent of
minority needs.
------------------------------------------------------------------------
Census of Agriculture The Census of Agriculture needs to
better count minority producers.
------------------------------------------------------------------------
Foreclosure USDA may continue to be foreclosing on
farms belonging to producers who are
awaiting decisions on discrimination
complaints.
------------------------------------------------------------------------
Authority ASCR needs authority to exercise
leadership for making changes at
USDA.
------------------------------------------------------------------------
Resources USDA and ASCR need additional
resources to carry out civil rights
functions.
------------------------------------------------------------------------
Diversity Greater diversity among USDA employees
would facilitate USDA's work with
minority producers.
------------------------------------------------------------------------
Access Producers must still access services
through some USDA employees who
discriminated against them.
------------------------------------------------------------------------
Management structure The Office of Adjudication and
Compliance needs better management
structure and function.
------------------------------------------------------------------------
General Counsel Review USDA's Office of General Counsel
continues to be involved in complaint
cases.
------------------------------------------------------------------------
Source: GAO analysis of documents and interviews.
Related GAO Products
U.S. Department of Agriculture: Recommendations and Options to
Address Management Deficiencies in the Office of the Assistant
Secretary for Civil Rights. GAO-09-62 (http://www.gao.gov/new.items/
d0962.pdf). Washington, D.C.: October 22, 2008.
U.S. Department of Agriculture: Management of Civil Rights Efforts
Continues to Be Deficient Despite Years of Attention. GAO-08-755T
(http://www.gao.gov/new.items/d08755t.pdf). Washington, D.C.: May 14,
2008.
Pigford Settlement: The Role of the Court-Appointed Monitor. GAO-
06-469R (http://www.gao.gov/new.items/d06469r.pdf). Washington, D.C.:
March 17, 2006.
Department of Agriculture: Hispanic and Other Minority Farmers
Would Benefit from Improvements in the Operations of the Civil Rights
Program. GAO-02-1124T (http://www.gao.gov/new.items/d021124t.pdf).
Washington, D.C.: September 25, 2002.
Department of Agriculture: Improvements in the Operations of the
Civil Rights Program Would Benefit Hispanic and Other Minority Farmers.
GAO-02-942
(http://www.gao.gov/new.items/d02942.pdf). Washington, D.C.: September
20, 2002.
U.S. Department of Agriculture: Resolution of Discrimination
Complaints Involving Farm Credit and Payment Programs. GAO-01-521R
(http://www.gao.gov/new.items/d01521r.pdf). Washington, D.C.: April 12,
2001.
U.S. Department of Agriculture: Problems in Processing
Discrimination Complaints. T-RCED-00-286 (http://www.gao.gov/archive/
2000/rc00286t.pdf). Washington, D.C.: September 12, 2000.
Attachment
U.S. Department of Agriculture
Management of Civil Rights Efforts Continues to Be Deficient Despite
Years of Attention
May 14, 2008
Highlights
Highlights of GAO-08-755T (http://www.gao.gov/new.items/
d08755t.pdf), 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.
To view the full product, including the scopeand methodology, click
on GAO-08-755T (http://www.gao.gov/new.items/d08755t.pdf).For more
information, contact Lisa Shames at [Redacted] or [Redacted].
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.
The Chairman. I thank both of you for your statements.
My first question to Dr. Leonard, in your opinion, to what
degree are the problems at ASCR a matter of culture among
career personnel, and can political appointees really fix the
problems?
Dr. Leonard. Mr. Chairman, I believe it is a little too
early to say. In the 23 days that I have been there, I have met
with every director in the office. I had long discussions with
them, and I am still trying to go through my initial review.
I do believe the culture can change. I believe, with
Secretary Vilsack's statement and actions, that the culture
will change.
When I came here yesterday, I came on the Hill yesterday,
in our office, every Subcabinet position was meeting and
getting civil rights training, including deputy chief of staff,
chief of staffs and Subcabinet positions. Receiving civil
rights training, it will trickle down to county-level
personnel. I believe with his dedication to civil rights, the
culture will change.
The Chairman. By that statement, you mean attitudes and
behaviors will change, is that correct?
Dr. Leonard. That is correct.
The Chairman. That seems to have been the problem with
14,000 complaints and only four being heard. When you look at
cultural change, that means attitudes and behavior of handling
the discrimination complaints to ensure there is equity and
fairness by individuals who have filed the complaint, because
there is not only past discrimination but current
discrimination as well.
My next question, and I know that it was said a little bit
by Ms. Shames, the GAO report makes it clear there must be hard
timeframes--and I think that is very important--timeframes for
resolving discrimination complaints. What will you do to
enforce, enforce these timeframes, both in resolving complaints
and carrying out the new civil rights era for USDA you propose,
in a timely manner. That becomes very important, as time is
money, and time also affects the lives of many individuals in
terms of their attitudes and their behaviors.
Dr. Leonard. Mr. Chairman, before I even came on board,
Secretary Vilsack went and got Mr. Lloyd Wright as Assistant to
the Secretary on Program Complaints. Mr. Wright is a former
Director of the Office of Civil Rights during the Clinton
Administration in 1998. Mr. Wright and I will look at the
policies and procedures in order to do a better job of
maintaining the procedures and the current timeframes, and
being able to meet the 180 day guidelines regarding EEO
complaints and program complaints in the field.
So the good thing about Secretary Vilsack's commitment, he
began before I came on board, and I have been working with Mr.
Wright in order to put these procedures in place.
The Chairman. Thank you. I know that all of us are very
much concerned when we look at the growth of our population and
our society, and so we are always looking at, do you look like
some of us, or do you look a little bit different? My question
is, what is the ethnic composition of the USDA employees in the
23 days that you have been there?
Dr. Leonard. The African American population is 10.8
percent. The Hispanic population is six percent. The Asian
American population is 2.8 percent. And that is of the around
108,000 employees at USDA across the country.
The Chairman. So it seems we have some work to do as it is
not reflective of our population, especially as we look at the
black population, which is approximately 12 percent nationwide,
and we look at the Hispanic population that is about 16 to 17
percent of the total population. And then you look at the Asian
population that is somewhere around four to six percent. So we
still have some work.
Hopefully the composition will change in order to be
reflective so when you have complaints, we know that they are
going to be done within the culture, with the changes that are
needed as well. Hopefully, you will work on improving that in
the future. I know a lot of us like going into an office and
seeing people who look like us because people are sometimes
sensitive. Not that others are not sensitive, but it is
important when it comes to civil rights and other actions. And
I know women feel the same way. When they see it is
predominantly males, they ask, are you sensitive to some of our
issues? And we have a lot more women farmers as well now. So
this is another area that we have to address.
In the 2008 Farm Bill, the farm bill created the Office of
Advocacy and Outreach to better serve minorities and small
farmers. When will it be up and running, and what will be the
relationship between ASCR and OAO?
Dr. Leonard. At present, that is still being discussed. I
went back, and I saw one of the letters that you signed in
September 2008, yourself, Representative Kilpatrick and
Representative Honda, the Tri-Caucus letter, asking that the
Office of Advocacy and Outreach be put into the Secretary's
Office because the Tri-Caucus felt it was that important.
I want to let you know, Mr. Chairman, it is being
discussed. We are in receipt in your letter, and it is being
discussed at the highest levels.
The Chairman. I know that my time has run out.
I will ask the Ranking Member, Mr. Fortenberry, for
questions.
Mr. Fortenberry. Thank you, Mr. Chairman.
Dr. Leonard, you mentioned that the Secretary suspended
foreclosures for the next 90 days. That is on all farms, not
just minority-owned farms. What is the percentage of minority-
owned farms that are in foreclosure versus the total
percentage? Is it disproportionate? What would be expected
across all farms, is there increased pressure there?
Dr. Leonard. I don't have the exact number. I will get back
to you. I don't want to give any casual numbers, as has been
done in the past. I want to make sure that I have the proper
number for you. I will follow up with your staff and let you
know.
Mr. Fortenberry. All right. Let's go back to the issue of
timeframes. Again I heard the time reference of 180 days to
resolving a discrimination complaint. Given the backlog, what
do you anticipate as your total timeframe in which we need to
clear up past complaints so that these issues are resolved in
the future, and that your office is on, I guess a normal basis
instead of high alert, if you will, engaged in the normal
activities which you are charged to do versus trying to clean
up whatever past discrimination may have existed?
Dr. Leonard. Representative Kagen mentioned in the past
there have been reorganizations, and it has been time-
consuming. We will have to undergo a reorganization, and one is
underway right now. Past complaints, all EEO and program
complaints, went through the same process. Now we are trying to
divide the EEO complaints and have a more streamlined process,
and the program complaints have a different process in which we
can adequately address both matters. Also, we are currently
trying to work within a year to get these things done properly.
The backlog of complaints that are not regarding cases are
smaller, and we will need additional support.
Mr. Fortenberry. Does that mean programmatic, making that
distinction?
Dr. Leonard. Yes. The number that the Chairman gave was
from 2000 to 2008, the 14,000 does not exist now. However,
there is a backlog, and we are going to need additional staff
and almost need to have a triage moment. You are right; it is
going to be all hands on deck for about a year in which to
begin to adequately investigate and adjudicate these cases. But
we are in the process of creating the reorganization and the
timeframe.
There are vastly different manners in which you work on a
farmers' complaint and an EEO internal complaint. And those two
had gone through the same way.
Mr. Fortenberry. You are developing special tracks now as
part of your reorganization?
Dr. Leonard. Absolutely.
Mr. Fortenberry. That is helpful to know. Hopefully, that
will diminish the intensity of the issue for you and clear up
what continues to be this lingering cloud over the Department
and all of the many good people who work very hard to ensure
that the Department of Agriculture has an extraordinary
reputation in serving our nation's farmers and helping to feed
the world, which is, of course, our fundamental mission, and
keeping us safe in an abundant food supply. So the sooner we
can clean this up and get beyond it, I think, is helpful in
creating a new spirit, a new environment there. That is helpful
information. That is all I have.
Thank you, Mr. Chairman.
The Chairman. Next I call on the gentleman from Georgia,
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Let me go back to the foreclosures for a moment, Dr.
Leonard. How many black farms are in foreclosure now? Do you
have any idea?
Dr. Leonard. We don't have an exact number right now.
Mr. Scott. Let's review this for a second. The moratorium
was requested last year during the Bush Administration. The
Bush Administration refused. So at what point did the Obama
Administration begin to react to this, from your knowledge? He
has been in for 100 days. Was it right when he came into
office, or was it after a period of time?
Dr. Leonard. There have been ongoing discussions throughout
his 100 days. With all of these processes, you have to work
them out with OMB and other agencies. Secretary Vilsack felt it
was important to move on this, as the President had requested
as well. So both of them had been working to make this happen
as soon as possible. But other agencies, you have to get
clearance for everything. There is a Hill process where you
have clearance, but the agency process is much more of a
labyrinth than I anticipated.
Mr. Scott. So what has happened, and you mentioned in your
statement that the Secretary now will temporarily suspend all
current foreclosures and allow for approximately 90 days. So,
my question is, given that, can we safely say then that no
black farmers are in foreclosure as of this time; that they
have been stayed temporarily and you are looking at them during
this 90 day period? Or have there been any who have fallen
through the cracks who have been foreclosed on?
Dr. Leonard. Not that I know of.
Mr. Scott. Now, in this 90 days, what is taking place? You
mentioned in your statement that this time affords the
Department the opportunity to review the loans for any problems
associated with possible discriminatory conduct. I guess what I
am asking, is the criterion taking these 90 days just to find
out if there is any discrimination that happened? And if the
conclusion is no discrimination happened, these are set-aside
here, and they are divided, and then what happens to those that
you say, well, there was no discrimination here, they get no
relief? Or have you come to the conclusion that basically all
fall within some measure of having some discrimination, so that
you would extend that help?
I am just trying to get our hands around the foreclosures,
the characteristics of our foreclosure approach and how
extensive it is?
Dr. Leonard. Our office has received a large number of
calls from farmers in foreclosure, and Secretary Vilsack began
to act on that.
When I said there aren't any to my knowledge, since last
Wednesday when the Secretary issued his memorandum, I believe
we have only received two calls since then; whereas, before, we
were probably receiving calls in the neighborhood of ten a day.
The Secretary could, in this interim 90 days, what we are
trying to do is ascertain what types of foreclosures farmers
are in, in an effort to better be able to serve them.
I don't think that the assumption is that all of the
farmers in foreclosure, if they are African American, have been
discriminated against. But we want to begin to investigate if
they have been discriminated against. So I don't think that the
assumption is an automatic assumption of discrimination, but we
do need to take the time to give the proper due process to
these farmers.
The Chairman. Mr. Scott, you probably have additional
questions, but we will submit those, and they will have an
opportunity to answer those.
Mr. Childers for questions.
Mr. Childers. I thank both of you for being here this
morning.
Very briefly, Dr. Leonard, Secretary Vilsack announced that
USDA would be bringing in a consultant to take a look at
programs and procedures at the agency to make sure that they
are conducted properly from this day forward. Who is the
Secretary bringing in as a consultant? Do you know that?
Dr. Leonard. The RFP has been constructed and should go
out. There is no one individual. It will be a bidding process
for this individual firm. But the RFP should be out, if not
this week, then next week.
Mr. Childers. I would like to say in advance, thank you for
making sure that the very people who feed America and the
world, quite frankly, are not discriminated against. We are
long past that day, and we need to be moving on. Thank you in
advance.
The Chairman. We will have a second round, then adjourn,
because we are voting right now.
Ms. Shames, could you please describe some of the
difficulties you and your team have had in questioning USDA
employees for the October 2008 report, if you've had any
difficulty?
Ms. Shames. We did have some difficulties in accessing the
documents that we wanted to undertake the review that you and
others requested. We provided that list and, in the end, got
sufficient documents to be able to make the recommendations
that we did make. So, in the end, we feel that the audit was
thorough and complete and documented according to our
protocols.
The Chairman. Thank you.
What is the expression of culture at ASCR as you reviewed
it, and could you offer your opinion as to whether political
appointees can significantly alter the attitude and character
of the staff at ASCR?
Ms. Shames. Certainly the tone starts at the top. It is
clear that this is at a time with a new Administration, new
Secretary and new Assistant Secretary, and so I think that
bodes well, looking forward.
I do want to say that our work has shown that, for
underperforming organizations, that it takes time to turn them
around. What we have found is that the fundamental
transformation that we are looking for in this office, based on
other experiences, could take as long as 5 years, possibly 7
years. So it is going to be a long process that is going to
require a sustained effort.
The Chairman. What was the interaction with OIG during your
investigations?
Ms. Shames. We always coordinate with the USDA Inspector
General's Office. We want to ensure that we are using our
scarce resources carefully and that we are not duplicating any
work. I am pleased to say that the IG also cooperated in this
effort. As we heard different complaints and different
allegations, we were able to rely on their expertise and
incorporate that into our report as well.
The Chairman. Thank you.
Mr. Fortenberry for any questions.
Mr. Fortenberry. Very briefly, since we need to go vote, do
you find that discrimination complaints about foreclosures
against minority farmers are concentrated in a particular area?
And if so, are there plans to increase oversight in particular
locales?
Dr. Leonard. With regard to African American farmers, 97
percent of the complaints are in 14 states. Since 1983, USDA
has not had any investigators go in and investigate claims of
discrimination. So one of the matters that we are considering
is hiring investigators to be able to go in to these different
states.
The Chairman. Thank you very much.
Before we adjourn, I want to thank both of you for coming
before us.
The first step in the recovery process is admission of the
mistakes of the past, and I am pleased that Secretary Vilsack
has already taken steps in the right direction with the new era
of civil rights initiative, but I want to repeat this point:
The Subcommittee will conduct active oversight of ASCR to make
sure that the goals in the new initiative are met, which is
important. Again, I want to thank the witnesses and Members for
being here today.
Before we adjourn, I would like to state that, under the
rules of the Committee, the record of today's hearing will
remain open for 10 calendar days to receive additional
materials and supplemental written response by witnesses, and
questions by Members may be submitted.
This hearing of the Subcommittee of Department Operations,
Oversight, Nutrition, and Forestry is now adjourned.
[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]