Canton Repository

April 13, 2002

EPA ombudsman fails in attempt to block his transfer 

Copley News Service

WASHINGTON — The U.S. Environmental Protection Agency said it immediately would transfer ombudsman Robert J. Martin after a federal judge on Friday rejected Martin’s effort to block the move.

“I am pleased with (the) decision because it allows us to proceed with our efforts to make the ombudsman function more
independent,” EPA Administrator Christine Todd Whitman said in a prepared statement Friday.

Despite U.S. District Court Judge Richard W. Roberts’ dismissal of Martin’s claim, Martin plans to continue fighting the transfer.

Since he became ombudsman in 1992, Martin has conducted more than 30 investigations at hazardous waste sites, including the Industrial Excess Landfill near Canton.

Whitman ordered the ombudsman moved to the EPA’s Office of Inspector General last Nov. 27, saying the transfer would provide Martin with more independence than he currently enjoys.

Martin has said he expects to have little if any independence after he is moved. He had succeeded in blocking the transfer through a temporary restraining order, which was issued by a federal judge pending the outcome of his lawsuit against Whitman. That order expired Friday.

The ombudsman’s office fields questions and complaints about the EPA from the public and Congress, performs independent
evaluations of EPA cleanup plans and makes recommendations to the agency.

Martin’s office is currently located in the EPA’s Office of Solid Waste and Emergency Response, which overseas the Superfund toxic waste cleanup program.

The EPA said the transfer will become effective today. It could take more than a week to complete the physical relocation of Martin’s files to the new location within the agency, Whitman’s spokeswoman Steffanie Bell said.

Martin is filing a complaint with the Office of Special Counsel, an independent federal agency that investigates alleged violations of civil service and whistle-blower laws.

In his lawsuit, Martin claimed that the transfer was an act of retaliation for critical comments he made about the EPA in the course of doing his job. EPA attorneys denied this.

In her statement, Whitman noted that a General Accounting Office report issued last July recommended “steps to strengthen the independence of the ombudsman.” Whitman added: “By relocating the position to the Office of the Inspector General, we are doing just that.”

Under Inspector General Nikki Tinsley, however, Martin will need agency approval to talk with lawmakers and reporters, according
to a statement filed in the federal court case. Up to now, Martin has been free to talk with members of Congress, reporters or the public as he sees fit.

In a court statement, Deputy Inspector General Gary L. Johnson said all employees of the office must seek “prior consultation with the (inspector general’s) congressional and media relations liaison” before they can respond to requests from or initiate contacts with Congress or the media.

The policy does not require approval to talk with other members of the public.

Martin will be located within that congressional and media relations office when he is moved.

In ruling against Martin’s request for an injunction to block the transfer, Roberts said federal law requires Martin to take his
complaint first to the special counsel and exhaust any possible solutions there before seeking relief in court.

“Allowing him to sue directly in federal district court would permit him to circumvent Congress’ carefully crafted administrative procedures for remedying adverse personnel action,” Roberts said.

Initially, Martin chose not to file a complaint with the special counsel because his attorneys believed the counsel did not have the authority to address his allegations.

“We’re going to file with the (special counsel) even though we think they don’t have authority and see which way they go,” Martin spokesman Hugh Kaufman said. “If they say they don’t have the authority, we’ll be back in court.”

Kaufman, who has served as Martin’s chief investigator, expressed hope that “some of our allies in Congress will go to the White House and ask Whitman not to dissolve the ombudsman ... until we have a hearing on the merits.” Kaufman, a program analyst in the EPA, is not being allowed to move to the new office with Martin.

Several lawmakers have introduced legislation to give Martin greater independence through the creation of a congressionally
authorized ombudsman office. Those bills have been stalled in committees since last year.

Sen. Mike Crapo, R-Idaho, sponsor of one of the bills, expects to push for a hearing on his legislation in the next couple of months, his spokeswoman Susan Wheeler said.

Wheeler said Friday that Crapo opposes the move to the inspector general’s office. “The ombudsman needs to be an independent watchdog,” she said.

Martin’s attorneys said last week that if he is transferred, he will end up sitting in an office waiting for complaints to come in over a telephone hotline.

EPA attorneys countered that Martin “will be reassigned to continue to perform ombudsman work.” They added, however, that he “will not have unilateral authority to select or prioritize cases (though) he will initially receive and evaluate complaints and inquiries and recommend case handling priorities.”

Judge Roberts threw out a claim by the Government Accountability Project, which had joined with Martin in the lawsuit. GAP contended that transferring the ombudsman would violate the group’s right to receive information from Martin.

Roberts said the allegations “might establish that Martin is losing some of his investigatory independence or that Martin will no longer be able to cite from the same government files when he speaks.” But he added that GAP did “not establish that Martin will no longer speak to the public as he had before the transfer.”