Congress’ addition of FAA Regional Ombudsman positions poses challenges

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Who to Contact if You’re Impacted by Aircraft Noise

FAA Reauthorization of 1996 added one national Ombudsman

FAA Reauthorization of 2019 added eight Regional Ombudsman

ACUS guidance points to existing Regional Directors

Aviation Noise Ombudsman, AEE-2, Curtis Holsclaw, serves as a liaison with the public on issues regarding aircraft noise. If you have a specific question, comment, concern or complaint that cannot be answered or addressed by any of the methods above, please contact the Aviation Noise Ombudsman.

The Federal Aviation Reauthorization Act of 1996 required the FAA Administrator to appoint an Aviation Noise Ombudsman. In addition to the liaison function mentioned above, the 1996 Act stated that AEE-2  “be consulted when the Administrator proposes changes in aircraft routes so as to minimize any increases in aircraft noise over populated areas.”

As of October 5, 2019 (if the FAA adheres to the below headline), Mr. Holsclaw will be replaced by eight Regional Ombudsmen[1].

The FAA Reauthorization Act of 2018 §180 mandated a major change in how public concerns on “aircraft noise, pollution, and safety” (subsection § (b)(1)) and/or “ changes in aircraft operations affecting the region, including arrival and departure routes, in order to minimize environmental impacts, including noise.” (subsection §(b)(3))

 

 

 

 

 

 

 

 

 

 

 

 

“Ombudsman” is not a statutorily defined; so, some background may be helpful.

The term was created in 1809 in Sweden as the title for Lars Augustin Mannerheim (his picture is featured in the above cover.) This position (the correct title, Justlieombudsman) was established to oversee the administration of the government. The etymology of Ombudsman means “representative,” and ultimately derives from the Old Norse words umboth (“commission”) and mathr (“man”). Its current connotation includes “citizen’s defender”, “representative of the people” and “agent”. It also refers to a person who reviews complaints against an organization (such as a school or hospital) or to someone who enforces standards of journalistic ethics at a newspaper.

Many countries (such as Finland, Denmark, and New Zealand), as well as some U.S. states, have appointed similar officials. Ombudsman functions in Sweden and elsewhere do not generally involve acting on behalf of complainants in the way that an advocate or lawyer would do. Nor does the Ombudsman represent the agency being complained about. Rather, an Ombudsman acts in an impartial and independent way.

In the United States, there is no unified federal ombudsman service. The existing Executive Departments with Ombudsman functions[2] include:

Internal Revenue Service

Department of Homeland Security Citizenship and Immigration Services Ombudsman

Department of Education

Environmental Protection Agency

Food and Drug Administration

United States Navy

Somewhat like the §180 Ombudsman, these other federal programs address the concerns of users/stakeholders involved with specific programs (the US Navy’s serves as liaison with the spouses of the sailors and officers).

All of this is useful background, but not an adequate basis on which to write a job description.

Fortunately, the United States has an independent federal agency charged with recommending improvements to administrative process and procedure. The Administrative Conference of the United States (ACUS’) initiatives promote efficiency, participation, and fairness in the promulgation of federal regulations and in the administration of federal programs. And fortunately, the Conference has written guidance on the Ombudsman function. Here are a few of the ACUS insights:

[± Χ = this ACUS recommendation is or is not met in §180 ]

To succeed, an ombudsman must have influence with, and the confidence of, top levels of an agency, be independent, and be able to conduct meaningful investigations into a complaint without being thwarted by the agency staff whose work is being examined. The most successful occupants of that office have generally been persons of high rank and status with direct access to the highest level of authority.

The experiences of several federal agencies show an effective ombudsman can materially improve citizen satisfaction with the workings of the government, and, in the process, increase the disposition toward voluntary compliance and cooperation with the government, reduce the occasions for litigation, and provide agency decision makers with the information needed to identify and treat problems.

±

  1. Powers, Duties

a. Ombudsman legislation or agency guidelines should set out the functions to be performed by the ombudsman and confer the powers needed to enable the ombudsman to (i) receive and inquire into complaints, (ii) recommend solutions in individual matters and make recommendations for administrative and regulatory adjustments to deal with chronic problems and other systemic difficulties, (iii) advise within the agency concerning procedures, forms, and similar issues affecting the nature and delivery of services; and (iv) call attention to agency problems not yet adequately considered within.

±

b. The legislation or agency guidelines should require the ombudsman to submit periodic reports summarizing the grievances considered; investigations completed; recommendations for action, improvement in agency operations, or statutory changes; agency response; and any other matters the ombudsman believes should be brought to the attention of the agency head, Congress or the public

Χ

c. The legislation or guidelines should also provide that the ombudsman should refrain from involvement in the merits of individual matters that are the subject of ongoing adjudication or litigation or investigations incident thereto.

Χ

2. Qualifications, Term

The legislation or guidelines should set forth the qualifications required for the position of ombudsman, the tenure of office, salary, safeguards protecting the independence and neutrality of the ombudsman, and means for ensuring access to the ombudsman. The Conference recommends the ombudsman be a respected, senior person known for his or her judgment, probity, and persuasiveness,

Χ

3. Confidentiality

The legislation or guidelines should protect communications to or from the ombudsman in connection with any investigation (other than reports intended to be made public), as well as the ombudsman’s notes, memoranda and recollections, and documents provided in confidence to the ombudsman. The legislation or guidelines should provide protection against disclosure in judicial, administrative, and congressional proceedings consistent with that recommended by Administrative Conference Recommendation 88-11, Encouraging Settlements by Protecting Mediator Confidentiality, 1 CFR 305.88-11

Χ

b. An agency, when establishing an ombudsman, should explicitly disclaim authority ordinarily, to discover or otherwise force disclosure of an ombudsman’s notes, memoranda or recollections, or of documents provided to the ombudsman in confidence.

⇒ 

FAA can disclaim this in its establishment of the Regional Ombudsman

  1. Judicial Review, Liability

Any such legislation should provide that (i) no inquiry, report, recommendation, or other action of the ombudsman shall be subject to examination or review in any court, unless the ombudsman is subject to criminal investigation; and (ii) no civil action shall lie against the ombudsman for any action, failure to act, or statement made in discharging the ombudsman’s responsibilities.

Χ

  1. Access to Agency Officials and Records

The ombudsman should be given direct access to the head of the agency and to high-ranking officials within it. The legislation or guidelines should authorize the ombudsman to request agency officials to provide information (in person or in writing) or records the ombudsman deems necessary for the discharge of its responsibilities; and should require, absent countervailing compelling concerns relating to confidentiality or privacy, that such information be supplied to the extent permitted by law.

Legislation

Χ

 FAA guidelines POSSIBLE

 

  1. Outreach

An agency with an ombudsman should take effective steps to ensure that persons who deal with the agency are aware of the existence, purpose, and availability of the ombudsman service. These steps could include active campaigns to inform the public of the service.

±

The Reauthorization Act did not include all of these recommendations and the absence of 3a, 4 and 5 unfortunate.


Should the Administrator try to select eight senior officials

who have the confidence of senior management,

 who know the technical aspects of noise and safety,

who have-

the interpersonal skills to listen effectively to the complaints

and

the interagency knowledge to test alternatives

and

who already live in the eight regions or move there?

That’s a lengthy, if not impossible, task.

There are already in place accomplished individuals who are the Regional Administrators. They are in place, already know their states, have access to the Regional Offices involved in noise and safety issues and know how/when to approach   Headquarters. Their individual resumes are impressive, with a diverse skill sets. Their work histories give reason to believe that they have developed conflict resolution skills.

Technically they report to the Assistant Administrator for the Office of Finance and Management, but their job descriptions indicate that they represent the Administrator in their respective territories. Their public presence has already made their existence to the local officials.

The §180 requirement can be met easily by adding the Ombudsman job description to these individual personnel files. It would be helpful to create a central statement of this position with the powers and protections recommended by ACUS.

It will be a thankless job– falling on hand grenades all over their jurisdiction and testing their relationships with the senior staff members whose work product is the subject of the public’s complaint. At the same time, the addition of this function may serve to enhance the FAA’s mission accomplishment while improving community relations.

 

[1]  “Ombudsman” is a Swedish word meaning “agent” or “representative,” and its use here is not intended to discourage others from using more gender neutral terminology. (quote from the Administrative Conference of the United States.)

 

[2] There are some similar functions within the Offices of Inspector General, but not discussed here.



 

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2 Comments on "Congress’ addition of FAA Regional Ombudsman positions poses challenges"

  1. Jewel Simpson | June 26, 2019 at 1:24 pm | Reply

    I can’t wait a year for the Ombudsman. I have my house for sale now, because of the distress caused by Nextgen noise and pollution that has hijacked the airspace over my home, making it unlivable. How can I be certain that you won’t move the air flight freeway over the new home I buy? Where can I get a map that shows your plans for destroying the communities below the low, concentrated flights in the future? How can I go through the financial catastrophe under Trump’s tax bill for moving and getting a new mortgage and the strain and stress of being forced from my home by the FAA, only to buy a new home where the FAA has unrestricted power to destroy the quality of life there too? How can I obtain financial compensation for the unofficial eminent domain action of the FAA by taking possession of the air above my home and making it unlivable? How can I obtain financial help for getting the psychological therapy that the FAA recommends I get to learn to cope with the C-PTSD caused by the whining, booming noise that occurs incessantly over my head? These questions cannot wait a year. The FAA is stonewalling, tossing out and under-representing complaints, and suppressing whistle blowers. We need help yesterday in rescuing us from this overreaching power grab of air space over developed communities by the FAA and the Trump administration.

  2. Dear Jewel,

    Neither the FAA, the airlines, private aircraft operators nor anyone else care about you and your house. The FAA’s Regional Ombudsman are no more able to help you than the man in the moon. The takeaways from your rant is 1) you want to get some money from the Federal government and 2) you’re a liberal Democrat who doesn’t like President Trump. Your house isn’t selling, most likely, it’s priced too high and/or is’t a dump. In any case, having read rants like yours during the 40 years I spent in the aviation industry is just another big yawn. Get over it.

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