1.01: Officials Required to File
Basic Filing Requirement
5 U.S.C. app. § 101; 5 C.F.R. § 2634.202
The following individuals are required to file an Executive Branch Personnel Public Financial Disclosure Report:
- Candidates: A candidate for nomination or election to the office of President or Vice President. A report filed to satisfy the Candidate reporting requirements is called a “Candidate Report.”
- Nominees: A Presidential nominee to a position requiring the advice and consent of the Senate (PAS), other than an individual nominated for judicial office or an individual nominated as a Foreign Service Officer or as an officer of the uniformed services. A report filed to satisfy the Nominee reporting requirements is called a “Nominee Report.”
- New Entrant Filers: An individual who has assumed the duties of a position for which public financial disclosure is required (“covered position”), unless the individual is expected to serve no more than 60 days in any single calendar year or unless the individual is transferring from one covered position to another without a break in service of more than 30 days. A report filed to satisfy the New Entrant reporting requirements is called a “New Entrant Report.”
- Annual (or Incumbent) Filers: An individual who served more than 60 days in a covered position during the preceding calendar year. A report filed to satisfy the Annual reporting requirements is called an “Annual Report” or an “Incumbent Report.”
- Termination Filers: An individual who terminated service in a covered position, unless the individual served no more than 60 days during any single calendar year or unless the individual assumed employment in another covered position within 30 days of termination. A report filed to satisfy the Termination reporting requirements is called a “Termination Report.”
Equal Classification Determinations
5 U.S.C. app. § 101(f)(3); 5 C.F.R. § 2634.202(c)
The Director of OGE may designate additional positions for filing public financial disclosure reports if OGE determines that those positions are equivalent to others that normally require filing. OGE uses this authority to account for employees with unusual status. Although salary levels usually define the class of filers, the level of an employee’s responsibility, not pay, actually determines who must file. Only the Director of OGE may determine whether a particular position has responsibilities equal to that of other public filing positions. An agency that wishes the Director to designate a position for public filing must submit a written request providing a basis for this determination.
For additional information, see OGE DAEOgram DO-07-029 (August 20, 2007).
Exclusion for Individuals Serving 60 Days or Less
5 U.S.C. app. §§ 101(d) & (h); 5 C.F.R. § 2634.201(a) & § 2634.204
A filing exclusion exists for individuals who served or will serve no more than 60 days in a covered position. The application of the exclusion depends on the type of public report that the individual would otherwise be required to file.
New Entrant and Nominee Reports
A New Entrant report is not required if the agency at which the position is located determines that the employee is not reasonably expected to perform the duties of the position for more than 60 days in any calendar year. Agencies need not inform OGE of such decisions but must record them in their own files. The Director of OGE will exclude a nominee to a PAS position from the filing requirement if the Director determines that the individual is not reasonably expected to perform the duties of the position for more than 60 days in any calendar year. The Director makes this determination based on information from the employee’s agency. Some Senate committees, however, might require a confidential OGE Form 278e under their own statutory authority to require information as a condition of confirmation.
If an employee has initially been excluded from public filing but does work more than 60 days in a calendar year, then the employee must file a New Entrant report within 15 days after the 60th day. The employee should also file any subsequent Annual and Termination reports.
An employee who performed the duties of the position for no more than 60 days in a calendar year does not need to file an Annual report covering that calendar year. However, the employee may still be subject to other reporting requirements. For example, an employee who assumes the duties of a covered position in December 2014 does not have to file an Annual report for calendar year 2014. However, the employee will need to complete a New Entrant report, unless the DAEO determines that the employee is not reasonably expected to perform the duties of the position for more than 60 days in any calendar year.
An employee need not file a public Termination report if he or she performed the duties of the position for no more than 60 days in any calendar year.
Day-Counting Rules for Purposes of the Exclusion
For part-time employees and special Government employees, agencies should count the days on which the employees actually worked (excluding certain de minimis activities). If a part-time employee works a part of a day, or on a Saturday, a Sunday, or a holiday, then that day counts as one day in determining the number of days worked. See OGE DAEOgram DO-07-005 (February 22, 2007) and OGE DAEOgram DO-07-002 (January 19, 2007) for additional guidance.
For full-time employees, agencies should count consecutive calendar days of assignment to the position, including weekends and holidays.
Confidential Financial Disclosure
Special Government employees exempted from the public filing requirement must file a New Entrant confidential financial disclosure report, regardless of the number of days served, unless they are exempted from filing by agency determination.
Optional Procedures If the Number of Days to Be Worked Is Unclear
In certain cases, agency ethics officials do not expect an employee to serve more than 60 days but know there is a real possibility that the employee could do so. In such cases, agency ethics officials may permit, but not require, an employee to file a modified OGE Form 278e in lieu of a confidential financial disclosure form. The modified OGE Form 278e would include only the information required by the confidential financial disclosure requirements. For example, in Parts 2, 5, and 6, the filer would report the assets that meet either the value or income reporting thresholds, but would not complete the value and income fields. Similarly, the filer would complete only the Creditor Name and Type fields in Part 8. The modified OGE Form 278e would be treated as confidential and marked “not for public release” (or “confidential”), unless and until the employee works more than 60 days in that calendar year. If the employee does work more than 60 days, the employee must update the report within 15 days of the 60th day, including all of the information required for a public OGE Form 278e. See OGE DAEOgram DO-03-021 (October 23, 2003) for additional guidance.
Alternatively, an employee may voluntarily complete all of the information required for a public OGE Form 278e at the time he or she files confidentially. For example, unlike the procedure discussed above, the employee may complete the value and income fields for each entry in Parts 2, 5, and 6. The OGE Form 278e would be treated as confidential and marked “not for public release” (or “confidential”), unless and until the employee works more than 60 days in that calendar year. In the event that the employee does serve more than 60 days, the agency could use the existing confidential OGE Form 278e to satisfy the public reporting requirement, provided that the information is no more than 6 months old. The agency would simply remove the confidential designation from the report within 15 days after the 60th day worked.
Exclusion for Non-policy-making Schedule C Positions
5 U.S.C. app. § 101(f)(5); 5 C.F.R. § 2634.203
At the request of agencies, the Director of OGE may exclude politically-appointed administrative support positions from public filing. The authority extends to Schedule C and other civilian positions that:
- are excepted from the competitive service because of their confidential character and
- are classified at or below GS-15 or for which the rate of basic pay outside the General Schedule (lowest step) is below 120% of the rate of pay for GS-15-01.
OGE excludes a position if it determines that the exclusion would not adversely affect the integrity of the Government or the public’s confidence in the integrity of the Government because the position has no policy-making role with respect to agency programs. OGE distinguishes between positions with programmatic policy-making roles and positions whose incumbents have only administrative roles based on the duties specified in the incumbent’s position description. Policy-making roles include, but are not limited to the following: making substantive decisions and advising officials on courses of action or the possible outcomes of policy decisions. Policy-making roles do not include administrative tasks such as scheduling meetings, compiling information for policy-makers, or making decisions about workflow and office management procedures. Once an exclusion is granted, the exclusion applies to all employees who fill that position, unless and until the duties of that position change.
Agencies that wish to exclude a position must submit a written request to the Director of OGE that includes the position title and a copy of the position description. The exclusion of a position is effective upon the agency’s written request to OGE; however, that request should be submitted before the due date for the report the employee would otherwise file. If OGE denies a request, OGE will set a due date for filing the OGE Form 278e, which will normally be 45 days from the date of the denial. An agency may request reconsideration of a denial by submitting an amended position description or other additional materials.
Special Waiver of Public Reporting Requirements for a Special Government Employee (SGE)
5 U.S.C. app. § 101(i); 5 C.F.R. § 2634.205
In certain unusual circumstances, the Director of OGE may waive the public availability requirement for an SGE’s financial disclosure report. This waiver may be granted only if the SGE is reasonably expected to perform or has performed the duties of an office or position for fewer than 130 days in a calendar year. The waiver does not exempt a person from the requirement to file a financial disclosure report; rather, it merely exempts the report from release to the public. Once a waiver has been granted under the Ethics in Government Act, the report will also be exempt from release under the Freedom of Information Act.
The Director may grant a waiver if all of the following four criteria are met:
- the individual is a special Government employee;
- the individual is able to provide services specially needed;
- it is unlikely that the individual’s outside employment or financial interests will create a conflict of interest; and
- public disclosure is not necessary under the circumstances.
If an SGE desires a waiver, the SGE must submit a written request to OGE via the SGE’s agency within 10 days after (1) the SGE learns that the position requires public disclosure and will involve more than 60 days of service or (2) the SGE works more than 60 days in a covered position despite plans to work no more than 60 days, whichever is earlier. The request must include a cover letter as well as a statement justifying the request and the SGE’s completed OGE Form 278e.
Elements of a Waiver Request
Each request for a waiver from filing a public financial disclosure report must include the following:
1. A cover letter that:
- provides the employee’s name and position;
- states the approximate number of days in a calendar year which the employee expects to serve in that position; and
- requests a waiver of public filing under 5 C.F.R. § 2634.205.
2. A separate statement that provides the reasons for an individual’s belief that the four criteria listed above are met.
3. A completed OGE Form 278e, which provides the factual basis for determining that no conflict of interest is likely. The agency must ensure that the OGE Form 278e has been identified as a confidential report.
The agency should forward the request to OGE with its opinion as to whether OGE should grant a waiver. If OGE grants the request, the cover letter described above would be publicly available in lieu of the OGE Form 278e. If OGE denies the waiver, the agency would make the report publicly available in accordance with the release provisions of the Ethics in Government Act. The cover letter, however, would not be releasable to the public in this case.
Federal Advisory Committees
Generally, only Government employees are subject to the federal ethics requirements, including financial disclosure, the conflict of interest laws, and the standards of ethical conduct. Members of federal advisory committees frequently are appointed as special Government employees, and these special Government employees are subject to the federal ethics requirements, with certain exceptions and modifications. Sometimes, however, members are instead selected to serve as “representatives” of interest groups that have a stake in the work of the advisory committee. These representative members are not Government employees and, therefore, are not subject to the federal ethics requirements. OGE has provided specific guidance (OGE 82 x 22; OGE 00 x 1; DO-04-022; and DO-05-012) to help agencies determine whether particular advisory committee members should be designated as special Government employees or as representatives.
Detailees / Acting in a Position
5 C.F.R. §§ 2634.201(a), 2634.602(a) & 2634.605(b)
The position, not the individual in the position, controls the public financial disclosure filing requirements. Accordingly, individuals detailed to or acting in a “covered” position for more than 60 days must file a public financial disclosure report. The detailed employee files the report with the employee’s home agency. The agency to which the employee is detailed should perform an intermediate review. See OGE 81 x 3.
An agency should make a prospective determination whether a person entering a position will work more than 60 days when deciding whether the person should file a New Entrant report. If an agency is uncertain about this estimate, the agency may offer the employee the option of filing a modified OGE Form 278e. See the discussion provided above under “Exclusion for Individuals Serving 60 Days or Less.”
Intergovernmental Personnel Act (IPA) Detailees
An IPA detailee to a federal position is a federal employee for purposes of the Ethics in Government Act. Consequently, an IPA detailee must file an OGE Form 278e if the detailee is assigned to an established public filing position and is reasonably expected to perform the duties of that position for more than 60 days in a calendar year. An IPA detailee who is given a set of ad hoc, unclassified duties, relevant only to the specific assignment project is not required to file an OGE Form 278e. Such IPA detailees do not have clearly defined positions and many of them retain their non-federal salaries, which may not reflect the level of responsibility of their Government duties and often may be higher than the salaries paid to other Government employees for similar work. However, in unusual cases, an agency may request an equal classification request from OGE.
Any IPA detailee who is not required to file an OGE Form 278e may be required to file a confidential financial disclosure report (OGE Form 450) if the employee’s duties and responsibilities meet the criteria set forth at 5 C.F.R. § 2634.904(a)(1).
For additional information, see OGE DAEOgram DO-02-029 (December 9, 2002).
Changes in Position or Duties
Individuals do not file a New Entrant report if they transfer between covered positions without a break of service in excess of 30 days. In these cases, the agency should instead review the individual’s most recent OGE Form 278e for potential conflicts in the new position. This review would not constitute a full, formal review leading to certification; however, the agency should document that such conflicts review occurred.
Similarly, if a current filer temporarily assumes the duties of another position, the individual would not file a new report. The agency, however, should review the individual’s most recent OGE Form 278e for potential conflicts with the new position. See OGE DAEOgram DO-08-040 (December 16, 2008).
Master List of Filers
Agencies must compile and maintain a list or database of public filers.
In addition to a basic identification list of names, titles, addresses, and phone numbers, agencies may wish to include other information to assist in program management. These other elements may include:
- dates of position entrance, filing, review, extensions, late filing fees, and certification;
- number of days worked in that calendar year (for SGEs);
- number and type of requests for the public release of a report; and
- ethics agreements and their status.