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Office of Government Ethics02 x 11 Memorandum dated December 9, 2002,to Designated Agency Ethics Officialsfrom Amy L. Comstock, Director, RegardingApplication of the Financial DisclosureRequirements to Detailees under theIntergovernmental Personnel Act (IPA)
This memorandum offers guidance regarding the application of the financial disclosure requirements to detailees under the Intergovernmental Personnel Act (IPA), 5 U.S.C. §§ 3371-3376.
In December 2001, the IPA was amended to make State and local government employees who are detailed to Federal agencies, “employees” of the Federal agency for purposes of the Ethics in Government Act (EIGA).1 Accordingly, some IPA detailees now may be required to file financial disclosure reports. Whether a particular detailee has to file a public report, a confidential report, or any report at all depends upon the nature of the detailee’s position as well as the detailee’s duties and rate of pay.
We have consulted with the Office of Personnel Management (OPM) and reviewed the OPM handbook on the IPA Mobility Program. According to OPM, agencies have a great deal of discretion with respect to the assignment of persons on detail under the IPA. A detailed employee “may be assigned to an established, classified position in the Federal agency, or may be given a set of ad hoc, unclassified duties, relevant only to the specific assignment project.”2 The following guidance is provided in light of this information.
Public Financial Disclosure Requirements
Section 101 of the EIGA requires certain Federal Government employees to file public financial disclosure forms, including:
5 U.S.C. app. § 101(f)(3). Because IPA detailees now are considered Federal employees under the EIGA, those who occupy positions that fit one of these categories are required to file public financial disclosure reports.
An IPA detailee who is assigned to an “established, classified position,” with a rate of basic pay equal to or greater than 120% of the minimum rate of basic pay for a GS-15, and is reasonably expected to perform the duties of his position for more than 60 days in a calendar year, is required to file a Public Financial Disclosure Report under section 101(f)(3). As we have stated in prior OGE opinions, it is the position that controls the public financial disclosure reporting requirement.3 In OGE 98 x 2, we cited a 1977 Senate Governmental Affairs Committee report which noted that determining who should file a public report is based on the level of responsibility for the position, as indicated by the lowest level of pay for the position.
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 a Public Financial Disclosure Report. These 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 for their Government duties and often may be higher than the salary paid other Government employees for similar work. However, in unusual cases, under section 101(f)(3), an agency may request that this Office issue a determination that the detailee’s position is of equal classification to those required to file SF 278s.
Equal Classification Determination
A request for an equal classification determination may be made for either a detailee who is assigned to an established, classified position that does not require the submission of an SF 278 under the standard at section 101(f)(3), or for an IPA detailee who is given a set of ad hoc, unclassified duties. To the extent possible, a request for an equal classification determination should address the following criteria, as applicable:
We will apply these criteria in determining whether an IPA detailee’s position warrants equal classification under section 101(f)(3).
Confidential Financial Disclosure Requirements
The EIGA authorizes each branch of the Government to collect confidential financial disclosure reports from its employees, where appropriate. See 5 U.S.C. app. § 107. Therefore, IPA detailees who are “assigned to an established, classified position” but are not required to file SF 278s and detailees who are “given a set of ad hoc, unclassified duties, relevant only to the specific assignment project,” may be required to file a Confidential Financial Disclosure Report if their duties and responsibilities meet the criteria at 5 C.F.R. § 2634.904(a)(1).
The filing deadlines for individuals filing a public form are set forth in 5 C.F.R. § 2634.201. For those filing a confidential form, the filing deadlines are described at 5 C.F.R. § 2634.903. If there are IPA detailees in your agency who have never filed a financial disclosure report, but who you believe now should file either a public or confidential report, we recommend that they be allowed to file the report within 30 days of being notified of the requirement to do so.
If you have any questions, please contact my Office.
1. The National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107 (2001), amended 5 U.S.C. § 3374(c)(2) of the Intergovernmental Personnel Act.
2. Office of Merit Systems Oversight and Effectiveness, U.S. Office of Personnel Management, A Handbook on the Intergovernmental Personnel Act Mobility Program, 14 (1998).
3. In the Office of Government Ethics (OGE) Informal Advisory Letters 81 x 3 and 98 x 2, OGE looked at both the wording of the Ethics in Government Act and its legislative history and concluded that “it is the position and not the individual which controls the public financial disclosure reporting requirements.”