Standard of Scrutiny

5 C.F.R. § 2634.605(b) provides:

1. Initial review:  As a part of the initial review, the reviewing official may request an intermediate review by the filer’s supervisor or another reviewer.  In the case of a filer who is detailed to another agency for more than 60 days during the reporting period, the reviewing official will coordinate with the ethics official at the agency at which the employee is serving the detail if the report reveals a potential conflict of interest.
2. Standards of Review:  The reviewing official must examine the report to determine, to the reviewing official’s satisfaction, that:
   1. each required part of the report is completed; and
   2. no interest or position disclosed on the report violates or appears to violate:
      1. any applicable provision of chapter 11 of title 18, United States Code;
      2. the Ethics in Government Act of 1978, as amended, and the implementing regulations;
      3. Executive Order 12674, as modified by Executive Order 12731, and the implementing regulations;
      4. any other applicable Executive Order in force at the time of the review; or
      5. any other agency-specific statute or regulation which governs the filer.
3. Signature by reviewing official:  If the reviewing official is of the opinion that the report meets the requirements of paragraph (b)(2) of this section, the reviewing official will certify it by signature and date.  The reviewing official need not audit the report to ascertain whether the disclosures are correct.  Disclosures will be taken at ‘‘face value’’ as correct, unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report.  However, a report which is signed by a reviewing official certifies that the filer’s agency has reviewed the report, that the reviewing official is of the opinion that each required part of the report has been completed, and that on the basis of information contained in such report the filer is in compliance with applicable laws and regulations noted in paragraph (b)(2)(ii) of this section.

Additional Considerations

All OGE Form 278e Reports

Parts 2, 5, and 6 of the OGE Form 278e address many of the same types of information.  Prior to the issuance of the OGE Form 278e, these Parts were combined in a single section (“Schedule A”).  For the OGE Form 278e, OGE separated the reporting of filers’ employment assets and income, spouses’ employment assets and income, and other assets and income in order to simplify the presentation of the different reporting thresholds as well as to group all information related to the filers’ employment activities (i.e., Parts 1 through 4). 

Nonetheless, agencies are not expected to be rigid in distinguishing “Employment Assets and Income” from “Other Assets and Income.”  OGE has established this distinction with the goals of increasing accuracy and highlighting relevant assets for the interested public.  Although these goals are important, rigid enforcement is not required in every case.  Thus, if an individual filer inadvertently reports an employment-related asset, such as an incentive stock option, in Part 6 (“Other Assets and Income”), an agency has discretion to accept the entry or require that the asset be moved to Part 2 or Part 5.  Even if the agency accepts the entry, the reviewer may still wish to notify the filer of the appropriate placement of such assets for future reference.

For reports that will be sent to the Senate, OGE may require reporting on the proper Part for the sake of consistent presentation to the Senate committees.

New Entrant and Nominee Reports

With New Entrant reports, reviewers should approach the report as if it were the story of that person’s finances.  Look for obvious gaps in that story, such as long-term employment with no retirement plan reported or a New Entrant with significant stock holdings and no employment.  If gaps appear, reviewers should help filers to understand the disclosure requirements better.  In all cases, however, reviewers need to ensure that the filer has reported entries for each Part or affirmatively stated that there are no interests to report for that Part.  Within Integrity, the filer would make this statement by marking the “I do not have...” checkbox.  For hard copy reports, the filer would write “None.”

The highest level of scrutiny applies when reviewing a report filed by a nominee to a position requiring Presidential appointment and Senate confirmation (PAS).  Therefore, reviewers should err on the side of seeking clarification or additional information from a PAS nominee if there is any doubt about the adequacy of a report.  See OGE DAEOgram DO-08-002 (January 25, 2008).

Annual Reports

Reviewers are not required to perform a line-by-line comparison between a filer’s current Annual report and the filer’s most recent prior report, and reviewers need not reconcile all of the differences that may exist.  Reviewers should familiarize themselves with the prior report and follow up on any apparent inconsistencies that raise reasonable concerns as to whether the filer understands the reporting requirements (e.g., significant changes in the number of assets without corresponding transactions in either the Annual report or Periodic Transaction reports).  Reviewers should also follow up on inconsistencies relevant to the reviewer’s conflict of interest analysis.  In all cases, however, reviewers need to ensure that the filer has reported entries for each Part or affirmatively stated that there are no interests to report for that Part.  Within Integrity, the filer would make this statement by marking the “I do not have...” checkbox.  For hard copy reports, the filer would write “None.”

Termination Reports

As noted above with respect to Annual reports, reviewers do not need to perform a line-by-line comparison between a filer’s Termination report and the filer’s most recent prior report; however, reviewers should follow up on inconsistencies that raise reasonable concerns as to whether the filer understands the reporting requirements and any inconsistencies that are relevant for the reviewer’s conflict of interest analysis.

In addition, it may be reasonable not to seek additional information regarding reporting issues that do not affect the reviewer’s conflict of interest analysis.  In all cases, however, reviewers need to ensure that the filer has reported entries for each Part or affirmatively stated that there are no interests to report for that Part.  Within Integrity, the filer would make this statement by marking the “I do not have...” checkbox.  For hard copy reports, the filer would write “None.”

Over-Reporting

If the filer discloses interests that are not reportable or provides more detail than is required, the reviewer should notify the filer.  In some cases, no change to the report is necessary; however, the filer should understand that such information may be excluded from future reports and be given the option of requesting a redaction.