Review of Nominee Reports

5 U.S.C. app. § 103; 5 C.F.R. § 2634.605(c)

The financial disclosure regulation outlines an expedited review process for reports filed by nominees to positions requiring Presidential appointment and Senate confirmation (Nominee report).  As practical matter, however, most Nominee reports are reviewed in draft form, prior to filing, by OGE and the agency.  This review process ends with OGE’s “preclearance” of the draft report and the filer’s draft ethics agreement, which signals that OGE does not see any issues that would prevent its certification of the final report and ethics agreement.  The review of the filed report and ethics agreement, therefore, typically consists of ensuring that there have been no substantive changes since the review of the draft was completed.  However, if there are substantive changes or if additional issues are identified during the final review, those items would need to be addressed prior to OGE’s certification of the report.

Typical Steps in the Review of Draft Report

• The filer submits a draft report to the White House.  Most filers who complete a public financial disclosure report will complete and submit their draft report using Integrity, OGE’s electronic financial disclosure system.  Note that the submission date of this draft is the date used for purposes of calculating the reporting period applicable to each Part of the report.
• The White House releases the draft report to OGE and the agency at which the position is located.
• OGE and the agency review the draft report, ask follow-up questions, provide guidance on addressing technical disclosure issues, and analyze disclosed items for potential conflicts of interest.  Any revisions to the draft report will be made with reference to the reporting periods fixed as of the date of draft submission.
• A draft ethics agreement is prepared that outlines the steps the filer will take to avoid conflicts of interest.
• OGE “preclears” (i.e., tentatively approves) the report and the ethics agreement.

Note:  Agencies and filers should not revise a precleared report or ethics agreement without first consulting with OGE.

Typical Steps in the Review of a Final Report

• The filer is formally nominated by the President.
• The filer formally files the report.  For filers who use Integrity, formal filing requires the filer to log into Integrity, open the report, and re-submit it.  These steps cannot occur prior to formal nomination.
• The agency’s DAEO certifies the report and provides OGE with the report, the final ethics agreement, and an opinion letter stating that, based on the report and the ethics agreement, the filer is in compliance with applicable laws and regulations.
• OGE staff review the materials for completeness and transmit for final review and certification by the Director of OGE or a designee.  Absent unusual circumstances, certification will occur within 7 business days of receiving all required materials from the agency.  Note that changes to the report or ethics agreement after preclearance may result in an additional period of review.

Updating Drafts More Than 6 Months Old

As noted above, the date of the filer’s draft report determines the reporting periods used when disclosing information in that draft.

Pursuant to OGE’s long-standing practice and arrangements with the Senate committees, OGE will certify a Nominee report and transmit the report to the Senate if the date used for calculating reporting periods is no more than 6 months prior to the date of the filer’s nomination.  See OGE DAEOgram DO-98-019 (May 7, 1998).  For this reason, provided that the draft submission date is no more than 6 months prior to the filer’s nomination, the filer will not update the draft report when formally filing.  The filer, however, will need to update the reporting periods used if the nomination date will occur later than 6 months after the draft submission date.  Filers will be specifically informed if an update is required, so filers should not begin an update process without first receiving notice that an update is required.

5-Day Update Letter

5 U.S.C. app. § 101(b)(1); 5 C.F.R. § 2634.606

At or prior to a filer’s first Senate committee hearing, the filer must submit a letter disclosing any non-federal earned income and honoraria received by the filer since the last day of the period covered by the filer’s Nominee report through a date that is no more than 5 days prior to the hearing.  For example, if the filer submitted a draft Nominee report on March 12, 2019, and has a Senate committee hearing on May 14, 2019, the letter must disclose non-federal earned income and honoraria for the period March 13, 2019, through May 9, 2019 (or later).  The filer submits this update letter to the agency at which the position is located, and the DAEO will transmit this letter to the Senate and OGE.