1.02: Individuals Required to File
5 U.S.C. app. § 101; 5 C.F.R. § 2634.202
The following individuals serve in positions covered by the public financial disclosure requirements (“covered positions”):
- the President and the Vice President;
- officers and employees (including special Government employees, as defined in 18 U.S.C. § 202) in positions that (1) are paid under a system other than the General Schedule (e.g., Senior Executive Service) and (2) have a rate of basic pay equal to or greater than 120% of the minimum rate of basic pay for GS-15 of the General Schedule; members of the uniformed services whose pay grade is O-7 or above; and officers or employees in any other positions determined by the Director of the Office of Government Ethics to be of equal classification;
- administrative law judges;
- employees in positions which are excepted from the competitive service because of their confidential or policy-making character, unless the position has been excluded from the public financial disclosure requirements by the Director of the Office of Government Ethics;
- the Postmaster General, the Deputy Postmaster General, each Governor of the Board of Governors of the U.S. Postal Service, and officers or employees of the U.S. Postal Service or Postal Regulatory Commission in positions for which the rate of basic pay is equal to or greater than 120% of the minimum rate of basic pay for GS-15 of the General Schedule;
- the Director of the Office of Government Ethics and each designated agency ethics official; and
- civilian employees in the Executive Office of the President (other than special Government employees) who hold commissions of appointment from the President.
Note: For purposes of calculating the reporting threshold, the “minimum rate of basic pay” for GS-15 is the base pay, excluding locality pay, for GS-15, step 1.
Candidates and Nominees
Although not yet serving in a covered position, the following individuals are also covered by the public financial disclosure requirements:
- a candidate for nomination or election to the office of President or Vice President, and
- 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.
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(b)(1), (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, the employee must file a New Entrant report within 15 days after the 60th day. The employee would also file any subsequent Periodic Transaction, Annual, and Termination reports, as applicable.
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 2019 does not have to file an Annual report for calendar year 2019. 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 the employee 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 the employee files confidentially. For example, 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
The Director of OGE may exclude certain politically-appointed support positions (e.g., Schedule C) from public filing if the Director determines that such exclusion would not adversely affect the integrity of the Government or the public’s confidence in the integrity of Government. The operation of this exclusion authority depends on the grade level of the position and the nature of the duties.
Employees at or below the GS-13 Grade Level
An individual need not file a public financial disclosure report if the individual is employed in a position for which the agency’s designated agency ethics official has made the following written determination:
1. The position is paid at the GS-13 grade level or below, or, in the case of a position not under the General Schedule, both the level of pay and the nature of responsibilities of the position are commensurate with the GS-13 grade level or below.
2. The incumbent in the position does not have a substantial policy-making role with respect to agency programs.
Employees at or below the GS-15 Grade Level but above the GS-13 Grade Level
An agency may request that OGE exclude a position from public filing if the following conditions are met:
1. The position has been established at the GS-14 or GS-15 grade level, or, in the case of a position not under the General Schedule, both the level of pay and the nature of responsibilities of the position are commensurate with the GS-14 or GS-15 grade level.
2. The incumbent in the position has no policy-making role with respect to agency programs.
Agencies that wish to exclude a position must submit a written request to the Director of OGE that includes the name of the employee, the name of any incumbent in the position, and a 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.
Note that, if the position description changes in a substantive way, the agency must provide OGE with a revised position description.
Relationship to the Confidential Financial Disclosure Requirements
If a position is excluded from the public financial disclosure requirements, the agency must consider whether the position meets the standards for filing a confidential financial disclosure report as specified in 5 C.F.R. § 2634.904(a)(4).
Special Waiver of Public Availability 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.
- 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:
- A cover letter that:
- provides the employee’s name and position;
- states the approximate number of days in a calendar year that the employee expects to serve in that position; and
- requests a waiver of public filing under 5 C.F.R. § 2634.205.
- A separate statement that provides the reasons for an individual’s belief that the four criteria listed above are met.
- 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 and Individuals 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, employees 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 employee’s home agency will need to consult with the agency to which the employee is detailed, as appropriate, to determine whether the report discloses any potential conflicts with the duties of the position to which the employee is detailed.
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).
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.