The Honorable Emory A. Rounds
U.S. Office of Government Ethics
1201 New York Avenue, NW, Suite 500
Washington, DC 20005
Submitted via email to [email protected]
Subject: OGE PRA Form 278e and OGE Form 450 Review
Dear Director Rounds:
The Project On Government Oversight (POGO) submits the following comment in response to a solicitation of public comments by the Office of Government Ethics (OGE) regarding potential changes to the Executive Branch Personnel Public Financial Disclosure Report (OGE Form 278e), published in the Federal Register on December 1, 2022.1 We appreciate the opportunity to weigh in on this important matter.
POGO recommends that OGE change OGE Form 278e to collect and disclose three new pieces of information: a declaration as to whether the filer has received a conflict-of-interest waiver, the filer’s type of appointment, and the filer’s date of appointment.
POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
Disclosure of the Filer’s Receipt of a Conflict-of-Interest Waiver
The primary conflict-of-interest law grants the public a right to access written waivers exempting executive branch employees from its restrictions, but the executive branch has made it difficult for the public to exercise this right.2 OGE should address this program weakness by requiring filers to indicate in OGE Form 278e whether they have received conflict-of-interest waivers.
Because the public has no way of knowing when executive branch officials receive conflict-of-interest waivers, the public does not know when or where to submit requests for copies of them. OGE does not release conflict-of-interest waivers through its online portal for accessing other ethics records, nor does it notify the public of the issuance of waivers. OGE also routinely refuses to release its own copies of the waivers, advising requesters to contact the issuing agencies instead.3 To make matters more difficult, at least one federal agency (the Department of State) has refused to release conflict-of-interest waivers unless the requester identifies waiver recipients by name — something the law does not require and is impossible to do without knowing who has received a waiver. These obstacles to transparency risk creating an impression that the executive branch wants to conceal waivers from the public.
Requiring filers to indicate in OGE Form 278e whether they have received conflict-of-interest waivers would enable the public to file requests with agencies for copies of those waivers. This change would restore a public right the executive branch has impeded, a benefit that would far outweigh the minimal burden of requiring filers to respond “yes” or “no.”
Disclosure of the Filer’s Type of Appointment
OGE should add a data field to the cover page of OGE Form 278e that indicates the type of appointment a filer holds. This change would enhance the public’s understanding of the report’s contents because senior noncareer employees are subject to restrictions that limit outside earned income and, in some cases, prohibit it altogether.4 Knowing that an appointee is a senior noncareer employee would enable the public to gauge whether the filer’s receipt of income disclosed in part 2 of OGE Form 278e violated these restrictions. Similarly, special government employees are subject to reduced requirements regarding compensation for representational activities and supplementation of federal salary, so knowing a filer’s status as a special government employee would help the public understand whether income entries in OGE Form 278e are consistent with conflict-of-interest laws.5
Disclosure of the Filer’s Date of Appointment
OGE Form 278e notifies the public of the date of an individual’s appointment only when the individual files the form as a new entrant report. This information is absent when the filing is an annual or termination report. But including the appointment date in those types of reports would be useful because it would reveal the period when a filer was serving in a public filing position, which in turn would reveal whether any lack of earlier filings during that period (either new entrant or annual reports) was due to the filer’s failure to comply with financial disclosure requirements.
Excepted Investment Fund Field
OGE has solicited comments on whether it should eliminate the option for a filer to respond “N/A” (not applicable) in the excepted investment fund field, allowing only “yes” or “no” responses. POGO recommends against this change because it would reduce public understanding of the contents of financial disclosure reports.
The excepted investment fund field asks filers whether an item disclosed in OGE Form 278e is an investment fund that qualifies for an exception to the requirement of disclosing the underlying holdings of investment funds. OGE Form 278e currently offers filers a choice between three possible responses:
- “Yes” means an item is an investment fund that is excepted from the requirement of disclosing underlying holdings;
- “No” means an item is an investment fund that is not excepted from the requirement; and
- “N/A” means an item is not an investment fund, so the requirement is not applicable.
Eliminating the “N/A” response would transform “no” into an ambiguous response. In that case, a “no” response could have two entirely different meanings: Either the item is an investment fund that is not excepted from the requirement, in which case disclosure of its underlying holdings would be mandatory; or the item is not an investment in an investment fund, in which case the item would have no underlying holding to disclose.
Without an “N/A” option, it could be difficult in some cases for the public to ascertain whether the filer has complied with the requirement to disclose underlying holdings of investment funds.
Thank you again for your consideration of this comment regarding possible changes to OGE Form 278e. POGO recommends that OGE add data fields requiring filers to indicate whether they have received conflict-of-interest waivers and requiring filers to disclose their type and date of appointment. POGO recommends against OGE’s contemplated elimination of an “N/A” (not applicable) response in the excepted investment fund data field.
Vice President of Policy and Government Affairs