January 14,1994
DO-94-002
MEMORANDUM
TO: Designated Agency Ethics Officials, General Counsels
and Inspectors General
FROM: Stephen D. Potts Director
SUBJECT: Guidance on Public Financial Disclosure (SF 278) Late
Filing Fee Waivers
During the September 1993 Ethics Conference in Hershey,
Pennsylvania, the Office of Government Ethics (OGE) made available
written guidance about: the public financial disclosure late filing
fee waiver process in an effort to increase agency awareness of the
criteria used in evaluating fee waiver requests. This DAEOgram
ensures the executive branch-wide dissemination of this guidance.
The Ethics Reform Act of 1989 instituted a $200 late
filing fee (see 5 U.S.C. App. §104) to ensure the timely filing of
public financial disclosure reports by the appropriate executive
branch employees. Effective January 1, 1991, in accordance with
section 104(d) of the Ethics in Government Act (the Act), any
employee who is required to file a public financial disclosure
report and does so more than 30 days after the report is required
to be filed, or, if an extension has been granted, more than 30
days after the last day of the filing extension, shall be subject
to a $200 late filing fee. The fee shall be remitted to the
appropriate agency, which will then forward it to the United States
Treasury. (See 5 C.F.R.§ 2634.704.)
The Act gives OGE the sole authority to waive the fee if
extraordinary circumstances cause the late filing. Over the past
two years, OGE has granted fee waivers in cases where filers have
made a good-faith effort to file their reports and have encountered
unusual circumstances beyond their control. Despite this
precedent, however, OGE considers each request on its own merits.
Listed below are several general categories under which
fee waiver requests have been granted and denied. We provide this
information only to enhance agency understanding of the fee waiver
process. We discourage any effort to force situations to fit into
the listed categories.
Designated Agency Ethics Officials,
General Counsels and Inspectors General
Page 2
CATEGORIES OF GRANTED AND DENIED WAIVER REQUESTS
The statutory language indicates that the responsibility
to file rests with the employee. OGE, however, believes that
filers should be held strictly accountable only after gaining
familiarity with the filing process through the periodic filing of
reports. As a result, we view the lack of notification to new
entrant and first annual filers as justification for granting
waivers because these filers are new to the filing process, and
they may be initially unaware of filing requirements. 1 In
addition, the lack of notification by the agency to termination
filers also justifies granting a fee waiver because employees who
are terminating employment may be unaware of the requirement to
file a termination public financial disclosure report. Similarly,
employees who transfer positions should be allowed some latitude
until they have been clearly apprised of the requirement to file
reports in those positions.
In contrast, we would not waive the late filing fee for
"experienced" annual filers who were not notified about filing
requirements.
The following are reasons for which we have GRANTED waivers:
. A family emergency, such as illness, death, or a fire
prevented timely filing.
. The employee was a new entrant, first annual or
termination filer, and the agency did not notify him or
her of the need to file.
. The employee was not aware of the filing requirements of
the position into which he or she recently transferred.
. Agency administrative errors (other than the notification
process) prevented filers from filing their reports on
time.
. An employee's official agency duties (agency emergencies)
impeded him or her from filing in a timely manner.
___________________
lAn effective notification system which identifies
financial disclosure filers is an integral part of an effective
ethics program. This system increases the efficiency of report
collection and ultimately reduces the frequency of late filings.
(See DAEOgram dated September 3, 1992.)
Designated Agency Ethics Officials,
General Counsels and Inspectors General
Page 3
The following are several reasons for which we have DENIED
waivers:
. The employee was an incumbent filer who had previously
filed an annual report, and the agency failed to notify
the individual about the filing requirement and the due
date.
. Due to postal delays, the agency received the report
after the 30-day grace period. (The grace period
accommodates external delays, such as mailing.)
. The employee mistook the due date. (File's error, not
agency error.)
In considering a fee waiver request, OGE examines several
other factors about the individual filing:
. The position of the filer. (If the filer is an agency
head or in a similarly ranked position, the employee
should be held to a higher standard.)
. Whether the filer requested any extensions. (This may
indicate a good-faith effort to file on the part of the
employee.)
. The opinion of the DAEO on the merits of the request.
. The filing history of the employee. Chronic lateness in
filing might influence the reviewing officials opinion.)
PROCEDURES FOR PROCESSING FEE WAIVER REQUESTS
Procedures for processing requests for a waiver of the late
filing fee are set forth at 5 C.F.R. § 2634.704. In order to ensure
that we have all relevant information, the agency forwarding letter
should include the following:
. The written request from the employee.
. The DAEO's recommendation on the merits of the waiver
request.
. A clear, concise statement of the facts that led to the
delayed filing.
. The position of the filer.
Designated Agency Ethics Officials,
General Counsels and Inspectors General
Page 4
. Whether the report is an annual, new entrant, or a
termination report (including whether it is a first
annual).
. Whether the filer received any extensions and the final
report due date, including any extensions.
. The length of time between the day the filer was
notified by the agency about the delinquency and the
actual submission date of the filer's report.
. Whether the filer has been delinquent in the past.
REQUIREMENTS FOR RECONSIDERATION OF A DENIAL
Although the Ethics Reform Act does not provide for appeal
of an OGE decision to deny a fee waiver request, we will evaluate
requests for reconsideration if new information is presented.
These are the prerequisites:
. Requests must be made within 30 days of the OGE denial
letter.
. Requests must be in writing.
. Requests must present new facts to merit consideration.
. Only one request for reconsideration will be permitted.
. Decisions to grant or deny a reconsideration request will
be consistent with the same principles outlined in this
DAEOgram.