April 11, 1995
DO-95-019
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Stephen D. Potts
Director
SUBJECT: Confidential financial disclosure and special Government
employees serving in a position for more than one year
BACKGROUND
A special Government employee (SGE) is defined at 18 U.S.C.
§ 202 as an officer or employee who is to perform temporary duties
"with or without compensation, for not to exceed one hundred and
thirty days during any period of three hundred and sixty-five
consecutive days...." Based on this statutory definition and long-
established personnel practice, it is our understanding that an
individual is appointed with SGE status for one-year increments,
and that for each such increment the agency must estimate whether
the appointee will serve not more than 130 days in the following
365 days. If the agency does not formally reappoint an SGE who
continues to serve after one year, it must at least redesignate the
appointee as an SGE by reestimating the number of days' anticipated
service during the following year. See, for example, Office of
Government Ethics (OGE) Informal Advisory Letter 81 x 24 (July 23,
1981).
Against that background, the regulation on financial
disclosure was written to require that all SGEs who are
confidential filers complete a new entrant report not only when
they are initially appointed but also upon each reappointment or
redesignation as an SGE (5 C.F.R. § 2634.903(b)). This ensures
continuous disclosure coverage for SGEs who serve longer than one
year, since the separate regulatory requirement to file annual
incumbent reports does not apply to them (5 C.F.R. § 2634.903(a)).
TERM APPOINTEES
After publishing the financial disclosure regulation in 1992,
we discovered that some SGEs were being appointed to terms of more
than one year for service on advisory committees or other similar
groups, but not being reappointed or redesignated each year as SGEs
with a new estimate of days to be served. In order to ensure that
they continue to be covered as confidential filers, we commented in
our DAEOgram of October 19, 1992, that these "term" SGEs should
file a report on each anniversary of their original appointment,
the same as an SGE who is formally reappointed or redesignated.
That DAEOgram also suggested that we might amend the final
regulation to more clearly specify this requirement. We do not now
believe, however, that such an amendment is necessary. The
regulation explicitly requires SGEs to file a confidential
financial disclosure report upon reappointment or redesignation,
and agencies should be reappointing or redesignating term SGEs each
year on the anniversary of their original appointment, as discussed
above.
DUE DATES
Some agencies have indicated to us recently that it is quite
cumbersome to collect additional new entrant reports on the
anniversary of an SGE's initial appointment, because that date will
vary for each SGE. Recognizing this problem, we have no objection
if an agency wishes to collect follow-on new entrant reports
simultaneously once each year for all its term SGEs or for groups
of term SGEs such as specific advisory committees. This
flexibility may also help to promote the purpose of confidential
financial disclosure reports by aligning their due dates with a
particular meeting of an advisory committee. Agencies do not need
to seek further specific authorization from OGE for this limited
procedural change.
Follow-on new entrant reports of term SGEs should cover the
preceding twelve months from the date of each filing, as required
by 5 C.F.R. § 2634.908(b). Any resulting gap in continuity between
reports is outweighed by the benefits of flexibility with filing
dates which this DAEOgram provides for term SGEs.