October 18, 2013
OGE Provides Guidance on the Application of the Periodic Transaction Reporting Requirements during the Lapse in Appropriations
OGE has been asked by several agencies whether Government employees who are subject to the public filing requirements of the Ethics in Government Act (EIGA) should have continued filing periodic transaction reports (OGE Form 278-T) during the lapse in appropriations.
While there is no authority in EIGA to suspend the filing requirement, an agency DAEO has authority to grant an extension to any employee who was unable to file a periodic transaction report during the lapse in appropriations. Under the circumstances of the lapse in appropriations, the extension may be granted retroactively. The extension may be up to 90days.
Beyond the 90-day extension deadline, the DAEO may waive the $200 late filing fee in “extraordinary circumstances.” An agency DAEO would be acting well within his or her discretion in determining that the lapse in appropriations is an “extraordinary circumstance.”
Below are two excerpts from a June 20, 2012 OGE Legal Advisory (LA-12-04) regarding periodic transaction reports that may be useful for agencies considering granting a filing extension or waiving a late filing fee.
Q10. May agencies grant extensions of filing deadlines? Yes. Subsection 101(g)(1) of EIGA provides for reasonable extensions for filing “any report,” but limits the total length of extensions to 90 calendar days. 5 U.S.C. app. 4, § 101(g)(1). An agency ethics official may grant extensions for good cause shown. 5 U.S.C. app. 4, § 101(g)(1); 5 C.F.R. § 2634.201(f). For example, an agency should toll the deadline while an employee is on official or personal travel at the time of notification or shortly after notification. If an extension pushes the deadline for a periodic transaction report beyond the deadline for subsequent periodic transaction reports, the deadline for all such reports will be the date on which the extension expires. In that case, the employee may combine all disclosures in a single periodic transaction report. Extensions may be granted before or after the filing deadline, but 90 days is the maximum total length of such extensions.
Q13. When should the $200 late filing fee be waived? Agencies have the authority under EIGA to waive the $200 fee in extraordinary circumstances. 5 U.S.C. app. 4, § 104(d)(2); 5 C.F.R. § 2634.704(b). . . . In some cases, the meaning of “extraordinary circumstances” is readily apparent. OGE’s regulations provide that an extraordinary circumstance exists when “the agency's failure to notify a new entrant, first-time annual filer, or termination filer of the requirement to file the public financial disclosure report . . . made the delay reasonably necessary.” 5 C.F.R. § 2634.704(b)(1). Likewise, an extraordinary circumstance logically exists when an employee has no legal right or ability to acquire transaction information before the deadline. Other non-exclusive examples of “extraordinary circumstances” include: a family emergency, such as illness, death, a flood, or a fire; the employee’s unawareness that a position to which the employee was transferred or detailed was subject to public filing; and agency administrative errors prevented the filer from filing reports on time. See OGE DAEOgram, DO-94-002 (January 14, 1994).
OGE will continue to provide guidance on ethics questions that arise as a result of the lapse in appropriations and the return to normal Government operations. As always, please feel free to contact your OGE Desk Officer if you require additional guidance or assistance.