USDA Ethics

USDA Ethics Issuance

U.S. DEPARTMENT OF AGRICULTURE - OFFICE OF ETHICS

ETHICS ISSUANCE: Number 04-1 - DATE: May 7, 2004 (Updated September 2006)

SUBJECT: CRITERIA FOR THE IDENTIFICATION OF PUBLIC AND CONFIDENTIAL FINANCIAL DISCLOSURE FILERS

1. Purpose

This issuance provides interpretive guidance to U.S. Department of Agriculture (USDA or Department) supervisors/managers, human resource specialists, ethics advisors, and employees for the identification of positions for which either public or confidential disclosure is required. The definition of confidential filer at 5 CFR § 2634.904(a) has traditionally been subject to over-broad application. Using the guidance in this issuance, Department mission areas, offices of the Office of Departmental Administration (DA) and those headquarters offices serviced by DA should be able to prevent the growth of lists of confidential filers or, in many instances, to reduce the numbers of designated filers. This issuance does not create new regulatory requirements on the Department or its mission areas.

2. Authority

Title I of the Ethics in Government Act of 1978 (EIGA) and section 201(d) of Executive Order 12674 (as modified by Executive Order 12731) provide uniform requirements for financial disclosure. The program procedures for financial disclosure are set out in 5 CFR Part 2634.

3. General

Since the mid-1960s employees holding significant authority for the conduct of Federal business have been required to report certain financial interests through disclosure. The intent of the disclosure was, and remains, to provide a routine formal process for the identification of potential conflicts-of-interest and appearances of conflicts at their earliest stages. Identifying such potential conflicts early affords agencies and employees the opportunity to remedy situations that could, if unchecked, compromise not only public confidence in the integrity of the Federal Government, but also could place employees at odds with criminal and administrative regulation. As stated in Section 101 (Part I-Policy) of Executive Order 11222 (1965 predecessor to Executive Order 12674, referenced above):

    "Where government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government. Each individual officer, employee, or adviser of government must help to earn and must honor that trust by his own integrity and conduct in all official actions."

During its early stages of development, the financial disclosure reporting elements and processes employed throughout the executive branch, were varied.1 To bring consistency to the executive branch, Congress, through passage of the EIGA, statutorily established public financial disclosure reporting requirements for senior executive branch personnel, created the U.S. Office of Government Ethics (OGE), and charged OGE with the development and administration of a single, uniform Ethics Program to include establishing a public financial disclosure process. Later, OGE administratively established a uniform confidential financial disclosure process for less senior personnel, to complement the public system.

"Public filers" are identified by appointment (e.g., Presidential Appointees with Senate confirmation (PAS), Schedule C appointees, and Senior Executive Service (SES) appointees). "Confidential filers" are identified by the individual duties and authorities assigned. While identification of a public filer is relatively clear-cut, that is not the case for his/her confidential counterpart. Recognizing the potentially confusing environment and suspecting an over-designation of confidential filers, OGE issued uniform criteria for confidential filer identification. While these criteria provided greater flexibility to Agencies, it had the unintended effect of increasing the number of filers. The broad language of the criteria for confidential filers led to over-designation.2 Over-designation not only places an unnecessary burden on employees charged with reporting and consequent training requirements, but also on the mission area's ethics staff, preventing that staff from more effectively serving their population through providing advice and conducting training. USDA is justifiably concerned that its managers, for reasons not reasonably related to the effective discovery of potential conflicts of interest, have over-designated the positions required to disclose. Confidential financial disclosure reports contain sensitive, commercial and financial information, as well as personal privacy-protected information. Therefore, there is a need for critical review of lists of filers with the intent of seeking disclosure from only those employees whose duties truly meet the criteria for filing. The USDA Office of Ethics (OE) will, upon request or upon identification of issues in audits, assist mission areas on difficult questions involving the identification of confidential filers.

4. Definitions.

NOTE: The following definitions are non-technical and "plain language." Where required, cross-references are made to the technical definitions.

4.1. "Acquisition Workforce" refers to the personnel component of the Federal Acquisition system. The Acquisition Workforce includes employees in the GS-1102 series. See USDA Directive 5001-001, section 7(a), dated 9/30/03.

4.2. "Agency" is a component organization within a USDA mission area; not to be confused with the term "executive agency," as defined at 5 U.S.C. § 105, which includes cabinet departments (e.g., USDA), Government corporations, and independent establishments. See the definition of "mission area" below.

4.3. "Appearance of a Conflict of Interest" is synonymous with the terms "favoritism" and "loss of impartiality" (5 CFR § 2635.501-503). It refers to the act of being unfairly partial and indulgent to some person or persons over others. See the definition of "person" below.

4.4. "Confidential Filer" as defined at 5 CFR § 2634.904(a) and section 6 below, is an employee who holds a position graded GS-15 or below, or who receives a rate of basic pay other than under the General Schedule that is less than 120% of the minimum rate of basic pay for GS-15, and who performs the duties complying with criteria for disclosure for greater than 60 days during the period January 1 through December 31. Through the confidential process a filer may disclose by submitting, in the appropriate circumstance, a Confidential Financial Disclosure Report (OGE Form 450), Confidential Certificate of No New Interests (OGE Optional Form 450-A), or a USDA Confidential Conflict of Interest Certification (AD-1202).3 The confidential filer is required to submit a completed OGE Form 450, or AD-1202, as a new entrant filer within 30 days of appointment to duties requiring disclosure, and to disclose as an annual filer by each February 15 thereafter via one of the aforementioned reports. Individuals who file the OGE Optional Form 450-A for three consecutive years must file the OGE Form 450. All filers are required to file during the Presidential election year. Note: Employees who file the AD-1202 (or any other USDA created alternate disclosure form approved by OGE for use in lieu of the OGE Form 450) are not subject to this rule. Also, unlike public filers, confidential filers do not file termination reports. See explanations of these forms and the definition of "special Government employee" in this section.

4.5. "Conflict of Interest" is an "act affecting a personal financial interest" 18 U.S.C. § 208(a). This is a criminal code prohibition that must be interpreted in strict accordance with the language of the statute and decisions of the courts. In non-technical language, a conflict occurs when an employee personally and substantially acts in his or her official capacity on a particular matter that can directly benefit his or her financial interests. See the definitions of "personal and substantial," "particular matter," and "financial interest" below. The penalties are set forth in 18 U.S.C. § 216. The citations may be accessed on the USDA Ethics website under "Rules of the Road."

4.6. "Contract" is, for purposes of this issuance, a mutually binding legal agreement signed by a contracting officer, that obligates the Government to an expenditure of funds. See definition for "contracting officer" below. For purposes of disclosure it includes commitments and awards; notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders for any amount under which the contract becomes effective by written acceptance or performance; bilateral contract modifications; and other mutual binding legal agreements between USDA and a "person." See the definition of "person" below. It also includes GSA Schedule Orders. Excluded here are Economy Act purchases pursuant to interagency agreements with other Federal agencies or USDA agencies. Contracts do not include grants or agreements covered by 31 U.S.C. § 6301, et. seq. See USDA Directive 5001-001, dated 9/30/03.

4.7. "Contracting Officer" (CO) is a person delegated authority to enter into, administer, and terminate contracts in accordance with Federal acquisition laws and regulation, and to make related determinations and findings. This employee usually holds a GS-1102, Contract Specialist or a GS-1105, Purchasing Agent position. Note: Appointment to a GS-1102/1105 position does not automatically confer contracting officer authority. Such authorization is granted through the issuing of a warrant. See the definition of "warrant" below and USDA Directive 5001-001, dated 9/30/03.

4.8. "Contracting Officer Representative" (COR), also referred to as Contracting Officer Technical Representative (COTR), is any employee, regardless of position title or pay, designated by the CO to assist in the technical monitoring or administration of a contract. See the definitions of "contract" and "contracting officer" above. This designation does not include any authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract. See USDA Directive 5001-001, dated 9/30/03. CORs/COTRs are appointed the following levels of authority requiring expertise to oversee contracts described therein:

    Level I - Routine, generally low dollar procurements requiring little or no monitoring. Such contracts are entered into for commercial off-the-shelf materials, e.g., furniture, computer monitors, etc.

    Level II - More complex procurements requiring increased monitoring or inspections and recommendations for payment of completed phases of services or the provision of goods.

    Level III - Complex procurements requiring the oversight of major projects, e.g., facility construction or renovation, new computer systems for an Agency, or aircraft purchases.

4.9. "Dependent Child" means any individual who is a son, daughter, stepson, or stepdaughter and who is unmarried, under age 21, and living in the filer's household; or is a dependent of the filer within the meaning of the Internal Revenue Code of 1986, 26 U.S.C. § 152.

4.10. "Designated Agency Ethics Official" (DAEO) is the employee designated by the Secretary to manage the USDA Ethics Program in accordance with 5 CFR § 2638.203. Pursuant to 7 CFR § 2.87(a), the DAEO for USDA is currently the Deputy Assistant Secretary for Administration.

4.11. "Deputy Ethics Official" (DEO) is the employee to whom the DAEO delegates the authority and responsibility over the ethics program within the Department, a mission area, an Agency, or a freestanding headquarters element. See the definitions of "Designated Agency Ethics Official" and "mission area" in this section.

4.12. "Direct and Predictable Effect" (5 CFR § 2635.402(b)(1)) means that the employee's official action (through decision, influence, or action) taken on a particular matter has a close causal link between a decision or action on the matter and any expected effect of the matter on a financial interest. See the definitions of "particular matter" and "financial interest" below. The test for direct and predictable effect is not met if the particular matter will not necessarily affect a financial interest because the chain of action to bring about the consequence or result is weak or dependent upon events that are speculative or independent of, and unrelated to, the particular matter. A particular matter that affects a financial interest only as a consequence of its effect on the general economy doesn't meet the test for direct and predictable effect. Additionally, timeliness and dollar amount are immaterial considerations. See the following examples taken from 2635.402(b)(1):

    Example 1: An employee of the National Library of Medicine at the National Institutes of Health has just been asked to serve on the technical evaluation panel to review proposals for a new library computer search system. DEF Computer Corporation, a closely held company in which he and his wife own a majority of the stock, has submitted a proposal. Because decision as part of the award of the systems contract will have a direct and predictable effect on both his and his wife's financial interests, the employee cannot participate as part of the technical evaluation team unless his disqualification has been waived.

    Example 2: Upon assignment to the technical evaluation panel, the employee in the preceding example finds that DEF Computer Corporation has not submitted a proposal. Rather, LMN Corp., with which DEF competes for private sector business, is one of the six offerors. The employee is not disqualified from serving on the technical evaluation panel. Any effect on the employee's financial interests as a result of the agency's decision to award or not award the systems contract to LMN would be at most indirect and speculative.

4.13. "Ethics Advisor" is the employee (or employees) within each mission area who reports to the mission area ethics advisor for technical and procedural guidance on the administration of the ethics program. See the definitions of "mission area" and "mission area ethics advisor" below. These individuals perform the day-to-day requirements of the USDA Ethics Program which includes: conducting ethics training (if qualified in accordance with 5 CFR § 2638.704); collecting, reviewing, and certifying confidential financial disclosure reports; and counseling employees with specific ethics questions or issues.

4.14. "Financial Interest" means interests owned by the employee, his/her spouse, dependent child, the employee's general business partner, and an organization or entity for which the employee serves as officer, director, trustee, general partner, or employee. It can include interests in stocks, bonds, partnership interests, fee and leasehold interests, mineral and other property rights, deeds of trust, and liens, and rights to purchase interests such as stock options or commodity futures. It doesn't include a future interest created by someone other than the employee, his/her spouse, or dependent child or any right as a beneficiary of an estate that hasn't been settled.

4.15. "Intergovernmental Personnel Act" (IPA) affords a process through which Federal and non-Federal organizations may detail individuals to specific positions or for the accomplishment of specific projects. See 42 U.S.C. § 4701 et seq.

4.16. "Micro-Purchase Authority" means procurement authority delegated to certain employees through the Federal Acquisition Regulation. The threshold for such purchases is routinely set at $2,500/purchase or less ($2,000/purchase or less for construction).

4.17. "Mission Area" is a grouping of independent Agencies managed by an Under Secretary of USDA. NOTE: Because of the separate and distinct delegation authority from the Under Secretary for Natural Resources and Environment to the respective Chiefs, the Forest Service and the Natural Resources Conservation Service, those agencies are considered separate mission areas.

4.18. "Mission Area Ethics Advisor" is the employee or employees within each USDA mission area responsible for accomplishing the following functions for a mission area: administering regulations and statutes governing employee ethics; conducting the confidential financial disclosure reporting program; developing and implementing ethics policies; providing advice and assistance to Agency employees; and training employees on all ethics statutes, regulations and policies.

4.19. "Modified New Entrant SF 278" refers to one of two financial disclosure processes recommended by the Office of Government Ethics for a special Government employee who meets pay conditions for public disclosure, but whose Agency is uncertain whether he/she will perform the duties of the office for more than 60 days in a calendar year. See the definitions of "Standard Form 278, Executive Branch Public Financial Disclosure Report," "U.S. Office of Government Ethics," "special Government employee," and "public filer" below. The second recommended process is the completion of an OGE Form 450. See Office of Government Ethics DO-03-021, dated October 23, 2003.

4.20. "Office of Ethics" (OE) is a separate office within DA that is responsible for: implementing Government-wide ethics program policy at the Departmental level through the promulgation of supplemental ethics regulations and through the development of Department ethics policies, procedures, and program guidance; providing advice, training, and guidance to management and employees on all conflicts of interest, standards of conduct, and political activity issues; overseeing the financial disclosure program for employees in covered positions; conducting the public financial disclosure program for covered employees within USDA; conducting the confidential financial disclosure program for covered employees within the Subcabinet, DA, and headquarters staff offices; and serving as liaison to the Office of Government Ethics , the Office of Special Counsel, the White House Counsel, the General Accounting Office, and other Federal Agencies on Department ethics issues. See the definition of the "U.S. Office of Government Ethics" below.

4.21. "OGE Form 450, Executive Branch Confidential Financial Disclosure Report" (OGE Form 450) is the standardized form created by the Office of Government Ethics to be used by executive branch employees who are required to file under the confidential system. Annual disclosure is due by February 15 of each year and covers the twelve-month period ending December 31 of the previous year. See the definition of the "U.S. Office of Government Ethics" below.

4.22. "OGE Optional Form 450-A, Confidential Certificate of No New Interests" (OGE Optional Form 450-A) is an alternate form created by the Office of Government Ethics which may be used by an incumbent confidential filer in lieu of the OGE Form 450. The OGE Optional Form 450-A may only be used by an incumbent filer who can certify, after reviewing his/her most recent previous OGE Form 450, that no new reportable interests were acquired, and the filer has had no significant change in duties, authorities, and position description assignment. Use of this form is made available only to confidential filers who are not special Government employees (SGE). This form may be used for a maximum of three consecutive years. On the fourth year (each Presidential election year) all employees utilizing the OGE Optional Form 450-A must file the OGE Form 450. See the definitions of the "U.S. Office of Government Ethics," the above forms, and "special Government employees" in this Section.

4.23. "Particular Matters" means specific identifiable matters in which the United States is a party or has an interest that involves an employee's official action through deliberation, decision, or action that is focused upon the interests of a person, or a discrete and identifiable class of persons. See the definition of "person" below. These matters typically involve a specific proceeding affecting the legal rights of the parties or an isolatable transaction (Note: these also are referred to as "particular matters involving specific parties"), as well as a related set of policy actions such as legislation or policy-making. The term "particular matter," however, does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons. Examples of particular matters include judicial or other proceedings, applications, requests for ruling, contracts, claims, controversies, charges, accusations or arrests. Examples of excluded matters are those such as general rulemaking, legislation, the formulation of policy, standards or objectives, or other action of general application (e.g., amending regulations setting forth claims procedures for an Agency); however, rulemaking, legislation, and the formulation of policy, standards or objectives may be a particular matter when narrowly focused and likely to have a distinct impact upon a portion or sector of the public (e.g., safety standards for interstate trucking). See 5 CFR §2635.402(b)(3).

4.24. "Person" means an individual, corporation (including subsidiaries that it controls), company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. This term also applies to commercial venture and nonprofit organizations as well as to foreign, State, and local governments, including the government of the District of Columbia. It does not include any Agency or other entity of the Federal Government or any officer or employee when acting in an official capacity on behalf of that Agency or entity. See 5 CFR §2635.102(k).

4.25. "Personal and Substantial Participation" is defined at 5 CFR §2635.402(b)(4). Personal participation means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the "particular matter." See the definition of "particular matter" above.

Substantial participation means that the employee's involvement is of importance to a particular matter. An employee's participation may be identified as substantial even though the employee is not involved in the final outcome of the particular matter. However, that participation must be greater than official responsibility, knowledge, casual involvement, or involvement on an administrative or peripheral issue. For example, although an employee could cause a halt in a program for non-compliance with standards, his/her authority wouldn't rise to the level of substantial participation because the employee lacks authority to initiate a program or to disapprove it on the basis of its substance. Examples of personal and substantial participation include such action as approval, disapproval, recommendation, investigation, advising or deciding on a particular matter.

4.26. "Public Filer" is defined at 5 CFR § 2634.202. He/she is an officer or employee in the executive branch, including a special Government employee, whose position is classified above GS-15 of the General Schedule, or the rate of basic pay for which is fixed, other than under the General Schedule, at a rate equal to or greater than 120% of the minimum rate of basic pay for a GS-15. See the definition of "special Government employee" below. For purposes of the Department of Agriculture, such employees include:

  • Senate-confirmed Presidential appointees;
  • career and non-career Senior Executive Service officials;
  • Schedule C employees who have not been exempted from public filing;
  • Senior-Level (SL) and Scientific and Professional (ST) employees paid at the above described rate;
  • Foreign Executive (FE) officials;
  • special Government employees (SGEs) paid at the above described rate;
  • Board of Contract Appeals members; and
  • Administrative Law Judges.

Through the public process, a filer complies with the disclosure requirement by submitting a Standard Form 278, Executive Branch Public Financial Disclosure Report (SF 278) within 30 days of entry to a designated position; annually thereafter by each May 15; and within 30 days of departing from the last position identified for public disclosure. See the definition of the "Standard Form 278" below.

4.27. "Special Government Employee" (SGE) is an officer or employee of an Agency who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not to exceed 130 days during any period of 365 consecutive days, either on a full-time or intermittent basis. This term is defined by statute at 18 U.S.C. § 202(a). Examples of SGEs are: certain Federal board members,4 collaborators, consultants, experts or panel members. SGEs must submit either an OGE Form 450 or an SF 278 with each appointment. See the definitions of these forms in this section.

4.28. "Standard Form 278, Executive Branch Public Financial Disclosure Report" (SF 278) is the form created by the Office of Government Ethics to be used by public filers, which is based on the requirements of the Ethics Reform Act of 1989. No alternative reporting process exists for public filers. This form is required for new entrants, annual filers, and separating employees. Annual (also called incumbent) disclosure is due by May 15 each year and covers the prior calendar year. See the definitions of "public filer" and "U.S. Office of Government Ethics" in this section.

4.29. "USDA Confidential Conflict of Interest Certification" (AD-1202) is a short form used in lieu of the OGE Form 450 for those employees within the Agricultural Marketing Service, Food Safety and Inspection Service, and Grain Inspection, Packers and Stockyards Administration, who are assigned duties including the performance of on-site inspection, regulatory, or grading duties at a private industry establishment without continuous on-site supervision. This form may be used by new entrant and annual filers who meet the above criteria. Employees approved for the submission on the AD-1202 or for any other USDA alternate disclosure report approved by the Office of Government Ethics are not required to submit the OGE Form 450 on the fourth year (each Presidential election year). See the definitions of the "OGE Form 450," "U.S. Office of Government Ethics," and "OGE Optional Form 450-A" in this Section.

4.30. "U.S. Office of Government Ethics" (OGE) is an independent executive branch Agency responsible for establishing executive branch-wide regulations and overseeing the manner in which executive Agencies administer their own ethics programs.

4.31. "Warrant" is the formal Certificate of Appointment as a CO which states any limitations on the scope of authority afforded the appointee. See the definition of "contracting officer" above.

5. Responsibilities Relating to Financial Disclosure

Classification Specialist, through the classification and evaluation processes, provides greater insight into a potential confidential filer's duties and responsibilities and the authority of the assigned position description.

DAEO, via authority delegated directly by the Secretary, administers the consistent designation of public and confidential filers within the Department.

DEO, via authority delegated by the Secretary through the DAEO, administers the consistent designation of confidential filers within a mission area.

Employee confirms the accuracy of his/her position description's content and/or duties of collateral appointment and recommends edits to his/her supervisor/manager as appropriate.

Human Resource Specialist, such as the designated staffing specialist as delegated within each mission area, assists the mission area by receiving financial disclosure codes from the servicing ethics advisor and posting those codes in the National Finance Center database.

Mission Area Ethics Advisor/Ethics Advisor, via authority delegated by the DEO, coordinates the consistent identification of new entrant confidential filer positions with the manager/supervisor, human resource specialist and classification specialist, and administers the review of positions with the serviced office supervisor/manager prior to each call for annual disclosure. In instances of employee requests for reconsideration of filer status, the mission area ethics advisor is also routinely delegated authority by the DEO to make final determinations.

Office of Ethics, via authority delegated by the Secretary through the DAEO, administers the public financial disclosure process for all of USDA and confidential financial disclosure process for offices and components serviced by DA, oversees mission area ethics programs, assists with the creation of alternate or short form disclosure reports, and seeks OGE approval for the re-evaluation of "classes" of positions for disclosure.

SGE maintains a record of the number of days employed, the rate of pay received during each one-year appointment, and shares that information with the servicing ethics advisor upon each reappointment.

Supervisor/Manager maintains currency of employees' position descriptions, collateral assignments and appointments. This individual identifies the duties and responsibilities of positions, including collateral appointments or assignments requiring confidential disclosure that are not reflected in the position description. Usually through an annual review prior to confidential disclosure, the supervisor/manager reviews duties with the servicing ethics advisor to ensure consistent and accurate designations for disclosure.

6. Confidential Disclosure

A confidential filer is an employee assigned duties of such decision-making authority or sensitivity that the public must be assured of not only a complete disconnect between the filer's financial interests and assigned work (absence of a conflict of interest), but also that the filer avoids taking action that could be construed as an act of favoritism or loss of impartiality. Disclosure is required when duties entail personal and substantial involvement in making official decisions or using significant judgment relating to:

  • Contracting or procurement;
  • Administering or monitoring grants, subsidies, licenses or other benefits;
  • Regulating or auditing any non-Federal entity;
  • Performing other activities in which the decision or action will have a direct and substantial economic effect on a non-Federal entity; or
  • Serving in any other position that the Agency determines requires filing to avoid a conflict of interest, appearance of favoritism or loss of impartiality (i.e., a real or apparent conflict of interest).

When considering potential disclosure, the reviewer must carefully address the significance and level of authority afforded the employee; because if over-designation is to occur, it is most likely to occur at this stage. See the definition of "personal and substantial participation" in section 4 above. To further limit over-designation, the determination process should also include review and exclusion of employees from disclosure as outlined below. Occasionally, disclosure is required, but the traditional process conducted through the review of the filer's position description followed by content analysis of the OGE Form 450 will not likely identify potential conflicts. In the above instances an alternate form of disclosure, with perhaps the development of training designed to meet the specific needs of the filer, or group of filers, should be contemplated (e.g. USDA Confidential Conflict of Interest Certification, AD-1202). As communicated in section 3 above, the ultimate goal for disclosure is to identify potential conflicts of interest early. If the disclosure process through employee submission of the OGE Form 450 doesn't identify potential conflicts of interest, the Agency has an obligation to identify a more constructive process to shed light on potential conflicts of its employees.

As a general rule, reviewers may presume the following employees meet the criteria for confidential disclosure filing at USDA:

  • All employees serving in positions compensated at pay grades GS-13 through GS-15, or their equivalent; and
  • All employees below pay grade GS-13, or its equivalent and who:
    • Serve as COs (See section 9, below.);
    • Serve as Level II or Level III CORs/COTRs (See section 9, below.); or
    • Provide professional or consultative services to USDA.

USDA Agencies, components, and offices requiring confidential financial disclosure by employees not listed above, should provide their respective mission area ethics advisor (mission areas and Agencies) or OE (DA and USDA offices serviced by DA) with written justification for required filing.

Alternate/Optional Disclosure Processes for Confidential Filers

Confidential filers may be excused from the OGE Form 450 process when use of the OGE Optional Form 450-A is adequate, or the Agency received OGE approval to use an alternative process such as the AD-1202.

Exclusions From Confidential Disclosure Filing Requirements

In accordance with 5 CFR § 2634.905, any employee or class of employees may be excused from all or a part of the OGE Form 450 process when the Agency head or designee, usually the mission area ethics advisor, determines that:

  • The potential for employee involvement in a real or apparent conflict of interest is remote;
  • The employee works under a substantial degree of supervision with little freedom of responsibility;
  • Any potential conflict created would have an inconsequential effect on the integrity of the Government; or
  • The use of an alternative procedure sought by OE and approved by OGE is adequate to prevent possible conflicts of interest (SGEs are precluded from using alternative procedures).

Review of Confidential Filer Status

Employees who believe that their positions or appointments, or those under their supervision, have been improperly identified for or omitted from financial disclosure, should submit a formal request for reconsideration through management to the servicing mission area ethics advisor. (Employees within Departmental Administration (DA) or an office serviced by DA should submit such requests to OE.) With the request, each employee should include supporting evidence such as a current position description or a copy of a special appointment requiring a set of duties and responsibilities not addressed within the position description. By regulation, the DEO for the assigned mission area is the final deciding official, however, this responsibility is routinely handled by the servicing mission area ethics advisor. This process precludes administrative or negotiated grievances, arbitration procedures, and any other review or appeal, within or outside the Agency.

7. Public Disclosure

Any employee designated to fulfill the duties of an appointment in 4.26 above must file a public disclosure report with OE.

Alternate Disclosure Process for Public Filers

No alternate disclosure process exists for public filers.

Exclusions From Public Disclosure Filing Requirements

Though rare, exclusions may be obtained for the reporting process. Public filers holding positions that are excepted from the competitive service because of a confidential or policy-making nature may be excluded from the disclosure process upon a finding that either the integrity of the Government or public confidence in the integrity of the Government would not be compromised. Examples where filers may be considered for exclusion from public disclosure follow:

  • Public filers assigned to positions classified at GS-15 of the General Schedule or below, or the rate of basic pay for which is less than 120% of the minimum rate of basic pay fixed for GS-15, and who have no policy-making roles with respect to Agency matters. (In such instances the OE will seek a waiver in lieu of contacting the employee.) Examples of excluded positions are: chauffeurs, private secretaries, and stenographers.

  • Appointees expected to perform the duties of their positions for greater than 60, but less than 130 days in a calendar year. (Under certain conditions, the Director of OGE may grant a special waiver. Anyone believing this may apply should, immediately contact OE.)

Review of Public Filer Status

Any employee who believes that his/her appointment or appointments under his/her supervision have been improperly identified for, or omitted, from public financial disclosure, should immediately contact OE.

8. Special Government Employees (SGE)

As a general rule, each SGE is required to submit a new entrant report within 30 days of appointment and annually, thereafter, with each reappointment. Determination of the public or confidential disclosure system is based on the level of salary received and the number of days worked.

  • SF 278s are filed by SGEs who are paid an hourly rate that is consistent with that paid an employee identified as a public filer and who work in excess of 60 days within a consecutive 365 days.

  • OGE Form 450s are filed by SGEs who are:
    • uncompensated;
    • paid an hourly rate not to exceed that set for GS-15; or
    • paid at the public disclosure rate but who work less than 60 days within a consecutive 365 day period.

Note: If an SGE meets pay conditions for public disclosure, but the Agency is uncertain that the duties of the office will exceed 60 days in a calendar year, the SGE may file either a OGE Form 450 or a modified new entrant SF 278. See the definition of "Modified New Entrant SF 278" in section 4 above.

Alternate Disclosure Process for SGEs

SGEs may not use alternate or short forms for disclosure.

Exclusion From Disclosure Filing Requirements

SGEs are not excluded from disclosure filing requirements. They must disclose within 30 days of taking office.

Review of SGE Filer Status

Any SGE who believes that his/her appointment does not comply with reporting requirements under the process selected by the Agency for disclosure should contact his/her servicing mission area ethics advisor or OE.

9. Acquisition Workforce Personnel

Employee involvement in the Acquisition Workforce program does not automatically require disclosure. Whether disclosure is required depends primarily upon the level of personal and substantial participation granted the appointment. See the following determinations:

Contracting Officer (CO)

All employees who are appointed as COs must disclose. The determination for the appropriate system of disclosure, be it public or confidential, is based on the employee's salary and appointment to the Federal service. See the definitions of "public filer" and "confidential filer" in section 4 above.

Contracting Officer Representative and Technical Representative (COR/COTR)

Usually, Level I COR/COTR appointees do not meet criteria for disclosure. However, an Agency may require disclosure upon a formal determination by the servicing ethics office (after notice and discussion with the appointee's supervisor/manager) that the duties and responsibilities of the "Level I" appointee require such disclosure to avoid involvement in a real or apparent conflict of interest.

All Level II and Level III COR/COTR appointees must disclose under the appropriate system, be it public or confidential, based on the employee's salary and appointment to the Federal service. See the definitions of "public filer" and "confidential filer" in section 4 above.)

Micro Purchase Authority

Authority delegated through the USDA Purchase Card Program for micro-purchase procurement does not rise to the level of substantive authority within the criteria requiring confidential disclosure. Nonetheless, such employees should consider reviewing the informative training which can be found in the form of training on the USDA Ethics web site.

10. Intergovernmental Personnel Act

Details to the Federal Sector

IPA detailees to Federal duties/position descriptions are considered Federal employees under the Ethics in Government Act. As such, criteria for confidential and public disclosure may apply. See Office of Government Ethics DO-02-029, dated December 9, 2002.

  • Public disclosure applies to any IPA detailee who is assigned to an "established, classified position," with a rate of basic pay equal to or greater than 120% of the minimum rate of basic pay for a GS-15, and is reasonably expected to perform the duties of the position for more than 60 days in a calendar year.

    Note: An IPA detailee who receives the above rate of pay for the above timeframe, but is given a set of ad hoc, unclassified duties, relevant only to a specific assignment project is not required to file a public disclosure report; but normally will be required to file a confidential disclosure report (see below). However, in certain instances OE may request OGE's approval to require public disclosure.

  • Confidential Disclosure applies to any IPA detailee who is assigned to an "established, classified position," and to any detailee who is given a set of ad hoc, unclassified duties, relevant only to a specific assignment project, if the duties and responsibilities meet the criteria for confidential disclosure described in section 6 above.

Details to the Private Sector

Any Federal employee on an IPA detail to the private sector and for whom the definition of "public filer" applies (see above), must continue to disclose under the public disclosure system for the length of his/her Federal appointment.

Any Federal employee on an IPA detail to the private sector, who is identified for confidential disclosure because of Federal duties assigned, is not required to disclose unless he/she is performing those duties on February 15. See the definition of "confidential filer" in section 4 above. For example: An employee performing official duties requiring disclosure in excess of sixty days during the period January 1 - December 31 is normally required to submit an annual report by February 15. However, if that same employee is detailed to the private sector on or before February 15, no report is required.

1
USDA used Form AD-392, Statement of Financial Interest and Outside Employment, Financial Disclosure Report, a confidential reporting system used by all filers.
2
OGE has recommended to executive branch ethics programs, generally, and to USDA, in particular, that efforts should be made to reduce the number of confidential filers.
3
Currently, OGE has approved this form for use only by the Food Safety Inspection Service, Agricultural Marketing Service, and Grain Inspection, Packers and Stockyards Administration.
4
When addressing the employee status of non-Federal personnel serving on USDA advisory boards or commissions, contact should be made with OGC. A critical factor is the ultimate purpose of the board (e.g., to make decisions that commit USDA in terms of policy, fiscally, or otherwise; or merely to provide advice to USDA concerning the opinions of affected sectors of the public).