Now, under section 207(a), the President may It was the intent of the drafters of that of the President to require only such intor- compelled of covered employees under this bill. 19/ (Emphasis added.) - Representative Wiggins then asked Representative Danielson who was Subcommittee Chairman of the House Judiciary Committee, which had been involved in drafting the bill whether his understanding of § 207(a) was correct: Rep. Wiggins: Is it not true that the President could not compel the confidential report of information which was not required to be disclosed under this bili? The President to submit [a] Rep. Danielson: That is correct Rep. Wiggins: Yes. 20/ (Emphasis added.) The foregoing remarks are significant, first, because they confirm that the limitation in § 207(a) on the President's discretion in determining what information to require in confidential financial disclosure reports was intended by Congress to be a meaningful constraint. This confirmation directly contravenes the suggestion that the statutory language, because of the confusion it creates, should be ignored. More particularly, the remarks support the view 19/ Id.. 20/ Id. at 32003. that Congress intended that the confidential financial disclosure reports would request the same information as the public financial disclosure reports governed by title II. Any other interpretation, in our view, would not satisfactorily take account of Representative Wiggins' statement that the bill's drafters intended to allow the President to require in confidential reports "such information from noncovered employees as would be compelled of covered employees. (Emphasis added.) In short, confidential financial reports are not to require different information, but rather are to require "such information. .. as" called for by title II in public reports. This interpretation is not contradicted by any other indications of Congressional intent of which we are aware. In conclusion, we believe that § 207(a) requires that reports prepared as part of a government-wide system of confidential financial disclosure contain the same information required by other provisions of title II to be contained in public financial disclosure reports. 21/ To the : 21/ Considerations of administrative convenience and efficiency may well support the use of essentially identical forms for public as for confidential financial reporting. While we express no view regarding the policy implications of this matter, in order to preserve the truly confidential character of confidential reports, it would appear prudent to assure that public and confidential reports be readily distinguishable in some fashion by those who process them. -9 extent that Form SF 278 contains any request for information that is not specifically required by title II, such information need not be requested on contidential financial disclosure reports. 22/ Ralph Wi Jan Ralph W. Tarr Deputy Assistant Attorney General 22/ This conclusion is not only borne out by the legislative history, discussed above, but also is consistent with the views expressed in earlier Office of Legal Counsel memoranda, to which we adhere. In an opinion dated March 26, 1979, for the Director of this Department's Internal Audit Staff, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, it is stated: ". . S 207(a) appears to require that any confidential reports the President may require under that section be in the same form as the public forms filed by higher level personnel. If so, the present more limited confidential forms now in use in the Department would have to be replaced by the more extensive forms to be filed by persons GS-16 and above. (Page 3; emphasis added.) In a letter dated May 1, 1979, to Mr. Bernhardt Wruble, Director of the Office of Government Ethics, Office of Personnel Management, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, it is stated that: "The effect of SS 207(a) and (c), when read together, would appear to be that agencies may no longer require employees to file the more limited confidential reports on the authority of £.0. 11222 but that the President may issue a new Executive Order requiring Executive Branch employees to file, on a confidential basis, reports containing all the information required in Title II . " Based on the language and legislative history of $ 207, then, it would appear that the confidential reporting program under Executive Order 11222 has been superseded and that any confidential reports required by the President in the future must be on Forms 297 or 287A or an equivalent form. (Page 2; emphasis added.) (We should add that the form for confidential financial disclosure was, and is, Form 278, not 287.) This is in response to your letter of March 2, 1984 requesting our review of a legal memorandum ("March 2 Memorandum") regarding the requirements for confidential financial disclosure by certain Executive Branch employees and officials. The author(s) of the March 2 Memorandum have not been identified 1/, but the contents of the Memorandum have been endorsed in varying degrees by thirty-five Executive Branch agency legal officials. 2/ 1/ We gather from some of the materials submitted with the March 2 Memorandum that the author may have been someone in the Office of the General Counsel of the National Aeronautics and Space Administration. We responded once before to an unsigned memorandum on this same subject from that office. 2/ The number thirty-five is attained by including thirteen Separate legal officials within the Department of Defense as well as concurrences" in various forms by numerous acting, deputy, associate or assistant general counsels of Executive Branch agencies and "independent" regulatory bodies. While we of course respect the competence, integrity and good faith of the various legal officials who concurred in the March 2 Memorandum, we cannot resolve difficult legal questions on the basis of a referendum. See 28 U.S.C. S$ 511-513; Executive Order No. 12146 (July 19, 1979), 44 Fed. Reg. 42657; and 28 C.F.R. $ 0.25 (all describing the role of the Attorney General in resolving legal disputes). The principal legal conclusion articulated by the March 2 Memorandum is contrary to the previously expressed legal views of this Office. The legal officers who have participated in this venture 3/ apparently wish us to reconsider again our views on the subject. THE ISSUE Title II of the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (the Act), requires certain high level and policy officials in the Executive Branch to make annual public disclosure of personal financial information regarding their income, assets, investments, financial affiliations, liabilities, gifts and reimbursements. At issue here is the meaning of Section 207(a) of the Act which provides in pertinent part as follows: The President may require officers and In short, this provision allows the President to require lower level Executive officials to submit confidential financial disclosure statements "in such form as is required by this title." We have opined on two previous occasions that the phrase "in such form as is required by this title" means that if the President exercises his discretion to require any Executive Branch officers or employees to submit confidential reports under this provision, those reports must contain essentially the same information required for public disclosure by other officials under the same title of the Act. The alternative interpretation advanced by the March 2 Memorandum is that the quoted phrase grants the President "discretion to determine what information should be required in confidential statements as long as he does not require more information than is 3/ We attach some significance to the fact that the Office of Government Ethics has not endorsed the legal conclusions contained in the March 2 Memorandum. In fact, various persons in your Office have advised us orally in the past that they do not disagree with the conclusions of this Office on the legal issues discussed in this letter. |