Supersession by the Ethics in Government Act of Other Financial Disclosure Requirements ( 1980 )

Supersession by the Ethics in Government Act
of Other Financial Disclosure Requirements
S ectio n 207(c) o f th e E th ic s in G o v e rn m e n t A c t has su p ersed ed th e p ublic financial
re p o rtin g req u irem en ts o f fo u r e n v iro n m e n ta l law s a d o p te d b efo re its passage.
April 11, 1980
MEM ORANDUM OPINION FOR TH E DEPUTY G EN ER A L
COUNSEL, EN VIRO N M EN TA L PROTECTION AGENCY
This is in response to your request for our opinion on the question
whether § 207(c) of the Ethics in Government Act (Ethics Act), 5
U.S.C. App., has eliminated the public financial reporting requirements
of the following statutory provisions: § 26(e) of the Toxic Substances
Control Act, 15 U.S.C. 2625(e); § 1007 of the-Solid Waste Disposal
Act, 42 U.S.C. §6906; §318 of the Clean Air Act, 42 U.S.C. §7618,
and § 12 of the Environmental Research, Development and Demonstra­
tion Authorization Act of 1978, P.L. 95-155, 91 Stat. 1263. These
statutory requirements are substantially similar in their language and
effect, and all were adopted by Congress before the passage of the
Ethics Act. They oblige policymaking officials who work in their
respective areas of application to report certain personal financial inter­
ests for public disclosure and they authorize criminal prosecution for a
failure to comply.
Section 207(c) of the Ethics Act reads as follows in pertinent part:
The provisions of this title requiring the reporting of
information shall supersede any general requirement under
any other provision of law or regulation with respect to
the reporting of information required for purposes of pre­
venting conflicts of interest or apparent conflicts of
interest.
For the reasons advanced below, we have concluded that § 207(c)
has displaced the four cited provisions of law and brought the provi­
sions of Title II of the Ethics Act into play in their stead.
The language of § 207(c) lays down only two prerequisites for the
supersession by Title II of a statutory or regulatory reporting require­
ment. The first is that a “general” requirement must be involved and
the second is that the requirement be aimed at real or apparent conflicts
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of interest. Applying these prerequisites in reverse order, we first join
in your conclusion, derived in part from legislative history, that the
subject statutory provisions were indeed intended to prevent conflicts
of interest. As for the other prerequisite, since each statutory reporting
provision is applicable to the occupants of positions in your Agency
that are categorized by the provision in general terms (§ 26(e) of the
Toxic Substances Control Act is also applicable in the Department of
Health, Education and Welfare), each in our opinion is unquestionably
a general requirement within the meaning of § 207(c). Cf. H.R. Rep.
No. 95-642, Part 1, 95th Cong., 1st Sess., p. 51 (1977), where the
Committee on Post Office and Civil Service cited the financial report­
ing system created for employees of the Department of Energy by P.L.
95-91, §§ 603 and 604, 42 U.S.C. §§ 7213 and 7214, as an example of a
requirement intended for supersession by what is now § 207(c) of the
Ethics Act.
It should be noted also that our answer to your inquiry is strongly
supported by the obvious congressional purpose of establishing uniform
financial reporting requirements and procedures throughout the Execu­
tive Branch by means of § 207(c).
To repeat, we are of the opinion that § 207(c) has made a dead letter
of the four financial reporting enactments you called to our attention
and has made Title II of the Ethics Act operative in their stead.
J o h n M. H a r m o n
Assistant Attorney General
Office o f Legal Counsel
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