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Accuracy, Not Deadline, Is Top Priority on Financial Disclosures

Q: As a Member of the House, I am required to submit a financial disclosure form every May. Because of the time involved in gathering all of the necessary information, I usually delegate that task by asking an aide to fill out the form for me. Of course, before filing the form, I always review it carefully to confirm its accuracy. This year, however, in the weeks before the May 15 deadline, I have been traveling a great deal and have not had time to review my aide’s draft closely.

My aide said I should file the form anyway. She said she was very careful in gathering the required data and that she doubts there are any errors. Besides, she said, the committee allows Members to amend their forms anytime before Dec. 31. So, as long as we meet the May 15 deadline, I can review the form more carefully once my schedule settles down and then submit an amended disclosure if I discover any errors. I’m not thrilled with the plan, but I am not sure if I have any other options. What do you think?

A: Your schedule and tomorrow’s deadline have left you with a choice between punctuality and accuracy. Your aide has recommended punctuality. I disagree. Here’s why: [IMGCAP(1)]

No matter who fills out your financial disclosure form, you are the one who must sign it and, by doing so, assume responsibility for its accuracy. The language accompanying your signature states: “I certify that the statements I have made on this form and all attached schedules are true, complete and correct to the best of my knowledge and belief.”

Above your signature box, there is a reminder that false statements could subject you to penalties and sanctions. Because of the certification, this is true whether you filled out the form yourself or had someone do it for you. Therefore, before adopting your aide’s plan, you might want to consider the potential penalties and sanctions.

Most significantly, false statements on the forms could result in criminal liability. Under Title 18, U.S. Code, Section 1001, it is a crime if you knowingly and willfully make a materially false, fictitious or fraudulent statement in any matter within the jurisdiction of Congress. The Committee on Standards of Official Conduct has said this statute applies to the financial disclosure form. Convictions can result in up to five years in prison.

In addition to criminal sanctions, false statements on the financial disclosure form could also result in civil liability. Under the Ethics in Government Act of 1978, the attorney general has the jurisdiction to bring a civil action against anyone who knowingly and willingly falsifies any information that is required on the financial disclosure form. Penalties include fines of as much as $11,000.

As if these potential consequences were not enough, the House ethics committee can also impose penalties for false statements on the disclosure forms. Your aide is right that the committee has established a process whereby Members may amend their form before Dec. 31. However, for a couple of reasons, your aide’s approach to the amendment process carries substantial risks.

First, the committee might reject your amendment or deem it to have been made in bad faith. Even before Dec. 31, the committee requires certain conditions to be met before it will accord a presumption of good faith to an amendment. For one, the amendment must not be clearly intended to “paper over” an earlier misfiling. In addition, the Member must show that the amendment was occasioned by either the prior unavailability of information or an inadvertent omission. This means the amendment will not be presumed to have been made in good faith if it was submitted as a result of, or in connection with, committee action discrediting the initial filing.

In addition to the risk that the committee will not accept your amendment as timely, there is a second and much larger risk in your aide’s approach. Even if the committee were to accept your amended form, a government attorney might still take the position that the initial filing exposes you to liability. This means if your initial filing were to contain errors, fixing those errors would be no guarantee a government attorney would not seek sanctions based on them. While seeking sanctions based on errors that were ultimately corrected would be an aggressive position to take, it would not mark the first time a government attorney adopted an aggressive position in pursuing sanctions.

On the flip side, there also are penalties for filing your form late. However, the $200 fine for a tardy filing somehow seems preferable to the jail time or five-digit fines that could result from false statements. Moreover, you are not subject to the late fee unless you file your form more than 30 days after the May 15 deadline.

Finally, perhaps the best news of all is that you can request an extension, and there is still time to do so before Tuesday’s deadline. This is because the committee requires not that an extension has actually been granted before the deadline but only that it has been requested. A committee attorney confirmed this policy at a training session last week. Therefore, instead of incurring the risks inherent in submitting a form you have not reviewed, a better approach might be simply faxing a letter to the committee requesting an extension and stating why one is necessary. The fax number is 202-225-7392.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.

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