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Vol. LXV, No. 20
September 27, 2013
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DOMA Repeal
All Married Couples Must Report Joint Assets

If you’re married, you’re probably familiar with the rules relating to financial disclosure reports. Under these rules, certain married government employees must file reports annually to disclose assets owned by themselves, their spouses and minor dependent children. As of Aug. 19, same-sex married couples also must report their spouse’s finances.

In June, the Supreme Court struck down as unconstitutional section 3 of the Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman. Following this decision—United States v. Windsor—the U.S. Office of Government Ethics (OGE) now interprets “marriage” and “spouse” to include a same-sex marriage. Whether it’s an opposite-sex or same-sex marriage, the same ethics rules now apply.

On Aug. 19, OGE issued a legal advisory stating, from that date forward, “OGE and agency ethics offices throughout the Executive Branch will collect information regarding the financial interests of the same-sex spouse of a federal employee who is subject to public or confidential filing requirements.”

“At NIH, some people in same-sex relationships have voluntarily been reporting their spouse’s assets,” said Holli Beckerman Jaffe, director of the NIH Ethics Office.

The change brought about by Windsor will have some immediate effects. An NIH employee who files an OGE-278 or 450 report or who is a clinical investigator must report the acquisition of a financial interest in a substantially affected organization (SAO) within 30 days of the acquisition by filing the HHS Form 717-1. All acquisitions of SAOs made by the employee, his/her spouse and minor children must be reported on this form. The acquisition may occur, for example, through purchase, marriage or inheritance.

An employee acquires an SAO holding when he or she marries a person who owns stock in an SAO. So now, an NIH employee whose marriage has been recognized as a result of Windsor must file Form 717-1 to report newly acquired SAOs. Also, Windsor will expand those OGE-278 report filers who need to file an OGE-278-T to report transactions made by their spouses. Similarly, the Windsor decision will affect the annual OGE-278 and 450 filings due in 2014.

The receiving ethics offices review these filed forms to verify there are no conflicts of interest between the employee’s assigned NIH duties and his or her personal and imputed financial interests.

“Under the government’s ethics rules, the assets of both people in a married couple are identical,” said Jaffe. “You can’t participate in a government matter if that matter affects your or your spouse’s financial interests.”

For example, if Joe is an NIH researcher testing a corporate product, it’s likely a conflict of interest if he or his spouse had stock in that company above the de minimis level and the research affected that financial interest. Similarly, if you’re a grants officer and your spouse has a university research grant, ethics rules most likely would bar you from having that grant in your portfolio.

The Windsor decision only affects same-sex married couples and excludes from its coverage federal employees in a civil union or domestic partnership other than a marriage.

Before the relevant section of DOMA was overruled, same-sex married couples did not have to disclose the spouse’s finances. Since the ethics rules did not require the disclosure of such spouse’s finances nor include those finances in the subsequent conflicts analysis, ethics offices were not considering those finances in ethics decisions.

Jaffe said, “Reports will continue to be reviewed as they have been in the past, taking into consideration the effect of the Windsor decision.” The ethics program has circulated guidance to make all employees aware of these changes.

For the implications of the DOMA decision on Clinical Center patients and visitors, visit www.cc.nih.gov/participate/_pdf/guidance_on_doma_decision.pdf.


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