Designated Agency Ethics Officials
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In excluding nonvested interests, OGE recognized that
“beneficial interest in principal or income,” in section 102(f)(1)
of the Act, should not be read so broadly as to require the public
disclosure of speculative or uncertain interests. This is evident
in the text of the regulatory definition contained in
section 2635.310(a)(2): “the uncertainty of the right of enjoyment
. . . differentiates a ‘vested’ and a ‘nonvested’ interest.” OGE
also has recognized that the reporting of nonvested interests would
not further the statutory purpose of disclosing interests that pose
a potential conflict of interest, because OGE has determined that
such interests generally are too uncertain to implicate the
financial conflict of interest statute, 18 U.S.C. § 208. See
Public Financial Disclosure: A Reviewer’s Reference 7-30 (1996).
On a closely related subject, OGE has provided additional
guidance concerning the reporting of potential interests as a
beneficiary under a will. Of particular relevance, OGE has
determined that section 102(f)(1) of the Act does not require
filers to report the fact that they are named as beneficiary in the
will of a living person. Id. OGE has concluded that any potential
beneficial interest created by the will of a living person is not
vested, within the meaning of section 2634.310(a)(2), a conclusion
which is supported by the common law. See, e.g., Cunningham, The
Hazards of Tinkering with the Common Law of Future Interests: The
California Experience, 48 Hast. L.J. 667, 677 (1997). Likewise,
OGE has determined that an employee does not have a disqualifying
financial interest, under 18 U.S.C. § 208(a), as a result of being
named a beneficiary in a will of a person still living. As OGE has
explained, “the employee’s interest in the assets to be distributed
under the will is merely speculative since he may never inherit
them.” 60 Federal Register 47207, 47209 (September 11,
1995)(preamble to proposed 5 C.F.R. part 2640); see also Reviewer’s
Reference at 7-30 (no financial interest because will can be
changed). Indeed, it is sometimes said that an heir or beneficiary
of a living person has merely an “expectancy” or a “bare hope of
succession,” rather than a real “interest” in any property that is
part of the estate. Krause v. Krause, 174 Conn. 361, 365 (1978);
see also In re Braman Estate, 435 Pa. 573, 575 n.3 (1969)
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future. This includes a future interest when one has a
right, defeasible or indefeasible, to the immediate
possession or enjoyment of the property, upon the ceasing
of another’s interest. Accordingly, it is not the
uncertainty of the time of enjoyment in the future, but
the uncertainty of the right of enjoyment (title and
alienation), which differentiates a “vested” and a
“nonvested” interest.