§ 2635.1004 Establishment. ( a ) *Structure.* A legal expense fund must be established as a trust that conforms to the requirements of this part and applicable state law. To the extent the requirements of this part and applicable state law are incompatible, the Director of the Office of Government Ethics may permit such deviations from this part as necessary to ensure compatibility with applicable state law.
( b ) *Grantor.* The legal expense fund must be established by the employee beneficiary.
( c ) *Trustee.* A legal expense fund must be administered by a trustee who is not: ( 1 ) The employee beneficiary;
( 2 ) A spouse, parent, or child of the employee beneficiary;
( 3 ) Any other employee of the Federal executive, legislative, or judicial branches;
( 4 ) An agent of a foreign government as defined in 5 U.S.C. 7342(a)(2);
( 5 ) A foreign national;
( 6 ) A lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a); or
( 7 ) A person who has interests that may be substantially affected by the performance or nonperformance of the employee beneficiary's official duties.
( d ) *Employee beneficiary.* ( 1 ) Except as provided in paragraph (d)(2) of this section, a legal expense fund must be established for the benefit of a single, named employee beneficiary.
( 2 ) A legal expense fund for the benefit of an anonymous whistleblower may be established without disclosing the identity of the anonymous whistleblower to anyone other than the trustee so long as the legal expense fund is created for the purpose of funding expenses in connection with the whistleblowing activity or the facts that underlie that activity.
( e ) *Filing and approval of legal expense fund trust document required.* An employee beneficiary may not solicit or accept contributions or make distributions through a legal expense fund before: ( 1 ) Filing the legal expense fund document in accordance with paragraph (f) of this section; and
( 2 ) Receiving approval for the legal expense fund in accordance with paragraph (g)(1) or (g)(3) of this section.
( f ) *Filing of legal expense fund trust document.* ( 1 ) The employee beneficiary, or the trustee or representative of the employee beneficiary, must file the legal expense fund trust document with the designated agency ethics official at the agency where the employee beneficiary is employed.
( 2 ) An employee beneficiary who is an anonymous whistleblower may choose to file a legal expense fund trust document anonymously through the employee beneficiary's trustee or representative with the Office of Government Ethics only. The Office of Government Ethics will not receive reports containing classified material; if needed, an OGE employee with a security clearance will review any classified documents in a secure agency space, consistent with the current practice for other ethics documents containing classified material.
( g ) *Approval of legal expense fund trust document.* ( 1 ) *Designated agency ethics official approval.* The designated agency ethics official must determine, based on the submitted trust document and information regarding the trustee, whether to approve a legal expense fund trust document filed by an employee beneficiary, other than an anonymous whistleblower choosing to file with the Office of Government Ethics, within 30 calendar days of filing. ( i ) *Standard for approval.* The designated agency ethics official must approve a legal expense fund that is, based on the submitted trust document and information regarding the trustee, in compliance with this subpart.
( ii ) *Transmission of trust documents to the Office of Government Ethics.* Following approval, the signed legal expense fund trust document must be forwarded to the Office of Government Ethics within seven calendar days.
( iii ) *Exception for anonymous whistleblowers.* The Office of Government Ethics will serve as the approving authority for anonymous whistleblowers who choose to file a legal expense fund trust document anonymously with the Office of Government Ethics only.
( 2 ) *Office of Government Ethics review.* Following approval by the designated agency ethics official, the Office of Government Ethics will conduct a secondary review of the legal expense fund trust documents of the employee beneficiaries listed in paragraph (g)(2)(ii) of this section within 30 calendar days of receipt. ( i ) *Standard for review.* The Office of Government Ethics will review the legal expense fund trust document to determine whether it conforms to the requirements established by this subpart. If defects are ascertained, the Office of Government Ethics will bring them to the attention of the approving agency and the employee beneficiary or the employee beneficiary's trustee or representative, who will have 30 calendar days to take necessary corrective action.
( ii ) *Employee beneficiaries requiring secondary Office of Government Ethics review.* The Office of Government Ethics will review the legal expense fund trust documents of the following employee beneficiaries: ( A ) The Postmaster General;
( B ) The Deputy Postmaster General;
( C ) The Governors of the Board of Governors of the United States Postal Service;
( D ) Employees of the White House Office and the Office of the Vice President; and
( E ) Officers and employees in offices and positions which require confirmation by the Senate, other than members of the uniformed services and Foreign Service Officers below the rank of Ambassador.
( 3 ) *Review for designated agency ethics officials.* When the employee beneficiary is a designated agency ethics official, the Office of Government Ethics will conduct the sole review and approval. The Office of Government Ethics will review the legal expense fund trust document to determine whether it conforms to the requirements established by this subpart.
( 4 ) *Right to Appeal.* If the approval of a legal expense fund has been denied, or an employee's legal expense fund request has not been acted upon within 30 days, the requester may appeal by mail or email to the Director of the U.S. Office of Government Ethics. Requests sent by mail should be addressed to the address for the Office of Government Ethics that can be found at *www.oge.gov .* The envelope containing the request and the letter itself should both clearly indicate that the subject is a legal expense fund appeal. Email requests should be sent to *LEF@oge.gov* and should indicate in the subject line that the message contains a legal expense fund appeal. Appeals should be submitted within 60 days of denial by the designated agency ethics official or 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon. In the case of legal expense funds for anonymous whistleblowers and designated agency ethics officials, OGE staff will conduct the initial review, and the Director will serve as the appeal authority.
( h ) *Amendments.* The trust document may only be amended if the trustee and employee beneficiary file the amended legal expense fund trust document in accordance with paragraph (f) of this section and seek approval in accordance with paragraph (g) of this section.
( i ) *One legal expense fund.* No employee beneficiary may establish or maintain more than one legal expense fund at any one time. An employee may not later establish a second legal expense fund for the same legal matter.
( j ) *Conforming existing legal expense funds.* In order for an employee beneficiary who has an existing legal expense fund to receive legal expense payments from the existing legal expense fund, the employee beneficiary must comply with §§ 2635.1005(b), 2635.1006, and 2635.1007 by February 20, 2024.
( k ) *Public access.* Approved legal expense fund trust documents will be made available by the Office of Government Ethics to the public on its website within 30 calendar days of receipt. The trust fund documents will be sortable by employee beneficiary's name, agency, and position, as well as type of document and document date. Legal expense fund trust documents filed by anonymous whistleblowers will not be made available to the public. Legal expense fund trust documents that are made available to the public will not include any information that would identify individuals whose names or identities are otherwise protected from public disclosure by law. Only sensitive personal information such as fee schedules, personal addresses, and account numbers will be redacted.