U.S. Office of Government Ethics
1201 New York Avenue, NW
Suite 500
Washington, DC 20005-3917


                                             February 23, 2009                                                                     
                                             DO-09-008
 
 
 
MEMORANDUM
 
TO:       Agency Heads and Designated Agency Ethics Officials
 
FROM:     Robert I. Cusick
          Director
 
SUBJECT:  Authorizations Pursuant to Section 3 of Executive Order 13490, 
          "Ethics Commitments by Executive Branch Personnel"
 
	The purpose of this DAEOgram is to provide guidance to agency heads and 
Designated Agency Ethics Officials (DAEOs) on the application of section 3 of 
Executive Order 13490.  As you know, section 1 of the Executive Order requires 
all covered appointees to abide by several commitments in an Ethics Pledge, 
unless they are granted a waiver under section 3.  The Director of the Office of 
Management and Budget (OMB) has now designated the DAEO of each executive agency 
to exercise section 3 waiver authority in consultation with the Counsel to the 
President.  This designation and the limitations on waiver authority are 
addressed below.
 
DAEOs are Now Designated to Exercise Waiver Authority in Consultation with White 
House Counsel
 
        Section 3(a) of the Executive Order provides: 
 
	The Director of the Office of Management and Budget, or his or her designee, in 
	consultation with the Counsel to the President or his or her designee, may grant 
	to any current or former appointee a written waiver of any restrictions 
	contained in the pledge signed by such appointee if, and to the extent that, the 
	Director of the Office of Management and Budget, or his or her designee, 
	certifies in writing (i) that the literal application of the restriction is 
	inconsistent with the purposes of the restriction, or (ii) that it is in the 
	public interest to grant the waiver.
 
	The Director of OMB has, after consultation with Counsel to the President, 
determined that the most appropriate designee of his authority is the Designated 
Agency Ethics Official (DAEO) of each executive agency.  This designation 
reflects the high degree of trust and confidence with which the experience and 
professional judgment of the DAEOs are viewed.  The deep agency knowledge of the 
DAEOs was also an important factor in the Director’s decision. 
 
 
Limitations on Exercise of Waiver Authority
 
	It is the President’s intention that waivers will be granted sparingly and that 
their scope will be as limited as possible.  All waivers must be in writing.  As 
specified in the Executive Order, a waiver may be granted only after 
consultation with the Counsel to the President and only upon the DAEO’s 
certification either that the literal application of the restriction is 
inconsistent with the purposes of the restriction or that it is in the public 
interest to grant the waiver.  Executive Order 13490, sec. 3(b).  For the latter 
purpose, the public interest includes, but is not limited to, exigent 
circumstances relating to national security or the economy.  Additionally, 
provisions in paragraph 3 of the Pledge, which pertains to appointees who have 
been registered lobbyists within two years of appointment, may be waived where 
the appointee’s lobbying activities in connection with an agency, or on a 
particular matter, or in a specific issue area have been de minimis.  
 
	Finally, we wish to emphasize that the legal requirement under the Executive 
Order of advance consultation with the Counsel to the President remains and is 
to be strictly enforced.  Norman Eisen, the Special Counsel to the President, is 
the point of contact in the Office of the Counsel to the President and can be 
reached at (202) 456-1214 or neisen@who.eop.gov.  To ensure that the 
consultation requirement is met, no waiver should ever be granted until the 
Special Counsel has provided a written acknowledgement affirmatively stating 
that the required consultation has occurred and is complete.  Your OGE desk 
officers should also be consulted in advance with respect to all waiver issues.
 
Conclusion  
 
	OGE will continue to publish additional guidance on the Pledge 
required by Executive Order 13490 as needed.  Questions about the application of 
the Pledge should be referred to the OGE desk officer responsible for your 
agency.