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.