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I I

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United States

Office of Government Ethics

1201 New York /\venue, NW, Suite 500

Washington, DC 20005-3917

November 2, 2011

Daniel Epstein
Executive Director
Freedom Through Justice Foundation
2111 Wilson Blvd, #700
Arlington, VA 22201
Tracking No.: OGE FOIA FY 11/68
Dear Mr. Epstein:
The Office of Government Ethics (OGE) is granting your September 23,2011, Freedom
of Information Act (FOIA) request (there is no charge for processing it). In your request, you
sought numerous documents regarding compliance of Executive Order 13490, the Hatch Act,
and the White House status as an "agency" for FOIA and ethics purposes since January 1, 2009
to the present. OGE does not have any authority for implementing the Hatch Act or any
infmmation regarding the status of the White House for FOIA purposes.
In response to your request, we are enclosing copies of the following document: (1) the
2009 and 2010 OGE annual reports on agency compliance with Executive Order 13490;
(2) 5 C.F.R. 2638.104, which defines "agency" for purposes of the Ethics in Government Act
of 1978; (3) legal advisories issued by OGE regarding fundraising by executive branch
employees; and (4) pledge waivers issued in accordance with Executive Order 13490. 1 OGE did
not locate any other records responsive to your request.
The OGE official responsible for this FOIA determination is the undersigned. In
accordance with the FOIA, as codified at 5 U.S.C. 552(a)(6)(A), and OGE's FOIA regulations,
at 5 C.F.R. 2604.304, you may administratively appeal this determination that OGE does not
have cettain responsive records. The name and address of the OGE official to whom such an
appeal would have to be submitted are: Don W. Fox, General Counsel, Office of Government
Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917. Any such
appeal must be in writing and must be sent within 30 days of the date you receive this response

The word "waivers" used throughout your enumerated list was interpreted to refer to Executive
Order 13490 pledge waivers.

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Mr. Daniel Epstein

Page 2

letter. If you do appeal, you should include copies of your request and this response, together
with a statement of why you believe this initial dete1mination is in error. Also, if you appeal,
you should clearly indicate on the envelope and in the letter that it is a "Freedom oflnformation
Act Appeal."
Sincerely,

~~ut~
Elaine Newton
OGE FOIA Officer
Enclosures

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Electronic Code of Federal Regulations:

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2638.104 Definitions.

Page 1 of 1
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For the purposes of this part:

Act means the Ethics in Government Act of 1978 (Pub. L. 95-521, as amended).

Agency means any executive department, military department, Government corporation, independent
establishment or agency, including the United States Postal Service and Postal Rate Commission.
Designated agency ethics official means an officer or employee who is designated by the head of the

agency to coordinate and manage the agency's ethics program in accordance with the provisions of
2638.203 of this part.

Director means the Director of the Office of Government Ethics.

Executive branch includes each executive agency as defined in 5 U.S. C. 105 and any other entity or
administrative unit in the executive branch. However, it does not include any agency, entity, office or
commission that is defined by or referred to in 5 U.S.C. app. 109(8)-(11) of the Act as within the judicial
or legislative branch.
Person includes an individual, partnership, corporation, association, government agency, or public or
private organization.
[46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, as amended at 65 FR 69657,
Nov. 20, 2000]

http://ecfr.gpoaccess.gov/cgi/tltextltext-idx?c=ecfr;sid=cbc7425f9cf4949f6e219b873 7e5b... 10/13/2011

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UNITED STATES OFFICE OF

GOVERNMENT ETHICS
Preventing Conflicts of Interest
in the Executive Branch

ANNUAL REPORT PURSUANT

TO EXECUTIVE ORDER 13490
ETHICS COMMITMENTS BY
EXECUTIVE BRANCH PERSONNEL
JANUARY 1, 2010- DECEMBER 31,2010

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Table of Contents

Preface . . .. . .. . . . ... . .. . . . . . . . .. . .. . .. . .. . .. . .. . . . . .. . .. . .. . .. . .. . .. . .. . .. . . . . .. . .. . .. . .. . .. . . 2
Ethics Pledge Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
Table 1: Full- Time, Non-Career Appointees............................................. 4
Table 2: Ethics Pledge Signatures (by Appointee Type) . . .. . . . . . . . .. . .. . . . . . . . .. . .... 5
Table 3: Appointees Not Required to Sign the Ethics Pledge in 2010 ............... 5
Table 4: Former Lobbyists and Ethics Agreement Requirements . . . . . . . . .. . . . . .. . .. 6
Table 5: 2010 Appointees who Received Paragraph 2 Waivers . ... . .. . .. . ... .......

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .

Implementation of the Lobbyist Gift Ban . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendix I

Executive Order 13490

Appendix II

Assessment Methodology

Appendix III

Assessment Questionnaire

Appendix IV

Pledge Paragraph 2 Waivers

Appendix V

Ethics Agreements and Recusals Related to

the Ethics Pledge

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Preface
This is the second annual report provided pursuant to the President's Executive Order on
Ethics (Executive Order 13490 of January 21, 2009, "Ethics Commitments by Executive Branch
Personnel").
This report provides information on: the number of full-time, non-career appointees who
were appointed during the 2010 calendar year; the appointees who were required to sign the
Ethics Pledge; the number and names of those appointees who received waivers of any Ethics
Pledge provisions; and, where appropriate, recusals or ethics agreements for those appointees
who were registered lobbyists within the two years prior to their appointment. The report covers
the time period January 1 through December 31, 2010. This report is publicly available. It has
been posted on the United States Office of Goverument Ethics' (OGE) website at
www.usoge.gov.

Respectfully submitted,

IS!
DonW.Fox
Acting Director
United States Office of Goverument Ethics
Dated:
08/05/2011

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Ethics Pledge Compliance

(Calendar Year 2010 Appointments)
Executive Branch agencies and the White House reported that 1,133 full-time, non-career
appointees' were appointed during the period of January 1 through December 31, 2010. Of
these appointees, 1,096 were required to sign the Ethics Pledge, and 100 percent have done so.'
In addition, agencies reported that during calendar year 2010, three of the full-time, noncareer appointees were registered lobbyists during the two years prior to their appointment.
These three appointees did not need waivers to be appointed to their positions because they had
not lobbied the agency to which they were appointed within the two years prior to appointment.

Executive Branch agencies also reported that one of the three appointees who had been a
registered lobbyist in the two years prior to appointment had entered into a written ethics
agreement or written recusal addressing paragraph 3 of the Ethics Pledge. The ethics agreement
served to remind the appointee about the restrictions related to his prior lobbying activities. The
other two appointees were not required to have a written ethics agreement addressing paragraph
3 of the Ethics Pledge because their agency ethics officials detetmined that the appointees'
official duties were sufficiently unrelated to their prior lobbying activities.
Finally, nine agencies and the White House granted a total of 12 so-called "reverse
revolving door" waivers during calendar year 2010. These waivers allow appointees to
participate in matters in which their former employers or clients have an interest. Copies of all
waivers issued to Executive Branch agency appointees are posted on OGE's website,
www.usoge.gov, when a waiver is issued. Waivers issued by the White House are posted on the
White House website, www.whitehouse.gov. All waivers are found in Appendix N to this
report. No waivers of the restrictions on former lobbyists were granted during calendar year
2010.

'Definitions of non-career appointees are as follows: PAS-Presidentially appointed, Senate confirmed;

PA-Presidentia!ly appointed; non-career SES-political appointees at the senior executive level; Schedule Cnoncompetitive appointments to excepted service positions grade<! GS-15 and below; and other-all other categories
of non-career position appointments.
'Executive Order 13490 requires each covered appointee to sign the Ethics Pledge "upon becoming an appointee."
Agencies reported that 12 appointees signed the Ethics Pledge late due to administrative oversight.

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Employees Subject to the Ethics Pledge

Of the 132 reporting agencies, 71 agencies and the White House' had employed full-time,
non-career appointees subject to the Ethics Pledge during the period of January 1 through
December 31, 2010.' Table 1 below provides additional details regarding the categories of fulltime, non-career appointees.

Table 1: Full-Time, Non-Career Appointees

(January 1- December 31, 2010)

Compliance with Ethics Pledge Signature Requirement

Section 1 of Executive Order 13490 requires that every appointee in every executive
agency appointed on or after January 20, 2009, to sign the Ethics Pledge.' The Order defines
"appointee" as follows:
'Appointee' shall include every full-time, non-career Presidential or VicePresidential appointee, non-career appointee in the Senior Executive Service (or
other SES-type system), and appointee to a position that has been excepted from
the competitive service by reason of being of a confidential or policymaking
character (Schedule C and other positions excepted under comparable criteria) in
an executive agency. It does not include any person appointed as a member of the
Sen1or Foreign Service or solely as a uniformed service commissioned officer.
Table 1 show's that agencies and the White House reported that 1,133 full-time, noncareer appointees were appointed during the period of January 1 through December 31, 2010.
Table 2 shows that of the 1,133 appointees, 1,096, or approximately 97 percent, were required to
sign the Ethics Pledge upon their appointment in 2010.' The largest catagory of appointees
required to sign the Ethics Pledge is Schedule C appointees.

'The White House submission included the White House, Office of Policy Development, Office of the Vice
President, National Security Council, and National Economic Council.
'The Administrative Conference of the United States was established as an independent federal agency in 2010 and
therefore submitted assessment data for the first time this year. The Farm Credit Administration and Farm Credit
System Insurance Corporation submitted separate Ethics Pledge assessment data this year but filed a combined
report last year.
'See OGE DAEOgrams D0-09-003 and D0-09-010, located on the OGE website and Appendix VI for detailed
fuidance regarding the appointees subject to the Ethics Pledge.
Additionally, as Table 3 demonstrates, 17 other appointees had already signed the Pledge for a prior appointment to
a different position, and these appointees remained subject to the Pledge upon their new appointment in 2010.

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Table 2: Ethics Pledge Signatures (by Appointee Type)

(January 1- December 31, 2010)

OGE, in consultation with the White House Counsel's Office, determined in its
implementing guidance that certain categories of individuals were not required to sign the Ethics
Pledge. For every full-time, non-career appointee who did not sign the Ethics Pledge, agencies
and the White House were asked to provide the reason(s) why the Ethics Pledge was not signed.
All 37 of the appointees who did not sign the Ethics Pledge fell into one of two categories, as
detailed in Table 3. These two categories reflect OGE's implementing guidance.

Table 3: Appointees Not Reguired to Sign the Ethics Pledge in 2010

(January l- December 31, 2010)

Former Lobbyists Appointed in Calendar Year 2010

Executive Branch agencies and the White House reported that three of the full-time, noncareer appointees appointed January 1 through December 31, 2010, and subject to the Ethics
Pledge had been registered lobbyists during the two years prior to their appointment The three
appointees are listed in Table 4. None of these three appointees had lobbied the agency to which
he was appointed during the two years prior to appointment, and none received a waiver of any
of the restrictions on former lobbyists in paragraph 3 of the Ethics Pledge.'

'Under paragraph 3 of the Ethics Pledge, a former lobbyist may not be appointed to any agency which he or she
lobbied during the previous two-year period and may not participate in any particular matter or specific issue area on
which he or she lobbied during the previous two-year period.

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Pursuant to section 4(a) of the Executive Order, one of the three appointees has a written
ethics agreement or recusal that specifically addresses compliance with Ethics Pledge paragraph
3 because his prior lobbying activities involved subjects that potentially could arise in connection
with his Executive Branch position. This Pledge-related ethics agreement or recusal is found in
Appendix V. The other two appointees do not have written ethics agreements or recusals
addressing Ethics Pledge paragraph 3. These two appointees were not required to have written
ethics agreements for paragraph 3 because their agency ethics officials determined that the
appointees' official duties were sufficiently unrelated to their prior lobbying activities.
Table 4: Former Lobbyists and Ethics Agreement Reguirements
(January 1- December 31, 2010)

Process for Evaluating Prior Lobbying

The starting point for determining whether someone is a "registered lobbyist" for
purposes of Ethics Pledge paragraph 3 is whether, at any time during the two-year period before
appointment, he or she has been listed as a lobbyist in either an initial Lobbying Disclosure Act
(LDA) registration or a subsequent quarterly report (line 10 of Form LD-1 or line 18 of Form
LD-2). Agency ethics officials and the White House Counsel's Office, however, have found it
necessary in some instances to go beyond the House and Senate LDA databases to detetmine
whether a person falls within the scope of Ethics Pledge paragraph 3. The databases may be
insufficient on their own for a variety of reasons: individuals may fail to de-register as soon as
they no longer meet LDA thresholds; LDA filings can be overly inclusive, with employers
registering persons who were expected to engage in lobbying activities but subsequently did not
do so; and finally, LDA filings are made quatterly and do not indicate the actual dates of
lobbying activity.
Lobbying and Reverse Revolving Door Waivers
Waivers of provisions of the Ethics Pledge may be granted by the Director of the Office
of Management and Budget (authmity subsequently delegated to Designated Agency Ethics
Officials), in consultation with the Counsel to the President, when it is determined that "the
literal application of the restriction is inconsistent with the purposes of the restliction or that it is
in the public interest to grant the waiver."' The Executive Order explains that the public interest
'Section 3 of Executive Order 13490 provides a waiver mechanism for restrictions contained in the Ethics Ple<lge
and the standards that must be met for a waiver to be granted.

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may include, but is not limited to, exigent circumstances relating to national security or to the
economy.
All waivers are made publicly available on either the OGE website or the White House
website when issued. Specifically, the OGE website contains the names of appointees serving
Executive Branch agencies who have received waivers to the Ethics Pledge. OGE's website
provides a hyperlink to the White House website, which posts waivers that have been issued by
the White House. Both lists are updated as waivers are issued.
Lobbying Waivers
No waivers of any of the restrictions on former lobbyists in Ethics Pledge paragraph 3
were granted in 2010.
Reverse Revolving Door Waivers
Executive Branch agency and White House respondents reported that 12 appointees
appointed January 1 through December 31, 2010, had been granted waivers from the
requirements of Ethics Pledge paragraph 2. Generally, paragraph 2 of the Ethics Pledge restricts
an appointee's participation in matters in which the appointee's former employers or clients have
an interest. Individuals who have received Ethics Pledge waivers from paragraph 2 requirements
and the executive agencies that issued the waivers are identified in Table 5 below. Appendix N
contains the text of the waivers to paragraph 2 of the Ethics Pledge issued in calendar year 2010.

Table 5: 2010 Appointees who Received Paragraph 2 Waivers

Service
Donald L. Cook
Lisa C. Gomer

M.D.

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Enforcement
Ethics Pledge paragraph 2 requires, among other things, that appointees have no contacts
with former employers or clients pertaining to their official duties for two years after
appointment. OGE is aware of two instances in 2010 in which appointees made contact with
former employers, contravening Ethics Pledge paragraph 2.
One instance involved Charles F. Bolden, the Administrator of the National Aeronautics
and Space Administration (NASA), who consulted briefly with a former employer concerning a
NASA research project in which the former employer had no financial interest. The NASA
Office of the Inspector General determined that this contact violated the Administrator's Ethics
Pledge commitment. On the recommendation of the White House Counsel's Office, the
Administrator was given a reprimand and supplemental ethics training, and he recused himself
from further patiicipation in the research project. See Repoti of the NASA Office of the
Inspector General, September 20,2010, www.oig.nasa.gov/investigations/OMEGA-Report.pdf.
The second instance involved Andrew McLaughlin, Deputy Chief Technology Officer in
the Office of Science and Technology Policy, who exchanged several e-mail messages with his
former employer about certain matters within the scope of his official duties. This official
received a reprimand for his actions and supplemental ethics training.

Implementation of the Lobbyist Gift Ban

Pursuant to section 4(c)(3)(ii)-(iv) of the Executive Order, OGE is required "to adopt
such rules or procedures as are necessary or appropriate" to extend the lobbyist gift ban in
paragraph 1 of the Ethics Pledge to all executive branch employees, to authorize limited
exceptions to the ban for circumstances that do not implicate the purposes of the ban, and to
provide that employees who dispose of lobbyist gifts as provided in 5 C.F.R. 2635.205 will not
have violated the ban." Accordingly, OGE has submitted to the Office of Management and
Budget a draft proposed rule governing lobbyist gifts and expects to publish a proposed rule in
2011.

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APPENDIX I

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Appendix I
Executive Order 13490

Presidential Documents

_ Ethics Commitnmntsby Executive IIr!fficlt l'ersonml

By the authority vesln-d [a ma as Pte:e:ident by th~ Cm~smuUon !liilld thR
laws of the United Stales. of Anwrlr:a. induding sedio-n 301 ()f iil1<." ;l.
UnifG(l States CD-::!~~. and sf!dimm 33-01 and nof of litle- 5. l.J111ited Sbtm;.
C.ode. it is hereby orderf!'d n.s foUows:

SP.clio1n 1. ITthicH Plildga-. Ev~ry .'lppointee- in -ev-~!1' excc-UUve .ag;enuy :ippufnted

on or after Janu:uy .:?0, 21Y.!OO. sha~l !iijjll, .an-d ';JP~n s;igning !i-h:dl he o:m!nlch..!HiHJ' commmml to. the- f0oUowing pledge upDn .becoming_ na appoiinbm~
'"& :~ t:modiiion. :md lin cu.n.sideraUon, 5~Lmy employment in !he Unned
Sbtes Gmmmme-nt in a position invi'!Htt!<d with thtl public frus:t. l commit
mysetf to the foHDwing- oMi,g:dionli-, which I undP.rs[:md aro bimilng: rm
m1~ and am tmfon::<{!>able und~~r law:
.. I. Lobbyist Gift Ban. I \\'HI tmt .:ux:~t:-t. gffts fmm n:-gfs.t~md lobbyislJ;; or
tobbying org;mi7..aUGn..'\ for the duration of my Mrviwe ~san appointee.
"2. flcvoking .Door Han-Ail .Appaintt.Jas Enf~rin,g (k.warn.n:wnL I wiH nut
for a period. of 2 ymm;. from the date of my appointment parfl.lt:fpl!lte- in
any partic:ulJIT m.a.tU!-r in\oJvirr.g spe:r:iffc parlies th.~t is direclJy :>tnd s~Bh5~:m
Hally related to ruy former nmpltlyN o~ forma-r dienls .. indudiug mguflllti.Pns

and mntra.r.I:J;.
"3. Ret'flhling Door Bun-Lobbyists Entering Government. lf J was a n!<g!.S-tC<md
tobi:J.-yisl \"o'ithin the .2 yean; EW:fGro the- d:d13 of my .appaintmant. jn .'lddiUon
to abidin.g by tht!' ~imitati>Ons of par.agraph 2, 3 wrll not fur .a period of
2 years .il.{fur the date of my :lppofnihmmt
[:;} parti-cipate in any pi!rlicuL"H

ms:tte~

>Dn which 1 l'i1bhied within the

2 y.ea.re be!ore the cbtc nf my t>ppJinEment~

(b) partlcip2Ee in the- spet1ific is!iU>P. ama. fn which th:tt parti.cu!!!!r m3.tt!?r
falls~

or

(r:] !f~ek. or 3ccept emp-loymnnt with :iny execuU\'e :!gnm..y t.h:al l lobbied.
within ~e- 2. yen.n;: twfare the date ()f my appoin.tment.
"4. Rct.olling Door Ban-AppoiniDBS Lmn1ng Gavcrnmr.nt. If. ~~pon my depar-

ture fmm the Guvernmnnt, I i<IID covered by Ehe pos{-t!mploymrmi r~strir::Uoas

tm L':f.lmmunkaUI!lS, wnh em{Jtlo.}'ees of my fanner ex:ecuU\~e .a~tmcy set forth
in strlinn 207(r.) <Of UHe 1B, United States Cnd!?, I ri:J;rf-~ that. I will .abide
by thilru re~>.tridions: fur a pericJcl of 2. y-l!':us foUuwfm;g_ tha end of my .appointment.

"5. RtJ'!.'olving Door !Jan-Appointees Li1m.ing Go"-emmcnf' lD InJJby. In~ .ll.ddition to ;abiding by tha- timUalion!;: of p:nagraph .t. I also agroe, upoa 1~-avi:ng

Gnvamment :aervlr::~. not to Johhy any c:..overed ex. t>cutive branch Qf[ic:;ial
o:r ncm-t:amer Srm5or EX{.>t..Lltive Sef\'ic.of?' appojn{8'e for !.he- mm:oiindt"'' of thf!'
AdrnJnistraUon.
"U, Employmcmt QualifiooUon CammiimonL I agree tb:~t any hiring: ur 'fliher
emp~tpytnenl dtN;:fsions I make- will 1m lJag~d Dn fhe c:m.didate's qiDlfifir::~Uons,
onmpf!tenm. and EXp!!'riem;e ..
7, .t\!i~nnl lu Hnfa-rcamcnL I a:cknowfml.ge that ihe Ext."Clltive OE;der 1mtiEll!'.d.
'Ethio. Commibmmis bt EX4!'Ctltive Branch P~rso.nneJ.~ issued by Um Presfd,;~tll
!Jll J:iOlU8iJ' 21. 200g, wfuc:h [ have reaid before signtng: this: drnmm~nl, defines.
c:-ed:!in of the- tt!rms app!ic:ahle- to the fim!going. obfig.aUnm :md !it!l'> forth

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Fede-ral RegfslerfVd, 74. NO'. 15./Mundsy, ji!lnu.g:ry 2.6. 20@/JlrestdenUal Do.'mmf!-n!s.

the rnetho.da for e-nfOming them. I Expres!i-ly a.cropt th;fi provisennli- of that
Executive Order as a part of this agmenumt :md .'15 bindins on mn.. I m~dm-
sfiand lht3t_ Uw_ ~<!-nru> of ilifs. pJmJga .'tm in addition lo any sbtlutory or
nther Hega1 re~>lrit:Hom;; ~pplir:ablu Eo m.:! by virtue of Federnl Governmlmf
servir:e."

Dof!nitians. hs urud hemin ~'lad in thl] pledgQ s.at forth in .s1:1r:lim1

1 of thie order;
(a} "E..'lauuth~ a.semly" shall inr:lude eacih executi~e .agency'' as definad
by st..a.ion 105 of Utle S, United Stafes Code. and shall im:::fude the Executive
dftlce- of the Prnsid~nt~ provided. hnw~'\'!!R. t!m1 f,or purp[}Se:'i of this order
"!!XC-tUli\'e ag.enct' .shaH include the- United! Statas PoH-ta~ Service and Posl::d
ReRula.lory Commi~:sion. but sh:dl eKclude the Gov:errunent Am:onnfability
office.

Soc. 2.

(b) "Appoint!~" shaH iilir.lude every full-time.- non~c::m:mr Pr-usidtmUa-1 or

Vice-Pmsidenti03l appclintt~. non(.,ueer appointee in ~h~ Senior Execptive
SP.rviaJo {or- oiht!-r Sb~~type s~rs~m). and :tiJP,Pfntee- to n ponition th:il lms
been excepbtd from the compaUUve s.~~niCP. by ro:tson or bains of a conflden~
tial flO pGiicym:tldng character (Sohed~ lr! C and ollit>r po!iitiO::t!i' extlepled
undE!r t:mt1pambl4~ r.rit~ri:!) in :u~ -exe:mdiva- ~gancy. It does not include any
perso-n appuini-Bd as a member -of the Se-njor Foreisn Se-nr[t:e or soWt}r
ns a unif01:rrmd servh~e Ofmlmissioned offie4!'r.
("}"Gill"
[1) lihaU b:wn. lhe dafinniou set forth in sedion 2&35.2.03{b) of title
S, Code ofFmlur~l Ro:!g,uhtion!i~
(2~ shall :include. gifl:s tft:tt am wlic:iied or :tot.".{!<p!erl indireLil!r
.a.{ secti1m 2635.W3(fj ofUHe 5. Code of Jr(!de-ml Rcagt.datio-ru;; und

-l!!l dofin~d

(3) shall ex:duda those He.ms: 1.oo::luded b~ s.etrtJons. 2635.204-[b}, {c),

(o]{!) & (3) and (j]-IIJ Df tiUo !i, OJrlo ofForlom! Regul:>tioms.
[.d]< ..Co-vered exrmuUve- brnm:-h (]ffidn.l" Hind .~lobbyf~tl'' shaU ha.vr! th~
de-finffions sal fortb in secUon 16-02 tlf tiUG 2, United Stafeg. Code.
(a) Regfl;:l:l!md Jobb-yis! or Eabbying mganizalion" ahaH me-sn a IcJbbyist
o:r an OEjpni:r.ation filing <t registration pur&uant tn section t03b) of title
2, United St::;.tes f"..ode, and in ilia r:ase of an org.ani7.ation filing -HUGh a
n.~gis.tmlion,

Ued

lh~rein.

"regi:!itemd. Johhyist" sht!iU inc-lude each of fhe- lobbyists id.enti-

{If) "Lobby'' and "lnbbir~d" shall mean to .:~.cl or have. a.de.d

!obby!sl

:B

a regi!iltm.:.d
.

(g} "Pruiitular maUGr"' shaU have the sarna m-.e.aning. as: set f[)rth in !iet.UGn

207 of mJ~ 18. tJnited States: Code-, and section 2S3SAU2(b](J)

<:"Jf

titla S.

f".od~ ofFedt!-:rnl Regulations-,

(.h} HParlit."Uiar matter invch'ing specific p.:utim;'' shan hn.ve tM H3me meanfng_ as set furlb fn se-ction 2641...201(h} of UtJe- 5, Cm:le of rrerle-:rn1 Re~JuBalions:.
f!-XCi.lpl tllat it &baH also include any maeling or o1hnr- communication re-btinG
lu the perfm:maru:e. of o-ne's ofncisl duties with a formno e-m player or forawr
cHe-nt, unless th~ cnmmunic:dion :ipplteJ> tn .1 pnrlk.ular rn.:rtl.e-:r of s:~naml
appJic..'lhilUy ililm:l participation in lh~ mooting or- olher BVo~?nt is u:pen to

an interested parlies. .

(i) "Fonner- employai"'' fs :uliy pen;on fll'.r whom the a;lpointoo hsa within
lhe 2 years prior lo the date of his or be~ :appllintnlEml ~;mnroad as ;m empl1yoo.
offir.:er. dtrm::Bor, lrust{N!o. or ge-neral partner. axc13p1 thnt "fonna;r- am!)ill}'ei"'
d4las llC)l indude any execuli\e :!gl.mr.y u.r other entity (Jf ihl!! Fedmal Gm<em-

nmnt. Stale. O<r local gove-rnma-nt. the D!!i.trld of Columbia, Native Ame-rir.u.n
tribl!o. or any United Stites: tcmtury ur pns6ession.
[j) "'l''rnmer clia.nil'" is any ~rson for whom the appointee s~n-ed parronaHK
as agrml. :t~Uome-y, or oonsultant within th-e 2 Y'~:rrs priDr to ih{! data of
h.is. or h!:!r appotnlm".!-nt. but excluding iru.;~am:.~;s i.'llhem th(!; servir;;e pmv;~h:d
was ltmited to a stw:-m::h or similar app!!arJ!nce-. Jl does no[ indude- clients

OGE 2011-11-2

Bates 000019

Federal Regisfe:dVoL 74, No. 15/Mvnday, J;mmuy 2.6, 2"00U/Presid~nUal norumenls:

4675

'llf the :1ppofn\e:.e's fonne ~!mployaE t[) whom tht! a.ppoiilit.oo dirlnot p>?.rs-unalEy
pro"ide se-rvices.

(kl

~nrrocfly

and suhEE:mli:tUy ralaled

~o m}~

fu.m1er amp1oyer <!lr fomv.'r

diE!-nfs" 1>-h.aU mean m:oUers in which th~ appo~nfc-f!''s former emplay;:r o-r
.t fonnl]r- .u!ieni is a party r,;r mpt.!'St!nfs -a parly.
UJ "Puficip:.:te" m4!'.:ttui En p~trHcip~ltE~ pr:-rson.'l[ly ,and Sl!b.stanU;:dly.
{m} "'Pnsl-mnplo.ymenl re>illk.tion.a'' .shall im::lud.e ilia prm.isiorn;: md e.,"(captions: in_ section 207{u) of UU.u ta, United Slate!> Cn.d'!?, mtd the imp-leme-nting

re-gul~finns.

--

(n} Gove-rnment offk.ial'', means :lillY empinyes n. the- e-xmmH-..e- branch.

{oJ ''Adminb;t:ration'' means

serving ag
n:rder.

f}w

time of the

an [erms of nf:fko of Uu" im:.umhlml Pmsicl!!Hl

:.ppointm~nf

of .:m appl}intee covered by tb.ls.

(p} "Pieds!3'" me:lnli. the r~lhir..s pladg_e wt for:lh: in !iRiion 1 of this order.
[q) All rofenmr::es [0 pmvi!;ion!i of bw :md f('!g_ulat!ons: shaH :rellir to such

pmiai:ons .as

~D

eff-ed !lln January :w. Zt}f)g_

Sec. 3~ Waiver. (a) Tlm Dlmd:or of lht:! Office of l~;{;m~_gemtm~ .and Budget,
~r hi:t or har d~sign~:-~~ tn .con.~u!!.aUon ._... ith the CmBnW~ to- lhe Pre!stderit
nr Ms t".r h!!-:r d~1stgnee-, m:ay 13Dl to. any cmnm1 or form.\'!-T :1ppotntw.~ a_
writhm w-aive-r of :my m.shi{jtimuo ~AJnf.a-tned in Um pledge sign~d hy such
appointee- if, .nm:L til the extent -that. the mrootor Gf lh.(!' off'l.r.e o[ Ma!liage-rnl:'at
and Hudgef~ or- his or her des:fgnae, cerlifie-s in wrlUng; (rJ t.h:!il the Heral
application uf th.fl' restricHr.m i:5 fncnnsis!o:mt with th~ p-urposes of thu restriction. nr (ii} that [[ f!i- jn thi!- puh1lr: intemd tOt -gra:nt tlm Wl!iver-, A 'r\"aiv~r
BbaU Eak!! effoot wh-en the cerUfit:ation is signE!d by lha- mreuior- Df llil~

Office ofr.,.f;map_<!-me-nt and Budget or hili- nr he-r cf(!sign~n.

(h-1 Tht!< pubHc Ir~W-mst shaU indu.de, im[ nDt be limited lo:, !:Xi~-nt drr;urn.s!::mc--es mlaliag to nationa.E .!iecurity or lo th9 m::on-om)c Do minhnis

1:nniact with an e-xer.ul.ive agenc..-y s:haU ~cause [Dr a w;;~ive-r of Um ms!rir.li~m-s

ront.airrmd in llam.gmph 3 of !.he- pled;ge.

Sec, 4, Administmtion. !:1) Tim fu:.ad of every exe-cutive n;g~m::)r shaU . in
C-tlnrultation with tM mwdor of tfw om~ oJ f'nn:emmanl mhia. establish
;5crch rules or pr-!lCCdUrt.\!1 {confonning aa: ne-arly as practtcaMe 1o lhe >'lge-ru..y's:
g4mer.'t! ethie!i rules :md procedurns, including those relating til dtosignaled
age-ncy Ethics office-rs) .as am neces.sruy OE" s:ppropriatn ~o ensum fhat -e'i'err
appointee in th~ ag<!noy .sign.11 !he- ple-dg.a- upDn rus.mning the appointed

uffi(;e- f.IT olhenvist~ ~ffiing :m 3p-pointeo; ti'J erutna thrut complt:uu:e with
pMagmph :t of Um pledge is .:tddressi!-d in a WTtuol!'n ethics asn_!ernent w"ith
r:-a.c:h .1.ppoiniE1! to \'.'hom it. :wppHnli, \tthh::h a,brrlw.mant shi3U .abo be- approve-d
by the! Coun'!ie-1 to the Preliidtmt or his or her dnsi'J:1nea prior to the appo-infeecnmmencin;g wo-rk; to emmra fhal lipnusal .:!-mplnyme-nt )BSU-{?.5 and <~:~Hmr
a:mfiid!i not fl'xprassly addmB!ied by lh~ plu-dge :~m addrosso-d in e~hks
:th-ml~monbi: witlt appoinfees or, whem no stu;_h :lJ!lmBm~nfs :tre mquimrl,
through etMc;-s cq.uruBilns; and gu-nern.Uy to f!mum comp!i:lm~ wUh. Ibis
order within ~he ilsem::.y.
(b) With mspect to thE! Exat:utiv~ Offir;e of !he Pm-sid;mt. the- rlutil"!s: !i(1-f.
fo-rth in 8BcUon 4{a} shaH hu the responsibility of the- Counse-l to ths Ptesiii~nt
'LI:r his m h.u-r de.sig.nae.

(t::) Th13 Dirm~~ornf th1~ Offir:m afG-llVBrnmnnt Ethics nbaH:

{1) ensme iha[. the 11Jedge ami a copy of ilii-'i -{lrder; an'!- m:t:dB

a\-ail:.chl~

fur use by a;gnm:il!-s in fulfilling the[r dtl!tiHs umder section 4-{,'1.) abov~~

{2} in wru;ulbU.on wHh thfl' AitiMlJ{',}' Ga-na-r.!l or !he- Counsel to the

Pre.sid.ent ur their dcsigmws. whan i.!ppmprfat.r.o, ass-h;t d.fl'-'iig_nat-e-d ::gBnq
l!o:thk-s offia~rs in prmidjng .u.dViCi~ to CUJT<!lll or former app-uhl{EE!!i- ro_gannng
Ute application of the pEm1g_e; and
(3) En c.onstdlatiion with tha Ali<Drn11y- GenEm~ .:~mi lhe- Courut!~ fo the
Prr.-sid1mt n-r th1~ir dm;Igrmes., adopl such rule!> or prtm~~durfr.S ~" aro nec-e-sfiary or sppm-prfate:

OGE 2011-11-2

467G

Bates 000020

Federal Regisfi!'E"fV.oL 74. No-. 1!:i/MocHJi1y. J:muary 26, 2009/Pre..sid~nl.ial Do..'"'L!rrumls

{i) to carry aut the fore-going reE;ponsihi!ii.im;:;
{ii} ta !!ipply the lobhyisl ~ift han wt forlh in par.agr.oph 1

to an e-x~cutive bmnch empio~raes;

of th~ pledge-

(iii} to nufuorize limitt:d exa.=-pUons to the lobbyist gift ban: foF -nir-

cumsE:mt.."'!'s ih.;.t do not implicat-e the purposes of the han;

(iv} to make de.ar thZil no person shall have- '>'iola:le.dt the la-bbyi.sl )f.tfi
ban if ihe pt"l'.!ion properly dispmms of a gift as providE:!d by ~;eclirm
2&35.205 of title-S:, C'.oda .o( Fedaral Regulations:~

{vl fD ensure that existing rules :md proCEdures fur Gov(!mme-nt employees engaged in neg.oUation!i- fGr future employmunt with prl\'a~n
busfnesses ffi.al nr:e. :tff{!o;[..'f:ed by llie.ir official mrtionlt do nu1 affect th.a integrity of the Guvernment"s progmms and Dpl!'r.'ttiOl'S.
(vi} to- eru:uru. in r:om:;ult:i:lifm with tha Dlrecfor .of the Offk!!- -of Pe-r!mnne:l Management, lhal thE! rt."q_nimmt'!"nt s:el forLI,: in pamsr.'tph 6 of tho
pledge iii himored b}' t.>Ve-ry ernpJoyue- of fhe. &:XE!CUtiVo: b:r:mch.;
(4) in cnnsullation with th!3 Director of tlw Offko Df Manage-mmii and
Bud~.tt. report t_a the Piedtfent on whether ffuJl compl.ftume is being
.achieve-d with existing: laws- and regEJlatinru governing exQculivn br.m:::;h
procummant lobbying dt!idosur-e and on 11t~ps th>@ executive- br.mch can
tiii:lw to- ex.p-:md to th~ fullest extm;J practicabfe dlsdm;ure iJf t>uch 4!-xec:utiw
bmnch pLUCllro!!<ment Eo-bbylng :3nd of lnbbyjn_g fnr prssidtmfi:t[ pard.ous
.and to include in the- report bu.lh- imme-dia-te- ;u:Uon the cx{!<:uUvll- branch
can tal:.e- and, ifnece-srmry, rnr:o-mnmndaHorn;: for [GisHafio~ :md
{5) pro-vide- an annual pub1ic report on the :nlminl.slmtion of tlm pledge
a.nd this ctdl3:r.
(d) The- O!reGWr of the Office of C'..uvernmenl Ethics sh:3ll. in com;ultaHr:m
with the AUorne-y Geneml. the: Cbunwl to tlle President. and the Dire.ctnr
of th;flo Office- of "P.r:nm-nnel Man.'lgeme-nt. m: th11ir d~Hfgnees:. report to th.r::
Presid~nt on &tops the e:xc.-cutive branch can l3ke to ~xpand (o the fuH~;Iif:
extent praditmhla the revolving doar b--an ~ml forth in p:11m-_graph 5 of the
pledge- t-o all executiV>!l' branch e-mpfDJ1E!It!l:i '\\~ho am involved in llie pr-octm!menl pr-oces!i such fhal lhe} may nQ<t for Z lfl!'!WI -afhrr Jea\oing Gm.e-mment
service Iobbv .any Government- off:icf:il re~srdJng .a Gov~mment Q!lDir:mt that
was emder tfu~ir nfficial m!i-ponsibility in the fast 2 y~ of thair Go\'e-mment
senf.ce; and lo include in the rnport both fmrn~:~:diate action the executive
brunch mm fake an-d. if necossary. rer;ornmends!itms for legislation.

(e) All pledges S-igned bv appointees~ snd aU waiver- cerfifications with

re.spst:1 ilieretD', sh:dl be ft(ed wiEh thl] hniiod nf the- iippoinlee'.s as~mcy for
pe-rmanent rohmtion in the appDirdec-~s official personnll'l folder or equivalent
folder.
Sec, S. Enfma.:IIwnt_ (:t) The contrndun.t fiduciary. and !thlcal commilm-e-nfs
in the pledg!! p7U\1ded fvr ful'min am sDMy enfon::a-able by !he- UnilE:!d
S-tates pursuant to this secUoo by ;un le<g.a.Eiy -avaH~tbl~ meaDs. including
d~barnum~ p:rm;t.->:fl>dinss withjn any a:fr~ct(!d l'!X>L"Ultive il!;.~ncy or judicial
chil pr!J<[){!i>.dfngs. for declaratory. injum:-li\'t!, or monetruy mlie[
{b) Any fonneo .appninten whO' is det~rminEld. .affer notice and hmuing,

by the duly des:ignatruh autJmrH.y wHhin any ~g:t:!ncy. to have vioFated his
or her pledge m::Jy 00 b;urod from lobbying .nny vffiwr or employem of
ih<il asency for up to- 5 )'e3fS Jn addHioii !o the time pe-riod :0>\l'emd by
the ptedge. Tho- head -of eveo:ry m;::-ecuUve- agl!no~:Jy sb:tfL in ctmsuilation wifh
tim Dir.ecio-r of tOO Offir.e of G~l\'t~rnment Ethicli. es.t~h1i1>h pr.oc;edur.es to
implement tbia Ruhs;-eclion. which pr-m:ndure-.!i R.ha.H i m:Jude- (hut !!lOt hB lim-

ited tn) J.liO\'iding for fac.tfindfng 11ncl inve::;tigi3lion o[jf po11sibla violations
tlf fhia miler :md fm- re-furr.als. to 1hu AUorrmy Ge-ne-rnl for his nr h_;::.r cr:msidf!<ration pur5--Uant. to rubs:retion {c).

(c} The Altom~}' Gene-:rnJ or his en her deslgne.e fli- ;-m.thuriT.ed:

OGE 2011-11-2

Bates 000021

4G77

(1) apon reGe(ving lnfo[llJ:dion

reg~rding

lim pmsible bmailh uf :my

c:iJmmitm-1ml in a signr~d plwlge. W fei(t.tasl any ::~tppropriis:~e l~dt:r.:tl inrve:s~

Up,_aihm .autlwrHy to condm:t sm:h lm~sUgn.Uon!i- ilS nt&)f lJe upr~wpriat~~:
and
(2) upun dei.{!-I'Jil1n5ng Ehat iliaro is ::: reJJBIJnabJe basis to b~li.r:'i.'G that
:t

hmach of a UJrumHment h:u;. occurred or

\\'Hf

w..cutr or continua, if

rrot enjo~ned. ~o cnmmencc- a chril acth:m aga.ins.t Hoe formt>r amploy!!,-P[n anr United Sb.tali- Disl:rid. Cotirt with jurisdlcHon to conside.r f.hs m::~Uer.
{!i

(r.U Jn :my- rur::h civit- ;tclion. tho!!' AUarne-y Gtmernl ur his.- or har- tfe!ii;g:nM
:ml.l!mri7..!d lo rt'!qutl's[ any :md aU mJil:f :mlhorimd by bw; inducUng

hut no{ limHed tor

(1) such tempomry restmin1ng Drders ;:md pmHrnlnlllry .llntf pe-mmnenl
fnjtem::timls. az may ba appropriate io. restrain future, mcurrlng. or c!m~
linub~g conduct by Ihe former ;;mplOj-eo- in hma{;h of th-1~ r:o-mmil.m-&n~:;:
L01 !hG- pledgi~ be or she sigJl:!!'d~ tilild
(2) (!s;l:t!lbUshml!-ni of a GUnsfrucUv.e tmst f.nr the lw.m~fit of the Ucited
Sb~!e:;:.

requiring :m_ acco-unting :uul pa;ymnnt to 0Ja- Unite-d Sl-ates Tm:umry

uf ii.U

m~n.ey

.and othGr thin.gs uf \ralu13 rm:eivecl by. ur

ern.~loyee.

p~yable

to. the

arisinr;_ o-ut of any hre,;Kb or 34lamph'!d ~m:u:h ofthepfecfge- signed by the former ernplo~re~.
Bro. 6-. Gcnoml Jlnnlisions. (-a.) Nr} prior fixeauUve Orders- ure rc-p:r,-a.Ied hy
fonne-r

this (lnler. 'fo thv.- !Xtl!-nt Htnl:: this ~Jrc!m iii inl:onsi~tlml 1.-'.'iih any provisiun
Ord1~r. thln. o.rdi!-r shall contmt
(b) Ef :my prmf,;ion (if this nrder or th~ :tp(!<Ht3Han u'f rulJh proviH-io:n
is. lwld kl hn invalid. th{;t mm:iind!':!r uf f]Jis nrder .:tnd olher d[H..,imilar

-of ;my prio-r Exer:uUve

appHc:ttions of .mch jlffi\'Jsion shaH nnt lm .aHect.fl'd.

(r;) Nothing in this o-rder shaH h"" r....mstrued in- impair nr oth-~<-rv;is-tJo affect:
(1) :mthmUy grante-d by law to a df.!'pnrlrntmt. agency. OT th~ h.C!ad themnf;
or
(23 fundiuns Cif Htfl mmck;:r CJ.f the Oific~ of Managm:mmt :lold H!!!dR.at

minting to budgnt, administrative, ur Jeglslati\.e- propw.salsL

(dl This onioZ!T shall 1m irnplc-mentt~d oonst&tent wah app-lfc:~hle law ami

.subject to- thf~ sv:hi1~tbHity of ap-pr.opliation.s.

(e) Thi!i- order ia nnt in1tmd>!!'d to, :md dooB nut. crea~e- :my righl or lwnE"fit.
s~bst:mtiva o-r prm:li!durnl, enfmce.able- :1t law nr in (!(JtJU)-' by .'ltl)'" pn.rtr
again!il th~~ United st~Ees. !is dep-ltrlman!s, :l:}lE!Ilit<i.:!S. OT E!i!ilftie-s. ils. tl.ffke.rs.
.frm pfoyBP-E. EK 11w.nls. m :m:y ot~(!f !ler:>on.

OGE 2011-11-2

Bates 000022

(:IJ The definitions. set fttrth ln this or.d-er .are !ioJely applir:able lo the
terms of this: ord~r. and s.re nol othen.vise inlle-nde.d fo impair or .affect
o!f::dslin:g f:"v.

THE \\1HlTE HOUSE,

fcmmrry 21. 2fJIJ9.
!t'E

llm~ m-..tn~

I'!WJ 1-2341'J; &:>15 aml

llilflng mW 11!15-W!W"'

OGE 2011-11-2

Bates 000023

APPENDIX II

OGE 2011-11-2

Bates 000024

Appendix II
Assessment Methodology
OGE administered an assessment questionnaire in January and February 2010. The
assessment focused on compliance with Executive Order 13490 for the period of January 1
through December 31, 2010.
The questionnaire was emailed to Designated Agency Ethics officials (DAEO) and
Alternate DAEOs or other designated officials. OGE received responses from all agencies
required to be assessed. Based on responses to the assessment, OGE conducted follow-up with
agencies to gather additional information and correct any discrepancies in submissions. OGE
excluded from this report employees it determined were miscategorized as full-time non-career
appointees. In the interest of completeness, the White House voluntarily provided information
about White House appointees.

OGE 2011-11-2

Bates 000025

APPENDIX III

OGE 2011-11-2

Bates 000026

Appendix III
Assessment Questionnaire

Ethics Pledge Compliance Assessment

(Executive Orcler 13490)
Calendar Year 2010
You are requil'e-d to c-O-mplete this assessme-nt as tlte repl't'sentafiye ofyo1!1' agency's ethics
pr-ogram. Each age-ncy must p:rmide a prompt and accnr.atf respome-""'

Pl!lpose
ThepuqJOse of this ~e.sment is I<> provide the U.S. Office of Governmeot Ethim (OGE) with
infonnation about administration of the Ethics Pledge reqtti:re.d by Executive Order 13490,
~Uhics Coilliiiilmento by Executive Branch Perm>nnel" (!""""-'}' 21, 2009). The infOilllalion
will be used by OGE to prep ore the annual report on adminisfiaiion of the Ethics Pledge as
required by E.'l:e<ntive Order 13490, sec. 4(c)(5).
The Executi.~'e Order requires """'1' oovered appointee to sign the Ethics Pledge nponas.uming
office. See Executive Order 13490, sec. 1. In addition, every c<>vered appointee who was
registered lobb)~s! during the 2 years prior to appointment nmot have a written ethics "17eemeut
addrossing the restrictions on incoming lobbyists 1mdff paragraph 3 oftbe Ethic Pledge. Sw
Ex""utive Order 13490, sec. 4(a).

This osse=eot focuses on oomplimce with the following for tho period i><tw~en Janu.ory l,
20 lO and December .H, 1010:

the requirement fm: full-time non-care appointees to sign the Ethics Pledge,
the requirement to have a writlen ethics agre<>ment covering any cOilli!lilments 1mder
~ph 3 <>f!he Ethics Pledge (concerning lobb}o;!s eotering gnveiil!llellt), and
the imlmce of anywBivers of Ethics Pledge reqtrirements under section 3 of Executive
Order13490.

Thil; osoossmeot does nat r"'l"est the nome or title of my appointee.

Deadline
The dead]~ fo< completing fue asse3sment is February 28, 201 L

Comnleting the As~-e-s--sment

'This assessmart. ~.onsi!ifu of up to eight items for responses. (Based on ymrrresporue.s-, you may
be asked 1o skip items n<>t applicable to yourog<mcy.)

Throughout t!te ""''"'meotyou will be offered an opjlortmrity to prov-;de OOIIIIIlents.

Afier reviewing your subn:ri.ss-ion OGE may contact )'"'U for -additioml information.

OGE 2011-11-2

Bates 000027

Sating the- A~ess:ment

To s:n<e your assessme-nt at any tim-e dming !l:he <:ompletion proCe-.ss for yom rec-ords or for
completion at a later time, click the *"Save Via Em>irlmtton at the eud of !he fonn. Please
follov. the irutmctions in the dialogue box. Ymrr :saved assessment v.."ill be emailed to you as an
attaclunmt Please k""!' in mind that savmgyow assessm<mt d<>es not lrnnsmlityoor infurmotion
toOOE.

'NOTE: Jfyou are using Adobe Acrobat Professional,:!'"'' d<> uotneed to ur-e the "Sa'\1e V.a
Email" button to save }"'ur- a.sses~ment sinc-e this version of Aero-hat has the capability of Sa'\..mg
doruments. To """e your assess~ul, select "Save As" from the File ""'""
Submitting the ..4sse-ss:meu.t

You mnt click the "Submit" \mttqn at the bottom of the form to submit your respo=s to OGE.
If you receive a message requesting you to allow acce-&s to the internet after dicking on fue
~submif., button,. please select cyes.~' You will receit.oe a s>. .u:-.cess page stating thaJt your
.aissessment has been submitted_ Ifyou do not rece-ive fui.,; page or e-.xperie-nce technic--al
difficulties, p!ea.lle conmct OGE '"'the 0011!act information below.

Ifyo" need help with the """'""""""please coutaet Koren Rigby, Lead l\ofanagement Analyst,

l>y j>hone at (202) 4&2-9'212 <>r atkm$@tm:e.gov.

NOTE: Complete this asses.mwnt oll\)< ifyou me an "'"Ployeo ofthe Fe4eml Govemmrot.

OGE 2011-11-2

Bates 000028

1. Agency
2. Did your ogeJJ.C}' appoint any filll-tim.e non..,areer appoinlees (e.g., Pr""identia!Iy Appointed,
Senate C<>nfumed (PAS.), Presi<lenti:illy Appainted (PA), oon-eareer Senior Executive
Ser<oice (SES}, Schedule C, etc.) ftom January l through December 3!, 2010?
DYes
0 N<>
Note: For guidance on what constitutes full-tim.e non-<areer appointee for pwpooes of
!be Elbie< Pledge see OGE DAEOWm, D0-09-011} a'ai!able at www.uooge.gmnmder
the "Ethics: Guidance~~ section.

Please lyJl" ~onnuents in !be box below.

Note: Those responding nno" to question 1 am ~wt requir2.d to anru'm the remaining
questions in the- assessment_ Hawever. please be sure to compkte tlw contact hifonuafion
section at the end ofthe form.

3. for each ctegory of appointee pro>toide !be nnmber of full-tim.e lilOO-Career oppointees
appointed be!ween January I a.ildDe<:embedl, 2010, and indicate the number who <lid and
did not sig11 the Elbics Pledge. (Note: Ple~seinclude all appointees \\llo did not sign,
regardle.s ofwi!ffher or not !bey were required to sign Additional explanatory information
is requested in the next que~on.) The total DlJ!Ilber ofappointees \\llo signed tbe Elbies
Pledge pluo ll?" total nnrober who did not sign the Ewes Pledge should equal !be total
number appointed between January 1 and De=n.ber 31, 2010.
T;pe of Full-Tim Non-Career Appointees
bvCafeuorv

Numbe-r .of Full-Time Non-Cateet

Appointees

NonPAS

PA

C~IL~ff'.l'

SES

Sdtedule Other

Total

Appointed Ol/01 12Hil2010

Siated the Ethics Pledee
Did not sign the Ethics Pled""
If for any :!Wld above you are unable to prov-ide a ccrmplete re.sponse, please e:<:plain in.
the box below. You may also add additio!!al connnent,.

OGE 2011-11-2

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4. For full-lime oon-careor appointees appointed between J"""ary 1 and Decembec 31, 2010
who did oot oign the Ethi<s Pled~ find the appr<>priate eategory(ie~) ofre,;oons l!Itd
irulioate the munhor of appointees who fit into that c~tegmy.
Number and Type <>fFull-Time N<m-Orreer Appointees
R.~tionole for

Not S!gmfng

the Ethlos Plc!g

Who Did Not Sign th Ethics Pled~e

NonPA
caree-1'
Schedule Other
SES
c

...

PAS

Total

a. O'ccupy an exempt nonpolicymakingpos:ition

(Schedule C or other
oompilrnble authority)
b. Appointed w:ifuout bre>J<
in :ser:...-ice after se-n.ringia
another position for which
alreadv signed Ethics Ple<L1:e
c. Oih<r (explain below)
If other, o.~ploin here. You may ~!so ""' the hox l>e!ow to pro\<ide a oomplete respOBSe or
to add additiooal comments.

j.

How many appointees appointed between January I ""dDE<ember 31, 201 () and subject to
the El:bic!; Pledg<>were registered loblry'ists during !he 2 years prior to their appointtn<>nt?

Please type c<JJlllllen! in fue boJ< below.

(Ifyou did not l11n-e any appointee:; in 1010 1illldect tc the Ethics Pledge wlro wem mgisiered
lobbyists rim'ing IM 2 yean; pl'ior to thefrt1JlP"f11i>lwt, pleaJie skip to quillffon 8.)

6. How ma.ny ofthe appointees identified m the pre,ious question regiotered lobbyists during
!he 2 years prior to their awoin!ment bm'e ""el:bic!; agreement addrellsing !herr obligatiom
tmderparagraph 3 ofthe JEthlos Pledge?_ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Please lyJl" comments in fue box telow.

OGE 2011-11-2

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7. For any appointee idlltified in question 5 who does not have on efuics agreement, pleare
provide an explaruili<>n (e.g" appointee's duties sufficiently unrelated to prior lobbying
acn,>ities fuat Pledge paragraph 3 notre.,onahly expected to limit participatiDn in any

agency matten;).

Please type comments in the b<>.'< ~elow.

8. Section 3 ofExecutive Order 1349() prmrides a waiver mechanism fur ilie reslrictiom
contained :in the Ethics Pledge__ Indic-ate below how ~waivers have been grnnted by ymrr

agetty and which Pledge paragraphs were afiected.

Number o-fEfuies Pledge \Va!hets Granted

Bv l'!edgo Par:t!11'aJ>h
Paragraph 2
Only

Paragtapfi J

ParagL~aphs:

Only

2&3

Oiher
(explain
below)

If <>iller, please explain here. Other c<>nnnenls may also bepro;ided in 1he box. below.

Please prmid:e a point of conta>tt to aume-r OGE qnes:dons reg;wding tWs; .:t"'isess:me-nt.

Name:
TitleJ!'osition:

Emaill Address:
Phone Number:

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APPENDIX IV

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Limited Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Principal Deputy Counsel to the President, I hereby waive the
requirements of paragraph 2 of the Ethics Pledge of Mr. Robert F. Bauer solely with respect to
his former client the Democratic National Committee (DNC), and with respect to his fonner
employer Perkins Coie LLP (Perkins Coie) in its capacity as counsel to the DNC and to President
Barack Obama in his personal capacity. Tills waiver is necessary so that Mr. Bauer, when
representing the interests of the President and the United States as Counsel to the President, may
participate appropriately in such matters as the President's SF-278 Personal Financial Disclosure
Fonn, due May 15, 2010, in which Perkins Coie represents the President, and in evaluating the
campaign finance decision in RNC v. FEC, in which Mr. Bauer previously appeared on behalf of
the DNC to support the govenm1ent's position.
Executive Order 13490, "Ethics Commitments by Executive Branch Personnel" (EO), Section I,
requires all covered political appointees to abide by several commitments. One ofthose
commitments provides that a covered appointee may not for a period of two years from the date
of his appointment participate in any particular matter involving specific parties that is directly
and substantially related to his fom1er employers or former clients. (Ethics Pledge, Paragraph
2.) For purposes of applying this restriction, the term "particular matter" has been interpreted to
include "meetings or other communications relating to the performance of one's official duties
with a former employer or client." D0-09-0 11, OGE Memorandum to Designated Agency
Ethics Officials, March 26, 2009.
A waiver of the restrictions contained in paragraph 2 of the Ethics Pledge may be granted upon a
certification either that the literal application of the restriction is inconsistent with the purpose of
the restriction or that it is in the public interest to grant the waiver. EO, Sec. 3(b). By
memorandum dated February 23, 2009, the Office of Government Ethics announced that the
Designated Agency Ethics Official of each executive agency was the most appropriate designee
to grant such waivers, after consultation with the Counsel to the President. See D0-09-008,
OGE Memorandum to Designated Agency Ethics Officials, February 23, 2009.
Before his service as Counsel to the President, Mr. Bauer and Perkins Coie represented the
President in his personal capacity, and Mr. Bauer's former firm continues to represent the
President on such matters. If the ethics pledge were literally applied, when representing the
interests of the President and the United States as Counsel to the President, Mr. Bauer would not
be able to advise the President appropriately on particular matters that are directly and
substantially related to Perkins Coie's representation of the President in his personal capacity.
For example, Mr. Bauer could not discuss with Perkins Coie the President's SF-278 Personal
Financial DisClosure Form. Such a result would be inconsistent with the purposes of the Ethics
Pledge, which did not contemplate the situation in which the personal lawyer to the President
enters government service as an advisor to the President. A waiver is also appropriate as a policy
matter, to ensure that the Counsel to the President is not precluded, in advising the President,
from discussing with personal counsel to the President matters that relate to the President's

OGE 2011-11-2

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official responsibilities. Accordingly, Mr. Bauer is provided a limited waiver of paragraph 2 of

the Ethics Pledge pemritting him, when representing the interests of the President and the United
States as Counsel to the President, to be involved in particular matters in which he previously
represented the President or in which Perkins Coie is or was counsel to the President in his
p~rsonal capacity,_!o COJ11!111l!1i<;ateJ'{itll I'()r]dns <:;oie.
Before joining the White House, Mr. Bauer also represented the DNC on such matters as RNC v.
FEC, and Mr. Bauer's fonner finn continues to represent the DNC. Among the responsibilities
of the Counsel to the President are advising the President and White House officials on such
matters as the campaign finance and related legal issues that arise in the RNC case, which may
involve his fanner client tlte DNC, and his fmmer employer Perkins Coie, in its capacity as
counsel to the DNC. Mr. Bauer is, moreover, a leading national authority on campaign finance
and related matters and the government will benefit greatly from his expertise. Accordingly, I
have detetmined that a waiver of the requirements of paragraph 2 of the Ethics Pledge is in the
public interest in order to allow Mr. Bauer, when representing the interests of the President and
the Urrited States as Cotmsel to the President, to be involved in particular matters involving
specific patties in which his fanner client the DNC is a party or in which his fonner employer
Perkins Coie represents or has represented the DNC or the President in his personal capacity.
This waiver is limited: it does not cover any fomter clients of Mr. Bauer's other than the DNC,
or any interactions with Perkins Coie that do not involve its work as counsel to the DNC or to the
President in his personal capacity. Nor will Mr. Bauer serve as the final decision-maker on any
of the matters covered by the waiver. Mr. Bauer does not have any continuing financial interest
in his fonner client the DNC. His only continuing financial interest in Perkins Coie is the
repayment ofhis capital accotmt pursuant to his partnership agreement. Until Mr. Bauer has
received all of contractual repayments from Perkins Coie, pmsuant to 18 U.S. C. 208, he may
not participate personally and substantially in any particular matter that would have a direct and
predictable effect on the ability or willingness of Perkins Coie to provide these payments to him.
This waiver of the requirements of paragraph 2 of the Ethics Pledge for Mr. Bauer does not
constitute a waiver of 18 U.S.C. 208. Mr. Bauer will, of course, otherwise comply with the
remainder of the pledge and with all preexisting govemment ethics rules.

Is/ Nomum L. Eisen

Dated: May7, 2010

Special Counsel to the President and

Designated Agency Ethics Official

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MEMORANDUM
April 5, 2010
TO:

PAUL CARTTAR

FROM:

WILSIE Y. MINOR
Designated Agency Ethics Official/"

SUBJECT: Authorization under 5 C.F.R. 2635.502 and Limited Waiver under E. 0. 13490

Summary
After consultation with the Counsel to the President and for the reasons stated and subject to the
qualifications set forth in this memorandum, I hereby authorize your participation, pursuant to 5 C.F.R.
2635.502 and Section 3 of Executive Order 13490, in the grant application review process as the
Director of the Social Innovation Fund for the Corporation for National and Community Service. This
includes a partial waiver of the restrictions in Executive Order 13490 with respect to your participation
in the preliminary stages of the grant application review process in the event that any former employer
or client of yours (as defined in the Executive Order) submits an application for funding under the
Social Innovation Fund Notice of Funds Availability (NOFA), or is included as a sub grantee in any
such application.
The Corporation has in place safeguards for this grant application review process. The grant application
review process will be competitive and include panel reviews by staff and external experts, and will be
managed by the Office of Grants Policy and Operations in accordance with regular agency procedures.
The evaluations at each stage will be based on criteria that were established in the Notice of Fund
Availability developed by the Corporation prior to your appointment.
This authorization and waiver is limited, however, in that you will recuse yourself from party-specific
compliance or eligibility determinations, consensus meetings, discussions, and recommendations, or
portions thereof, regarding any former employer or client, as those terms are defined under Paragraph 2
of the Pledge.

Background
You are the Director of the Social Innovation Fund (SIF) for the Corporation for National and
Community Service. Through the SIF, the Corporation will make grants in the range of$ 1 million to
$10 million to a network of eligible intermediary grantrnaking institutions. These intermediary
grantees will make and evaluate subgrants designed to produce measurable and transformational
outcomes within specific issue areas or geographic regions.
Prior to selection for this position, you had relationships with one or more organizations who may
interact with the SIF. You were a salaried employee of Monitor Group, a consulting firm. You were
also an Executive Partner ofNew Profit Inc., an organization that reimbursed your expenses and paid
Monitor Group for one half of your time. Finally, you served on the boards or have performed work
for New Leaders for New Schools, Teach for All, and KaBoom!. New Profit, which provides services
and funding to social entrepreneurs and their organizations, is a likely applicant for SIF funding, and
the others may be involved as well. The grant application review process will consist of several stages.

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First, applications will be reviewed for compliance with the NOFA submission requirements, including
a determination of whether the applicant is an entity eligible for award. The initial review of eligible
applications will be conducted by a four member panel to determine an applicant's ability to select,
support and monitor the performance of a portfolio of innovative and effective nonprofit organizations.
At this stage of the review (the "blended review"), panelists will apply the rubric in the NOFA, which
puts 45% weight on the review of Program Design, 35% on Organizational Capacity, and 20% on
Budget. Next, at a first consensus meeting, senior staff at CNCS will review the top applications and
eval!lRte them in light of the goals of the SIF. The results of this meeting will be to confirm the group
of approximately 30 applicants that will be sent forward to the "expert review" stage, where panels of
tWcfexpert reviewerlf\vill assess-applications basedori the- same-rubric utilized in the blended review process, but will focus more specifically on evaluation plans and potential for replication, The expert
review will be followed by a second consensus meeting, at which information from both the blended
and expert reviews will be assessed. This meeting will reduce the number of applicants to a final
competitive group of approximately 10-15 intem1ediaries. These top applications will be packaged for
a pre-decision meeting with the senior Corporation official designated by the CEO\hereinafter
"designated official" or "designated selection official") t<t malce the selections, which will-include
executive summaries of proposals, as well as summary information and statistics. After the pre-decision
meeting, staff will have clarifying discussions with the applicants, informed by those questions and
issues. They will present final proposals for the designated official's consideration at the final decision
meeting.

Authorization and Limited Waiver

You are authorized to participate in matters of general applicability including general policy
discussions and decisions conceming the operation of the SIF. This authorization and waiver is limited,
however, in that you will recuse yourself from party-specific compliance or eligibility determinations,
consensus meetings, discussions, and recommendations, or portions thereof, regarding any former
employer or client, as those te1ms aTe defmed under Paragraph 2 of the Pledge. This prohibition shall
include Monitor Group, New Profit, Inc., New Leaders for New Schools and Teach for All, and
Kaboom!. You are authorized to attend the two consensus meetings except to the extent described
above. If, after these meetings, either your former employer or clients remain under .:;onsideration for
the final competitive group; you will recuse yourselffrom the pre-decision meeting with the designated
official and the final decision meeting with the designated official.
After the designated official's selection of the SIF intermediaries, this authorization and waiver pennits
you to perfmm the full range of your duties as the SIF Director related to grant implementation,
monitoring, and evaluation. The waiver and recusal will remain in effect, if applicable for the 2011
new grant application and review process if your former employer or clients apply. The designated
official will make the decision on funding for SIF intermediaries for the second year of the grant
period.

I. 5 C.F.R. 2635.502- Impartiality in Performing Official Duties

The Standards of Ethical Conduct for Employees of the Executive Branch (the Standards) at 5 C.F.R.
2635.502 require an employee to talce appropriate steps to avoid an appearance of any lack of
impartiality in the performance of his official duties. Under Section 502, when an employee kriows
that a person with whom he has a "covered relationship" is a party or represents a patiy to the matter,
1

The CEO will designate a selection official because his fanner employer has submitted notice of intent to apply.

OGE 2011-11-2

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he should not participate in the matter without informing an agency official and receiving authorization
to participate in the matter.
The grant application review process for SIP funding may be a "specific party" matter if any
organization for whom you seryed as officer, director, trustee, general partner,. agent, attorney,
consultant, contractor, or employee within the past year applies for funding as an intermediary or
subgrantee. See 5 C.P.R. 2635.502(b)(l)(iv).
Section 2635.502(d) directs that an agency designee may authorize an employee to participate in a
particular matter involving specific parties, which would otherwise be subject to the recusal
requirements ofthat section, if the designee makes a determination, in light of all relevant
circumstances, that the interest of the Govermnent in the employee's participation outweighs any
concern that a reasonable person may question the integrity of the Government's programs and
operations.
As the Designated Agency Ethics Official, I serve as the agency designee pursuant to guidance from
the U.S. Office of Government Ethics.
You and the Chief Executive Officer have asked for guidance on how best to proceed in light of your
former employment with Monitor Group and your relationships with New Profit, Inc., New Leaders for
New Schools and Teach for All, and your board membership with KaBoom! After weighing the factors
ruiicuiated in Section 502(d), I have determined that it is appropriate to authorize your participation in
the SIF grant application review process.
Implementation of the Social Innovation Fund provisions of the Edward M. Kennedy Serve America
Act is a Corporation priority. The Corporation is committed to the long-term success of the SIP as a
meru1s to spur innovation and address our nation's most pressing social challenges. Your involvement
in the awards process, and your leadership and expetiise in pliilanthropy, nonprofit management
consulting, nonprofit capital markets, and social innovation, will help to strengthen the implementation
of this initiative.
In addition, there are safeguards that alleviate any concern about impartiality" or the appearru1ce of
impartiality in the awards process. The grant application review process will include internal and
external reviewers applying established eligibility criteria. These criteria were established in the Notice
of Fund Availability developed by the Corporation prior to your appointment. The grant application
review process will be competitive and include panel reviews by staff and external experts, and will be
mru1aged by the Office of Grants Policy and Operations in accordance with regular agency procedures.
You have agreed to resign from Monitor 8lld from your affiliations with New Profit, Inc., New Leaders
for New Schools and Teach for All, and your board membership with KaBoom! Of central importance
to this authorization and limited waiver are your representations that you will no longer have fmancial
interests in any of these organizations, ru1d therefore the outcome of the grant selection process will not
impact your fin8llcial interests. Moreover, if any organization with whom you have a covered
relationship applies for funding, you will recuse yourself from preparation for 8lld participation in the
pre-decision meeting with the designated selection official and the decision meeting with the
designated selection official, except to the extent set forth in this Authorization and Linlited Waiver.
In light of these factors ru1d the requirement that you abide by the aforementioned recusals, I hereby
detennine that the governmental interest in your participation outweighs any countervailing appear8llce
concerns and authorize your participation in the SIF grru1t application review process ru1d matters of

OGE 2011-11-2

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general applicability related to SIF policies and operations and, after the designated selection official's
grant award decision, I authorize your full participation in implementation, monitoring, and evaluation
of the SIF cooperative agreement portfolio.

II. E. 0. 13490- Ethics Commitments by Employees in the Executive Branch

Executive Order 13490 provides that a political appointee will no(, for a period of two years from the
date of appointment, participate in any particular matter involving specific parties that is directly and
substantially related to the appointee's fonner employer or former clients, including regulations and
contracts:E.0:-13490, Sec.!~ para. 2. Section 3oftheE.O. provides for waiver of the recusal
provisions and as the DAEO at the Corporation, I exercise that waiver authority. See Office of
Government Ethics Memorandum Re: Authorizations Pursuant to Section 3 of the Executive Order
13490, D0-09-008 (Feb. 23, 2009). The standard for waiving the restriction in the Executive Order is
that it be in the public interest. See E.O. 13490, Sec. 3(a). The Executive Order states that "the public
interest shall include, but not be limited to, exigent circumstances relating to national security or to the
economy." ld., Sec. 3(b).

See

I hereby determine that it directly serves the public interest that the Corporation and the CEO have the
benefit of your participation in the SIF grant application review process and development of the
policies and procedures of the SIF. The SIF is a vehicle to: 1) promote public and private investment in
effective and potentially transformative portfolios of nonprofit community organizations; 2) identifY
more effective approaches to addressing critical social challenges and broadly share this knowledge;
and 3) develop the grantrnaking infrastructure necessary to support the work of social innovation in
communities across the country. Given your unique qualifications and experience, your involvement,
in the award process, subject to the limitations. set forth herein, would contribute significantly to the
accomplishment of these goals. Excluding you from the process entirely would make it impracticable
for you to function effectively as Director of the SIF, yet any other individual who possesses the
necessary expertise in venture philanthropy and social innovation would have similar relationships with
potential SIF intermediaries or subgrantees.
Accordingly, I hereby certifY that it is in the public interest for you as the SIF Director to participate in
the SIF grant application review processes and discussions of policies, procedures, and implementation,
monitoring, and evaluation of the entire SIF portfolio, subject to the limitations set forth above.
Therefore, pursuant to E.O. 13490 Sec. 3(a), I waive the restriction in Section I ofE.O, 13490, on
participation in any specific party matter that is directly and substantially related to your former
employers and clients, including Monitor Group, New Profit, Inc., New Leaders for New Schools and
Teach for All, and Kaboom!. I have consulted witl1 the Counsel to the President conceming this
waiver.
The terms of this authorization and waiver along with guidelines for screening, implementation, and
monitoring will be disseminated to the CEO, Chief of Staff, General Counsel, Chief of Program
Operations, tl1e Director of Grants Policy and Operations, and other employees as appropriate.

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DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

FEB 1 2 2010
MEMORANDUM FOR CHARLES COLLYNS

Q\}~

FROM:

Bernard J. Krnght, Jr., \>7\

Assistant General Counsel (CJeneral Law, Ethics and Regnlation)
and Designated Agency Ethics Official

SUBJECT:

Waiver of Ethics Pledge Paragraph 2 for International Monetary

Fund Matters

This memorandum constitutes a written waiver of paragraph 2 of the Ethics Pledge, as

mandated by Executive Order !3490, for International Monetary Fund (IMP) matters. Under .
paragraph 2 of the Ethics Pledge, appointees are prohibited from participating for a period of two
years in any particular matter involving specific parties in which a former employer or client is
or represents a party if the appointee served that employer or client during the two years prior to
the appointment. The IMP is considered your "former employer" nnder the Ethics Pledge, and
you would be restricted from participating in particular matters in which the IMP is or represents
a party. This would include any meeting or other communication with the IMF as part of your
Departmental duties.
For the following reasons, among others, I believe a waiver from paragraph 2 of the
Ethics Pledge for Th1F matters is appropriate. First, the IMF is not a private company but rather
an international organization of which the United States is a member. Second, in your capacity
as Assistant Secretary for International Economics and Development, you will need to exercise
discretion on particular matters where the IMF is or represents a party. Third, it will be difficult
to assign these matters to another employee, nor can other adjustments reasonably be made,
because the Department \Vill rely on your expertise in international macroeconomic policy.
Fourth, you will not be in a position to personally benefit from your IMF relationship while with
the Department.
You will continue to patticipate in the IMF' s defined benefit pension pIan. This waiver
does not permit you to be involved in any particular matters involving the Il:vfF that affect the
IMF' s ability or willingness to continue your defined benefit pension plan benefits (or the
pension plan benefits of your spouse). For all ofthese reasons, I have detetmined that it is in the
public interest to grant the waiver.
The White House has been consulted atldhas concurred in the granting of a waiver of
paragraph 2 of the Ethics Pledge for IMF matters. The remainder of the Ethics Pledge is in full
force, and paragraph 2 of the Ethics Pledge remains in effect for all applicable entities other than
the IMF.

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Department of Energy
Washington, DC 2[)585

JUN 3 0 2010
MEMORANDUM FOR:

FROM:

SUBJECT:

DONALD L. COOK
DEPUTY ADMINISTRATOR FOR DEFENSE
PROGRAMS
NATIONAL NUCLEAR SECURITY
ADMINISTRATION (NNSA)

'
SUSAN F. BEARD . \ ! ..J' '' " 'ASSISTANT GENERAL COUNSEL FOR GENERAL
LAW AND DESIGNATED AGENCY ETHICS
OFFICIAL
OFFICE OF THE GENERAL COUNSEL
Limited Waiver of Paragraph 2 of the Ethics Pledge for
non-monetary specific party matters involving Sandia
Corporation and general budgetary matters involving
Defense Programs

Pursuant to the authority delegated under Section 3 of Executive Order 13490 "Ethics
Commitments by Executive Branch Personnel" (January 21, 2009) and after consultation
with the Counsel to the President, I hereby certify, for the reasons stated below, that it is
in the public interest for you to receive a limited waiver of the restrictions of paragraph 2
of the Ethics Pledge as Deputy Administrator for Defense Programs of the National
Nuclear Security Administrator (NNSA).
You were previously employed by Lockheed Martin as the Managing Director, Chief
Executive Officer, and Special Advisor of the Atomic Weapons Establishment (AWE)
and as a President of a Lockheed Martin Company since March of 2006. A WE is a UK
government-owned establishment that is managed and operated by a private company in
which Lockheed Martin is a member. You advise that you did not have any job
responsibilities related to Sandia Corporation since beginning your job responsibilities at
theA WE.
The position of Deputy Administrator for Defense Programs (Deputy Administrator) was
established pursuant section 3214 of Public Law 106-65, codified at 50 U.S.C. 2404, to
manage the Stockpile Stewardship Program. As Deputy Administrator, your
responsibility is to maintain and enhance the safety, reliability, and performance of the
United States nuclear weapons stockpile through design, production, and testing. You
are further responsible for directing, managing, and overseeing the nuclear weapons
production facilities and the national security laboratories. Sandia National Laboratories,
along with Lawrence Livermore National Laboratory, Los Alamos National Laboratory,
Kansas City Plant, Pantex Plant, Y-12, and Savannah River Site are managed by the.
Deputy Administrator. Sandia Corporation is a wholly owned subsidiary of Lockheed
Martin and the management and operations contractor of Sandia National LabOTatories.

Printed with soy ink on recycled paper

OGE 2011-11-2

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Therefore, as the nuclear stockpile manager for these laboratories, it would be untenable
to recuse you from all matters related to Sandia Corporation.
Absent a waiver, you would be prohibited by paragraph 2 of the Ethics Pledge from
participating in any particular matter involving specific parties in which either Lockheed
Martin or Sandia Corporation, a wholly owned subsidiary of Lockheed Martin, is or
represents a party. Your knowledge of the nuclear weapons landscape and expertise in
nuclear security and safety are essential to the United States nuclear weapons program.
Your ability to engage in such decision-making about the future ofNNSA's weapons
program is in the public interest and fundamental to NNSA's ability to remain in the
forefront of nuclear security. This limited waiver is granted with the understanding that
you will comply with the restrictions set forth below. Through this limited waiver, I
authorize you to participate in non-monetary specific party matters involving Sandia
Corporation and general budgetary matters involving Defense Programs. This includes
your participation in the day-to-day operations of Sandia Laboratories, including the
management and performance of program activities and facilities operations carried out
in support of the Stockpile Stewardship Program. Further, l authorize you to engage in
one-on-one conversations with Sandia management on these matters, which could
involve discussions on personnel involved in Sandia's stewardship program activities.
Furthetmore, I authorize you to serve as a member of the NNSA Management Council
and the activities associated with Program and Project Management for the adminstration
of the NNSA complex when the Administrator is unavailable. And finally, I authorize
you to participate in the activities associated with Program and Project Management for
the Acquisition of Capital Assets.
However, this limited waiver does not authorize you to participate in the following
aspects of particular matters involving specific parties in which Sandia Corporation is a
party or represents a party: (I) any evaluation of the work performed; (2) any award fee
process; (3) any extension of the contract; (4) any recompetition of the contract; (5)
negotiations affecting Sandia Corporation's financial anangements between Sandia and
the Department of Energy ( e.g. work authorizations, new work awards outside of the M
& 0 contract, cooperative agreements, grants, work for others, personnel matters
requiring additional financial commitments, etc.); (6) contract disputes; and (7) site split
budgetary matters or budgetary matters unique to Sandia Corporation. The authorization
does not extend to particular matters affecting Lockheed Martin Corporation uniquely
and specifically.
This limited waiver does not affect your obligation to comply with other provisions of the
Ethics Pledge or with all other pre-existing government ethics rules.

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FROM THE AI"IEKICAN PeOPLE

TO:

Lisa C. Gomer
Determination to Gra,<t Waiver and Waiver of Ethics Pledge Restricition on
Partidpatincin Particular Matters Involving
the United Natio11s Development Program

BackQround Regarding Ethics Pledge

Executive Order (EO) 13490, "Ethics Commitments by Executive Branch
Personnel," I, requires all covered political appointees to abide by several
commitments. One of those commitments provides that a covered appointee may not for
a period of two years for the date of his or her appointment participate in any particular
matter involving specific parties that is directly and substantially related to the
appointee's former employer or former clients. (President's Ethics Pledge, Paragraph 2.)
For purposes of applying this restriction, the tem1 "particular matter'' has been interpreted
to include "meetings or other communication relating to the performance of one's official
duties with a former employer or client." D0-09-011, OGE Memorandwn to Designated
Agency Ethics Officials, March 26, 2009.
However, a waiver of the restrictions contained in Pata(paph 2 may be granted
upon a certification either that the literal application of the restriction is inconsistent with
the purpose of the restriction or that it is in the public interest to grant the waiver. EO,
3(b). By memorandum dated February 23,2009, the Office of Government Ethics
announced that the Designated Agency Ethics Ofticial of each executive agency had been
delegated the authority to grant such waivers, after consultation with the Counsel to the
President. See D0-09-008, OGE Memorandum to Designated Agency Ethics Officials,
February 23, 2009.
Background Regarding Your Appointment
You are the General Counsel ofthe U.S. Agency for International Development
(USAID), as a Non-Career Member of the Senior Executive Service. In that capacity,
you serve as the principal legal advisor to the Administrator ofUSAID, including all
1natters related to procurement law.
You were previously an employee of the United Nations (UN). That employment
ended in 2006, and does not implicate Paragraph 2 of the President's Ethics Pledge.
However, during the time peliod relevant to Paragraph 2 of the President's Ethics Pledge
you engaged in several limited-term consultancies with the UN on discrete
programs. There were a total of five such consultancies.

OGE 2011-11-2

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You requested a waiver of Paragraph 2 of the President's Ethics Pledge so that

you may participate in ce.rtain particular matters involving the United Nations.
Specifically, this request for a waiver is primarily focused on a U.S. Government need for
you to participate in discussions among the United States Mission to the UN (USUN),
USA!D and the United Nations Development Program (UNDP). USUN (specifically
Ambassador Rick Barton, the U.S. Representative to the UN Economic and Social
Council (UN,ECOSOC)) is leading a forum for discussion on how best to influence
UNDP' strategic direction and align U.S. national development policy with a key
multilateral partner. You will be involved in working out how the USAID can work
more closely together oh special initiatives and in revising our public international
organization agreement so that USAID can work more easily with UNDP when the
decision is made to do so. The U.S. Government needs to negotiate a mode! that will
meet both USAID and UNDP's needs. Tne forums/meetings are designed to provide for
infonnation gathering, brainstonning, analysis, and discussion oJ' funding tnechanisms
broadly, rather than e!ltering into details. of any contractual partnerships.

After consultation with.the Office of White House Counsel, I detennine that first,
the literal application of the restriction here is inconsistent with the purpose of the
restriction, and second, it is in the public interest for you to participate in these
discussions with UNOP.
When the fOI111e~ employer or client is an international organization, which
consists ofrepresehtatives of many countries, incl4ding the United Statf;'s, the. concerns
underlying the restrictions are not implicated. Further, there is little likelihood of
commercial gain that can, be obtained by govern.!nent employees eng:aged in activities
affecting the interests of his or her fonner employer when the former employer is au
international organization. Ac1;0rdingly, literal application of the restriction in this
situation is inconsistent with the purposes of the restriction.
In addition, it is essential that USAIO, and the U.S. Government as a whole, have
an effeqive voice in the p.reviously"described discussions. You have a unique
organization-wide view arid will be involved in. leadership meetings with the
USAID Administrator, and because of your knowledge of and experience with the UN,
including UNDP, your participation in these discussions would be vitally useful to. U.S.
Govem.ment interests. There is no other appointee at your senior level within the
Agen9y who would have the ability to advance the Agency's interests at the same level.
Accordingly, as 'a separate and independent basis of the waiver, I determine that it is in
the public interest for you to particip~te in the defined matter relating to your fanner
employer arid client, the'UN.
Based on the above a11alysis, I waive the requirements of Paragraph 2 ofthe
President's Ethics Pledge as it pertains to your future involvement in disc.ussions
among the USUN, USAID and UNDP to revise, develop and review the public
international organization agreement.

OGE 2011-11-2

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Furthem1ore, while a reasonable person with knowledge of !he relevant facts may
question your impartiality in matters pertaining to the UN, I make a separate
detennination, pursuant to 5 C.F.R. 2635.502, that the Government's interest in your
ability to participate in these matters, given the critical responsibilities associated with
your position as USAID General Counsel, outweighs the concern that a reasonable
person may question the integrity ofUSAID's programs and operations.

Date

Arnold J. Haimau
Designated Agency Ethics Offic.ial

OGE 2011-11-2

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Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Counsel to the President, I hereby authorize General James L. Jones
pursuant to Section 3 of Executive Order 13490 to provide a brief public introduction for fom1er
President Clinton on April28, 2010 at an event hosted by the Atlantic Council of the United
States (Atlantic Council).
The Atlantic Council is a not-for-profit 501 ( c)(3) entity that promotes U.S. leadership and
engagement in international affairs. General Jones served on a volunteer, uncompensated basis
as the Chaimm of the Board of Directors of the Atlantic Council until January 2009. On April
28, 2010, the Ailantic Council plans to honor William J. Clinton, 42nd President of the United
States, for his distinghished international leadership and other accomplishments during his
presidency at their annual Awards Dinner. General Jones was personally asked by former
President Clinton to introduce him before the award presentation.
General Jones's introduction will be brief He does not intend to speak about the work of the
Atlantic Council and will not solicit any donation or other support for the Atlantic Council
during his introduction. General Jones will not otherwise pa1iicipate in the promotion,
production, or presentation of the Awards Dinner. His remarks will be open to the press.
Under the Ethics Pledge, the Atlantic Council is considered to be a fotmer employer of General
Jones despite the fact that he was an uncompensated volunteer, and so he requires authorization
under Section 3 of the Executive Order to speak at the Awards Dinner. I have detennined that
the criteria of Section 3 are met here. Allowing General Jones to speak under these
circun1stances is in the public interest, and the contrary outcome would be inconsistent with the
purposes of the Pledge.
I understand that General Jones will otherwise comply with the remainder of the pledge and with
all preexisting government ethics rules.

Is/ Norman L. Eisen

Dated: April28, 2010

Special Counsel to the President and

Designated Agency Ethics Official

OGE 2011-11-2

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GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

1600 DEFENSE PENTAGON

WASHiNGTON. D.C. 2030 i 1600

September 24, 20 I 0

J\I!EjvtORANDUM FOR ZACHARY J. LEMNIOS, DIRECTOR, DEFENSE RESEARCH AND

ENGINEERING

$OBJECT: LIMITED WAIVER OF PARAGRAPH 2 OF THE ETHICS PLEDGE

Pursuant to the authority delegated under Section 3 of Executive Order [3490, "Ethics
Coinni.itments by Executive Branch Personnel" (January 21, 2009), and after consulting with and
receiving cOordination from the White Hoi.1se Special Counsel for Ethics and Government
Reform, I hereby waive the restrictions of Paragraph 2 of the Ethics Pledge ("Pledge") as it
appHes to you and your fonner employer, the Massachusetts Institute of Technology ("MIT") to

inclhde the MIT Lincoln Laboratory (''Laboratory").

As the DireCtor, Defense Research a:nd Engineeiing ("DDR&E"), you serve as the senior
soie_...i1c~ and technolog\' executive for the Department
of Defense ("DoD") and are responsible
for
.
.
oVerseeing the activities of the Office of the DDR&E and its eight subordinate organizations.
DP!\~l; is responsible for ensuring that warfighters have superior and affordable technology to
support their.l11i$Sions and 11dvanced capabilitiesto fight and win wa:rs. DDR&E is charged with
pro_\'ioingthought leadership for DoD's near, mid-; and far-term. research and engineering
efforts; arid for developing world class science, technology, engineering, and mathematics
capabilities
. .
,_.__
. for PoD and the Nation .
-

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Prior to assuming your duties as DDR&E on July 2, 2009, you served as the Chief
Tecl1fl()Jogy Officer of the Laboratory. The Laboratory is a federally-funded research and
de''elopment center ("FFROC") chartered to apply advanced technology to national security
challenges. Its research and development activities focus on longci:erm technology development
. aswel!as rarid system prototyping and demonstrations for DoD. In ITieetingthis objective, the
Lf.lbotatory . works with industry to transition ne\v concepts arid technology for system
deVeloprrient and deployment. The Laboratory is widely-recogi1ized as possessing unique
qua:lii1oations in the area of advanced microelectronics and focuses specifically on advanced
wartime technology development and system prototyping for national security needs.
Executive Order ("E.O.") l3490provides that a political appointee will not, for a period of
fwo years from the date of appointment, participate in any particular matter involving specific
partks thads directly ai1d substantia[ly related tothe employee's former employer or former
cJien~s. Sei:,E.O. 13490, Sec. I, para. 2. Section 3 of the E.O. provides for a waiver of the recusal
provisions upori certification either that the literal application of the restrictions is inconsistent
with the purpose of the restriction, or becatisethewaiver is in the public interest. See E.O. 13490,
Sec. 3(a). The E.O. states that "the public interest shall include, but not be limited to, exigent

OGE 2011-11-2

Bates 000046

circumstances relating to national .security or to the economy." . ld.; Sec .. 3(b).. Silic~c yoi\g .
appointment, you have strictly complied with f>ledge.obligations, Wrnhtg down a. ~arfe!)i.9:f
opportunities to brainstorm, develop, or. evaluate national security related techrlo!,Ogi~~t iit:.'
scientific concepts with renowned experts at both MIT and the Laboratory. Abset1t&'0a(\rr,qf
.,
the Pledge restrictions, you will continue to be barred from engaging in such oommunitali~~i;'cfdr
another eleven months.
.
. . .. . .

I have determined, based upon the reasc:l)sset fs>rthbel9w>'tl~at a limit,ed,wiiver~of,the( .

restrictions on you under Paragraph 2 of the Pledge is Jl!stified asbetng in the public intetest: ..... ...
First, your ability to engage in communicatiol)s With. the LaboratorY anrf wit\\tiH~et;
elements of MIT correlates directly to exigent citcumstanoes telating to national security., .Jhisis; .
based upon the nature of your position and the factt.hat the Laboratory is an FI;Rp<;; c~e(lted tO
support. DoD's research efforts. Sec0nd, you are singu)ady qvalifled to perfol1p the '~h.lJi<;s.
because9f your level of technical expertise, 'Which.. uniquely. (;nables you. to 1e,\ir.ag~
commu11i.cations with experts, such as thm;.efrom.MIT and, in Pi!(i.ioular Jh,eLabqratQty, fol'
benefit of' DoD. Although other. members pf'
itl'tff can f!Dd haye e!1gaged. in
ki#~s. s( .. .
cormtmnkations and meetings, they do not possess your ability to spe.ak JQr DolJ oh10W\l~# .< .
matters. As a result, the effect of the Pledge recusal has been to elifnirtate a key sectof\'l(jpe, . .
scientific. ;.me! technological world from your. pu.rview, 'Which is particularly disadvant~geous
considering poD's wartlpie needs ... Fjmilly,the prhl1tY:purpose.ofth\l retrictiQns.itip~tag[i@12i' . .....
is to address .concerns that the. former. ep.i]Jloyerlt).ay flppear. to ha;ve privilegedqccess, .~~iFh!(. . <
may e,xploit to influence the. appoi1'ltee to its aqy~\}J~ge. 1'he 41)l1ger of speoiafcacpess it n,~~l)t'l~ ;
h. ere becaus() of factors like the Congressional fr.lhc!i!1g cap tor FFEJ)Cs; the fa9t th.at PPR.:~.I; f~/ .
not responsible for the funding allocation of DQI)'s FFRDCs, and .be,cause you wnrtecl,is~ .
yourself from decision-making processes tiedt0 spe,0U1c grants or contract~ in JVhicrtMft~a~.~b. .. .
an interested party. Accordingly, I have determined that the need for you to cp.!JliTJi.Jnicat.~'\irll.'
the Laboratory and other components of MIT clea,tly outweighs any dangers that th~ }(JStt(AtioE$ \.
under Paragraph 2wewmea~t \Oaddr~ss.

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partyin&ttersjqvolving. the La.boraJ(}ryand other eJements oflVl1T:iii)clqdlqg o.l1\:.9n"QJ)e\.anflj i .t ' . . ... .
. . gr.oup con\lersationswitli it, incliJding Lal;Jpra.tory, e!TJployyes
S\!Qhll1att~rs. t6if,v~{vet
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does nqt p~rmityour involveinent_inan~ deQisjp~s n~l~1ecltq th,e a;war<.[.or ipndinf<?J.~Pi.tlM:: ' ,
procurements, grants or contracts 111 wh1ch M~T, liJ.~h141llg the Laboratory, 1.s or see[<.s tq:P!'l ~.: f . .. ;
art.v.

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This waiver is gtanttidwith the

you will comply with the rernalrii~k < .
provisions of the Exec).lth'e Order anc! witha.u q>tli(Jr(J0.1<.e.t.nrnept,ethicsrules.

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OGE 2011-11-2

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OGE 2011-11-2

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fact;.J'lb~t h~s iij4ict~te~ th~t .it is m9re :1 i!l:ily thttt'Mr.l3ek;eliPi'itietwpuld.?-Ct;ePt a1r.

iqvitittiot1 to att,end \1 (uticti6ri t~tthe Eirib<:lsi>Y fl'Plllyou \t~ qppp$ecl to an invitation
Jh:nn ci.t(ler En'Ji:>~~;yoff)cials. Thus, yqtJJpart:idp?tlo!1 1%:cthJc?Jln !1~lph1g tp.
btdl4 the rlatiotlsllip betWeeh theU.$;13id Committl'!e m:ernb~rsandthe
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panh;ip~tion tilidertbe tetin~ Qftbis waiVefW<>uld qe!lteacon~ict of interest or 1:\n
appea[<l,rice. th(olteof. Further, Jbe!.ievc;>,thatyQ\il' pirt1cipathm;ci!risistmt witl1the .
term~ of this Waiver, is I11 thepublic;s best iiltei'sts. .
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OGE 2011-11-2

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GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

1600 DEFENSE PENTAGON
WASHINGTON. DC 2.0301-1600

MAR 10 2010

GENERAL COUNSEL

MEMORANDUM FOR THE ASSISTANT' SECRETARY OF THE ARMY -- --- ---- .

(ACQUISITION, LOGISTICS & TECHNOLOGY)
SUBJECT: Limited Waiver of Paragraph 2 of Ethics Pledge
After consulting with and receiving coordination from the White House Special
Counsel, I hereby waive paragraph 2 of the Ethics Pledge, set forth in Executive Order
13490, "Ethics Commitments by Executive Branch Personnel" (January 21, 2009), as it
applies to you and your former client and previous employer, Lockheed Martin
Corporation.
The mission of the Department of the Army's Office of the Assistant Secretary of
the Army for Acquisition, Logistics & Technology is to help ensure the Army's readiness
and ability to succeed on the battlefield. As the Army's senior acquisition official, you
will play a major role in advising, making recommendations and participating in
decisions on the largest Army programs. Your extensive knowledge and expertise in the
areas of engineering, acquisition, and management are essential to making informed and
timely decisions about Army programs. Your ability to advise on such matters is in the
public interest and fundamental to the Army's mission. This waiver is granted with the
understanding that you will comply with the remaining provisions of the Executive Order
and with all pre-existing government ethics rules.
This waiver does not permit your involvement in any particular matter which will
have a direct, predictable, and substantial affect on Lockheed Martin's financial ability,
including its ability or willingness to continue paying your defined benefit plan benefits.
For these reasons, I have determined that it is in the public interest to grant this
waiver.

~~rles hnson

~esign ed Agency Ethics Official

-. __

OGE 2011-11-2

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January 12,2010

i\

MEMORANDUM FOR 'fHE ADMINIS'tRAl'OR

(\

. I'
.l

/,.~

Officia~.\~_}(~,

FROM:

James M. Peters, Alternate Designated Agency Ethics

SUBJECT:

Waiver Pursuant to 5 C.F.R. 2635.502(d) and of Paragraph 2

the Preside!lt' s Ethics Pledge

Of

I have determined that it is in the public interest to grant a IYaiver pursuant to 5

C.F.R. 2635.502(d) and ofParagrapb i of Executive Order 13490, "Ethics
Commitments by Executive Branch Personnel" (January 21, 2009) to Rajiv J. Shah as
Administrator of the United States Agency for International Development (USAJD).
This waiver addresses Dr. Shah's relationship with the Bill & Melinda Gates
Foundation (Gates Foundation), his former employer and a partner in USAID's mission
to provide economic, development, and humanitarian assistance around the world. The
Gates Foundation is a .funding source for projects in which the two organizations share
the same objectives, butgenerallynot a !'ecipient .ofUSAlD grants or other funding. Dr.
Shah has a "covered relationship" with the Gates Foundation based solely upon. ]]is
fanner employment, which ended in. June 2009. Pursuant to 5 C.F.R. 2635.502(b)(iv)
tins covered relationship will last until June 2010, In additio11, under Paragraph 2 of the
President's Ethics Pledge, a siniiiar relationship will last until J\.me 2011.
Dr. Shah previously served in a variety of roles at the Gates Foundation, including
as Director of Strategic Opportunities and as Director of the Agricultural Development
Program. Th.e Gates Foundation is significantly involved hi national and interhationhl
efforts to alleviate hunger and poverty and to improve health atound the wot!d, and as
such shares many of the same objectives as USAID. While at the Gates Foundation, Dr.
Shah led the agricultural development aspects of its mission. In his most recent position
as the Under Secretary for Research, Education and Economics at the U.S. Department of
Agriculture (USDA), Dr. Shah was responsible for similar efforts. The Designated
Agency Ethics Official at USDA granted a waiver for these purposes.
In his capacity as the Administrator, Dr. Shah needs to engage in communications
and meetings- both one-on-one at1d in group settings- involving Federal agencies,
foreign countries, grantees, and non-Federal entiti6s to assess the most efficient and
effective means for distributing the technical and financial assistance committed by these
various parties. Tile non-Federal entities he needs to engage with include the Gates

OGE 2011-11-2

Bates 000053

Foundation. In these efforts, the Gates Foundation is expected to be a major participant

thxough its Global Development and Global Health programs. Other collaborations with
the Gates Foundation are anticipated.
In tight of the importance of the aforementioned efforts by US AID, I have
determined that it is in the public interest to grant Dr. Shah a waiver pursuant to 5 C.F.R.
2635.502(d) and ofParagraph 2 of Executive Order 13490, "Ethics Commitments by
Executive Branch Personnel" (January 21, 2009). This is based upon my consideration
of: l) the nature oftlfe covetedtelatio1isliip (aformer employer, with no continuing
financial interests); 2) the potential effect any given matter will have on the t1nancial
interests of the Gates Foundation (none are foreseen); 3) the nature and importance of Dr.
Shah's role in the matter (potentially significant, but with no financial impact on the
Gates Fmmdation); 4) the sensith~ty of the matter (potentially sensitive, but with no
financial impact on the Gates Foundation); 5) the difficulty of reassigning the matter to
another employee (difficult to reassign the role of the Administrator); and 6) adjustments
that may be made in Dr. Shah's duties (difficult to make adjustments to the role of the
Administrator).
Accordingly, 1 authorize Dr. Rajiv J. Shah to participate personally and
substantially in all matters affecting the Gates Foundation, including particular matters
involving specific parties, in connection with the development and implementation of
partnerships and in connection with shared USAlD and Gates Foundation objectives.
This includes all communications with the Gates Foundation that do not have a direct and
predictable financial impact upon the Gates Foundation, as well as public meetings and
public recognition of the Gates Foundation.
This waiver does not include authorization for participation in any grants or
procurement instruments between USAID and the Gates Foundation, or in any similar
transactions that would result in a transfer of federal funds to the Gates Foundation. In
the event that a particular matter should arise in which Dr. Shah may be personally and
substantially involved, and which would require his authorization for participation in any
grants or procurement instruments between USAID and the Gates foundation, or in any
similar transactions that would result in a transfer of Federal funds te> the Gates
Foundation, Karen Turner or Jerry O'Brien, ofUSAID's Office of Development Partners,
will screen such matters and consult with me as OSAID's Assistant General Counsel for
Ethics and Administration. At that point, a determination will be made that 1) the legal
disqualification does not apply; 2) that a specific waiver is appropriate; or 3) that Dr.
Shal1 must be recused from the specific matter.

OGE 2011-11-2

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Office of the Secretary

DEPARTMENT OF HEALTH & HUMAN SERVICES

Office of the General Counsel

Washlnglon, DC 20201

September 17,2010
MEMORANDUM FOR HAROLD E. V~~ _.,.rj
FROM:

SUBJECT:

EDGARM. SWINDELL~/')- C:;J

Associate General Counsej,._~Mics
Designated Agency Ethics Official

, Lh
/

Waiver under E.O. 13490 and Authorization under 5 C.F.R. 2635.502

The purpose of this memorandum is to provide a limited waiver of the restrictions in Section 1,
Paragraph 2, of Executive Order 13490 (the Ethics Pledge or E.O.), and a limited authorization,
pursuant to 5 C.P.R. 2635.502(d), to permit your participation in certain, limited, particular
matters involving specific parties that involve your former employer, Memorial Sloan-Kettering
Cancer Center (MSKCC). The purpose of this limited waiver is solely to permit you to continue
to conduct cancer research in your official capacity as Director of the National Cancer Institute
in collaboration with your former employer, MSKCC. This waiver is being issued because of
the great potential public benefit of your continued collaborative research with your former
employer, MSKCC. This limited waiver and limited authorization will allow you to carry out
effectively your duties as the Director of the National Cancer Institute (NCI), a component of the
National Institutes of Health (NIH) within the Department of Health and Human Services (HHS).

I. Background Regarding Your Appointment

You have been appointed to serve as NCI Director. NCI leads the efforts of the National Cancer
Program and the NIH to reduce dramatically the burden of cancer and improve the lives of
cancer patients and their families, through research into prevention and cancer biology, the
development of new interventions, and the training and mentoring of new researchers.
You were previously the President and Chief Executive Officer ofMSKCC, a cancer treatment
and research institution founded in New York in 1884. MSKCC is an NCI-designated cancer
center that is fimded through a competitive grant process based on its ability to demonstrate
scientific excellence and the capability to integrate a diversity of research approaches to focus on
the problem of cancer.
Throughout your scientific career, including your prior tenure as the Director of the NlH from
1993 until the end of 1999, as well as your years at MSKCC, you have maintained a research
laboratory. Through these laboratories you have continued your research into the molecular
mechanisms and genetic bases of cancer, building on your earlier work that resulted in your
selection as a co-recipient of the 1989 Nobel Prize in Physiology or Medicine, the 2001 National
Medal of Science, and other significant honors. You plan to continue this important work in an

OGE 2011-11-2

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Page 2- Harold E. V annus, M.D.

NIH intramural laboratory under the scientific, managerial, and administrative authority of the
leadership of the National Human Genome Research Institute (NHGRI), another of the institutes
and centers that comprise the NIH, as part of your official duties as NCI Director.
As a result of your prior position at MSKCC, MSKCC meets the definition of "former employer"
for purposes of Section 1, Paragraph 2, of the Ethics Pledge. In addition, you have a "covered
relationship" with MSKCC for putposes of 5 C.F .R - 2635.502. Without a limited waiver of
Section 1, Paragraph 2, of the Ethics Pledge and a limited authorization under 5 C.F .R
2635.502, you will be prohibited from participating in particular matters involving your official
research in which MSKCC is a party or represents a party.
For two years following your appoiniment, the Ethics Pledge prohibits your participation in any
particular matter involving specific parties that is directly and substantially related to your
former employer MSKCC. See E.O. 13490, 1, 'lf 2. Absent a waiver, this restri'ction would
effectively preclude your conferring with MSKCC researchers about projects you led during
your MSKCC employment that are now being pursued by other MSKCC researchers, and
continuing your ongoing projects that will transition into the NIH intramural laboratory.
Similarly, without a waiver, you would be prohibited from engaging in any collegial
conversation or collaborative research with an MSKCC investigator, even where such
communication or research might lead to a demonstrable public health benefit.
Because the transition and operation of your laboratory will require communication and
collaboration with MSKCC, you requested a limited waiver of Section 1, Paragraph 2, of the
Ethics Pledge with respect to your former employer on the basis that a limited waiver would be
in the public interest. You have also requested a 5 C.F.R 2635.502(d) authorization with
respect to your former employer on the basis that the interest of the Govermnent in the
employee's participation outweighs any concern that a reasonable person may question the
integrity ofthe Government's programs and operations.
II. Ethics Commitments by Employees in the Executive Branch- E.O. 13490
Background Regarding Ethics Pledge
The Ethics Pledge provides that a political appointee will not, for a period of two years from the
date of appointment, participate in any particular matter involving specific parties that is directly
and substantially related to the appointee's former employer or former clients, including
regulations and contracts. See E.O. 13490, 1, 'jf 2. The reference to ''regulations,'' which
normally are considered particular matters of general applicabilitY rather than particular matters
involving specific parties, encompasses only those rules that have a special or distinct effect on
the identified party other than as part of a class. The E.O. defines "former employer" to include
any person for whom the appointee was employed within the two years prior to the date of his
appointment.
Section 3 of the E.O. provides for waiver of the recusal provisions; and as the HHS Designated
Agency Ethics Official (DAEO), I exerCise that waiver authority in consultation with the Office

OGE 2011-11-2

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Page 3- Harold E. Vannus, M.D..

of the Counsel to the President. See Office of Government Ethics Memorandum Re:
Authorizations Pursuant to Section 3 of Executive Order 13490, D0-09-008 (Feb. 23, 2009).
The standard for waiving the restriction in the Ethics Pledge is that the literal application of the
restriction is inconsistent with the purposes of the restriction, or that it be in the public interest to
grant the waiver. See E.O. 13490, 3(a). The E.O. states that "the public interest shall include,
but .not be limited to, exigent circumstances relating to national security or to the economy." Id.,
3(b).
.
Limited Waiver of Section 1. Paragraph 2ofthe Ethics Pledge
I hereby determine that it directly serves the public interest that you be able to participate fully
and actively in your official capacity as NCI Director in scientific research in the ;fight against
cancer, given your commitment to the advail.eement of science in the United States, your
significant and extensive achievements in the field, and the interest of the American people in
ensuring that highly-qualified experts continue to search for clues that will lead to better
prevention and treatment of humim illness and suffering.
Accordingly, pursuant to E.O. 13490, 3(a), I waive the restriction in E.O. '13490, 1, 'jf 2,
solely to allow your participation as im intramural investigator in the scientific aspects of
particular matters involving specific parties that directly and substantially relate to your former
employer MSKCC subject to the limitations set forth below.
In order to ensure that the cancer research and collaboration described above may proceed
without impediment, this waiver authorizes you to participate as part of your official duties as
NCI Director as an intramural investigator within the intramural research program of the NHGRI
in particular matters involving specific parties that directly and substantially relate to MSKCC,
including where this entity is a party to the matter, represents a party to the matter, is a
participant, or a contributor, either individually or as part of a group. Subject to the limitations
described below, you may engage fully in your research-related duties as an intramural
researcher, including consultation, collaboration, or other activ~;: participation as an investigator
or supervisor of others engaged in the actual conduct of research projects, and the presentation or
publication of research findings, directly or indirectly involving MSKCGresearchers.
Limited Application of this Waiver
You may not participate in any meetings or conversations with MSKCC, other than those you
may have in the course of the research and research-related activities of an intramural
investigator in your offiCial capacity. However, you may participate in meetings or have
communications with MSKCC about particular matters of general applicability or regarding
policies that do not constitute particular matters provided the meeting or communication is "open
to all interested parties." See OGE Memorandum D0-09-011 (March 26; 2009).
You may not participate in the management and administration of the programs and operations
of the NCI, including the National Cancer Program and other programs of the institute described
at Title IV, Part C, Subpart 1 of the Public Health Service Act, 42 U.S.C. 285-285a-9, that

OGE 2011-11-2

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Page 4- Harold E. Varmus, M.D.

relate to particular matters involving specific parties, such as contracts, grants, audits,
investigations, disputes, litigation, administrative appeals, and similar transactions or
proceedings involving MSKCC as an identified party. In relation to grants and contracts, in
particular, your obHgation to recuse extends to both investigator-initiated applications submitted
by MSKCC and Requests for Applications (RFAs) in response to which MSKCC submits an
application.
You may not participate directly or indirectly, f01mally or informally, in any aspect of the peer
review process, the agency decision to make or deny an award, the administration of an award,
extension or renewal reque$ts, or site visits or other reviews undertaken as part of the award
oversight process where MSKCC is or represents a party, is a participant, or a contributor, either
individually or as part of a group.
You have agreed to divest permanently any intellectual property rights associated with
discoveries made during your MSKCC tenure, and you have confirmed tha~ you will retain no
continuing financial ties to MSKCC. Additionally, any intellectual property rights developed
through your research while yoil are serving as NCI Director will be subject to the Federal
Technology Transfer Act, 1 and owned by the Federal Government.
While you may work on government-funded projects and research, you may not be named or
identified as Principal Investigator, co-investigator, or equivalent on any request for grants or
funds in which MSKCC is a collaborator from any Federal Government agency.
Your intramural research laboratory will be housed at and supervised by NHGRI. NHGRI is not
under your supervision or authority. You may not participate in budgetary determinations made
by NHGR:I regarding your laboratory.

III. Impartiality in Performing Official Duties- 5 C.F.R. 2635.502

The Standards of Ethical Conduct for Employees of the Executive Branch require an employee
to take appropriate steps to avoid an appearance of any lack of impartiality in the performance of
the employee's official duties. 5 C.F.R. 2635.502(a). Under section 502, when an employee
koows that a person with whom he has a "covered relationship" is a party or represents a party to
a specific party matter, the employee should not participate in the matter without informing an
agency official and receiving authorization to participate. An employee has a "covered
relationship" under this section with any entity for which the employee has, within the last year
served, inter alia, as an employee. 5 C.P.R. 2635.502(b)(l)(iv).
The development of statutory proposals, regulations, and policies, absent a special or distinct
effect on an entity other than as part of a class, are considered particular matters of general
applicability to which section 502 is inapplicable. However, govermnental decisions to hold and
participate in meetings or otherwise afford similar opportunities for communication with

15 U.S. C. Chapter 63 and Executive Order 10096 implemented through 45 C.P.R. Part 7.

OGE 2011-11-2

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Page 5 -Harold E. V armus, M.D.

identified external entities may themselves be classified as "specific party'' matters even if the
subject matter of the discussion involves generally applicable policy issues.
As the HHS DAEO, I hereby also provide a corresponding authorization pursuant to
5 C.F.R. 2635.502(d) for the satl1e reasons and with the same limitations as described above
regarding. the waiver of Section I, Pittagniph 2, of Executive Order 13490.

IV. Conclusion
Matters from which you must recuse will be referred to the NIH Deputy Director for Extramural
Research for disposition.. Your disqmllificatiori from duties in connection with particular matters
that are not covered by this wa,iver aQ.d. authotiz&tion is not ekpected to impair materially your
ability to perform the duties of your position. In connection with particular matters involving
MSKCC as a party ot the representative of a party, you will not engage in official duties other
than those normally within the scope and authority of an NHGRI intramural investigator, as
described above, and will abideby all NIH budgetary, managerial, and procedural controls on
the collaboration of intramural scientists and NIH institute and center directors with non-federal
institutions while also consideriflg and undertaking appropriate collaborative research projects
with institutions other than MSKCC.
Pursuant to a policy directive implemented at the NIH, any assertions or allegations of scientific
misconduct or grants management isSues between NCI and MSKCC arising from any of the
NIH-funded projects on which you worked during the term of your MSKCC employment shall
be referred to and processed by the NIH Office of Extramural Research.
This limited waiver and authorization does not affect your obligation otherwise to comply with
other provisions of the Ethics Pledge and with all other Standards of Ethical Conduct for
Employees of the Executive Branch and agency supplemental rules.

OGE 2011-11-2

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MEMORANDUM TO AARONS. WILLIAMS, PEACE CORPS DIRECTOR

From:

Nancy G. Miller
AssoCiate General Counsel
Designated Agency Ethics Official

Subject:

Limited Waiver of Paragraph 2 of the Ethics Pledge

Date:

December 7, 2010

Executive Summary
You have been invited to attend the Society for International Development-Washington's Annual
Gala Dinner fundraising event on December 8, 20 I 0, accept an honor on behalf of the Peace
Corps in celebration of its 50th Anniversary, and make remarks. Because you were on SID-W's
board of directors during the two-year period before your appointment as Peace Corps Director
on August 24, 2009, a waiver of the Ethics Pledge that you signed pursuant to Section 3 of
Executive Order 13490, "Ethics Commitments by Executive Branch Personnel" is required
Following consultation with the White House Counsel's Office, I hereby certify that it is in the
public interest to grant a limited waiver from the provisions of Paragraph 2 of the Ethics Pledge
to permit you to attend, accept an honor on behalf of !he Peace Corps, and to make official
remarks at the SID-W's December 8 event.
However, this is a limited waiver that relates only to this particular event. Moreover, there are
specific limitations on what you may do at the event. For example, you may not actively promote
the event Nor may you solicit donations for the event or to the organization. You may,
however, accept free attendance at the event as a speaker. See Discussion.
Discussion
Section l of Executive Order 13490, "Ethics Commitments by Executive Branch Personnel,"
issued by President Obama on January 21, 2009, requires all political appointees to sign an
Ethics Pledge. Paragraph 2 of the Ethics Pledge prohibits participation, for a period of two years
from the date of your appointment, in any particular matter involving specific parties that is
directly and substantially related to a former employer. "Former employer" is defined in Section
2(i) of the Executive Order to include "any person for whom the appointee has within the 2 years
prior to the date of his or her appointment served as an employee, officer, director, trustee or

Paul D. Coverdell Peace Corps Headquarters

1111 20th Street NW Washington, DC 20526
1.800.424.8580 www.peacecorps.gov

OGE 2011-11-2

Bates 000060

general partner ...." Section 3 of the Executive Order permits waivers to be granted under
certain limited conditions.
The Office of Government Ethics, in its DAEOgram D0-09-020, states that the decision to give
an official speech is considered a particular matter involving specific parties. In general, giving
an official speech is not precluded ifit will have no impact on the financial interests of the
sponsoring organization. On the other hand, "where the decision to give an official speech
actually would affect the financial interest ofthe sponsor, the concerns under the Pledge about
special access are relevant. Thus, i fthe former employer charges an admission fee or organizes
the event for the purposes of fundraising ... , the appointee will be barred from giving an official
speech, absent a waiver." Id. at 2-3.
You have been invited to attend SID-W's Annual Gala Dinner fundraising event, on December
8, 2010, accept an honor on behalf of the Peace Corps in celebration of its 50th Anniversary, and
make remarks. Because you served as a volunteer and uncompensated member ofSID-W's .
board of directors during the two-year period before your appointment as Peace Corps Director
on August 24,2009, a waiver ofthe Ethics Pledge is required in order for you to be able to
participate in the event. Waivers may be granted based on a certification by the Designated
Agency Ethics Official after consultation with the White House Counsel's Office that it is in the
public interest to do so. See E.O 13490 at Section 3;0GE DAEOGram D0-09-008.
SID-W is a 50! (c)(3) organization designed to provide an opportunity for the full range of
professionals and organizations working in the field ofinternational development to come
together for discussions, sharing of best practices, and networking. It is not an advocacy
organization, nor is it a registered lobbying organization. It gives out no grants. The Peace
Corps has no business or other relationship with SID- W other than being an "honorary member,"
along with USAID and the Millennium Challenge Corporation.
The Peace Corps is one of the U.S. government's key players in public diplomacy, with more
than 200,000 Volunteers having served overseas since !961 and with more than 8600 Volunteers
currently serving in 77 countries. The President has stated his support for the Peace Corps on an
ongoing basis, and described his goal of engaging all Americans in volunteer service.
Moreover, the Peace Corps is celebrating its 501h Anniversary from October 20 I 0 through
September, 2011. President Kennedy's first speech introducing the idea of the Peace Corps was
made on October 14, 1960, at the University ofMichigan. He signed the executive order
creating the Peace Corps on March I, 1961, and the Peace Corps Act was signed into law on
September 23, 1961.
The agency is using this landmark 50'h Anniversary year to educate and engage the public about
the Peace Corps' history and effectiveness and inspire the next generation of Volunteers.
Because the Peace Corps' statutory missions include providing trained men and women to
countries requesting its assistance, and educating Americans about the countries in which
Volunteers serve, recruitment and outreach are absolutely vital to ensuring the Peace Corps'
continuing success. Your participation as Peace Corps Director in the SID-W event will play a
significant part in this ongoing effort.
2

OGE 2011-11-2

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APPENDIXV

OGE 2011-11-2

Bates 000062

The SID-W Annual Gala is expected to attract hundreds of attendees with interests in
international development. This is an excellent forum for the Peace Corps Director to convey the
President's message on vo!unteerism and on global engagement and to describe the Peace Corps'
legacy, role and future. To have the opportunity to spread the message of the Administration and
the Peace Corps to this highly receptive audience is in the public interest.
Granting this waiver would not run counter to the purpose of the Ethics Pledge to avoid special
access. SID-W serves a unique role in the international development community, so that your
participation in this event would risk no reasonable likelihood of perceived partiality or special
access at the expense of similarly situated groups.
Please keep in mind that this is a limited waiver only for this particular event. The Ethics Pledge .
continues to prohibit your participation in any other particular matter involving specific parties
that relates to SID-W until after August 24, 2011. Moreover, there are specific limitations on
what you may do at the event. Pursuant to 5 C.F.R. Section 263 5.808, you may not actively
promote tbe event. Nor may you solicit donations for the event or to the organization. Finally,
you must also otherwise comply with the remainder of the Ethics Pledge and with all preexisting
government ethics rules.

OGE 2011-11-2

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Mr. Edgar M. Swindell

Page3
shiplines, and cargo carriers; (12) public transportation; or (13) sector mutual funds that concentrate their
portfolios in any of these sectors.
In order to help ensure that I do not participate officially in the matters from which I have agreed to
recuse, I have taken or will take the following steps: (1) I have instructed David Cade to handle any
specific party matter that could come before me that would affect any of these entities; and (2) I have
provided Samantha Ferrell with a copy of this memorandum and have asked her to refer any matters
which she believes are covered by my commitment to recuse to David Cade.

In order to ensure that this commitment to recuse continues to be effective, I will take the following steps
in the future: (1) I will revise and update this memorandum whenever that is warranted by changes in my
financial interests or other changed circumstances, and provide you with a copy; and (2) I will advise
David Cade of any such changes.

,:f!..

d~r~,
/

cc: Chief of Staff

Deputy General Counsel

Mark Cli~ll"'d""re"'ss~---~--~

OGE 2011-11-2

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OGE 2011-11-2

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DEPARTII'IENT OF HEALTH &. HUJ>'iAN SERVICES

Office of the Secretary

The- G$neral Counsel

washington, D.C. 20201

October 19, 2010

Mr. Edgar M. Swindell

Associate General Counsel/Ethics
Designated Agency Ethics Official
U.S. Department of Health and Human Services
Room 710-E, Hubert H. Humphrey Building
200 Independence Avenue, SW
Washington, DC 20201
Dear Mr. Swindell:
The purpose of this letter is to describe the steps that I will take to avoid any actual or apparent conflict of
interest in my duties as Principal Deputy General Counsel, U.S. Department of Heath and Human
Services.
As required by 18 U.S.C. 208(a), I will not participate personally and substantially in any particular
matter that has a direct and predictable effect on my financial interests or those of any person whose
interests are imputed to me, unless I first obtain a written waiver, pursuant to 18 U.S.C. 208(b)(1), or
qualify for a regulatory exemption, pursuant to 18 U.S.C. 208(b)(2). I understand that the interests of
the following persons are imputed to me: any spouse or minor child of mine; any general partner of a
partnership in which I am a limited or general partner; any organization in which I serve as officer,
director, trustee, general partner or employee; and any person or organization with which I am negotiating
or have an arrangement concerning prospective employment. Moreover, I understand that as an appointee
I must sign the Ethics Pledge required by the Executive Order entitled "Ethics Commitments by Executive
Branch Personnel" (Executive Order 13490) and that I will be bound by the requirements and restrictions
therein even if not specifically mentioned in this or any other ethics agreement.
Unless I am first authorized to participate pursuant to 5 C.F.R. 2635.502(d), I will not participate in any
particular matter involving specific parties in which the following entities are a party or represent a party:
Foley Hoag LLP
Capella University
Educate Online
PanfluLLC
Scholastic Corp.
State of the USA
Susan G. Kamen For the Cure
Worby Groner Edelman & Napoli Bern LLP

OGE 2011-11-2

Bates 000066

'

fv!'r; Edgar M. SWindeU

Page:?

This re<:usal, under 5 C.F.R 2635.502, pertaining to t11ese entities will temiun for one year from the dl!te
of toy resi~atioll from my position with each eniity arid thus will end at the expiratiO!l of the period of my
covered rel~tionship With each of them:. I lj!so !lllderstlil)d thJit, pursuant to the Etllic,s Pledge, I .have
add,itioiiai retiisal obligations regarding these erttitjes; i will notfor a: period of tWo years from the date of .
. niyappointnient jl~rtidpaie in aiJy particular matteimvolvingspedi'kparties that is directly al)d
substa11tiilly related to aJ1y of these entlti,es; unless ~n excepiion applies under the Ethi~ Pl~dge:

div~l>t

My spouseand I will
ourinterest ill tf)e SchwllbHealth Care Fulld withiii 90<Jays oftllis Ethics ..
Agreement. On my Sf 278, I h.ave also reported Jioldings in Starbuc:kS, BritiSh P~tro!eillil, Google, and
the First Trust Globlj! Wind Enetgy Index Fund, The likelihood is relatively high that paf!iC\il11i m~tters
will arise iri the course of my dunes which would affect one or more of these entities .. To avoid even an
appearance ofa clirif!ict, I agree to recuse from ariy particular matter thai has a direct and predictable
effect on the financialintere~t ofany ofthe above entities, and I also agree to keep the vaiue of my
. holdingS in each ofthese entities below the applicabie de minimiS threshold ($15;0Q0for the individl)al
stocksof BP, Statbucks, and Google; and $5Q,000fot the sector fund First Trust Global Wind Energy
:uideX Flllld).
.
. .
.
. ..
.
. . . . .
.
1n accordantewith paragraphs 3(a) & (b)of the Ethics Piedg~; because I served as a Fe<lerilly registered
lobbyist within the two years bef\irce the date. Of my appointiiient, I wili not ~or a p(!riod of two years after

my

the date qf
appoinfnieilt pi\riiclpate in 11ny piuticular matter .onwhicli I lobbied within the t\yo yeats.
b~fore IIi:Y appcifiltinent, or pari:iciJ#te in the specffi.c issue !,!rea iri wbklJ tlmt partiCular matter falls. 'flW;
includes particular in:attetsinthe following issue areas:

.. 1) f:lreast caiicet r~e?rc:h piograks; .

.
.
.
..
.. .
2) The key Ni;(tiorui).liidicator Systerti, a data: tompilation<t~~d tnanagemeb.t project being
l!ndertakenby siaie cifthe USA; aiicm~profit organization, The gofji of this projeciis to.
devell,>p ahd compile a large set of$iat~!ical measurements coricimiing dlir!lise pilm! of tbe .
~ourrtiy'seciinomy, people; andeiivitoilinent;

3) M6bUe hospitai t~i;lriiology; and .
.. .

.
..
.
.
4) C\>mperisatio~ forfiist responders e:xposed to toxin& atthe worid Trade Center clean-up site.

. . lriordedoavoid potential cOnfii~ of interest during

appointiiiertt, iily spouse, or any tnlrtor ... .. .
children ofinine wiH iiot acquire my additional financial interest iii entities listed on the fl)A prohibited
holc:JingS list orin entities IQ.VOlved, directiy .Of ifuough $Ubsidiaries, in the fonowiJ1g indu~tries;. (1) ..
.t~st;arch;deye~opment, m!lllilf~<;ttire,.distdbl)tion, .or sale of Pbittmacelltkai, biotecM6iogy; or medical
dGvices, equipment; prepi.tratioil~; tteatment, or productS; including assistive tediliology for the

h<Jndicapped; (2) Veterinary prod~cis; (3) healtilt:lite immagementoi: deliVery; (4)healtfi, di~~~llity, or.
workerS compensl'ttiort iustiriince or ~elated ~erV'i~s; (5) food AAdio! beverage prtiductiort, processi!l,g or
distrj!mtion;(6) cotciiiQJiit&tionsmedhi; (7) Ci)JJ!puter ilatdware, cotnptitr so,ftware, and tlated intemet
tecbnologie$;.(8)telet:oil)i]].uni3:tions, iJ:It:!uding wirele$s lll'ld. inJ'onli,atiort tecilnology; (9)sot;ialsciei)CeS
. and ecotiomicresearch orgariizations; (HJ)energy and utilities; ll)comin:erdai alrliri~s,raiiniads,

my

x,

OGE 2011-11-2

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Table of Contents
Preface .................................................................................................................... 2
Executive Order Guidance ...................................................................................... 3
Table 1: OGE Guidance on the Ethics Pledge .............................................. 4
Ethics Pledge Compliance ....................................................................................... 5
Table 2: Full-Time, Non-Career Appointees Employed .............................. 6
Table 3: Ethics Pledge Signatures (by Appointee Type) .............................. 7
Table 4: Appointees Excluded from the Ethics Pledge ................................. 7
Table 5: Former Lobbyists and Ethics Agreement Requirements ................. 9
Table 6: Waivers Allowing Limited Participation in Matters
ofinterest to Former Employers or Clients ................................................. 11

Appendix I

Executive Order 13490

Appendix II

Assessment Methodology and Administrative Processes

Appendix III

Assessment Questionnaire

Appendix IV

Waivers of Ethics Pledge Paragraph 3

Appendix V

Waivers Authorizing Limited Participation in Matters in

W1lich Fonner Employers or Clients May Have an Interest

Appendix VI

Ethics Agreements and Recusals Related to the Ethics

Pledge

Appendix VII

U.S. Office of Government Ethics Policy Guidance

Implementing the Ethics Pledge

OGE 2011-11-2

Bates 000068

Preface
Tills is the first annual report provided pursuant to the President's Executive Order
on Ethics (Executive Order 13490 of Janua1y 21, 2010, "Ethics Cmmnitments by Executive
Branch Personnel").
This report provides infmmation about the efforts of the U.S. Office of Government
Ethics to ensure that agency officials implemented the Ethics Pledge appropriately. The
report also provides infonnation on the number of appointees who entered govenunent
service during the calendar year, those appointees required to sign the Ethics Pledge, the
number and names of those who received waivers to any Ethics Pledge provisions, and
where appropriate, recusals m ethics agreements for those appointees who were registered
lobbyists within the two years prior to their appointment. The report covers the time peliod
January 20 through December 31, 2009
It has been posted on OGE's website at

This report is publicly available.

W\vw.usoge.gov.

Respectfully submitted

/s/
Robert I. Cusick
Director
U.S. Office of Governn1ent Ethics
Dated:
03/31/2010

OGE 2011-11-2

Bates 000069

Executive Order Guidance

To effectively implement Executive Order 13490, OGE pro,,jded extensive,
interpretive guidance on the Ethics Pledge. Soon after the Order was sigued, OGE met with
all Designated Agency Ethics Officials to provide preliminmy guidance and began issuing
substantive written guidance which helped ethics officials apply the Ethics Pledge and the
lobbying gift ban mles appropriately. In total, OGE has issued ten guidance documents on
the Ethics Pledge-all of which were made available to ethics officials and the public on
OGE's website as they were published. These documents me found at Appendix VII.
Table 1, which follows, also identifies and provides a synopsis of the guidance issued.
In addition, OGE has continually pro~ded oral ad~ce and counseling to agency
ethics officials on the Ethics Pledge and will dedicate an entire track at its 17th National
Government Ethics Conference this May to Pledge-related issues. The conference will be
attended by over 600 ethics officials and representatives fi'om state, local, and foreign
govemments. The conference program will address the impact of the Ethics Pledge on
ethical culture as well as the technical aspects of implementation.
With most of the substantive guidance necessaty to implement the Ethics Pledge
now in place, OGE will continue implementing other aspects of Executive Order 13490 in
2010 and beyond. To effectively implement the entire Executive Order, OGE \:vill partner
with other agency stakeholders, including the Office of Personnel Management, the Director
of the Office of Management and Budget, the Attorney General, and the Counsel to the
President. The remaining provisions that OGE will implement include:
o

extending the lobbying gift ban to all Executive Branch employees;

evaluating fm the President the need to extend the Ethics Pledge's

post-govermnent cooling-off period to all Executive Branch personnel
involved in the procurement process;
rep01iing to the President the adequacy of cmrent restrictions on
procurement lobbying and related disclosure requirements;

reporting to the President on lobbying for Presidential pardons; and

ensuring that hiring and employment decisions throughout the
Executive Branch are based on the candidate's qualifications,
competence, and experience.

OGE 2011-11-2

Bates 000070

Table 1: OGE Guidance on the Ethics Pledge

D0-09-003

January 22, 2009

Executive Order; Ethics Pledge

Provided the Ethics Pledge form to be used for appointees, defined appointee" and the commitments
to be made, and noted the requirements for ethics agreements and waivers

D0-09-005

February 10, 2009

Signing the Etbics Pledge

Provided guidance on when the Ethics Pledge is to be signed

D0-09-007

February 11, 2009

Lobb~ist

Gift Ban Guidance

Provided initial guidance concerning implementation and interpretation of the gift ban

D0-09-008

February 23, 2009

Authorizations Pursuant to Section 3 of E.O. 13490

"Ethics Commitments by Executive Branch Personnel"

futbrmed agencies that OMB had authorized Designated Agency Ethics Officials of each executive
agency to exercise section 3 waiver authority in consultation with the Counsel to the President and that
lhnitations had been placed on exercising that waiver authority

D0-09-010

March 16, 2009

Who Must Sign the Ethics Pledge?

Provided guidance about specific categories of officials to help DAEOs determine which officials are
subject to the Ethics Pledge
D0-09-011

March 26, 2009

Ethics Pledge: Revolving Door Ban-All Appointees

Entering Government

Provided guidance on how to implement paragraph 2 of the Ethics Pledge by explaining phrases that
comprise paragraph 2 and how paragraph 2 interacts with existing impartiality regulations
D0-09-014

April 28, 2009

Holdover Appointees and the Ethics Pledge

Required appointees temporarily holding over from the previous Administration to sign the Ethics
Pledge and provided for limited extensions in consultation with the Special Counsel to the President

D0-09-20

May26, 2009

Ethics Pledge Issues: Speeches and Pledge Paragraph 2;

Intergovernmental Personnel Act Detailees

Addressed issues related to appointees giving official speeches at events sponsored by fonner employers
or clients and established that IPA detailees are not required to sign the Ethics Pledge

D0-10-003

February 18,2010

Attendance of Staff Accompanying Official Speakers

Provided guidance on applying the gift mles and tbe lobbyist gift ban to attendance by particular
personnel whose presence is truly essential to the pctformance of the speaker,s official duties at a specific event
D0-10-004

February 22, 2010

Post-Employment Under the Ethics Pledge, FAQs

Provides answers to frequently asked questions about the post-employment restrictions foWld in both
paragraphs 4 and 5 of the Ethics Pledge

OGE 2011-11-2

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Ethics Pledge Compliance

Executive Branch agencies and the 'White House reported that of the 2,863 full-time,
non-career appointees who were required to sign the Ethics Pledge during the period J anumy
20 through December 31, 2009, and who were serving at the end of 2009, 100 percent had
done so. Agencies reported that nine appointees who did not sign the Ethics Pledge left
Federal service in 2009. This small group included persons appointed by President Bush
andon!:l_p_erson appointed by PresidentObama who left_Government after serving briefly.
In addition, agencies and the White House reported that, as of December 31, 2009,
there were 24 full-time, non-career appointees who had been registered lobbyists during the
two years prior to their appointment. Only 3 of these appointees, Deputy Secretary of
Defense William Lynn, Jocelyn Frye, Director of Policy and Projects in the Office of the
First Lady, and Cecilia Mui'ioz, White House Director of Intergovernmental Affairs,
required waivers of the Executive Order to be appointed to their positions. All three
received waivers from paragraph 2 and paragraph 3 of the Ethics Pledge. The other 21 did
not need waivers to be appointed to their positions because they had not lobbied the agency
to which they were appointed within the two years prior to appointment.
Executive Branch agencies and the White House also reported that 14 of the 24
appointees who had been registered lobbyists in the two years prior to appointment had
entered ihto written ethics agreemen1s or written recusals. The ethics agreements served to
remind these appointees about the restlictions related to their plior lobbying activities and
are found in Appendix VI. Six appointees were not required to have written ethics
agreements because agency ethics officials detem1ined the appointees' official duties were
sufficiently umelated to their prior lobbying activities, and one appointee left Govemment
service after only a few weeks. Mr. Lynn, Ms. Frye and Ms. Munoz were not required to
have ethics agreements addressing lobbying activities because of the scope of the waivers
issued to them.
Finally, ten agencies and the White House had granted a total of 22 so-called
"reverse revolving door" waivers as of December 31, 2009. These waivers allow appointees
to participate in matters in which their fom1er employers or clients had an interest. In all
cases, agencies and the White House deemed these waivers essential to the appointees'
ability to carry out their duties. Copies of all waivers issued to Executive Branch agency
appointees are posted on OGE's website, www. usoge.gov when a waiver is issued. Waivers
issued by the White House are posted on the White House website, www.whitehouse.gov
and are also posted when a waiver is issued. All waivers are found in Appendix IV and
Appendix V to this report.

Employees Subject to the Ethics Pledge

Of the 130 reporting agencies, 90 agencies and the White House had employed
full-time, non-career appointees 1 subject to the Ethics Pledge during the pe1iod of January
1

Definitions of non-career appointees are as follmvs: PAS-Presidentially appointed, Senate confirmed;

PA-Prcsidentiaily appointed; non-career SES-political appointees at the senior executive level; Schedule

OGE 2011-11-2

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20 through December 31, 2009. Table 2 below provides additional details regarding the
categories of full-time, non-career appointees subject to the Ethics Pledge.

Table 2: Full-Time, Non-Career Appointees Employed

( as of December 31, 2009)

151
34
606
1,424
688
White House (includes White House Office, Office of Policy
Development, Office of the Vice President, National Security Council,
National Economic Council)

2,903

487
3,390

Full Compliance for Ethics Pledge Signatures

Section 1 of Executive Order 13490 requires that every appointee in every executive
agency appoiuted on or after January 20, 2009 sign the Ethics Pledge. 2 The Order defines
"appointee" as follows:
'Appointee' shall include every full-time, non-career Presidential or
Vice-Presidential appointee, non-career appointee in the Senior Executive
Service (or other SES-type system), and appointee to a position that has been
excepted from the competitive service by reason of being of a confidential or
policymaking character (Schedule C and other positions excepted under
comparable criteria) in an executive agency. It does not include any person
appoiuted as a member of the Senior Foreign Service or solely as a
unifom1ed setvice commissioned officer.
Table 3 shows that agencies and the White House reported that 3,390 full-time,
non-career appointees wen: employed during the period of January 20, 2009 through
December 31, 2009. Of the 3,390 appointees, 2,863, or approximately 84 percent, were
required to sign the Ethics Pledge. The largest munber of appointees required to sign the
Ethics Pledge is Schedule C appointees.

C-noncompetitive appointmeots to excepted service positions graded GS-15 and below; other--all other
categories of non-career position appointments.
2
See OGE DAEOgrams D0-09-003 and D0-09-010 located on the OGE website and Appendix VII for
detailed guidance regarding the appointees snbject to the Ethics Pledge.

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Table 3: Ethics Pledge Signatures

(by Appointee Type)

For evety full-time, non-career appointee who did not sign the Ethics Pledge,
agencies and the White House were asked to provide the reason(s) why the Ethics Pledge
was not signed. The reasons given are provided in Table 4.

Table 4: Appointees Excluded from the Ethics Pledge

Appointed prior to January 20, 2009 and not othenvise

to
the Ethics
(Schedule

432

95

OGE, in consultation with the White House Counsel's Office, detennined in its
implementing guidance that certain categories of individuals were not requiied to sign the
Ethics Pledge. The bulk of appointees, 432 of them, as shown in Table 4, primarily fell into
one of the following categories:

Presidential appointees to positions with a fixed tem1 of office if they are

full-time and were appointed before January 20, 2009;

Presidential Inspector General appointees who were appointed before

Jmmary 20, 2009;

tem1 appointees whose tem1s have expired but who are pem1itted by statute
to hold over for some petiod of time, provided the appointment preceded
January 20, 2009.

The 95 appointees serving in exempt, non-policymaking positions include schedulers,

office assistm1ts, drivers, and similar positions. For those serving in Executive Branch
7

OGE 2011-11-2

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agencies, these exemptions are established based on agency recommendations and OGE
approval pursuant to 5 C.F.R. 2634.203.

In addition, agencies reported that there were a few, limited extensions of the
deadline for holdovers, who were appointed in the prior Administration, to sign the Ethics
Pledge. In order to request such an extension, the Designated Agency Ethics Official had
to submit a written request to the Special Counsel to the President for Ethics and
Govenrment Refom1 explaining why the requesting holdover met the required criteria. The
Special Counsel granted extensions in situations where a holdover declined to sign and the
head of the agency detennined that his or her continued service was mission critical and
essential for continuity.

Fom1er Lobbyists Serving in the Admiuistration

Executive Branch agencies and the White House reported that, as of December 31,
2009, 24 full-time, non-career appointees subject to the Ethics Pledge had been registered
lobbyists during the two years prior to their appointment. The 24 appointees are listed in
Table 5 below. Of these 24 appointees, Deputy Secretary of Defense William Lynn, Jocelyn
Frye, and Cecilia Mufioz are the ouly former lobbyists who have received a waiver of
paragraph 3 of the Pledge.
Pursuant to section 4(a) of the Executive Order, 14 of the 24 appointees have written
ethics agreements or recusals that specifically address compliance with Ethics Pledge
paragraph 3 because their prior lobbying activities involved subjects that potentially could
arise in connection with their Executive Branch positions. Pledge-related ethics agreements
or recusals are found in Appendix VI. Ten of these 24 appointees do not have written ethics
agreements or recusals addressing Pledge pamgraph 3. Six appointees were not required to
have written ethics agreements for paragraph 3 because agency ethics officials detemlined
the appointees' official duties were sufficiently unrelated to their prior lobbying activities. 3
Three appointees, Mr. Lynn, Ms. Frye and Ms. Munoz, were not required to have ethics
agreements addressing paragraph 3 because of the scope of their waivers. 4 One appointee,
Mark Childress, took a position at the Department of Health and Human Services vety early
in the Ad1ninistration and left Govemment service before an ethics agreement was in place.

One of these appointees, Secretary of Agriculture Tom Vilsack, has a written ethics agreement addressing
non-Pledge issues, as do nearly all Senate-confirmed appointees in the Executive Branch, but the agreement

does not cover paragraph 3 of the Ethics Pledge because his lobbying did not involve the Department of
Agriculture or issues within his responsibilities as Secretaty.
4
As a Senate-confirmed appointee} Mr. Lynn has a written ethics agreement addressing other, non-Pledge
lSSUeS.

OGE 2011-11-2

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Table 5: Fmmer Lobbyists and Ethics Agreement Requirements

(as of December 31, 2009)

Executive Assistant to Director, Office of

Mobility and Opportunity Policy (White

Director of Policy and Projects, Office of

the First
Affairs

William Lynn

Not required (waiver ,

Yes

Not required

David Medina***

Office of the First

Amanda Fuchs

Yes
Not required

Not required (waiver

Mr. Childress left the Deparhnent of Health and Human Sen~ces inApril2009.
Ms. Miller left the Department of Justice in December 2009.
*"""Mr. Hurlbut, Mr. Medina, and Ms. Rudman have moved to other positions within the Administration.

OGE 2011-11-2

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Process for Evaluating Prior Lobbying

The starting point for detennining whether someone is a "registered lobbyist" for
pm:poses of Ethics Pledge paragraph 3 is if, at any time during the two-year period before
appointment, he or she has been listed as a lobbyist in either an initial LDA registration or a
subsequent quarterly report (line 10 of Form LD-1 or line 18 ofFom1 LD-2). Agency ethics
officials and the White House Counsel's Office, however, have found it necessary in some
instances to go beyond the House and Senate LDA databases to detennine whether a person
falls within the scope of Ethics Pledge paragraph 3. The databases may be insufficient on
their own for a variety of reasons: individuals may fail to de-register as soon as they no
longer meet LDA thresholds; LDA filings can be overly inclusive with employers
registering persons who were expected to engage in lobbying activities but who
subsequently did not do so; and finally, LDA filings are made qllillterly and do not indicate
the actual dates of lobbying acth~ty. In the case of at least one appointee, a fonner
employer confim1ed that the date of the individual's last lobbying activity, while within the
quarter covered by an LDA filing, occurred more than two years prior to appointment and
was therefore outside the coverage of Ethics Pledge paragraph 3.

Few Lobbying or Reverse Revolving Door Waivers Granted

Waivers to provisions of the Ethics Pledge may be granted by the Director of the
Office of Management and Budget (authority subsequently delegated to Designated Agency
Ethics Officials), in consultation with the Counsel to the President, when it is detemlined
that "the literal application of the restriction is inconsistent with the pmposes of the
restriction or that it is in the public interest to grant the waiver." 5 The Executive Order
explains that the public interest may include, but is not limited to, exigent circumstances
relating to national security or to the economy.
All waivers are made publicly available on either the OGE website or the White
House website when issued. Specifically, the OGE website contains the names of
appointees serving Executive Branch agencies who have received waivers to the Ethics
Pledge. OGE's website provides a hyperlink to the White House website, which posts
waivers that have been issued by the White House. Both lists are updated as waivers are
issued.

Waivers Allowing Former Lobbyists to be Appointed

Deputy Secretary of Defense William Lym1 received a waiver allowing his

appointment to an agency he lobbied within two years of appointment. Additionally,
Ms. Frye, Director of Policy and Projects for the Office of the First Lady and Ms. Mnfioz,
White House Director of Intergovermnental Affairs, received waivers of paragraph 3 of the
Ethics Pledge.

Section 3 of Executive Order 13490 provides a waiver mechanism for restrictions contained in the Ethics
Pledge and the standards that must be met for a waiver to be granted.

10

OGE 2011-11-2

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Waivers Allowing Appointees to Participate in Matters of Interest to Former Employers or

Clients
Executive Branch agency and White House respondents repo1ted that 22 appointees
had been granted waivers fiom the requirements of Ethics Pledge paragraph 2 as of
December 31, 2009. Generally, paragraph 2 of the Ethics Pledge restricts an appointee's
pruticipation in matters in which the appointee's fom1er employers or clients have an
interest. Agencies and the White House reported that all waivers they issued were essential
to the appointee's ability to carry out his or her duties. Individuals who have received Ethics
Pledge waivers and the executive agencies that issued the waivers are identified in Table 6
below. Appendix V contains the text of the waivers to pruagraph 2 of the Ethics Pledge
issued as of December 3 I, 2009.
Table 6: Appointees who Received Waivers Allowing Pruiicipation in
Matters of Interest to Fom1er Employers or Clients and the Issuing Agency
(as of December 31, 2009)

*Mr. Ogden left the Administration in February, 2010

II

OGE 2011-11-2

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Appendix I.

OGE 2011-11-2

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Appendix I
Executive Order 13490
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release

January 21,2009

EXECUTIVE ORDER
By the authority vested in me as President by the Constitution and the laws of the United States
of America, including section 301 of title 3, United States Code, and sections 3301 and 730! of
title 5, United States Code, it is hereby ordered as follows:
Section L Ethics Pledge. Every appointee in every executive agency appointed on or after
.January 20, 2009, shall sign, and upon signing shall be contractually conimitted to, the following
pledge upon becoming an appointee:
"As a condition, and in consideration, of my employment in the United States Govemment in a
position invested with the public tmst, I commit myself to the following obligations, which I
understand are binding on me and are enforceable under law:
"1. Lobbyist Gift Ban. I will not accept gifts from registered lobbyists or lobbying organizations
for the duration of my service as an appointee.
"2. Revolving Door Ban --All Appointees Entering Government. I will not for a petiod of
2 years from the date of my appointment patiicipate in any pmiicular matter involving specific
parties that is directly and substantially related to my fonner employer or former clients,
including regulations and contracts.
"3. Revolving Door Ban-- Lobbyists Entering Government. If! was a registered lobbyist within
the 2 years before the date of my appointment, in addition to abiding by the limitations of
paragraph 2,1 will not for a peliod of2 years after the date of my appointment:
(a) participate in any patiicular matter on which !lobbied within the 2 years before the date of
my appointment;
(b) patticipate in the specific issue area in which that particular matter falls; or
(c) seek or accept employment with any executive agency that I lobbied within the 2 years before
the date of my appointment.
"4. Revolving Door Ban --Appointees Leaving Govemment. If, upon my departure from the
Government, lam covered by the post-employment restrictions on communicating with
employees of my former executive agency set forth in section 207(c) of title 18, United States
Code, I agree that I will abide by those restrictions for a period of2 yems following the end of
my appointment.

OGE 2011-11-2

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"5. Revolving Door Ban- Appointees Leaving Government to Lobby. [n addition to abiding by
the limitations of paragraph 4, I also agree, upon leaving Govemment service, not to lobby any
covered Executive Branch official or non-career Senior Executive Service appointee for the
remainder of the Administration.

"6. Employment Qualffication Commitment. I agree that any hiring or other employment
decisions I make will be based on the candidate's qualifications, competence, and experience.
"7. Assent to E11forcement. I acknowledge that the Executive Order entitled 'Ethics

Commitments by Executive Branch Personnel,' issued by the President on January 21, 2009,
which I have read before signing this document, defines certain of the terms applicable to the
foregoing obligations and sets f01ih the methods for enforcing them. I expressly accept the
provisions of that Executive Order as a part of this agreement and as binding on me. I
understand that the terms of this pledge are in addition to any statutory or other legal restrictions
applicable to me by virtue of Federal Government service."
Sec.;?.. Definitions. As used herein and in the pledge set fo1ih in section 1 of this order:
(a) "Executive agency" shall include each "executive agency" as defined by section 105 of
title 5, United States Code, and shall include the Executive Office of the President; provided,
however, that for purposes of this order "executive agency" shall include the United States Postal
Service and Postal Regulatory Commission, but shall exclude the Government Accountability
Office.
(b) "Appointee" shaii include every full-time, non-career Presidential or Vice-Presidential
appointee, non-career appointee in the Senior Executive Service (or other SES-type system), and
appointee to a position that has been excepted :fiom the competitive service by reason of being of
a confidential or policymaldng character (Schedule C and other positions excepted under
comparable criteria) in an executive agency. It does not include any person appointed as a
member of the Senior Foreign Service or solely as a unifooned service commissioned officer.

(c) "Gift"
(I) shall have the definition set forth in section 263 5.203 (b) oftitle 5, Code of Federal
Regulations;
(2) shall include gifts that are solicited or accepted indirectly as defined. at section 2635.203(f)
oftitle 5, Code of Federal Regulations; and
(3) shall exelude those items excluded by sections 263 5.204(b ), (c), (e)( I) & (3) and GJ(I)
of title 5, Code of Federal Regulations.
(d) "Covered executive branch official" and "lobbyist" shall have the definitions set forth in
section 1602 of title 2, United States Code.

OGE 2011-11-2

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(e) "Registered lobbyist or lobbying organization" shall mean a lobbyist or an organization filing
a registration pursuant to section !603(a) oftitle 2, United States Code, and in the case of an
organization filing such a registration, "registered lobbyist" shall include each of the lobbyists
identified therein.
(f) "Lobby" and "lobbied" shall mean to act or have acted as a registered lobbyist.

(g) "Particular matter" shall have the same meaning as set forth in section 207 of title 18,
United States Code, and sectio1i 2635.402(b}(:f) ofiitleS-,-Coae aT Federal Regulations:
(h) "Particular matter involving specific parties" shall have the same meaning as set forth in
section 2641.201 (h) oftitle 5, Code of Federal Regulations, except that it shall also include any
meeting or other communication relating to the performance of one's official duties with a fonner
employer or fom10r client, unless the communication applies to a particular matter of general
applicability and participation in the meeting or other event is open to all interested parties.
(i) "Fonner employer" is any person for whom the appointee has within the 2 years pdor to the
date ofhis or her appointment served as an employee, officer, director, trustee, or general
partner, except that "former employer" does not include any executive agency or other entity of
the Federal Government, State or local government, the District of Columbia, Native American
tribe, or any United States territory or possession.

(j) "Fonner client" is any person for whom the appointee served personally as agent, attorney, or
consultant within the 2 years prior to the date of his or her appointment, but excluding instances
where the service provided was limited to a speech or similar appearance. It does not include
clients of the appointee's former employer to whom the appointee did not personally provide
services.
(k) "Directly and substantially related to my fonner employer or fonner clients" shall mean
matters in which the appointee's fom1er employer or a former client is a party or represents a
party.
(I) "Participate" means to participate personally and substantially.

(m} "Post-employment restrictions" shall include the provisions and exceptions in section 207(c)
of title 18, United States Code, and the implementing regulations.
(n) "Government official" means any employee of the executive branch.
(o) "Administration" means all tem1s of office of the incumbe11t President serving at the time of
the appointment of an appointee covered by this order.
(p) "Pledge" means the ethics pledge set forth in section] of this order.
(q) All references to provisions oflaw and regulations shall refer to such provisions as in effect
oti January 20, 2009.

OGE 2011-11-2

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Sec.J,. Waiver. (a) 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 fonner 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. A waiver shall take effect when the certification is signed by the Director of the
Office of Management and Budget or his or her designee.
(b) The public interest shall include, but not be limited to, exigent circumstances relating to
national security or to the economy. De minimis contact with an executive agency shall be cause
for a waiver of the restrictions contained in paragraph 3 of the pledge.
Sec.:J:. Administration. (a) The head of every executive agency shall, in consultation with the
Director of the Office of Government Ethics, establish such rules or procedures (confonning as
nearly as practicable to the agency's general ethics rules and procedures, including those relating
to designated agency ethics officers) as are necessary or appropriate to ensure that every
appointee in the agency signs the pledge upo11 assuming the appointed office or otherwise
becoming an appointee; to ensure that compliance with paragraph 3 of the pledge is addressed in
a written ethics agreement with each appointee to whom it applies, which a~:,>reement shall also be
approved by the C-ounsel to the President or his or her designee prior to the appointee
commencing work; to ensure that spousal employment issues and other conflicts not expressly
addressed by the pledge are addressed in ethics agreements with appointees or, where no such
agreements are required, through ethics counseling; and generally to ensure compliance with this
order within the agency.
(b) With respect to the Executive Office of the President, the duties set forth in section 4(a) shall
be the responsibility of the Counsel to the President or his or her designee.
(c) The Director of the Office of Govemment Ethics shall:
(l) ensure that the pledge and a copy of this order are made available for use by agencies in

fulfilling their duties under section 4(a) above;

(2) in consultation with the Attorney General or the Counsel to the President or their designees,
when appropriate, assist designated agency ethics officers in providing advice to cunent or
fonner appointees regarding the application of the pledge; and
(3) in consultation with the Attorney General and the Counsel to the President or their
designees, adopt such rules or procedures as are necessary or appropriate:
(i) to carry out the foregoing responsibilities;

OGE 2011-11-2

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(ii) to apply the lobbyist gift ban set forth in paragraph 1 of the pledge to all executive branch
employees;

(iii) to authorize limited exceptions to the lobbyist gift ban for circumstances that do not
implicate the purposes of the ban;
(iv) to make clear that no person shall have violated the lobbyist gift ban if the person properly
disposes of a gift as provided by section 2635.205 of title 5, Code of Federal Regulations;
-- --- -

--

- - ---- - - - - - -

(v) to ensure that existing rules and procedures for Government employees engaged in
negotiations for future employment with private businesses that are affected by their official
actions do not affect the integrity of the Government's programs and operations;
(vi) to ensure, in consultation with tbe Director oftbe Office of Personnel Management, that the
requirement set forth in paragraph 6 ofthe pledge is honored by every employee of the executive
branch;
(4) in consultation with the Director of the Oflice of Management and Budget, report to the
President on whether tull compliance is being achieved with existing laws and regulations
governing executive branch procurement lobbying disclosure and on steps the executive branch
can take to expand to the fullest extent practicable disclosure of such executive branch
procurement lobbying and oflobbying for presidential pardons, a'ld to include in the report both
immediate action the executive branch can take and, if necessary, recommendations for
legislation; and
(5) provide an annual public report on the administration of the pledge and this order.
(d) The Director of the Office of Government Ethics shall, in consultation with the Attorney
General, the Counsel to the President, and the Director of the Office of Personnel Management,
or their designees, report to the President on steps the executive branch can take to expand to the
fullest extent practicable the revolving door ban set forth in paragraph 5 ofthepledge to all
executive branch employees who are involved in the procurement process such that they may not
for 2 years after leaving Government service lobby any Government official regarding a
Govemment contract that was under their official responsibility in the last 2 years of their
Government service; and to include in the report both immediate action tbe executive branch can
take and, if necessary, recommendations for legislation.
(e) All pledges signed by appointees, and all waiver certifications with respect thereto, shall be
filed with the head of the appointee's agency for pem1anent retention in the appointee's official
personnel folder or equivalent folder.
Sec.~-

Enforcement. (a) The contractual, fiduciary, and ethical commitments in the pledge

provided for herein are solely enforceable by the United States pursuant to this section by any

OGE 2011-11-2

Bates 000084

legally available means, including debannent proceedings within any affected executive agency
or judicial civil proceedings for declaratory, injunctive, or monetary relief.
(b) Any former appointee who is determined, after notice and hearing, by the duly designated
authority within any agency, to have violated his or her pledge may be barred from lobbying any
officer or employee of that agency for up to 5 years in addition to the time period covered by the
pledge. The head of every executive agency shall, in consultation with the Director of the Office
ofGovemment Ethics, establish procedures to implement this subsection, which procedures shall
include (but not be limited to) providing for fact-finding and investigation of possible violations
of this order and for referrals to the Attorney General for his or her consideration pursuant to
subsection (c).
(c) The Attorney General or his or her designee is authorized:
(I) upon receiving infonnation regarding the possible breach of any commitment in a signed

pledge, to request any appropriate Federal investigative authority to conduct such investigations
as may be appropriate; and
(2) upon detem1ining that there is a reasonable basis to believe that a breach of a commitment
has occurred or will occur or continue, if not enjoined, to commence a civil action against the
former employee in any United States District Coult with jurisdiction to consider the matter.
(d) In any such civil action, the Attomey General or his or her designee is authorized to request
any and all relief authorized by law, including but not limited to:
(1) such temporary restraining orders and preliminary and pem1anent injunctions as maybe

appropriate to restrain future, recuiTing, or continuing conduct by the former employee in breach
of the commitments in the pledge he or she signed; and
(2) establishment of a constJuctive trust for the benefit ofthe United States, requiring an
accounting and payment to the United States Treasury of all money and other things of value
received by, or payable to, the fonner employee arising out of any breach or attempted breach of
the pledge signed by the former employee.
Sec... General Provisions. (a) No prior Executive Orders are repealed by this order. To the
extent that this order is inconsistent with any provision of any prior Executive Order, this order
shall controL
(b) If any provision of this order or the application of such provision is held to be invalid, the
remainder ofthis order and other dissimilar applications of such provision shall not be affected.
(c) Nothing in this order shall be construed to impair or otherwise affect
(!) authority granted by law to a department, agency, or the head thereof; or

(2) functions of the Director ofthe Office of Management and Budget relating to budget,
administrative, or legislative proposals.

OGE 2011-11-2

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(d) This order shall be implemented consistent with applicable law and subject to the availability
of appropliations.
(e) This order is not intended to, and does not, create any right or benefit, substantive or
procedutal, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.
(f) The definitions set forth in this order are solely applicable to the tenns of this order, and are
not othelwise intended to impair or affect existing law.

BARACK OBAMA
THE WHITE HOUSE,
January 21,2009.

OGE 2011-11-2

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Appendix II

OGE 2011-11-2

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Appendix II
Assessment Methodology and Administrative Processes
Assessment Methodology
OGE administered an assessment questionnaire twice. In August 2009, OGE
administered an initial assessment to better understand the implementation process within the
agencies and to gather mid-year compliance data. In January 2010,- OGE administered an
assessment to capture end-of-year compliance data. The statistical information in this report
is based on the year-end data.
The questionnaire was emailed to Designated Agency Ethics Officials in eve1y
executive branch agency. In the absence of the DAEO, the questionnaire was provided to an
Alternate DAEO or other designated official. OGE received responses from all 130 agencies
required to be assessed. Based on responses on each assessment, OGE conducted follow-up
discussions with agencies to gather additional information and to correct any discrepancies in
submissions. OGE excluded from this rep01t employees it determined were miscategorized as
full-time, non-career appointees. In the interest of completeness, the White House
voluntarily provided information about White House appointees.
Administrative Processes
As part of the initial assessment, OGE requested information about agency processes
for administering the Ethics Pledge and documenting Ethics Pledge waiver certifications.
Agencies which had appointees who were subject to the Pledge reported that they had at least
one system that allows the DAEO to access information sufficient to establish at least one of
the following:
,.

The number of signed Ethics Pledges (85 agencies)

The number of signed ethics agreements (83 agencies)

The number of signed Ethics Pledge waiver certifications (79 agencies)

The content of signed ethics agreements (83 agencies)

A list of the appointees to whom the Ethics Pledge applies (86 agencies).

The agencies that reported not having a system also did not have pertinent appointees at the
time of the initial assessment. However, they indicated that they planned to have a system in
place as necessary.
Other information reported in the initial assessment about the ethics pledge
administrative process was as follows:

OGE 2011-11-2

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Eighty-eight agencies reported that the DAEO is responsible for monitoring

signed ethics agreements of full-time, non-career appointees. At other agencies,
responsible parties include the Human Resources Office or Chief Human Capital
Officer and screeners within the appointees' program office.

Eighty-one agencies have a process to ensure that Ethics Pledges signed by

appointees are filed for permanent retention in the appointees' official personnel
(OPF) or equivalent folder.

Seventy-six agencies have a process to ensure that all Ethics Pledge waiver
certifications are filed for pennanent retention in the appointees' OPF or
equivalent folder.

OGE 2011-11-2

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Appendix III

OGE 2011-11-2

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Appendix III
Assessment Questionnaire
Compliance Assessment: The Ethics Pledge
(Executive Order 13496)

You are required to complete this assessment as the representative of your agency's ethics program. Each
agency must provide a prompt and accurate response.
Purpose

The purpose of this assessment is to provide the U.S. Office of Government Ethics (OGE) with information about
administration of the Ethics Pledge required by Executive Order 13490, "Ethics Commitments by Executive Branch
Personnel" (January 21, 2009). The information will be used by OGE to prepare the annual report on
administration of the Ethics Pledge as required by Executive Order 13490, sec. 4(c)(5).
The Executive Order requires every covered appointee to sign the Ethics Pledge upon assuming office. See
Executive Order 13490, sec. I. In addition, every covered appointee who was a registered lobbyist during the 2
years prior to appointment must have a written ethics agreement addressing the restrictions on incoming lobbyists
under paragraph 3 of the Ethics Pledge. See Executive Order 13490, sec. 4(a).
This assessment focuses on compliance with the following as of December 31, 26()9:

the requirement for fulltime non-career appointees to sign the Ethics Pledge,
the requirement to have a written ethics agreement covering any commitments under paragrsph 3 of the
Ethics Pledge (concerning lobbyists entering government), and
the issuance of any waivers of Ethics Pledge requirements under section 3 of Executive Order 13490.

Tltis assessment does not request the name or title of any appointee.
Deadline
The deadline for completing the assessment is January 11,2010.
Taking the Assessment

This assessment consists of up to nine items for responses. (Based on your responses, the assessment may skip
items not applicable to your agency.) For your convenience, a Word version of the entire assessment may be viewed
and printed by clicking on the following link: Word version of entire Ethics Pledge compliO!lce assessment.
Throughout the assessment you will be offered an opportunity to provide comments.
After reviewing your submission OGE may contact you for additional information.
IMPORTANT: If you want a copy of your responses, you must print each individual page prior to submitting the
assessment to OGE. Once you submit the assessment to OGE, you will not be able to re-enter it.
If you want to save the assessment and complete it later, click the "Save and Continue Assessment Later" link on the
top right of the screen. You will be asked to provide an email address. A link will be sent to your email, which you
may use to return to and complete the assessment.
Please keep in mind that you are required to submit your response electronically.
Submitting the Assessment

OGE 2011-11-2

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When you have completed tlte assessment, click the 11 Submit your Assessrnent11 button to- send your assessment to
OGE.

If you need help with the assessment, please contact Karen Rigby, Lead Management Analyst, by phone at (202)
482-9212 or at ethicsofficialsurvev@oge.gov.

NOTES: Complete this assessment only ifyou are an employee ofthe Federal Government. This assessment is._
being administered-through a proprietmyon/ine survey tool. Similar online survey tools are available. Use of this
tool does not constitute an endorsement by OGE.
1.

Agency _ _ _ _,(Drop-down box)

2.

Did your agency employ any full-time non-career appointees (e.g., Presidentially Appointed, Senate Confirmed
(PAS), Presidentially Appointed (P A), non-career Senior Executive Service (SES), etc.) from January 20
through December 31,20097
D Yes
D No
Note: For guidance on what constitutes a full-time non-career appointee for purposes of the Ethics Pledge
see OGE DAEOgram D0-09-01 0 available at WWJ.usoge.gov under the "Ethics Guidance" section.
Please type comments in the box below.

(Those responding )tes' move on to question 3.)

(Those responding "no" are thanked, and no additional questions are asked.)
3.

For each category of appointee provide the number of full-time non-career appointees employed from January
20 through December 31, 2009, and indicate tbe number who did' and did not sign the Ethics Pledge. (Note:
Please include all appointees who did not sign, regardless of whether or not they were required to sign.
Additional explanatory infurmatfon is requested in the next question.) The total number of appointees that
sigued the Ethics Pledge plus the total number that did not sign the Ethics Pledge should equal the total number
employed January 20 through December 31, 2009.

Number of Full-Time Non-Career

Appointees

PAS

Type of Full-Time Non-Career Appointees

b Catego v
Noncareer Schedule Other
PA

SES

Total

EmployedOl/20-12/31/2009
Signed the Ethics Pledge
Did not sign the Ethics Pledge
If for any field above you are unable to provide a complete response, please explain in the box below. You
may also add additional comments.

4.

For full-time non-career appointees who did not sigu U1e Ethics Pledge find the appropriate calegory(ies) of
reasons and indicate the number of appointees who fit into that category.

OGE 2011-11-2

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Number and Type of Full-Time Non-Career Appointees

Who Did Not Si n the Ethics Pledge
NonRationale for Not Signing the
Ethics Pledge

careerPAS

PA

SES

ScheduleC

Other

Total

a. Appoinled prior to 01/20/09 and

not otherwise required to sign the
Ethics Pledge
b. Occupy an exempt nonpolicymaking position (Schedule C
or other comparable authority)
c. Oilier (explain below)

If other, explain here. You may also use lhe box below to provide a complete response or to add additional
comments.

5.

How many appointees subject to lhe Ethics Pledge were registered lobbyists during lhe 2 years prior to their
appojnttnent? _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Please type comments in the box below.

(Those responding "0" will skip to question 8.)

6.

How many of the appointees identified in the previous question as registered lobbyists during the 2 years prior
to their appointment have an ethics agreement addressing their obligations under paragraph 3 of the Ethics
Pledge?~~~--~~-~~--~---Please type comments in the box below.

7.

For any appointee identified in question 5 who does not have an ethics agreement, please provide an
explanation.

Please type comments in the box below.

8.

Section 3 of Executive Order 13490 provides a waiver mechanism for the restrictions contained in the Ethics
Pledge. Indicate below how many waivers have been granted by your agency.
Number of Ethics Pledge Waivers Granted
Bv Pledee Para2raph
Paragraphs 2 &
Paragraph 2 Only
Paragraph 3 Only

Other
(explain below)

OGE 2011-11-2

9.

Bates 000093

Would you like OGE to provide additional training to your agency concerning administration of the Ethics
Pledge?
0 Yes
0 No
0 Other (don't know, not sure, etc. OGE will follow up by telephone.)
Please type comments in tl:te box below.

Please provide a point of contact to answer OGE questions regarding this assessment.

First Name:
Last Name:
Title/Position:
Email Address:
Phone Number:

OGE 2011-11-2

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Appendix IV

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Naiver

After cOn$Ultation with counsel to the President, I hereby waive the requirements of
Paragraph~ 2 and 3 of the Ethiqs Pledge of Mr. William Lynn. I have determined that it isin the public interest to Srant the waiv~r given Mr. Uynns qualifications for hie

position and the cu~ent national aecu~ity eituation. ! understand that M~. tynn will

...

:::::~::,~'' '" ''" """'"' ~~ "'" ~~;;;;;; ~

OGE 2011-11-2

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Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Counsel to the President, I hereby waive the requirements of
paragraph 2 and 3 of the Ethics Pledge of Ms. Jocelyn Frye. I have detennined that it is in the
public interest to grant the waiver because Ms. Frye's expettise in the areas in which she acted as
a registered lobbyist is essential to her service to the Office of the First Lady. I understand that
Ms. Frye will otherwise comply with the remainder of the pledge and with all preexisting
government ethics rules.

Is/Norman L. Eisen
Dated: February 20, 2009

Special Counsel to the President and

Designated Agency Ethics Official

OGE 2011-11-2

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Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Counsel to the President, I hereby waive the requirements of
paragraph 2 and 3 of the Ethics Pledge of Ms. Cecilia Munoz. I have detmmined that it is in the
public interest to grant the waiver because Ms. Munoz's knowledge and expertise are vital to the
functioning of the Office of Intergoverrunental Affairs. I understand that Ms. Munoz will
otherwise comply with the remainder of the pledge and with all preexisting government ethics
rules.

/sfNorman L. Eisen
Dated: February 20, 2009

Special Counsel to the President and

Designated Agency Ethics Official

OGE 2011-11-2

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AppendixV

OGE 2011-11-2

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DEPARTMENT OF THE TREASURY

WASs~P.T6 pzoo9

220

MEMORANDUM FOR HERBERT M. ALLISON

(

FROM:

Bernard J. Knight, Jr.

Assistant General Counsei~General Law, Ethics & Regulation)
and Designated Agency Ethics Official

SUBJECT:

Your Participation in Matters Involving Government-Sponsored

Enterprises

After consnltation with the Counsel to the President, I hereby waive certain requirements of
paragraph 2 of the Ethics Pledge of Mr. Herbert M. Allison with respect to his fanner
relationship with Federal National Mortgage Association (Faooie Mae).
Mr. Allison is not in a position to personally benefit from his Fannie Mae relationship. I note
that Mr. Allison has no pecuniary interest in Fannie Mae other than a life insurance policy under
which Fannie Mae will pay premiums for four more years pursuant to a standard Fannie Mae
agreement. Mr. Allison was Mt otherwise compensated by Fannie Mae, and declined to accept
a salary. In addition, Mr. Allison accepted the position at Fannie Mae at the request of the
United States Government.
I have determined that it is in the public interest to grant this limited waiver because on February
18, 2009, President Obama annonnced the Homeowner Affordability and Stability Plan (HASP),
which was designed to address problems in the housing market as part of the implementation of
the Emergency Economic Stabilization Act (EESA) of 2008. The Homeownersbip Preservation
Office (HPO) was created as part of the Office of Financial Stability (OFS) to implement HASP,
which includes a program to refinance loans !hat are currently held by Fannie Mae. As Assistant
Secretary, Mr. Allison is responsible for overseeing the work of OFS in general, including the
HPO. He is one of the primary officialsresponsib1e for the development of the Department's
policies with respect to fmancial stability, including the homeownership programs. Mr. Allison's
knowledge and expertise regarding the issues surrounding the HASP and the HPO make him an
ideal person to lead Administration efforts in support of this endeavor.
This waiver does not permit Mr. Allison to be involved in any particular matters involving
Fannie Mae that affect Fannie Mae's ability or willingness to pay its contractual life insurance to
him. This waiver also does not pennit Mr. Allison to make the final decision regarding the
award of any contract to Fannie Mae as a financial agent or other contractor. Any fmal decision
to award any contract to Fannie Mae as a financial agent or other contractor will be made hy the
Under Secretary of Domestic Finance. For all of these reasons, I have determined that it is in the
public interest to grant the waiver.
I understand that Mr. Allison will otherwise comply with the remainder of the pledge and with all
preexisting government ethics rules.

OGE 2011-11-2

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National Aeronavtics and Space Administration

H&adquart<trs

Washington, DC 20546-0001

R~oAUf'uf

Waiver of Paragraph 2 of the EtllicS Pledge

l have determined th~t it is in the public interest to grant a limited waiver of paragrapfl2 of the
Ethics Pledge set forth in Executive Order 13490, "Ethics Commitments by E~ecutive Branch
l"ersonnel" (January 21, 2()09) to Charles Bolden as Administrator of the National Aeronautics
and Space Administrnuon (NASA). Mr. Bolden had previously served as a consultant to SAIC
and on the board of direclt>rs ofGenCorp. Absent a waiver, Mr. Bolden would be prohii-Hted by
paragraph 2 of the Ethics Pledge from panicipating in any pl\r!icular matter involving specific
parties in which either SAIC or GenCorp is or represen~'i a pany. Mr. Bolden's knowledge of
and expertise in current NASA programs are essential to making informed and timely decisiOI)making about the future of NASA and its programs. His ability to engage in such decisionmaking as the head of NASA is in the public interest and fundamental to NASA's ability ro
remain In the forefront of space exploration. This waiver is granted with the understanding that
Mr. Bolden will comply with the limitations set lbn:h below, the remaining provisions of the
Executive Or(!er and with all rre-existing government ethics rules.
I authorize Mr. Bolden to participate only at the policy m program level in particulur matters
involvi11g SAIC undlor GcnCorp. This waiver is deemed applicable only in those limited
circumstances when such a policy or program matter involves SA!C and/or GenCorp as a pany
and rises to the level of Administrator review. The authorization does not remove the bar on
engaging in one-onone meetings or ""mmunications with either entity as set forth in Excecutive
Order l 3490. This waiver does not authorize Mr. Bolden to participate in contractiog matters,
including conrract detem1inalions, involving SAIC or GenCorp as a party or to partictpare in
those particular matters involving specific parties in which he participated as a consultant for
SAIC or as a director for GenCorp.

NASA

/'r_., ..

Designated Agency Ethics Official

OGE 2011-11-2

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THE WHITE HOUSE

Washington
December 30, 2009
MEMORANDUM FOR JOHN BRENNAN
FROM:

NORMAN EISEN
Special Counsel to the President and Designated Agency Ethics Official

SUBJECT:

Waiver under E.O. 13490 aud Authorization under 5 C.F.R. 2635.502

The purpose ofthis memorandum is to authorize your participation, pursuant to 5 C.P.R.

2635.502, in the aviation screening technology review and watchlisting system review ordered
by the President in the aftermath of the December 25, 2009, attempt to detonate an explosive
device aboard Northwest flight 253. This memorandum also provides a partial waiver of the
restrictions in Executive Order 13490, with respect to your participation in these reviews, to the
extent that the reviews specifically address services provided by your fanner employer, The
Analysis Cotporation (TAC), or any ofits employees.
This authorization and waiver are limited, however, in that you will recuse yourself from any
communications with TAC and, should these reviews at any point include specific attention to
services provided by TAC or any of its employees, you will recuse yourself from any
participation in that aspect of the review.
I.

5 C.F.R. 2635.502- Impartiality in Pe1forming Official Duties

The standard of conduct at 5 C.P.R. 2635.502 requires an employee to take appropriate steps to
avoid an appearance of any lack of impartiality in the perfonnance of his official duties. Under
Section 502, when an employee knows that a person with whom he has a "covered relationship"
is a party or represents a party to the matter, he should not participate in the matter without
infonning an agency official and receiving authorization to pmiicipate.
The aviation screening technology review and watchlisting system review may be "specific
party" matters to the extent they eventually include specific attention to government contracts
with, or services provided by TAC, with whom you have a covered relationship having been
employed by TAC within the past yem. See 5 C.P.R. 2635.502(b)(1 )(iv).
Section2635 .502(d) directs that an agency designee may authorize an employee to pmiicipate in
a particular matter involving specific parties, which would otherwise be subject to the recusal
requirements of that section, if the designee makes a determination, in light of all relevant
circumstances, that the interest of the Government in the employee's participation outweighs any
concern that a reasonable person may question the integrity of the Government's programs and
operations.
1

OGE 2011-11-2

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As the Designated Agency Ethics Official, I serve as the agency designee pursuant to guidance
from the U.S. Office of Government Ethics.
You have asked for guidance on how best to proceed in light of your former employment by
TAC. After weighing the factors articulated in Section 502(d), I have determined that it is
appropriate to authorize your participation in these reviews. Of central importance to this
conclusion is that you no longer have fmancial interests in TAC, and therefore the resolution of
these reviews will not impact your financial interests. Moreover, to the extent that the reviews
address, among other issues, the services provided by TAC or its employees, you will recuse
yourself to the extent necessary to avoid participation in any such aspect of the reviews.
Equally significant is the highly sensitive nature of this matter involving national security. As
the Assistant to the President for Homeland Secutity and Counterterrotism, you are the White
House official with direct responsibility for advising the President on Administration-wide
counterterrorism and homeland security programs. The reviews in question were ordered by the
President in the wake of a potentially catastrophic attempted terrorist attack. The importance of
these reviews to national security interests weighs against reassignment to others of this senior
supervisory role. In light of these factors and the requirement that you abide by the
aforementioned recusal, I hereby determine that the governmental interest in your participation
outweighs any countervailing appearance concerns and authotize your participation in these
reviews.
II.

E.O. 13490- Ethics Commitments by Employees in the Executive Branch

Executive Order 13490 provides that a political appointee will not, for a period of two years
from the date of appointment, participate in lllly particular matter involving specific pruties that
is directly and substantially related to the appointee's former employer or former clients,
including regulations and contracts. See E.O. 13490, Sec. I, para. 2. Section 3 of the E.O.
provides for waiver of the recusal provisions and as the DAEO here, I exercise that waiver
authority. See Office of Government Ethics Memorandum Re: Authorizations Pursuant to
Section 3 of Executive Order 13490, D0-09-008 (Feb. 23, 2009). The standard for waiving the
restriction in the Executive Order is that it be in the public interest. See E.O. 13490, Sec. 3(a).
The Executive Order states that "the public interest shall include, but not be limited to, exigent
circumstances relating to national security or to the economy." ld., Sec. 3(h).
I hereby determine that it directly serves the public interest that the President have the benefit of
your participation in these reviews, given the magnitude of the national security interests at
stake, your central role in advising him on homeland security and countertetrotism programs,
and the impe>rtance of your participation in coordinating these reviews with executive level
officials at other federal agencies. Given your extensive background in intelligence and
counterterrorism matters, you are the most qualified Administration official to lead these
reviews, which go directly to the security of the American people and present the types of
exigent circumstances relating to national secutity that the waiver provision was designed to
permit.

OGE 2011-11-2

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Accordingly, I hereby certifY that it is in the public interest for you as Assistant to the President
for Homeland Security and Counterterrorism to participate in these reviews, and, pursuant to
E.O. 13490 Sec. 3(a), I waive the restriction in Section l ofE.O. 13490, 011 participation in any
specific party matter that is directly and substantially related to your fmmer employer, TAC,
except that you will recuse yourself from ab.y communications with TAC or from direct
evaluation o; or decisions regarding, TAC' s or its employees' performance of services under its
contract with the government. I have consulted with the Counsel to the President concerning this
waiver.

OGE 2011-11-2

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DEPARTMENoOF JUstiCE

Washington

C'ERTIFlCA'ffON OF PUBLIC INTEREST WAlVER FOR LANNY Btt&tlER

FROIV!:

Lee J. Lofthus
Designated Agency Ethics Offidll:l, Department of Ju.stice

SUBffiCT: Waiver from Restrictions Related to Covington &Bllt'Jing, LLP in Investigation

of Government Attorney Conduct in United States v. Theodore K Steven, Crim. No. 08-231
lD.D.C.).
Pursuant to the iillthority delegated under-SI)(:tion3 of Executive Order 13490 and tbr the reasons
stated ili U1e attached tnemoraitdum and after consul!aticm l'liili the Counsel to ilie President, I
hereby certio/ iliat a Utnited waiver of tlie restrictiomi.ofparagraph 2 .oftbe Ethics Pledge is in the
public interest for appoiutee Lanny A. Breuer in the position ofAssistant Attorney General iu the
Department ofJus!'lce. Mt. Bre-uer shall not be restricted from participating in the investigation
into. tlie conduct of g-overnment attorneys in United States y. Theodore F. Stevens, Crfm. No. 0823 I (D.D.C.), subject to the limitatiollS s~t forth in t(ie attached memorandum and without
waiving the !imitation on :Mr. .Breuer's partieipaticm J,n regulations.<ind contracts as provided 'in
paragraph 2 of the Eihlcs Pledge. This waiver does pot otherwise affect Mr. Breuer's oblig11ti.on
to comply\\'ith other provisions ofthe Ethics Pledge or vdth aU oilier pre-existing g{}vemment

ethics niles.
Signed__ Lb.
\;
Lee J. fthulil'
besignated Agency Ethics Official
bepm1ment of Justice

Dllte_:s._.._k
__~_6_,._9_ _

OGE 2011-11-2

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U.S. Depamn~nt of Justice .

Justice Management Division

MAY - 6 20og

Washington, D.C. 20S$0

'

MEMORANDUM FOR TilE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION

FROM:

Lee J. Lofthus
Assistant Attorney O'ehiMil for Adininistration and
Designated Agency Ethics Official

SUBJECT:

Waiver under E.O. 13490 ~ild Determination under 5 C.P.R. 2635.502

The pUl'p{lse of this memorandum is to wmve the restriction in Executive Order 13490 of January
21, 2009, Ethics Commitments by Employees in the Executive Bmnch, and further to make a
determination un~er the standards of conduct on impartiality, 5 C.F.R. 2635.502. that yon may
participate in a particulat matter in whicli your former firm ,repre$ents a party, relating to [n Re:
Special Proceedings, Misc. No. 09-mc-0'0198 (BGS), wbjch arises from the prosecution of
former United. States Senator Ted Steve!)il. The prosecution was conducted by the Public
Integrity Section of the Criminal Division.
On April!, 2009, the Department asked the U.S. District Court for the District of Columbia,
Judge Emmet Sullivan, to grant the defelltiant's motion to dismiss the charges in U.S. v. Steven,
the prosecution offonner Alaska Senato(Ted Stevens. On April 7, 2009, the Court announced
that it was appointing a special counsel, ,Hemy Schuelke III, to "investigate and prosecute such
criminal contempt proceedings as may be appropriate" against six Departinent of Justice
.
attorneys who handled the case. The Dt::partrnent's Office of Professional Responsibility (OPR)
initiated an investigation into the conduct of the prosecl!IOrs when they self-reported the Cdurt's
findings of a Brady violation on October 2, 2008. Publicly available documents were gathered
but a full investigation was held in abey~ce based on OPR's general policy of not proceeding
with an investigation during the pendency of active litigation.
You are generally recused from particip~tion in particular matters with parties in which your
former firm is or represents a party, under the standards of conduct for employees in the
executive branch, 5 CFR 2635.502, and tinder E.O. 132490.
one of the DOJ
attol'lleys under investigation by OPR, is represented by your former firm, Covington & Burling.
Therefore, absent a waiver from'the restrictions in the Executive Order and the standards of

OGE 2011-11-2

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Memorandum for the Assistant Attorney General

Subject: Waiver under E.O. 13490 and Determination under 5 C.F.R. ~ 2635.502

Page2

c<;mduct, you are recused from participating in the Investigation of

In most OPR investigations, counsel for a DOJ attorney would communicate with OPR, but
generally not with other DOJ officials. It also usually would not be necessary for the leadership
of the Department to be involved in the early stages ofim investigation. However, the particular
circumstances surrounding these investigations are unusual, and present important issues even at
this early stage of the process. As noted, the Court appointed a special counsel to conduct an
investigation at the same time the Department's inves~jgation, by OPR, is underway. This is
highly unusual and raises jurisdictional issues, and qustions concerning the authority of the
special counsel and the proper relationship between QPR' s investigation and that of the special
counsel. These are important questions that affect the'Department's institutional interests, are
sensitive determinations, and may include questions of first impression. As such, these issues
will require resolution ljy the leadership of the Depar1ment, including the Attorney General and
the Deputy Attorney General. They will seek and reljron your advice as the Assistant Attorney

General for the Criminal Division.

In order for you to advise and assist the leadership, it will be necessary for you to understand and
be familiar with the individual investigations of all six Department attorneys, four of whom are
employees in the Criminal Division, and all of whon:t. were wor!Eing under the supervision of the
Public Integrity Section during the trial. Given that the six investigations all concern conduct
that occurred in prosecuting the same case, ii is not fSible or practical for you to remain recused
from the investigation of
This would inteifere with your ability to advis~ and
participate ,in necessary decisions for the Departmentin connection with the Department's
investigations and the special counsel's investigation,' In order for you to be fully advised on the
issues and facts as they arise, to enable you to advisetjleAG ~the DAG, you must be able to
participaie and freely receive information and advice, on any and all of tlie individual
investigations. Based on advice from the Prlnclpal Associate Deputy Attorney General, I
conclude that it is not necessary at this time that you.tdeet or colnmunicate with your former
firm, should they make such a request. If direct oont~ct by Department officials in the Crimiual
division is determined to in the Department's interest, other officials in the division would be
available to meet with your former firm.

be

Executive Order 13490. Ethics Conunitments by E~ployees in the Executive Branch

The Executive Order provides that a political appointee. will not, for a period of two years from
the date of appointment, participate in any particular ni,atter involving s~ific parties that is
1

Decisions with respect to the approval of ou,tide representation for

and 'the
other Department employees are being made by the Civil Division through the standard
procedure for these decisions.

OGE 2011-11-2

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Memorandum for the Assistant Attorney General

Subject: Waiver under E.O. 13490 and Determinatiol). under 5 C.P.R. 2635.502

Page3

directly and substantially related to the apj\ointee's fonner employer or funner clients, including
regulations and contracts. Sec. l, paragraph 2. The EKecutive Ordel' further provides that
"particular matter involving specific parties" shall have the same meaning as set forth in the
ethics regulations at 5 C.F.R. 2641.20L(ll), except that it shall also include ''any meeting or
other communication relating to the perf6nnance of one's official duties with a fonner employer
or fonner client, unless the communicatidii applies to a particular matter of general applicability
and participation in the meeting or other event is open to all interested parties." E.O. 13490, Sec.
2(h).
E.O. 13490 references the f9llowing deflhition provided in the standards of conduct (however,
the B.D. specifically includes regulationS ilnd contracts):

5 C.F.R. 2641.201(h)(l): Part!iular matter involving a specific: party or parties- (i)

Bpsic: concept. The prohibition applies only to communications or appearances made in
connection with a "particular matl;~r involving a specific party or parties." Although the
statute defines "particular matter'' broadly to include "any investigation, application,
request for a ruling or determination, rnlemak:ing; contract, controversy, claim, charge,
accusation, arrest, or judicial or ot!ter proceeding," 18 U.S.C. 207(i)(3), only those
particular matters that involve a specific party or parties fall within the prohibition of
section 207(a)(l). Such a matter .typically involves a specific proceeding affecting the
legal rights of the parties or an isolatable transaction or related set of transactions between
identified parties, such as a specific contract, gr;mt, license, product application,
enforcement action, administrativ adjudication, or court' case.
The E.O. provides for waiver oftherecusal provisions by the Director of the Office of
Management and Budget (OMB) or his ~esiguee, in consultation with the Counsel to the
President or his designee. E.O. 13490, Sec. 3(a).. -The Director, 0MB, has designated the
Designated Agency Ethics Official (DAEO) of each executive branch agency to eKercise the Sec.
3 waiver authority, in writing, and in conSultation with the Counsel to the President.
'

Specific Waiver Request

The Stevens prosecution has raised important issues concerning how the Department conducts its
operations, including questions of the Iiepartment's ability to investigate allegations of
misconduct by its own attorneys. This !$sues have been raised and are being debated in a very
public way, and they go to the heart of the Department's ability to achieye its mission of
evenhanded enforcement of the law. Given the signific;ant public interest involved in these
proceedings, it is important that you be able to eKereise your leadership role as the head of
Criminal Division and to advise the leadership in these matters.
The standard for waiving the restriction in the E.O. is that it be in the public interest. E.O.
13490, Sec. 3. l be~ieve that it directly serves the public interest that the Department have the .

OGE 2011-11-2

Bates 000108

Memorandum for the Assistant Attorney Gener.al

Subject: Waiver under E.O. 13490 and Detennination under s .C.P.R.. 2635.502

Page4

benefit of your participation in this case, given the institutional interest ofthe Department, the
important legal, policy and strategic considerations, and your responsibilities as chief of the
Criminal Division. I certify that it is in the public int~iest that you be able to participate in the
investigation of
relating to the matter In Re: Speciaf Proceedings.
5 C.P.R. 2635.502

The standard of conduct at 5 C.P.R. 2635.502 requirj's an employee tc take appropriate steps.to
avoid an appearance ofloss of impartiality in the perfu.rmance of his official duties. Under
Section 502, where an employee knows that a person With whom he has a "covered relationship"
is a party or represents a party to the matter, he should. not participate in the matter without
informing an agency official and receiving authorization to participate. Included in the. definition
of a "covered relationship" is any person for whom th~ employee served, within the preceding
year, as .officer, director, trustee, general partner, agen.t, attorney, c:Onsultant, contractor,.or
employee. 5 C.P.R. 2635.502(b)(l)(iv).

You have a covered relationship with your former fiflll, Covington & Burling. The fll'ID
\Uldertook this representation while you were a partni;l'; however, you had no involvement and
were screened from the matter during the time you were a partner with the finn. Under the
standard, I conclude that a reasonable person would riot question the integrity of the
Department's programs and operations based oli youi'participation in the investigation of a
Department attorney represented in by your former flfin, and' that should such questions arise, the
Department's interest in your participation outweighs. (lilY possible concern.
WAIVER: I hereby certify that it is in the public int\"rest for you as Assistant Attorney General
for the Criminal division to participate in the investigation Qf a Department attorney who is
represented by your former firm, in connection withlli Re: Special Proceedings, as discussed
above, and pursuant to E.O. 13490 Sec. 3(a), I waive/the restriction in Section l ofE.O. 13490,
on participation in a specific party ~atter that is dire(;~y and substantially related to your former
employer, Covington & Burling, except that you will not have any direct contact with Covington
& Burling. We have consulted with the Office of the Counsel to the President concerning this
waiver. Further, I hereby determine, under 5 C.P.R.' 2635.502, that the interest of the
Department in your participation in this case outweighs any possible concern that a reasonable
person may question the Department's programs and operations.

OGE 2011-11-2

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GENERA!. COUNSEi. OF THE DEPARTMENT OF DEFENSE

l EiOo DEFENSE PENTAGON
WASH!I~GTON, D.C. 2.030 H EiOO

MAY 1 1

~c::

GENERAL C:OUNStl..

MEMORANDUM FOR UNDER SECRETARY OF DEFENSE FOR ACQUISITION,

TECHNOLOGY, AND LOGISTICS
SUBJECT:

Determination to (hant Waiver of Ethics Pledge Restriction on

Participating in Particuiar Matters Involving Textron, Inc.

You were appointed to the position of Under Secretary of Defense for Acquisition,
Technology, and Logistics, on Aprll.27, 2009. Pursuant to paragraph 2 of the Ethics
Pledge you signed, you are currently recused for two years from the date of your
appointment from participating in any particular matter involving specific parties that is
directly and substantially related to your former client, Textron, Inc. ("Textron"), unless
you receive a waiver.
My understanding is that the consulting advice you provided to Textron was
strategic in nature. Your advice focti.Sed on merger and acquisition matters for Textron's
corporate headquarters, trends in military technology and strategy, and how and where
military platforms and weapon systems could be deployed effectively in Department of
Defense ("DoD") theaters of oper~tion. You provided specific business advice to
Textron on only one individual weapon system, the Sensor Fuzed Weapon. The last year
of DoD production funding for this w~apon system was in Fiscal Year 2007.
The Director of the Office of'Management and Budget has delegated to me the
authority to grant any current DciP appointee a written waiver of any restrictions
contained in the Ethics Pledge. Before granting such a waiver, I must consult with the
Counsel to the President or his desigtiee and determine that either the literal interpretation
of the Pledge restriction is inconsistent with the purposes of the restriction or that it is in
the public interest to grant the waiver.
After consultation with the White House Special Counsel for Ethics and
Government Reform, the designee of ifte Counsel to the President, I have determined that
it is in the public interest for you to participate in matters relating to Textron and any of
its divisions and subsidiaries. Sujjstantial national security challenges require your
expertise and judgment in making sound acquisition decisions on major defense
programs, several of which involve Textron or one of its subsidiaries. In my judgment,
the nature of your previous consulting arrangement should not restrict your ability to
address these national security challenges. Accordingly, I hereby waive the requirements

OGE 2011-11-2

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of paragraph 2 of the Ethics Pledge as it pertains to your future involvement with

particular matters relating to Textron or any ofi~ divisions or subsidiaries.
Furthermore, while a reasonable person with knowledge of the relevant facts may
question your impartiality in matters relating to Textron, I have made a separate
determination, pursuant to 5 C.P.R. 2635.50~. that the Govennnent's interest in your
ability to participate in these matters, given the critical responsibilities associated with
your position as DoD's chief acquisition offici;!), outweighs the concern that a reasonable
person may question the integrity of DoD's programs and operations.
/'/

( /Jeh c~~~ :~hnson

\~!~~~~ency Ethics Official

OGE 2011-11-2

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Washlngwn
May G, 200!'

FROM:

Lee J. .l<)i'tlms

Desig11ated Ag;oucy ElbreiS Official, lJep\lrtl:Ui!:li.t of Jilsti~e

&UlW?.CT: Wai we1: ~;om Re-:~tric(Joil!l Re-lated \t1. CovilJ!l!):tm :& Burtiilg> LL.P in Irr<e>till!'tlon
ilf 0\i'ii-etlllMI\"! Atl'\'Jtil~Y O:induct In Unit<~d-States v, th~.ntlote F_ .Ste'v'ilti~h Crim. No, Qll\.'2:31

fD.D.C.),
f'mlll!ant to -th~ aud:rQrity rJe:l!O.g;lled UiJ;ler :3:tion 3 of Elt!iiJU!ive 01'\'lm" 1.3490 an(( for the reasons
slated i.n tlw atwcherl met'r!Cl!'ll.!lUU!rl and $1llr oonsullution \"W 1he Ci:>Ul'\llel!o the Pr<lSident. I.
lleteby certi:lY that a llinitild. waiv.u of th~ re.s:ii'iqiipns .:>f paragraph 2 Qf the Ethi:i:Os. fledge is .illlhe
pU:blic ln!ere;.t forappuinteeErio.I't H:Old!:'r, Jr; itl thl:ltatisition of A:rmrney Oe;tel'ru in i:J:leDeplll'tllmlt of Jtmtke. Mr. HoMer shall i!:ot b~ restrieted fr.om pmticlpa.tln:g In lh~- hwestiglrtian

i'nto 1lle eond:uct of gi.}Vat001Gt1t atlotneysjri United States- v. Tiwcrde>r-e F. St~nw, Crim. No, ()~
.<3l (D. D.C.). Sll1:rject t<; the iimltatlcru; set f<>rth. in t.iJe att:!C.'led meJ:l.ii;ltandutn and will.mut
waiving the iirnitailon on :t>ir, Holder's p;~:!icipation lli regulations and cru1tracm as .Pr"vidt."'d in
paragraphl ofthe Etbici! Pledge. This waiyet doe,~ not otlwrwise affect Mr. Hol-der's obligation
to G{)ll!ply wW; O{he.r pm\ilsions o(tl'.!ll Ethics Pled&e or with rul otbe<!rre~isllng g;:rvtnil'..llllt
efuioo niles.

OGE 2011-11-2

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U.S. Department of Justiee

Ju:lfice Management Division

MAY -6 2009

Was(ifngfon, D.C. 20530

MEMORANDUM FOR THE ATTORNEY GENERAL

v</M

FROM:

LeeJ.Lofthus
Assistant Attorney ot,AW}or Administration and
Designated Agency Ethics Official

SUBJECT:

Waiver under E.O. 13490 and

Detennin~tion

under 5 C.P.R. 2635.502

The purpose of this memorandtun is to waive the restription in Executive Order 13490 of January
21, 2009, Ethics Commitments by Employees in the Ex~cutive Branch, and further to make a
determination under the standards of conduct on impart);Uiiy, 5 C.P.R. 2635.502, that-you may
participate in a particular matter in which your former #im represents a party, relating toln Re:
Special Proceedings, Misc. No. 09-mc--00198 (EGS) wjlich arises from the prosecution offonner
United States Senator Ted Stevens.

On April!, 2009, the Department asked the U.S. District Court for the District ofColtunbia,
Judge Enunet Sullivan, to grant the defendant's motion to dismiss the charges in U.S. v. Stevens,
the prosecution of former Alaska Senator Ted Stevens.' On April 7, 2009, the Couit rumounced
that it was appointing a special counsel, Henry Schuelke III, to "investigate and prosecute such
criminal contempt proceedings-as may be appropriate" ilgainst six Department of Justice attorneys
who handled the case. The Department's Office of Professional Responsibility (OPR) initiated an
investigation into the conduct of the prosecutors when t!il'lY self-reported tho:> Court's findings of a
Brady violation on October 2, 2008. Publicly availableAocuments were gathered but a full
investigation was held in abeyance based on OPR's general policy of not proceeding with an
investigation during the pendency of active litigation.

You are generally recused from participation in patti cular matters with parties in which yoilr
former finn is or represents a party, under the standards 'of conduct for employees in the executive
branch, 5 C.P.R. 2635.502,' and under E.O. 13490. . _
ono:> of the DOJ attorneys .
under investigation by OPR, is represented by your fonfier finn, Covington & Burling. Therefore,
absent a waiver from the restrictions in the Executive O;der and the standards of-conduct, you are

OGE 2011-11-2

Bates 000113

Memorandum for the Attorney General

Subject: Waiver under E.O. 13490 and Determination under 5 C.P.R. 263 5,502

Page2

recused from !)articipating in the investigation of'llillllllllllill

In most OPR investigations, counsel for aDOJ attorney would communicate with OPR, but
generally not with other DOJ officials. It also usually would not be necessary for the leadership
of the Department to be involved in the early stages of an investigation. Howver, the particular
circumstances surrounding these investigations are unusual, and present important issues even at
this early stage of the process. As notec\, the Court appointed a special counsel to conduct an
investigation at the same time the Department's investigation, by OPR, is underway. This is
highly unusual, and raises jurisdictional issues, and questions concerning the authority of the
special counsel and the proper re!ationship.between OPR's investigation and that of the special
counsel. These are impor;ant questions tliat affect the Department's institutional interests, are
sensiti.ve determinations, and may include questions of first impression. Such issues will require
resolution by the leadership ofthe Departhient, including yourself, the Deputy Attomey General,
and the Assistant Attorney General for the Criminal Division.

In order for you to participate in these de<;i:iions, it almost certainly will be necessary for you to
understand and be familiar with the individual investigations of all six Department attorneys, and
there likely will come a point where you w.in need to participate in the investigation o f p F as well as the other investigations.- It is not feasible or practical for you to remain recused
from 0ne investigaticm. This would interfere with your ability to make necessary decisions for
the Department in connection with the Department's investigations and the special counsel's
investigation. In order for you to be fully advised on the issues and facts as they arise, to enable
you to make the legal, policy and strategic decisions necessary for the Department, you must be
able to participate and freely receive inforiilationandadvice on any and.a!l of the individual
investigations. Based on the advke from the Principal Associate Deputy Attorney General, I
conclude that it is not necessary at this
that you meet or communicate with your former
firm, should they make such a request. If direct contact with Department officials other than
OPR is determined to be in the Department's interest, other officials in the leadership offices
would be available to meet with your former firm.

time

Executive Order 13490, Ethics Commitm~nts by Employees in the Executive Branch

The Executive Order provides that a political appointee will not, for a period of two years from
the date of appointment, participate in any particular matter involving specific parties that is
directly and substantially related to the apppintee's former employer or former clients, including
regulations and contracts. Sec. 1, paragraph 2. The Executive Order further provides that
"particular matter involving specific partieii't shall have the same meaning as set forth in the
ethics regulations at 5 C.P.R. 2641.201 (li), except that it shall also include "any meeting or
1

Decisions with respect to the approval of outside representation for

and the
other Department employees are being made by the Civil Division through the standard

procedure for these decisions.

OGE 2011-11-2

Bates 000114

Memorandum for the Attorney General

Subject: Waiver under E.O. 13490 and Determination under 5 C.F.R. 2635.502 '

Page3

other communication relating to the performance of one's official duties with a former employer
or former client, unless the communication applies to ii particular ruatter of general applicability
and participation in the meeting or other event is open to all interested parties." E.O. 13490, Sec.
2{h).

E.O. 13490 references the following definition provided in the standards of conduct (however,
the E.O. speeifically includes regulations and contracts!;
5 C.F.R. 2641.20l(h)(l): Particular matter irvolvinga specific party or parties (I)
Basic concept. The prohibition applies only to communications or appearances made in
connection with a "particular matter involving a specific party or parties." Although the
statute defines "particular matter" broadly to include "any investigation, application,
request for a rnling or determination, rulemakirtg, contract, controversy, claim, charge,
accusation, arrest, or judicial or other proceedltig;" 18 U.S.C. 207(1)(3), only those
particular matters that involve a specific party qrparties fal,l within the prohibition of
section 207(a)(l). Such a matter typically invo(yes a specific proceeding affecting the
legal rights of the parties or an isolatable transa,ction or related set of transactions between
identified parties, such as a specific contract, gr'o/Jt, license, product application,
enforcement action, administrative adjudicatio~, or court case,
The E.O. provides for waiver of the recusal provisions by the Director of the Office of
Management and Budget (OMB) or his designee, in cq11sultation with' the Counsel to the
President or his designee. E.O. 13490, Sec. 3(a). The Pirector, OMB, has designated the
Designated Agency Ethics Official (DAEO) of each ex\Jutive brllflch agency to exercise the Sec.

3 waiver authority, in writing, and In consultation with the Counsel to the President.
- Specific Waiver Request

The-Stevens prosecution has raised important issues copcenting bow the Department conducts its
!)perations, including questions of the Department's ab,iiity to investigate allegations of
misconduct by its own attorneys. These issues have been raised and are being debated in a very
public way, and !)ley go to the heart of the DepartmenCs ability achieve its mission of
evenhanded enforcement of the Jaw. Given the significant public interest involved in these
proceedings, it is vital that you be able to exercise youi")eadersbip role in this matter.
The standard for waiving the restriction in the E.O. is t~t it be in the public interest. E.O.
13490, Sec. 3. I believe that it directly serves the public.interest that the Department have the
benefit of your participation in this case, given the instit)ltional interest of the Department, the
important legal, policy and strategic considerations, arid' your knowledge of the case. I certify
that it is in the public interest that you be able to participate in the investigation ofillll
relating to the matter of In Re: Special Proceedings.

OGE 2011-11-2

Bates 000115

Memorandum for the Attorney General .

Subject: Waiver under E.O. 13490 and D~tennination under 5 C.F.R. 2635.502

Page4

5 C.F.R. 2635.502
The standard of conduct at 5 C.F .R. 2635.502 requires an.employee to take appropriate steps to
avoid an appearance of loss of impartiality in the performance of his official duties. Under
Section 502, where an employee knows that a person with whom he has a "covered relationship"
is a party or represents a party to the matter, he should not participate in the matter without
informing an agency official and receiving authorization to participate. Included in the definition
of a "covered relationship" is any person for whom the employee served, within the preceding
year, as officer, <;lirector, trustee, general partner, agent, attorney, consultant, contractor, or
employee. 5 C.F.R. 2635.502(b)(l)(iv).
You have a oovered relationship with YOU\ former firm, Covington & Burling. However, the
finn undertook this representation after yo\i left, so you had no involvement during the time you
were a partner with the finn. Under the standard, I conclude that a reasonable person would not
question the integrity of the Department's programs and operations based on your participation in
the investigation of a Department attorney represented by your former firm, and that should such
questions arise, the Deparhnent's interest in your participation outweighs any possible concern.
WAIVER: I hereby certifY that it is in the.(,ublic interest for you as Attorney General to
participate in the investigation of a Department attorney who is represented by your fanner firm,
in connection with In Re: Special Proceedings, as discussed above, and pursuant to E.O. 13490
Sec. 3(a), I waive the restriction in Section I ofE.O. 13490, oil participation in a specific party
matter that is directly and substantially reiiited to your former employer, Covington & Burling,
except that you will not have any direct contact with Covington & Burling. We have consulted
with the Office of the Counsel to the President concerning this waiver. Further, I hereby
determine, under 5 C.P.R. 2635.502, that the interest nfthe Department in your participation in
this case outweighs any possible concern that a reasonable person may question the Department's
programs and operations.

OGE 2011-11-2

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Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Counsel to the President, I he~by waive the requirements of paragraph 2 of
the Ethics Pledge of Ms. Valerie Jarrett with respect to her former relationship with Chicago 2016. r have
determined that it is in the public interest to grant the waiver because Ms. Jarrett's knowledge and
expertise on the United States' sole Olympic bid for 2016 inake her an ideal person to lead
Administration efforts in support of this bid. I understand that Ms. Jarrett will otherwise comply with the
remainder of the pledge and with all preexisting governni~nt ethics m!es.

Dated: April 2, 2009

Special Counsel to the President and

Designated Agency Ethics Official

OGE 2011-11-2

Bates 000117

Waiver Pursuant to Section 3 of Executive Order 13490

After consultation with the Principal Deputy Counsel to the President, I hereby waive the requirements
O'f paragraph 2 of the Ethics Pledge of Mr. Jonathan Kravis with respect to his former relationship with
Williams & Connolly LLP.
Executive Order 13490 (Ethics Commitments by Executive Branch Personnel) requires all presidential
appointees to sign an ethics pledge that, among other things, prohibits them from working on particular
matters involving specific parties who were their employers or clients within the two years prior to their
appointment or communicating with such parties on official business. Section 3 of the Executive Order
provides that a waiver of the restrictions may ,be granted when it is determined "(i) that the litera!
application ofthe restriction is inconsistent with the purposes of the restriction, or (il)that it is in the
public interest to grant the waiver." Sec. 3(a):
I have determined that this waiver is in the public interest in order to allow Mr. Kravi~ to continue
working on particular matters involving specific parties in which he has developed substantial
knowledge and expertise. By law, former Presidents have certain interests that attach to their office as
former Presidents. Historically, in order to re.spect those interests, the White House maintains contact
with representatives of the offices of former !"residents. Mr. Kravis has been one of the White House
attorneys tasked with maintaining this contact with a representative of the office of former President
George W. Bush.
On June 18, 2009, former President Bush's rel)resentative, Mr. Emmet Flood, joined the partnership of
Williams & Connolly LLP, Mr. Kravis's former flr.m. Because Mr. Kravis has developed institutional
knowledge on the matters involving the offic of former President Bush and because transferring his
responsibilities to other staff members would substantially disrupt the White House's ongoing work, I
have determined that the continuity of his ofilce's coordination with the former President's office was in
the public interest. Based on the foregoing, I hereby grant this waiver pursuant to. Section 3 of the
Executive Order to Mr. Kravis in order to permit his continued and uninterrupted participation in
particular matters involving the office of the former President. This waiver is limited only to particular
matters involving specific parties relating to williams & Connolly's representation of the office of form<>r
President George W. Bush. I understand that Mr. Kravis will otherwise comply with the remainder of
the pledge and with all preexisting government ethics rules.
_..,

Dated: August 13, 2009

Special Counsel to the ?resident and

Designated Agency Ethics Official

OGE 2011-11-2

TO;

Bates 000118

Carmen Lomellin

Detennination to Grant Waiver and Waiver of Ethics Pledge Restriction on

Participating in Particular Matters Involving the Organization of American
States.
Background Regarding Ethics Pledge
Executive Order 13490, "Ethics Collllllitments by Executive Branch
Personnel," (EO) Section I , requires all cqvered political appointees to abide
by several commitments. One of those commitments provides that a .
covered appointee may not for a period oftwo years from the date of his or
her appointment participate in any particular matter involving specific
parties that is directly and substantially re!~ted to the appointee's fonner
employer or fonner clients. (Obama Ethic? Pledge, Paragraph 2) For
purposes of applying this restriction, the t~:pn "particular matter" has been
interpreted to include ''meetings or other communication relating to the
perfonnance of orte's official duties with a fonner employer or client." D009-011, OGE Memorandum to Designated, Agency Ethics Officials, March
26,2009.
'
However, a waiver of the restriction~ contained in Paragraph 2 may be
granted upon a certification either that the literal application of the
restriction is inconsistent with the purpose of the restriction or that it is in the
public interest to grant the waiver. EO,~~ 3(b). By memorandum dated
February 23, 2009, the Office of Government Ethics announced that the
Designated Agency Ethics Official of each executive agency had been
delegated the authority to grant such waivers, after consultation with the
Counsel to the President. See D0-09-008; OGE Memorandum to
Designated Agency Ethics officials, Feb~ary 23, 2009.
Background Regarding Your Appointment
You are the Pennanent Representative of the United States to the
Organization of American States, with rari,k of Ambassador. In that
capacity, you serve as the principal repres~ntative to the Permanent Council
of the Organization of American States (Q:i\S). Your interaction with OAS
is constant, both in terms of the OAS Secr~ariat as well as representatives

OGE 2011-11-2

Bates 000119

-2-

and observers from other countries. Your duties additionally require you to
have direct U.S. engagement with OAS commissions, such as the InterAmerican Commission ofWorrien.
Prior to assuming your position with the Department of State as
Permanent Representative ofthe United States to the OAS, you were an
employee of the OAS, serving as the Director of Outreach, a position you
held since March, 2009. Prior tq assuming that position, you served as the
Executive Director of the Inter-American Commission of Women at OAS, a
position you held for approximately ten years. You requested a waiver of
Paragraph 2 of the Ethics Pledg~ so that you may participate in particular
matters involving the OAS (inCluding its the Inter-American Commission of
Women) that directly and predic;:tably relate to your duties as the U.S.
Permanent Representative to the. OAS. Your request is not limited to any
specific participation, but is int~nded to allow you the flexibility to interact
fully with the OAS and any of its bodies, offices or agencies.
After consultation with the Office of White House Counsel, I
determine that first, the literal application of the restriction here is
inconsistent with the purpose of the restriction, and second, it is in the public
interest for you to participate in matters relating to the OAS and any ofits
bodies, offices or agencies.
When the former employer is an international organization, which
consists of representatives of many countries, including in this case the
United States, the concerns underlying the restrictions are not implicated.
Further, there is little likelihoo(\ of commercial gain that can be obtained by
government employees engaged in activities affecting the interests of his or
her former employer when the former employer is an international
organization. Accordingly, literal application of the restriction in this
situation is inconsistent with the purposes of the restriction.
In addition, it is essential that the United States have an effective,

credible voice in the OAS on the many important issues that arise in that
forum, ranging from drug trafficking to democracy building. You have
spent more than a decade workiiig as a senior official within the OAS and as
a result have developed an intimate knowledge of the organization, its
management, its programs and policies and the way that it functions. The
knowledge, skills and relationships you developed during your years at the
OAS give you effectiveness and credibility, and will allow you to

OGE 2011-11-2

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-3-

significantly advance U.S. interests within the organization and the

hemisphere. The fact that you are a known and trusted voice within the
organization will particularly lend weight to your interventions and enhance
your access to the Secretariat. Accordingly, as a separate and independent
basis of the waiver, I determine that it is in the public interest for you to
participate in matters relating to your.forrrier employer, the OAS.
Based on the above analysis, I waive the requirements of paragraph 2
of the Pledge as it pertains to your future involvement with particular
matters relating to the OAS and any of its b.odies, offices or agencies.
Furthermore, while a reasonable person with knowledge of the
relevant facts may question your impartialitY in matters relating to the OAS,
I make a separate determination, pursuant to 5 C.F.R. 2635.502, that the
Government's interest in your ability to participate in these matters, given
the critical responsibilities associated with your position as U.S. Permanent
Representative to the OAS, with rank of Ap1bassador, outweighs the concern
that a reasonable person may question the ~ntegrity ofthe Department of
State's programs and operations.

f;J.-3--0{
Date

~IV'~

(...,

~es H. Thessin
Design~ted Agency Ethics Official

OGE 2011-11-2

Bates 000121

Ol!:c$ o-f ~he Soliettor

Wa.Shmgton, o.c. 20a1 c

UMITF.D W ATVER OF EJ.'l:CUTIVE ORDER 13490

FOi~ JOSEPH MAIN

In accordance with Section 3 ofEx<:!cv'tive Orde1' 13490 (.Tantlary 2!, 2009) and after
consultation with the Office of the Cormsello the Pre;-ld<':llt, 1 have deler.mined tlwt it is in
the public i.ut..'>rest to grant to Joseph M<>in a limited waiver of the Ethics Pledge
restriction in Section!, paragraph 2. !:>ftbe 12xecutiv<;> Ord<;>rto enable him to effectively
carry nut his tlu!ics as Assistant Secretary of La1)l)r for Mine Safety and Hualth. Ahs~nl
tllis waivor, Mr. Mait1 would be restricted or two years following his appoint111cnt from
parlk~pating in any particutar matte.r Involving spcci lie partie> in v,"hich his former
employer. the United Mine Workers of America (UMW A), is a party or represents a

party,

Pursuant to this waiver, Mr. M~1in mi(y meet or communicate with any authorized miner
rcprcsonta.tivc, as identified in Scctiorl l03(f) of the Fcdcrall\finc Safety and Health i\ct,
or nny local official of the UMWA, either mdividua!Ly or in a group setting, conceming
any matter relating to mine safllly arid health. Authori.wd minO't r~prosontativos (lr !neal
UMWA officials may typically be present when Mr. Main interacts vl'i.th miners. Subject
ro the limitations set forth below, thi~ waiver wil.ltJ>erefMe ~erve to facilitate Mr. :M.ain'N
meetinss or communications with mirters since he will not be first required to dctcnninc
whether w>y miner participating in the. meeting or cornnmnicatioa i.s an authorized miner
representative or local UMWA official who may be deemed to qualify as his ''former
emp!oy<:Or"1

The Mine Safe1 y and Health Admi:nis'irutiQn (MSHA) is an agency esk,blished \'lithill the
United States Department ofLahonvith the re~ponsibility fi.rr safety and health ln the
Nation's mines. ll. admi11isti!r~ lh<l pr6vision8 of the Federal Mine Satbtv and Health Act
of 1977, as amended by the Mine Improvement and New Emerg~;.ncy R;sponse Aot of
2006. MSHA 's mission is to: l) enforce complim1coo "'ith mandatory safety and hca!tlt
standards a~ a means to elimitlate fatal accidents; 2) reduce tht: frequency and severity of
aotlfutal accidents; 3) minimize hcaltit hazards; and 4) promote improved ,;afety aod
bealth condi tiont< in the Nation's mhi.eu.
The Asst~Lant Secretary for Mine Safet v and Health oversees the <ldministration and
enforcement of !he l.VIine Safety a:ndi{;alth Act, as amended, and is charged with

promoting the safety and health of America's miners by developing and enforcing
standards; providing trai1ring, otEtreach and educatiott; establishing alliances; and
1 I navu d~!ocmin~d tftal a Ullncr's mcmbcnihip ln the UMW A, standing !!lone. does not caus~ a miner to
qualify ns Mr. Main's "fonner employer" within the meoning ofSectio>t I, ~wagrnph 2, ofEl<crt>liv< OtJor

!3490
l

OGE 2011-11-2

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encouraging improvement in mining safety and h~.alth. The Assistant Secretary also
decides appeals off>etitions for Modificatklll oftlHlndatorysafety st!llldards when an
appeal is filed.

As part of his responsibilities, the Assistant Sccrctpry for MSHA (hlquently meets with
miners. representatives of the labor unions represt;l/lting miners, mine ()Wners and
operators, rutd other individuals or organizations involved in mine safety and IJcalth.
These contact~ lake place at formal meetings al M~HA's headquarters il1 Arlington,
Virginia, at MSH./1. offices throughout the countr}\ !!lld many non-govetllllle!ltal ~itcs.
The MSfLt\. Assistant Secretary also frequently visjts mine sites and other vemtes where
he Call obtain infonnafion !md directly learn the COl'JCClUS of individual miners and their
representatives. '!hese exchanges provide valuable information to tbc Assistant Secretary
that he might not otherwise receive. Similarly, tllrs may he the most effective rnellUS for
individual miners to convey this information or raise concerns without the potential
il:ihibition ofbavingthcir cmployerprt.Osent.

Since retiring fiom the UMWA in 2004, Mr. Main has bcou self employed as an
international miniag health and safety advisor/conJ;ultan! in which he ha$ provided l1is
expertise to a munbc of organizations, i:nduding it~ a training consultant to the United
Mine Workers of America Career Centers, Tnc. ("UMWA Cnreer Centers") during 20072009. The UrvJWA Career C o:mtcrs has the stated mission of offcri ng training programs
for new miners, as well as individuals ~v110 have beon dislocated from employment in !he
mines.
Due to the sc<.>pe of Section 2 of the Order and the definition of particular matter
involving ~peciiic parties" in Section 2(h), a broa4application oftllis prohibition would
be detrimental to both the lvline Safety and Healtl1 .1\dministr<~.lion and individual miners
who are roemhers of the tJ:lV1WA, as it would prec~ude Mr. Main from speaking with
those individual miners in any situation, such as tour or other site visit., where;
authori;ced mi.ncr rcprcscntativesl or local liM WAofficials W()\lld also be present.
Without a limited waiver, Mr. Main would be sigi)iiicantly liu1ited in the perfln:uance of
critical duties. !his would deptive the Departmen~ of Labor of the service of M
individual who brings unique und extensive relev~l)t cxpclicnce to the ]!OSition, and it
would 11lso deprive memhers and representatives qftha largest union repTeseming coal
miners the opportunity to provide input and raise ct>nccms with the nation's top mine
safety !llld heallh official.

2 ll should be noted tha.t authori7.ed minerrepresentaltvcs may or may not be members of the
IJM\VA. In sJtuarions where !.hey are UMWA rnembcis, !her may be circumstances where they
are efjecrively spcl>kmg oll behalf of the uniOl>. Accor~ingly, the waiven~ neces;ary In covet
<:onversations or meetings between the authorized mmcr mprcscntatives and 11r. Main.

OGE 2011-11-2

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ConctusioniLimited Scq:p_\1-\lf.W~imAccordingly, l have dctcmrined that- because of the nature and importance of the
position of Assistant Secret11ry for Mihe Safely at.ld 'Health and Mr. Main's uniquely
suited qualificruions- it is in tllc ptlbllc i11tercst lo grant a limited waiver of the Executive
Order, in accordance with Section 3 of that Order. This waiver is limited to ot1able Mr.
Main to mt>:'!t or communicate with ali)'' authorized miner represenltttive or local onida!
of the t.JMVVA. either itld.ividtal!y or in u group setting, conceming any tnattcr relating to
mine saH:1y and health. fn all ')tlJcr situations and respects, the restric.tiou.s of Section 1,
paragraph 2 of the Order wi!lllpply. Spccilicnlly, Mr. Main will allidc by these
restrictions when the meetings or cori1i:htmications mvolve any: I) pending litigation in
judicial or administrative tribunals to which tb.e UMWA <lr 1JMWA Career Centers is a
party or represents <1 party; 2) grant detenninations in which either the UMWA or
UMWA Caree1Centcrs is an applicant; or 3} !JUY particular matters i.nvolving specific
parties in which MJ. :VJ.ain previously patticipatcd as a consultant to the UMW A and
Ulv!WA Career Centers. illcludit1g regulations and mandatory mtfety l!l'l<l health standards.
Mr. Main h<lS been, and will continue to be advised on the npplicabi!lty of all othe.r
aspects of the Order, .!IS wdl ns the restrictions imposed hy all otlu'r ethics laws a!td

regt!latk>ns, and ha~ agt'ccd to tako the ne.cessary steps to be in full compliance wiLh these
authorities.
J1 I

November I0, 2009

.. . rr

=-cc--.....,--:::----::-------------- .

Robctt A. Shapiro
Associate Solicitor for Legal Cou.nsel
Alternate Designated Ethics Ot1icial

OGE 2011-11-2

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May6,2009
CERTIF!CATiON;OFPttBUCINTERESTWAfVERF0'RDAVIDOGDEN
Lee J, L()fth)l&

D>osi'gnated Agency EtliiC$ Offioiah .Pl!pMmwnt ofJustice

SUBJECt~ Waiver 'from Restrictions Relamd to Willner Cirtler Pick!:'ring Ha!e and Dorr, LLP
ln .lnvestigatio;r.of.GovernmentAttorney: Conduct lit United: SiatelLV. Theodore f. Stevens, Crlm.

No. oa~::n I (JJ.D.C,),

PUJ1l\lt;nldn.tlie:a!lthori!j ddeg<!te& ll1'tder Se<lfioo 3 ofExeoutive Order i3490 and for the reasoilll
stated in the attached .memotan.dumartd.after consu!t~t!on Witli.tlie Ootlllsel to ~hei'residenU
h>m>:by cettlj}' th~t a liml.tedwaiil&t of the restri~tion~ o( paragt;lflh 2 oftn~ E:!bics Pledge. is- in. the
pnb!ic inlerestfor appojilteeDavid W. Ogden in.tbe.positioru:ifDeputy Attorney General in !he
Dep;mmelit of Justice . Mr. ()g'd,en shall iiiltbenlStricted from.pru:'tklpa!illg hi i:hemveugatton.
lnto-tlfecandnct!1f~overntnem:~ttomeys i11United:$iates v: Theodore F. St~n"=', Crim(No. 08
151 (IJ.D.C.), subj<ictto ilie lfuritatio!lssetftirt!dn the attacliednwmornndUilland without
waiving 1l)e liwitation t1n \Vk. Ogden's partioijJatilln in reg111ations 1!1ld contract,~ as provided in
part;lgttl,ph 2 ofthe Ethics l'leilg~. This waiver does ~ot othenvl>e affect Mt\ -Qgd~n's opligation
to comply with other provisiort~onhe ntl:tlcs Pte<lge or with all oflrerpree:dstlog government
etlilcs tules.

OGE 2011-11-2

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United States Department of State

Washington, D.C. 20520

www.state.gov

TO: Stephen J. Rapp

Detennination to Grant Waiver of Ethics Pledge Restriction on Participating
in Particular Matters Involving Fonner Employers
Background Regarding Ethics Piedge
Executive Order 13490, "Ethics Commitments by Executive Branch
Personnel," (EO) Section 1 requires all covered political appointees to abide
by several commitments. One Of those commitments provides that a
covered appointee may not for a period of two years from the date of his
appointment participate in any pa;rticular matter involving specific parties
that is directly and substantially related to his former employers. (Obama
Ethics Pledge, Paragraph 2). A riiaj or purpose behind this restriction is to
ensure that political appointees n.Qt leave the public with the appearance that
any official actions they take are influenced by their former employers rather
than by the interests of the United States. For purposes of applying this
restriction, the term "particular matter" has been interpreted to include
"meetings or other communicaticm relating to the performance of one's
official duties with a former employer or client." D0-09-0 11, OGE
Memorandum to Designated Agehcy Ethics Officials, March 26, 2009.
However, a waiver of the restrictions contained in Paragraph 2 may be
granted upon a certification eith~t that the literal application of the
restriction is inconsistent with the purpose of the restriction or that it is in the
public interest to grant the waiver. EO, Sec. 3(b). By memorandum dated
February 23, 2009, the Office ofGovermnent Ethics announced that the .
Director ofOMB had determineq that the Designated Agency Ethics Official
of each executive agency was the most appropriate designee to grant such
waivers, after consultation with t~e Counsel to the President. See,D0-09008, OGE Memorandum to Designated Agency Ethics Officials, February
23,2009.
Background Regarding Your Appointment
You are the Ambassador at Large for War Crimes Issues at the U.S.
Department of State. In that capacity, your duties will include advising the
Secretary of State directly and f()i-,mulating U.S. Policy responses to
atrocities committed in areas of conflict and elsewhere throughout the world.

OGE 2011-11-2

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Your duties will also include coordinating p.s. Government support for war
crimes accountability in the former Yugosll;wia,.Rwanda, Sierra Leone,
Cambodia, Iraq, and other regions where cr1mes have been conunitted
against civilian populations on a massive seale. Your duties will require
coordination with the United Nations and t)le various international tribunals,
including the Special Court for Sierra Leone.
Most recently, you were an employee of the United Nations, serving
as Independent Prosecutor of the Special Cqprt for Sierra Leone (the "Sierra
Leone Court"). 1 For the purposes of the Qbama Ethics Pledge, we consider
you an "employee" of the Sierra Leone Co}l\1;, as well as the United Nations.
You are seeking a waiver of Paragraph 2 of the Ethics pledge with respect to
your former employers on the basis that the literal application of the
restriction is inconsistent with the purpose of the restriction and/or that the
waiver would be in the public interest

Waiver of Paragraph 2 of the Ethics Pledge

You were appointed to yorir position with the United Nations directly
by the Secretary General. Your official title was Chief of the Office of the
Legal Affairs in the Executive Office ofthtSierra Leone Court, holding the
rank of Under Secretary. fu this capacity, you served as Independent
Prosecutor of the Sierra Leone Court. The United Nations underwrote your
salary and benefits and the Sierra Court unqerwrote your expense
reimbursement.
In your role as Ambassador at Large for War Crimes Issues, you will
be called upon to work with the United Nat!ons and the Sierra Leone Court
in many areas. This interaction will incluqe constant contact with United
Nations and Sierra Leone Court officials afall levels with respect to
particular matters involving specific parties, most noticeably,
communications with respect to operatiomfofthe Sierra Leone Court and
other United Nations-affiliated courts; ovet~ght of those institutions on
behalf of the United States Government ori such matters as appointment of
judges, prosecutors, and other senior offici~s
and on personnel and
,
'The Special Court for Sierra Leone was established jointly by the Sierra
Leone Government and the United Nations to hear and decide criminal cases
involving violations oflntemational and Sierrean humanitarian law. It is
funded entirely from donations fr~m gove~ents, including the U.S., which
has traditionally donated $80 million per ye~ for the Court's maintenance.

OGE 2011-11-2

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budgetary matters; information sharing; cooperation of member-states;

arrests of fugitives; ongoing case.li for violations of International
Humanitarian Law; disposition of prisoners; U.S. diplomatic efforts on
behalf of the tribunals; and other issues related to U.S. support for the courts.
You may also be called upon to consult with the United Nations with respect
to creating a newCourt or dismiintling an existing one. If you are not able to
participate-in these communicatipns, you will be U!lllble to adequately
perform your duties as Ambassa9or at Large for War Crimes Issues. For
this reason, I believe that a waiVer of Paragraph 2 ofthe Ethics Pledge is
prudent inorder to avoid even the appearance of a conflict of interest.
It is my determination that the literal application of the restriction in

this situation would be inconsisteht with the purposes of the restriction.

Because the United Nations is an international organization consisting of
many countries, including the Utiited States, and the Sierra Leone Court is a
tribunal tasked with creating a foium for the trial of violations of
international humanitarian law, tlie interests of these organizations are
generally consistent with the interests of the United States. The United
States provides significant funding to both the United Nations and the Sierra
Leone. Court and is the largest single contributor to both. Also, because
neither organization is organized. for the purpose of generating a monetary
.profit, there is no concern that you would take official action motivated to
increase the revenues of either of these organizations. I therefore believe
that as Ambassador at Large for War Crimes Issues, you will not leave the
public with the appearance that your actions are influenced by the interests
of your former employers, rather than by the interests of the United States.
I also believe that a waiver of Paragraph 2 of the Ethics Pledge is in
the public interest because your '\qork as Ambassador at Large for War
Crimes Issues will also require ybu to formulate U.S. policies in responding
to atrocities committed throughout the world as well as develop policies and
practices intended to prevent fuiUre atrocities. Such functions will for the
most part require working on a broad strategic and policy level and will not
entail making decisions on partidular matters involving specific parties.
You have extensive experience with respect to war crimes issues, and
it is precisely your understanding of these issues that helps bring value to
this position. You have spent the past two years working as Independent
Prosecutor of the Sierra Leone Court, and the six years before that in the
Office of the Prosecutor of the Ihternational Criminal Tribunal for Rwanda,
first as a Senior Trial Attorney an.d then as the Chief of Prosecutions. As a

OGE 2011-11-2

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result of these experiences, you have develqped an intimate knowledge of

the United Nations and the United-Nations affiliated Courts, including their
managements programs and policies, and the way they function and interact.
You have also developed extensive knowl~dge of the interpretation and
application of international humanitarian l?W. It is essential that the United
States have an effective, credible voice in tqe Department of War Crimes
Issues on many important issues that arise in that area of the law and in those
forums.

Finally, although you were paid by the United Nations and work at the
Sierra Leone Court, your position as Indepepdent Prosecutor of the Sierra
Leone Court did not require you to advocate on behalf of either the United
Nations or the Court. Instead, your office functioned independently from
both organizations, receiving instruciions qii its programs from no outside
organization.

.
Based on these factors, I hereby determine that a public interest
waiver in your case is appropriate. I certifY that the nature of your previous
employment arrangements should not restrj~t your ability to provide services
to the Department of State with regard matters involving the United Nations
or the Sierra Leone Court, and I therefore waive Paragraph 2 of the Ethics
Pledge. The Counsel to the President concurs in this waiver.
Furthermore, to the extent a reasonab)e person with knowledge of the
relevant facts may question your impartial~ty in matters relating to the
described organizations, I have made a sep1iJate determination, pursuant to 5
C.F.R. 2635.502, that the U.S. Government's interests in your ability to
participate'in these matters, given the critic~i responsibilities associated with
your position as U.S. Ambassador at Large for War Crimes Issues,
outweighs the concern that a reasonable peq;on may question the integrity of
the Department of State's programs and operations.
..

Dafe

01;;es The~sin
Designated Agency Ethics Official

H.

OGE 2011-11-2

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Offit:e ()ffhe D..l,0: 4400

(J.S. Deparlment o-f flomebrlfl Security
Washingt-on, DC 20$28-0485

Homeland
Security
Ma$'.19, 20o9

TO:

Janet A. Napolitano
Secretary.

FROM:
SUBJECT:

Amende Certification of Public Interest Waiver for Philip R.

Reitinger

Pursuant to the authority in Sectio1j 3 of Executive Order 13490 delegated to me by the

Director, Office of Management and Bu~get, and for the reasons stated in the attached two
memoranda dated March 24,2009 and Mayl8, 2009, and after consultation with the Counsel to the
President, I hereby certify that a waiver of the restrictions of paragraph 2 of the ethics pledge is in
the public interest for appointee Philip R. Reitinger in the positions of Deputy Under Secretary for
National Protection and Programs DirectOrate and D!rector of the National Cybersecurity Center, in
the Department of Homeland Security. .This certification amends and supersedes the certification
dated March 24, 2009. Philip R. Reitinger shall not be restricted from participating in any particular
matter involving specific parties that is qirectly and substantially related to his former employer
,Microsoft CorporatioJ>, or the Software Assurance Forum for Excellence in Code and the
Information Technology Information Sharing and Analysis Center. This waiver does not otherwise
affect Mr. Reilinger's obligation to coniply with other provisions of the Ethics Pledge or with all
other pre-existing government ethics rules.

OGE 2011-11-2

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C."i. [1-eJHIT!rnem of llrmwl:ulfl 'l'Citdl)

W:n;hm_ghiO. D!" 20;<:.,:0:-l

Homeland
Security
May 18,2009
MEMORANDUM FOR:

Robert E. Coyle
Designated Agency Ethics Official

FROM:

Janet Napolitano

SUBJECT:

Appointment of Ph iii p R. Reitinger as Director, National

Cybcrsecurity Center

I intend to designate Philip R. Reitinger as the Director of the National Cybersecurity

Center (NCSC) as provided in National Security Presidential Directive-54/Homeland Security
Presidential Directive-23. Mr. Reitinger is currently tlle Deputy Under Secretary for the
Department of Homeland Security's (DHS) National Protection and Programs
Directorate (NPPD), a position for which he has previously been granted a waiver from
paragraph 2 ofExecutive Order 13490,the revolving .door ban for entering appointees. His
waiver addresses the fact that his DHS responsibilities would requiJc him to participate in
particular. matters involving Microsoft, SAFECode, or the Information Technology Information
Sharing and Analysis Center (JTISAC). As discussed 1ielow, while the duties of this position
have a significantly lower likelihood that "particular nratters involving specific parties'' that
would be likely to involve any of those three entities a party or the representative of a party,
such matters could be encountered. Therefore, please.~dvise whether the waiver given for his
duties as Deputy Under Secretary will permit Mr. Rcitjngcr to serve as NCSC Director without
facing an unresolved conflict. If the existing waiver does not cover Mr. Reitingcr as the Director
of the Center, I request that the bar imposed by paragraph 2 ofExecutive Order 13490 in
connection with his duties as Director of the Center be waived.

as

Mr. Reitinger holds a Bachelor of Engineering degree in Electrical Engineering and Computer
Science from Vanderbilt University (1984, first in gr~duating engineering class with a 4.0 grade
point on a 4.0 scale). lie also holds a Juris Doctor degree from Yale (1987). Mr. Reitinger's
former employer was Microsoft, where he was employed as the Chief Trustworthy Infrastructure
Strategist from 2003 to his appointment in March 20Q!fto his current position. Mr. Reitinger
was not a lobbyist, but an executive in Microsoft. Prlqr to his service with Microsoft,
Mr. Reitinger was employed principally in various roles in the Executive Branch of the Federal
Government, with duties largely related to criminal law enforcement, most recently computer
and intellectual crimes.
'
Since the NCSC was established in March 2008, it h~sbeen responsible for promoting
collaboration and consultation among numerous Fedtlral cybersecurity centers to improve
situational awareness of cyber threats to federal networks. As described in the NCSC Concept of

OGE 2011-11-2

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Operations, the NCSC also encourages tharing and collaboration of information gained through
engagement with private sector and foreign partners. The Director reports directly to me and
provides support to the Secretary of Defense, Attorney General, Director of National
Intelligence, and assistants to the President in performance of their respectivecybersecurity
responsibilities. The Director is expecteif to remain apprised of state-of-the-art information
technology and analytics tools and methodologies, but his interaction with the private sector and
foreign entities is not to conflict with or be independent of the work and processes of existing
U.S. Government relationships and frameworks. The Director also shares responsibility with the
Office of the Director ofNationallntelligence (ODNI) to oversee the network that connects
membercybersecurity centers. The ODNI maintains technical and budget responsibilities,
oversees implementation of network connectivity, and coordinates budgetary and programmatic
repor1ing to the Office of Management arid Budget. Once the network is operational, the
Director will maintain the architecture tor day"to-day collaboration. Mr. Reitinger's
respons.ibilities will not include matters related lo award of contracts to his former employer or
others; never1heless, NCSC functions may involve Microsoft,. Si\FECode, or the ITJSAC as
par1ies to particular matters involving specific pmties or as a representative of members of the
broader communications sector to such matters.
Mr. Rettinger's service as NCSC Director is essential to the efficient and effective conduct of the
Department's cybersecurity responsibilities because of his U!liquc expertise, industry perspective,
and responsibilities for cyber programs with NPPD. It is the public interest that he serve as the
NCSC Director. The Secretary ofDefei1Se, Attorney General, and Director of National
.Intelligence support this appointment.

OGE 2011-11-2

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!.\

Offic-e ofthe DAEO

U.S. Department of Uomelatul Security

Washington, DC20528048:S

Homeland
\'?1_~>!, Security

Match 24, 2009

TO:

Janet A. Napolitano
Secretary

FROM:
SUBJECT:

Certifica ton of Public Interest Waiver For Philip R. Reitinger

Pursuant to the authority in Section 3 of Executive Order 13490 delegated to me by the

Director, Office of Management and Budget, and for the reasons stated in the attached memorandum
and after consultation with the Counsel to the Preside!\!, I hereby certify that a waiver of the
restrictions of paragraph 2 of the ethics pledge is in the public interest for appointee Philip R.
Reitinger in the position of Deputy Under Secretary f<)t National Protection and Programs
Directorate in the Department of Homeland Security. Philip R. Reitinger shall not be restricted from
participating in any particular matter involving specific parties that is directly and substantially
related to Microsoft Corporation, the Software Assura11ce Forum for Excellence in Code, or the
Infonnation Technology lnfom1ation Sharing and Aruiiysis Center. This waiver does not otherwise
affect Mr. Reitinger's obUgation to comply with other j>rovisions of the Ethics Pledge or with all
other pre-existing government ethics rules.

OGE 2011-11-2

Bates 000133

U.S.

l)ep~trtment of J!o-mefand Secur~i)"

wa.~hiogwn.

DC ws:m

Homeland
Security
March 24, 2009

MEMORANDUM FOR:

Rob~rt E. Coyle
Designated Agency Ethics Official

FROM:

Jari6t

SUBJECT:

W!liver of Ethics Commitment

Na~ ~'\_,

I intend to appoint Philip R. Reitinger tq.the position of Deputy Under Secretary for National
Protection and Programs Directorate (NPPD}. Microsoft is Mr. Reitinger's current employer.
In addition, he is a member of the board of directors of the Software Assurance Forum for
Excellence in Code (SAFECode} and he .is an officer in the lnfonnation Technology lnfonnation
Sharing and Analysis Center (lTSAC}. Asignificant portion ofthe duties of this position relate
tocybersecurity and necessarily involve Microsoft, SAFECode, and ITSAC in a number of
ways. Consequently, Mr. Reitinger will ~e barred by the Ethics Commitment from being
involved with certain matters in which any of-these entities has an interest or is represented.
Pursuant to Section 3 of Executive Ord~~ 13,490, I request the pmhibition of Section l,
paragraph 2 of Executive Order 13,490, ihe revolving door ban for all entering appointees, be
waived in Mr. Reitinger's case because it is in the public interest to do so. Mr. Reitinger would
bring essential private sector experience in critical infrastructure, focused on cybersecurity and
infrastructure protection to Department bf Homeland Security (DHS). Despite a diligent search,
no candidate has been identified who would not bring similar conflicts with him or her.
No identified candidate would bting wiift him or her the native ability, training, and experience
that Mr. Reitinger offers.
Mr. Reitinger holds a Bachelor of Engineering degree in Electrical Engineering and Computer
Science from Vanderbilt University (1984, first in graduating engineering class with a 4.0 grade
point on a 4.0 scale). He also holds a Juns Doctor degree from Yale (l987). He has been
employed with Microsoft since 2003 as the ChiefTrustworthy Infrastructure Strategist
Mr. Reitinger is not a lobbyist; he is an executive in Microsoft. Prior to his service with
Microsoft, Mr. Reitinger was employed principally in various roles in the Executive Branch of
the Federal Government with duties largely related to criminal law enforcement, most recently
computer and intellectual crimes.
DHS is responsible for working a new cj>bersecurity public/private sector partnership, which is a
hlgh ptiority for the Department, the Administration, and the Nation. Mr. Reitinger has broad
and deep experience working within the important and complex government and private industry
partnership organizations and wiU be key to rapidly affecting chaoge. This experience is critical
to our ability to defend public and private critical infrastructure. Specifically, his work on the

www.dh:s.g._ov

OGE 2011-11-2

Bates 000134

CS!S CtlmrnihHl on C;b~r,~ctnly t~>r rh~; Hth Pra>~Jency, un 1h~ l'r.:.-;kkrlt'~ N.ultlnal Security
T"k<.:ommunk"'ri.>r" .-\Jvls<ry Commin~c t NS'L\( ')end the rt1J Hish Lcvd Expc1ts (ir.iup on
C yhcr'{cCunty tit:HJ(.HlMr.ttc fl!S unique hackground. U~ hrin_g:; il Cl)ffib(n:iti\>rl uf i!t)\l:rwn{.:HI J.llJ
Jlfi\.~te :et:tvr VIGW.~ ~!rastkally needed in OHS tOr rh~ ...:yb-en;ee-urity mission f [1:, ~~~~~{
cq: . . . :iLn...:.: ~qth t}Jc 'n!~:.titl~t1im r~..'\;hnVhi~Y "i...:~hlr (' Mfdinanng (\>t.h!~il, l:'.'..!u.t,4~~ If,, .HMUun~
JJiJ t" rhc ')~~<..'!Jt". Tnri.1 Jll.ith.m Sh~1ring .tnJ ,\n.ll \''h f. -:tu.~r Pres1dcmt. h ~ttJ.,.~~ h' H1VV\fl,!!
rH I'\' ... :tp:ahl!iu,'!, ad :.p tCll~ f) !lh't't [(. ,\-J'HH:m-:;:.t..:

The need for this wa<vcr is driven by the facr rhat Mkrc>SI>tt, SAl'ECode, anJ ITSAC arc entities
&d'. ...:ntcd hy rhc: crHK\11 mfrr1stru~,;rurc rol<: \)( OHS ;.fr R\!itingcr' ~ w.>rk .It DHS .vuu!d rcl{Utrc
diJt h-.! P:r1k"IJMtr~ Ill pJntcufar u:utll'l"$ inhlhtn~ <1 ,~k:c..tii..: pa11Y thi!f. r~ ,Url.!diy ~d'h.i ;.ub:H,,UfJ~IHy
,..:(ut..;d ~.)the~~ !hn:c uHttlcs tll..:-11tlnc~cu;u \\ 1t~t :h.;: t ):p.lrlmcnr'.; r.;!,!'\lf,H01)' furH.:thm.

{u Jddid~m. ir 1~ tlkt;ltrhar :Vfi.crnsolt ~nd I fS:\C .vlll r,l: rCjll\:s..:nh:.'d in. m-l:dlrtg!) ch:lt ,ire n..>t
<>pon t.> the public th,lt chc D"Jluty. NP PD. w.:nld :I! tend, tvr c'X<U!I(lie. rhc FA C.\ -c.xcrnpt <ri<:<:al

rn fr.ls.tru~tu rr:

pJ.r1n<,:rshlp Adt.isory Cnum:d I ( rp A(-,, Due

lll

the JC\-'d <lt {h~ j)IJ~IIWI\ .u\d the

,lr' rhc ..,.,.,~fk 1 ~rr. Rdhog~r is tlnt cxpt>c:tt.:J cQ bt: invnl .t:d in. matters rdlateJ ft~ aw ~trd ,)t
...:-()ntracts 'd fus f1trtnc:r ..:mph);'t.>r ~>r lth~nvJsc. hl)~t.wer his r.gulatm;, ;1nJ t:{ordw.-ttlon r!)l . .:-;
'"H1JC:tlrr~

:q.iy ~laVe Utlpttt ~rt '~(acP'>::~,fi~ '\:\l:F:cv<Jt!. f I'St\C ...u~ ~he ~-":Sm::iatctl indu~uy 'l!ttur.
r. :~tl~r-:r:l.!l.lfit~~ !/ut Ft.:th:tJf ~<).!!'1\,,:~...:-.:: ~'i ,n ..:mt.!rg:m~ r!\!1"'1. fl i'i \.:ritit.:..II ,,., th\.' pul)h1: .twltih.:
......uur)' rh.H th . . n.:tul.~lory w< rk lfl thts ,l!t.:r.:IJH\u.flH:C~ ..dt'C:clt--.1!' .n.:gu!.alt1lll'i :hiH c.~a be.
,wpf...ill~lllt.'d hy (h..; IU.Iumy .~tt11r .1.\.f \\'tll'k :tl .:Hll;~ft' \\. hh 'l1t; . \ ~!n:uu.!!'~ltittO' ' -: r't', )l'tS" U1
.~.1hd :I.C th~ ...~(.'JlUU1 v. :, {r / :ttmger :- 'illtttit..: IU~-p..:~H \'C ...:v1HIIg !hrfll r.hc fltliJ.-.rr:. '-' 'H \!~hl-fJ
, t:l! ,:1 fe._:rp. en c.:-~"~ tlr' rh~ F .:-d ... 'll ( ll'.'~;trJa\.""nl ::. r~gu: .11~ i-. ..vctl<

OGE 2011-11-2

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Processes and controls are in place that will review Mr. Reitinger's role in this position.
Mr. Reitinger will report to the Under Secretary for NPPD, a position requiring Senate
confirmation. AJI regulatory work is thoroughly reviewed by Office of General Counsel, an
independent authority within DHS that do{;s not report to NPPD. Additionally, Mr. Reitinger's
work would affect the entire sector, noljn$l these entities. Therefore the industry itelf is in a
position to play the watch dog role to DHS 's work in the cyber sector.

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UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF TfiE GENERAL COUNS1..

March23, 2009

CERTIFICATION OF PUBLIC INTEREST WAIVER FOR MARGOT ROGERS

FROM:

Susan Winchell
Designated Agency Ethics Official, Department of Education

SUBJECT:

Waiver from Restrictions Related to the Bill and Melinda Gates

Foundation

Pursuant to the authority delegated under Section 3 of Executive Order 13490 and
for the reasons stated in the attached memorandum and after consultation with the
Counsel to the President, I hereby certify that a wiuver of the restrictioll$ of paragraph 2
of tile ethics pledge is in the public interest for appointee Margot Rogers in the position
of Senior Counselor to the Secretary of Education in the Department of Education.
Margot Rogers shall not be restricted .from participating in any particular matter
involving specific parties that is directly and sub&lantially relate<! to her former employer,
the Bill and Melinda Gates Foundation. This waiver does not otherwise affect Ms.
R()gers's obligation to comply wj_th other provisions of the Ethics Pledge or with all other
pre-existing goven1!Jlent ~icl rules.

ff~/ /.,.4/f /?
Signed

~VV"l/'V\.-'J /

Susan Winchell~
Designated Agency Ethics Official
Department of Education

400 1-fAIIY!.!\ND AVf,, s.w. WASIIINGTON, D.C. 20202-2110

Om mt.suon1r I() r:ruure "qual accutto tduMUM ()llt//u p,.CJ?loteedtlcaJiOWlt ~xodk:nce tltr(lug/routlk Nation.

OGE 2011-11-2

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USDA

iflljj
Unlte<IStal>il

Departraentot
Aogricttttu.re

Officeofthc-

MEMORANDUM FOR UNDER SECRETARY FOR RESEARCH, EDUCATION AND

ECONOMICS RAJIV J. SHAR

As<inln!Sfor Admlnlstretion

Offi"' ofElhtcs
01licooftlte oitector

FROM:

Ra)IInond .T. Sheehan

Designated Agency Ethics Official

SUBJECT:

Waiver ofPatagraph 2 of the Ethics Pledge

1400 loi!tpet>deoce
AvcnueSW
Washi!lgt!lll. DC
20ZSQ.2JIO

I have detetmined that it is in the public ii1terest to grant a waiver of paragraph 2 of Executive
Order 13490, "Ethics Commitments by E:i:ecutive Branch Personnel" qanuary 21, 2009) to Rajiv
J. Shah as Under Secreta~y for Research, Education and Economics (llliE), U..S. Department of
Agiiculture (USDA).
USDA's mission is to provide leadership ori food, agriculture, natural resomces, and related
issues based on sound public policy, the bSt available science, and efficient roanagement. In
order to accomplish this mission, USDA J.i;dtners with a large number of non-Fede>tal entities,
including charitable, non-pmfit foundatioii$ that participate substantially in activities that align
with USDA's mission. This waiver addreseyes Dr:. Shah's relationship with The Bill & Melinda
Gates Foundation {Gates Foundation), hisfmmer employer and a potential partner in USDA's
Global Food Secmity Initiative. The Gat~ J.10lllldation is a potential funding source for the
Initiative but not a recipient ofUSDA grants and funding.
Dr. Shah came to USDA after having serv~a in a variety of roles at the Gates Formdation,
including as. Director of Stlategic Opportninties and as Director of the Agdcultural Development
Program. The Foundation is significantly involved in national and international efforts to
alleviate hunger and poverty and to impro:V& health around the world. Supp01t for agricultural
initiatives is a major component of the Fmitidation's Global DevelopmentPiogram (Pmgram)..
Dr. Shah, while at the Gates Foundation, led the agricultural development aspects of that .
Program.
Currently, based specifically upon his extensive experience in the Program at the Gates
Fouudation, Dr. Shah has been assigned b}r Secret&y Vilsack to seiVe as the chiefUSDA
representative in the Global Food Secutizy Initiative (Initiative) which is driven by a "Whole of
Government" approach and ls led co!leotivdy by the Department of State, the National Security
Council, USAID, the Treasury Department.and USDA. The Initiative involves a collaboration
with multiple paitners, including public-private partnerships that inrplicate the Federal
Government and various non-governmen4il entities, including, but not limited to, foundations,
including the Gates Foundation. Ultimateiy; these non-governmental entities will wotk to
provide both technical expertise and financial assistance in which the non-governmental entities

An Equal Op;:Jartunicy Employer

OGE 2011-11-2

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provide the funding. In connection with the Initiative, Dr. Shah needs to engage in meetingsboth one-on-one and in group settings, involving Federal agencies, foreign countries, g!lmtees,
and non-Federal entities to assess the most efficient and effective means for distributing the
tecbnical and financial assistance committed by these vatious parties The non-federal entities he
needs to engage with include the Gates Foundation. In !hese effotts, the Gates Foundation is
expected to be a major participant tbtough its Global Development and Global Health pwgrams
Other collaborations with the Gates Foundation on natiqnal agricultmal policy goals are
anticipated.
In light of the importance of !he aforementioned ef'fotts to !he U.S Department of Agriculture, I
have determined that it is in the public interest to grant Dr. Shah a waiver of the provisions of
paragraph 2 of'Executive Order 13490. Accordingly, ~uthorize Dr. Rejiv J. Shalt to participate
personally and substantially in all matters affecting the Gates Foundation including particular
matters involving specific parties, in connection with t4.e development and implementation of the
Food Security Initiative and othernationaland international food, agricultural and health
initiatives and other p10grams to which he is assigned it$ Under Secretary for REE. However; he
is not authorized to participate in any grants or procunitnent contracts given by USDA to the
Gates Foundation, or in any similar transactions that would result in a transfer ofFedera1 funds
to
Foundation.
. the Gates
'

A.

A;?

Ra~~e~==- ....
Designated Agency Ethics Official

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UNITED STATES DEPARTMENT OF EDUCATION

OFFICii OF TilE GeNERAL COlJNSEL

April 28, 2009

JAm<>--!>iJ,,.) 1-\. ~1-l!;:..ro-'/

CERTIFICATION OF PUBLIC INTEREST WAIVER FOR ~M liti) liE!it$
/

.m::

}iJ

FROM:

Susan Winchell
Designated Agency Ethics Official, Department of Education

SUBJEct:

Waiver from Restrictions Related tc 1he Bill and Melinda Gates

Foundation

Pursuant to the authority delegated under Section 3 of Executive Order 13490 and
for the reasons stated in the attachcld memorandU111 and after consultation with the
Counsel to the President, I hereby Certify that a waiver of the restrictions of paragraph 2
of the ethlcs pledge is in the public interest for appointee James (Jim) H. Shelton III in
the position of Assistant Deputy $ooreta.ry for fnnf)vation ll!ld Improvement in the
Department of Education. Jim Slieltcn shall not be restricted from participating in any
particular matter involving speci:fi.~ parties that is diJ:ectly and substantially rel!lted to his
former mnplt>yer, the Bill and Melinda Gates Foundation. This waiver does not
othe!Wise affect Mr. Shelton's obligation to comply with other provisions of the Ethlcs
Pledge or with alll!tl!er pre~xi~ government ethics rules.
/~/ ~
J

Signed

...,....- vv;.cv "'"'-4-...../_ __

~Susan Winchell . (../

D!lte

ds.r

Designated Agency E1hlos Official

Department of Education

400MAR1lf.ANi:>A\'ll.,S.IV.IVASHINGTON, O.C. 202(122110

OGE 2011-11-2

Bates 000140

U.S. Department of Labor

{jill();:

_e)! ~~~e. St<lid:~,r

W:mhinr;!Or~,

D.C. 202"i (I

May 18. 2009

CE:RTIFICATION OF PUBLIC INTEREST WAIVER FOR NAOMI WALKER
FROM:

ROBERT A. SHAPIRO
Associate Solicitor for Legal Counsel
Alternate Designated Agency 'Ethic> Official. Department of Labor

SUBJECT:

Waiver from Restrictions Related to the AFL-CJO

Pursuant to the authority delegated under Section 3ofExecutive Order I 3490 and lbr the
reasons stated in the attached memorandum and after eortsultation with the Counsel to the
President, l hereby certify that a limited waiver of the r.estrictions of paragraph 2 of the ethics
pledge is in the public interest for appointee Naomi Walker in the position of Associate Deputy
Secretary in the Department of Labor. Ms. Walker shall not be restricted from participating in
any panicular matter involving speduc panies that is di'rcctly and substamially related to her
former en>ployer, the AFL-CTO, subject ro the lirnitalio~s set fonh in the attached memorandum.
This waiver does nnt otherwise affect Ms. Walker's ob!l'gation to comply with other provisions
of the Ethics Pledge or with all other pre-existing goveiilment ethics rules.

Signed,-,----,:-;-:--------Robert A. Shapiro
Associate Solicitor for Legal Counsel
Alternate Designated Agency Ethics Official
Department of Lnbor

Auachment

Date

lf~<r IB, .,..,., f

OGE 2011-11-2

Bates 000141

May 18,2009
MEMORANDUM IN SUPPORT OF' PUBLIC (NTEREST WAIVER .FOR NAOMI
WALKER, ASSOCIATE DEPUTY SECRETARY, UNlTED STATES
DE.PARTMENT OF LABOR
In accordance with Section 3 of Execuiive Order 13490 (January 21, 2009), I have
determined that il is in the public interest to grant a limited waiver to Naomi Walker in
order for her to effectively carry out her duties as Associate Deputy Secretary, United
States Department of Labor. This waiv~r is limited to enable Ms. Walker to have certain
individual communications with her foimer employer on particular matters of general
applicability notwithstanding the definition of"particular matter involving specific
parties" in Section 2(h) of the Order.
Background. The United States Department of Labor was established in 1913. Its stated
purpose is "to foster, promote, and develop the welfare of wage earners of the United
States, to improve their working eonditions, and to advance their opportunities for
profitable employment." 29 U.S.C. 551. The Department's iJroad responsibilities are
not limited to those persons currently iri the workforce. It serves persons who seek the
skills to enter the workforce through itS employment and training program. It also serves
those who are temporarily out of work through the unemployment insurance system.
Finally, through the pension laws it administers, the Department protects the retirement
savings of those who have left the wor)<force. The Department administers a variety of
Federal labor laws, including those that guarantee workers' rights to safe and healthful
working conditions; a minimum hourly wage and overtime pay; freedom from
employment discrimination; unemployinent insurance; and other income support. In
carrying out its responsibilities, the Department necessarily interfaces and maintains
dialogues with a large number ofex.temal groups, including labor unions, businesses,
trade associations, public interest groups, and other stakebolders.
Justification for the Waiver. To carry out these public liaison and outreacb. activities, the
Dep~rtment has historically assigned on<,. or more persons at very senior Jevelidn the
Department whose principal responsibiiities include communication with individuals and
groups about the Department's responsibilities and programs. One of these senior
positions is the Associate Deputy Secretary. Based on an expert understanding of the
views and philosophy of the Secretary, the Associate Deputy Secretary is charged with
spearheading several iniliatives and prdgrams for the Secretary. This responsibility is
carried out in several ways. First, the Associate Deputy Secretary fully participates in the
overall management of the agency and exercises primary responsibility for matters
pertaining to policy and program coord,ination, especially for those dealing with the labor
movement, worker advocacy organizations, and other related organizations. The
Associate Deputy Secretary also ana!y~6s and advises on the implications of proposed,
new or revised policies, regulations, and. legislative proposals and assesses their impact
on outside groups, organizations and businesses . .In this regard, the incumbent

OGE 2011-11-2

Bates 000142

coordinates and consults with senior management officials of the Department, other
agencies, and external stakeholders, as arpropriate, regarding maj(}r initiatives, actions
accomplished, milestones to be achieved, and any is$ues or problems as related. The
Associate Deputy Secretary also has the very important role of representing the
Department of Labor in discussions and negotiations. with representatives of1>ublic and
private organizations and officials of other Government agencies. Jn this capacity, the
incumbent presents and explains the views and proposals of the Secretary and in tum
conveys to the Secretary the views and proposals of other parties, accompanied by indepth analyses of the impact of such proposals. ll should be noted, however, that this
position has no regulatory or enforcement responsil)llilies, nor does it have authority to
award contracts or grants on behalf of the Departm9n1.
In order to effectively carry out al! of these responsibilities and duties, the Associate
Deputy Secretary must bring to the job a wide rangi>'ofjob skills and experiences. While
some of these qualifications can be obtained through'education and training, most require
job experiences with the very kinds of groups and organizations that the Associate
Deputy Secretary will interface as part of her respo~~ibilities at the Department of Labor.
In addition to the practical experience and 'knowledge of their workings, prior work with
these public and private sector organizations inherently enhances the incumbent's
credibility and effectiveness.

Naomi Walker, the Associate Deputy Secretary, brings a wide range of relevant
experiences to this positiotl. Since 1997, she !las held several responsible positions with
the AFL-CJO. Most recently, she has been Director of Stale Government Affairs. In that
role she has developed and led the federation's stat~ jegislative agenda in coordination
with affiliated unions, departments within the AFL~ClO, and policy organizations. lo
doing so, she worked with key slate and national policy organizations to develop strategy,
coordinate message, and provide research and technical assistance to state federations and
state legislators. She established and directed the N'a'iional Labor Caucus of Stale
Legislators, now consisting of over 1000 members: She convened regular conference
calls and meetings to discuss key legislative issues arid represented labor at meetings of
intergovernmental organizations like the National Conference of State Legislators.
Earlier in her. tenure at the AFL-CIO, she served as Media Outreach Coordinator. In this
capacity she designed and developed communications strategies to highlight family and
policy issues, from Social Security and aiTordable h~alth care to paycheck deception and
campaign finance reform. Jn this role, she wrote saiiiple press materials and talking
points to assist state federations with state and natiqil'al legislative campaigns. She also
worked with allied organizations to coordinate mes~~ge and grassroots events.'
Pdor to joining the AFL-CIO, Ms. Walker held a nq~ber of other positions utilizing
skills needed in her current position. Specifically she served as: Field' Director for the
Center for Public Policy in Washington, D.C.; Midw'estem Regional Field Organizer for
the Children's Defense Fund in Columbus, Ohio; aiii:l Trai11ing Coordinator for the Ohio
Youth Services Network in Columbus, Ohio.

OGE 2011-11-2

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Conclusion. Section l of Executive o'rder 13490 vrovides that every appointee in every
executive branch agency appointed on 6.r after January 20, shall sign, and upon signing
shall be contractually committed to, a pledge that contains a number of provisions. Of
relevance here is the "Revolving Door Ban- All Employees Entering Govemment."
Appointees signing tl1is pledge commit to the following:
1 will not for a period of2 years from that date ofmy appointment, participate in
any parcicular matter involving specific parties that is directly and substantially
related to my former employer or former cliell/s, including regulations mxd
contracts.

The term "particular matter involving specific parties" is defined as follows:

"Particular matter involving sp~cific parties" shall htrve the same meaning as sel
forlh in section 264 I .201(b) of title 5, Code ofFederal Regulations, except that it
shall also include any meeting dr other communication relating to the
pe~(()rmance of one:, ojjicial duties with a former employer or former client,
unless the communication applies to a particular matter ofge11eral applicability
and participation in the meeting oro/ her event is open to all interested parties. "

Executive Order 13490, Section 2(h).

As explained above, the core responsii>ili!ies ofthe Associate Deputy Secretary position
involve communication and outreach io.labor unions, public interest groups, and others.
Any incumbent in this position has a r~al advantage, and one that benefits the Department
and the public, if he or she has background working in one of these organizations. This i.s
especially true when the organization is a major labor union, such as the AFL-ClO, which
represents 56 national and intematiomil unions representing II million workers.
Regardless of the Presidential Administration, the .Department of Labor has maintained
regular lines of communication with tM AFL-ClO on a wide range of Departmental
programs or activities. Limiting the Associate Deputy Secretary's conununications
would be detrimental to the Department and to the millions of persons represented by the
AFL-CIO. There is no other position iO: the Department whose incumbent has similar
responsibilities.
Accordingly, I have determined that- bcause of the nature and importance of the
Associate Deputy Secretary position and Ms. Walker's uniquely suited qualifications- it
is in the public interest to gcant a limited waiver of Executive Order 13490, in accordance
with Section 3 of that Order. As stated earlier, this waiver is limited to enable Ms.
Walker to have individual communications with the AFL-C!O on particular matters of
general applicability as defined in Section 3(h) of the Order. Ms. Walker has been, and
will continue to be advised, on the appiicability of all other aspects of the Order, as well
as the restrictions imposed by all other ethics laws ~nd regulations, and has agreed lo take
the necessary steps to be in full compliimce with these authorities. In particular, she will

OGE 2011-11-2

Bates 000144

abide by the restriction in Section 1.2 of the Order prohibiting, for a 2 year period from
the date of her appointment, her participation in any particular matter involving specific
parties that is directly and substantially related to the AFI.rCIO, including regulations and
contracts.

"
Robert A. Shapiro
Associate Solicitor for Legal Counsel
Alternate Designated Agency Ethics Official
United States Department of Labor

OGE 2011-11-2

Bates 000145

Waiver Pursuant to S~ction 3 of Executive Order 13490

After consultation with the Principal Deputy cOunsel to the President, I hereby waive the requirements
of paragraph 2 of the Ethics Pledge of Mr. Chri~ Weideman with respect to his former relationship with
Williams & Connolly llP.
Executive Order 13490 (Ethics Commitments b\1 Executive Branch Personnel) requires all presidential
appointees to sigll an ethics pledge that, among oth!!r thillgs, prohibits them from working on particular
matters Involving spedflc parties who were the"lr employers or clients within the two years prior to their
appointment or communicating with such patties on official business. Section :1 of the Executive Order
provides that a waiver of the restrictions may ~e granted when it is determined "(i) that the literal
application of the restriction is lnconsistentwlth the purposes of the restriction, or (li) that it Is in the
public interest to grant the waiver." Sec. 3(a).
I have determined that this waiver is in the public interest in order to allow Mr. Weideman to continue
working on particular matters involving specifk. parties in which he has developed substantial
knowledge and expertise. By law, former Presidents have certain Interests that attach to their office as
former Presidents. Historically, in order to re~p.ect those Interests, the White House maintains contact
with representatives of the offices of former Pi~sldents. Mr. Weideman has been one of the White
House attorneys tasked with maintaining this contact with a representative of the office of former
President George W. Bush.
On June 18, 2009, former President Bush's representative, Mr. Emmet Flood, joined the partnership of
Williams & Connolly LLP, Mr. Weideman's fomT)erfirm. Because Mr. Weideman has developed
institutional knowledge on the matters involv.l,1g tb.e officerof former President Bush and because
transferring his responsibilities to other staff member;s WO!Jid substantially disrupt the White House's
ongoing work, I have determined that the continuity of his office's coordination with the former
President's office was in the public Interest. ri~sed on the foregoing, I hereby grant this waiver pursuant
to Section 3 of the Executive Order to Mr. Weideman in order to permit his continued and
uninterrupted participation in particular matte~rs involving the office of the former President. This
waiver is limited only to partlcular matters involving specific parties relating to Williams & Connolly's
representation of the offlce of former J>reside.[1t George W. Bush. I understand that Mr. Weideman will
otherwise comply with the remainder of the pledge and with all preexisting government ethics rules.

0~ '
,.~v-...--...- ...

Dated: August 13, 2009

Special Counset to the. President and

Designated Agency Ethics Official

' : ,. . { '

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Bates 000146

Peace

c:orps

MEMORANDUM
OFFICE Oli'THE GENERAL COUNSEL
To:

Aaron S. Williams, Diceccor

From:

Carl R. Sosebee, Designated Agency Ethics Official

Date:

August 24, 2009

c//

Preside he Obama' Ethics Pledge - Umited Waiver on Pnrdcular Matters Pertaining

ro National Peace Corps Association

EXECUTIVE SUMMARY

Pursuant to Section 3 of Exeawve Order 13490 (January 21, 2009), and delegated allthority from
the Director of che Office of Managemem and Budget, !his JS a limited waiver permining you co
pacticipare in or speak at meetingS: and conferen(es or o~erevems involving or hosted by the
Nuonal Peace Corps Association (NPCA) or its leadership, including fonduising events, provided
that )'Our participation would orhecwlse be permissible qnder rhe Standards of Ethical Conduce for
Employees of the E,;ecutrve Bmnch (5 CFR 2635.808), and whete such activities would con<inue <o
promote and maintain a poSitive relacionship between Peace Corps and rhe RetUrned Peace Corps
Volunteer (RPCV) conununity O( would othcnv.is:e adva~Ce or promore rhe programs and acuvidcs
of Peace Corps.
This wa~verdocs not extend to your participation during the applicable two-year period in any
present or future Peace Corps cooperauve agreement~ cOOtra<:t, or other (unding mechamsm
berween Peace Corps and NPCA, n<>r to any other parrlcu{ar matters rhat would dire<:dy and
.
predictably aftect NPCA's financial interests.
DlSCUSSlON AND A.\o!ALYSIS

Under President Obama's EKecucive Order 13490 Qanu~.;y 21, 2009), you are required ro sign and
abtde by 1erms set lorth in an Ethics Pledge.

Under the Pledge, Secoon 1, Paragraph 2, because of you,r service on the board o( directors of
NPCA during !he two-year peciod prior ro the dare of your appoio<menr as Direeto<, you may nor
particrpate in any patticular matter mvolviog specific parties that is directly and substantiaUy re!arcd
to NPCA. This remiction exrends for a period ofrwo years from the dare of your appointment.
However, an ncc:ordance with Sec:rion 3 of [he F..xeeurive Qr-der and pursua:nt to my auchority, as
delegated bl' the Director of the Office ofManagernenH!ld Budget (D0-09008), I have determined
thor it is in the public inreresc to grant you a limited waive' from che resttlction in the Pledge in
order tO- cn~ble )'OU more effectively ro carry out your d~Q.es as Peace Corps Director.

Paul P. Coverd&ll Peace

cows Headquarters

1111 20th St.re&t NW WasJiington, DC 2;0526

1 R()fl 4-,.d R"'AO 'fMti\7W n~:~::<~r,:>,..f\Tf'\c:t rr~v

OGE 2011-11-2

Bates 000147

Thi!l wniver will enable you ro attend~ participate int -or speak :ar meetings) conferences, or other
t!\\~tns h)volving or hosted by the NPCA.b't irs leadership, including fund raising events, ps:ovided
that \'OUr participation would otherwise be permissible under the Standards of Ethical Conduct for
Employees of the E>ecutlve Branch (5 CFR 2635.808), and where such activities would continue to
promote and maintain a positive rel~tionShip bernreen the Peace Corps ~nd the Returned Peace
Corps Volunteer community or would otherwise advance or promote the programs and activities of
th~ Peace Corps, as determined in co-nsultations between you and agency ethics officials.
Under terms negmiated with and agreed r?. by the Office of Whhe House Counsel. this wlllver does
nm extend to your participation, during the applicable t\Voyear period, in any present or future
Pe~1ce C01:ps cooperative agreement. conti:act1 or other funding mechanism between Peace Corps
and NPCA, nor to any other particular matters that would directly and predictably affect NPCA's
financial interests.

Pence Corps promotes world pe~cc and ftif:.ndship by malcing trained Volunteers available to
interested counn:ies overs.e.as to help meet their needs. particularly in meeting the basic needs of
rhuse living in [he poorest areas of such coUntries. See22 U.S.C. 2501 (a)
It i~ also Peftcc Corps~ sraturory goal to piomote a better understanding of othet peoples on the part
of the American people (Third Goal). As. a key part of its effort to meet this goal, Peace Corps has.
hjstoricaUy encouraged and relied on ReturO.ed Pe11<:e Corps Volunteers to work actively in a variety
ot nre(l.s nnd activities~ including sharing their experiences with other Americans when they rerurn
through Peace Corps programs such as World Wise Schools and through group and individual
activities in their communities. In additioti:; recognizing the value Returned Volunreers can have in
efforts to recruit new Volunteers, Peace Corps has actively sought (and received) assistance from
rhern in connection with its recruitment itnd outreach activities.

Promoting and m:aintmning :a positive rel3:tiooship with the community of Returned Volunteers is
therefore criticfll tO Peace Corps' mission. the Director of the Peace Corps, as rbe he-ad of rhe
agency and itS most publlc face, plays a vital and necessary tole in this effort. The inability or failure
of a Director m participate in nctivities iny?lving RPCVs would raise questions within the Returned
Pea~e Corps Volunteer community. The Director's interaction with Returned Volunteers and rhei~:
organizations is Ukely to be of panicular importance as Peace Corps approaches its fiftieth
annhersa.t)' in 2011.
In rhis reg.:1rd, NPCA is the onlj1 n:ation-wlde umbrella organization representing Returned Peace
Corps Volunteers and/or their respective membership organizations. NPCA i a 501(c)(3)
organization~ a pan of whose smted missiOn is to "connect, inform, and engage people impacted or
inspired by Pe<Jce Corps." In addition to its individual membets, NPCA has about 70 member
groups of RPCV s, grouped by geographical area or by country of service. The NPCA has historically
provided direct assistance to Peace CorpS by providing support for recrohing activities and
promoting Peace Corps' Third Goal.
That NPCA is presently the only nationwkle group representing RPCVs significantly reduces the
Hkclihood of perceived partiaUty at the expense of simHatly situated groups. Moreover, mosr
particular matters involving parties relating to NPCA are not likely to involve "highly controversial
!SSLIC:$,

. 2.

OGE 2011-11-2

Bates 000148

DtJc m the ~copt! nf Section 2 of rhe Order, n b-road npp!icntion of irs prohibition would be
detrimel'ltal to the Peace Corps because it would preclu,dt }'OU from participating in a wide v~rier~ of
matters im-olving the }argcsr (and unl~ nadonwide) organization of Returned Peace Corps
Volt..tmc.ers, therebr diminishmg your ability to mke a visible leadership role in working whh
Returned Place Corps VolLinteers and advandng Pence ~orps interests wirh this vital univt!rSe <>f
srnkeholders. This in turn could adversely ffect Pesce Corps' important efforrs to promote and
encournge RPCV assistance in tecrttiting, outresch, and Third Go<\l acdvities.

CONCLUSION
I h:we determined rhm, becau5e of rhe nature ~md impqrpmce of rhe Peace C{1rps Director us !t
it is in rhe public interest ro gnmr y{>U"
Umited wait-er, as St!t fo-rrh herein, in -accordance wicl1 Section 3 of F.~ecorive Order 13490. This
waive-r has been approved b~~ rhe Office- of\\l'hire Hou~~ ~ounsel.
spokesm~\n and link ro Rerurned Peace Corps Volunr~ers,

OGE 2011-11-2

Bates 000149

Appendix VI

OGE 2011-11-2

Bates 000150

THE WHITE HOUSE

Washington
April29, 2009
MEMORANDUM AND RECUSAL AGREEMENT
FOR ANNE BREWER
,:
FROM:

Norman L. Eisen
Special Counsel to the President and Designated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines the limitations on your participation in particular matters

while in the position of Executive Assistant to the Director of Public Liaison. These limitations
stem from your registration as a lobbyist while a men1ber of Heather Podesta + Partners, LLC
through May 2008.
On January 21,2009, President Obama signed Executive Order 13490, "Ethics
Commitments by Executive Branch Personnel." Am6ng other things, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were a registered lobbyist within the two years
preceding the date of your appointment.
Based on a review oflobbying reports identifying you as a lobbyist in 2007 and 2008,
and the discussions you had with attorneys in the Office of the Counsel to the President, I have
determined that you do not need a waiver ofPledge,~(c) because you did not lobby any
component of the Executive Office of the President \yithin the last two years of your
appointment. Accordingly, you have not accepted appointment within an executive agency that
you lobbied during the two years prior to the date of your appointment.
Pursuant to Pledge mJ3(a) and 3(b), however, you are prohibited for two years from the
date of your appointment from participating in the following particular matters or issue areas:
Public charter school programs;
Patent law reform.
The prohibitions on participation stem from the particular matters identified on
approximately 68 lobbying reports from 2007 to 200'8 that identify you as a lobbyist or as a
person no longer expected to lobby on specific issues; for which you actually engaged in
lobbying activities or contacts. As you represented apd as your former employer confirmed, you
did not have any lobbying contacts or participate in lobbying activities for the significant
majority of the clients identified in the reports.
By signing the memorandum below, you acknowledge that you will abide by the
limitations on participation set forth above, in furtherance of the terms of the Ethics Pledge you

OGE 2011-11-2

Bates 000151

. '

signed. This memorandum does not in atiy way modify, amend, abrogate or supersede your
commitments in the Ethics Pledge.
signed ..:~:c._.;_'----,"..::'-':_'-=---:::.:::.:::__._____
Anne Brewer
.
Executive Assistant to the Director of Public Liaison

Date_'f.-'-1-/-"-H-!/_o_,?_ __

OGE 2011-11-2

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Bates 000152

88170389BSBBB

Har 01 201U 2:30PM

IOJ 002/003

ABMG

SENATOR MAX CLELAND

4046011378

MAX CLEL.ANO

June 9. 200.S1

Mr. Theodore Glouklloff

Designated Agency Ethic,. Official
American Battle Monuments Comnrlssinn

Co\il'lhouse Plaza IJ, Suite 500

2300 Clarendon Boule:v!lrd
ArlingWn, VA 22ZIH

Dellr Mr. Gloukhoff;

The purpose of this letter i& t<;> descri!JQ the steps that I will lAke to avoid any !iOtWil c>r
apparent co.nflict of Interest in t1u:: ev-ent that I atn 'appointed t<:J the position of Se.;retary
of the American Battle Monwnents Commi~ion. . '
As required by IS IJ.S.C.

*208(a), I will not participate personally and

substantially in any particular matter that bas a ditex>t and predictable effect on my
finMcial in~s. QJ: those of lillY pern who~e interests are imputed t<l me, unless l first
obtain a written waiver, pursumt to 1S U.s.c; 2~1.i(b)(l), o:t qi.Wlify f<>l" a no.gulatory

exemption, pursuant to 1.8 U.S.C. 208(b)(2). I tm1erstand that the interests of1he
following p<i!!Sons ar~ imputed w me~ any spouse o/ minor child of mine; any genernl
partnel' of a putnership in whlch I am a limited or general pa:t1ner; any organ:ization in
-MUch I serv-e as officer, director, trustee, ~enerw ~ or employee; and ;10.y person or
organization with which l !llll negotiating or have ~ anan~eifient conoemin,e- prospective
employrnent.

Upon appointment, I will resign from my po~ition ~ SeniDr "Policy Advisor with Tissue
Regeneration Technologies. B<!cause I have served .as a registered lobbyist fin tl!.is
organization. for a period of two Y= after the date c>fmy appointment: l..,.jiJ not
participate in any particular matter on wlllch I lobbi~d within the 2 yem:s befo:re my date
of appointment; I will not participate in the specific issue area in which that particular
mlltter fal1s; nor will :C seek or accept employment With any executive agency that I
lobbied within two years before the date of my !IPP:I'iin~Jnent. ln additioo, for a period of
two Yea!:ll from the date of my app<:lintment, l will nf)t participllte persoll.lllly end
S\lbstantially in any particular matter involving spe#Jific parties in whicliTissue
Regeneration Technologieso is a party or represents ~party, Wliess I am first authorized to
participate.pursll!Ult to 5 C.F.R.. :2635.502(d) and ~on 3 of Executive Order 13490.

f>.4

OGE 2011-11-2

03/01/2010 16:50 FAK

BB1703B86BBBB

Har 01 2~10 2t31PH

SENATOR

?.BMC

Bates 000153

lgJ 003/003
404SOlUOB

MAX CLELAND

Upun appointmenT, I will resign ftwn .Dey positions With the. following entities:

sreu;on Umvennty Board ofT,fustees

Jimmy & Rosalyn Carter Foundation Board
B'atzy Walker Agency
For a period of one yeat" after my resilation :from each of these entities, I will not
partiipate personally and substantially jn auy particular matter involving specific parties
in. which that entity is a p!lrty or repres~nts a party, I.Ulless 1 am first I'Wthonz.,d to
participate, pursuant to 5 C.F.R. 2635 .$02(d) and secti<>n 3 of Executive Oxder 13490.

I am clln:'ently the President aud CEO of MaX Cleland, LLC. Max Cleland, LLC is
a limited liilbillty entity r fonned in Julji of2007 for the purpose oftecei'lriug the
prwetds :from varl()I;IS sources of outside income. Max Cleland, LLC consists of a cash
deposit account. While I serve as SecrC:.f,ary of the AmeriC!ln Battle Monumenw
Co)lllllissioll, I will keep Max Cleland, LLC in an inactive status----! IIY:illnot Ina!lllge or
provide servlces othe:r than wmplying \>;>itb requirements involving legal :filings, taxes
lllld fees that are n~essary to maintain ilie bU$i:l!ess. While I rettlain Pxesint and CEO
ofMl!X Cleland, LLC, I will not particlpi.tte personally and rubstantially itt any particular
matter thlat wolM directly and predictably affect tho LLC'.s financial inrerest unl~s l :fim
obtain an individual wai'ver under 18 U,S.C, 20g(b)(l).

mY

1 will receive the remainder of

book advance in 2009. In addition, I may
receiv; royaltie>s from Sitnon and Scbuster for book sales. I will not participate
per.soually and sub$U1Dtially ln any partiiiWar matter that has a direct and predictable
eife~ on the ability ('It willingness of Simon and Schuster to honor its contractual
obligations reg!!t'ding my book advance and these royalties, unles. I first obtain an
indlvidUlll wmverpursuant to 18 u.s.c. g208(b)(l).

Finally, I understafid that as an aj1pointee l am required to sign the Ethics Pledge

(Execv:tive Order 13490) and that I will be bound by the requirements and ~ction$.
therein, in addition to the commitments I have made in this anti any ather ethics
agteement.
Mostre~

"
J

."\
\

T'1' - "\

Max Cleland

p.5

OGE 2011-11-2

Bates 000154

THE WHITEHOUSE
Washington
March 13, 20p9
MEMORANDUM AND RECUSAL AGREEMENT FOR MARTHA COVEN
FROM:

Norman L. Eisen
Special Counsel to the President and D~signated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines Jhe limitations on ypur participation in particular matters

while in the position on the Domestic Policy Council. These limitations stem froni your
registration as a lobbyist while a member of Center on Budget and Policy Priorities through
2008.
.
On Januarj 21, 2009, President Obarna signed ):!xecutive Order 13490, "Ethics
Commitments by Executive Branch Personnel." Amo~g other things, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in wjlich you agree to limit participation in
certain matters arid specific issue areas if you were a rgistered lobbyist within the two years
preceding the date of your appointment.

Based on a review of lobbying reports identifying you as a lobbyist in 2007, and the
discussions you had with attorneys in the Office of the Counsel to the President, I have
detennined that you do not need a waiver ofPledge 1["$(c) because you did not lobby any
component of the Executive Office of the President within the last two years of your
appointment. Although some 2007 reports identify Y()i.l as a lobbyist of the EOP on budget and
housing matters, you explained that you never participated in any lobbying activities in
preparation for lobbying contacts with the EOP and confirmed that you did not have lobbying
contacts with any covered executive official within any component of the EOP.
Pursuant to Pledge 'lf'lf 3(a) and 3(b), however, you are prohibited for two years from the
date of your appointment from participating in the follpwing particular matters or issue areas:
Climate change relating to low income consumers;
Affordable housing assistance;
Census Bureau Survey of Jneome and Program Participation;
Unemployment insurance and benefits;
Access to welfare services for people with disabilities;
Federal preemption of states' authority to tax futernet services; and
Immigrants' eligibility for public benefits.

OGE 2011-11-2

Bates 000155

The prohibitions on participation stem from the particular matters identified on

approximately 7 lobbying reports from 2007 to 2008 that identifY you as a lobbyist or as a person
no longer expected to lobby on specific issues.
By signing the memorandum below; you acknowledge that you will abide by the
limitations on participation set forth above, in furtherance of the terms of the Ethics Pledge you
signed. This memorandum does not in at)y way modify, amend, abrogate or supersede your
commitments in the Ethics Pledge.
A

hi

<V

/L

Signed _ _,_,__,..'--""'=vv=-:<v,-c__-7v:_:l!./"::'
::---_'--V-0-~-
Martha Coven
Domestic Policy Council

Date -"<,3"--..:..:16::_-_,()'-"9_ _

Lobbying
Report
Mid Year,
YearEnd2007

Reported Legislation
H.R. 1591 (Troop Readiness,
Veterans' Care, Katrina Recovery,
and Iraq Accountability
AwrOPriations Act of2007)
H.R. 3074/8.1789 (FY 2008
TranspOrtation, Housing and Urban
Development Appropriations Act)

H.R. 1851 (Section 8 Voucher

Refonn Act of2007)

Specific Issue Area

Title N provisions relating to Tenant-Based

Rental Assistance

Affordable housing assistmce

Title II, HUD provisions relating to Tenant

Affordable housing assistance
Based Rental Assistance, the housing
Certificate Fund, Project-Based Rental
Assistmce, the Public Housing Capital Fund,
and the Public Housing Operating Fund
Provisions relating to the Census Bureau's
The Census Bureau's Survey of
Survey of Income and Program Participation Income and Program Participation
Worlc related to the overall level of nondefense discretionary :funding.

Affordable housing assistance

Provisions relating to the Tenant-Based

. Affordable housing assistance; the
Rental Assistance, Project-Based Rental
Census Bureau's Survey of Income
:Assistance;'Public.Housing OperafingFund, andProgram Participation
and the Bureau of the Census
ProvisioJJS related to low income housing
Affordable housing assistance

S. 1348 (Comprcllensive
lnunigration Reform Act of 2007)

Provisions relating to inunigrant tax

treatment and eligibility for public benc>fits

Immigrants' eligibility for pUblic

S. !56/H.R. 743 (Permanent Internet

Tax Freedom Act of 2007)

Provisions relating to internet taxation by

states

Federal preemption of states' authority

to tax Internet services

S. 1453 (ITFA Extension Act of

2007)

Provisions relating to internet taxation by

states

Federal preemption of states' authority

to tax Internet services

S. 1730 (Pathways_to Independence

Provisions relating_to access to welfare

Access to welfare services for people

benefits

Bates 000156

H.R. 3093/S. 1745 (FY 2008

Commetce, Justice, Science and
RelatedAgeucies Appropriations
Act}_
.
H. Con. Res. 99/S. Con. Res. 21
(Concurrent Resolution on the
Budget for FY 2008)
H.J. Res. 20 (Revised Continuing
Appropriations Resolution of2007)

Particular Matter (5 CFR 2635.402(b)(3)

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Martha Coven Lobbying Activity Chart

Martha Coven Lobbying Activity Chart

benefits for PeoJJle with disabilities

Provisions relating to extending
Supplemental Security Income benefits for

with disabilities
Immigrants' eligibility for public
benefits

I
.

OGE 2011-11-2

Actof2007)
S. 821/H.R. 2608 (SSI Extension for
Elderly and Disabled Refugees Act)

refu~ees

Q1-Q3 2008

S. 2191 (America's Climate Security

Actof2Q07}
8. Con. Res. 70/H. Con. Res. 312
(Concurrent Resolution on the
Budget for FY 2009}

Provisions relating to low-income

consumers.
Overall level of non-defense discretionary
funding

Climate change relating to low income

conswners
Affordable housing assistance

S. 2191 (Americas Climate Security

Act)
S. 2684 (Section 8 Voucher Reform
Act)

Provisions relating to !ow-income consumers

Climate change relating to low income

consumers
Affordable housing assistance

Provisions related to low income housing

Affordable: housing assistance

H.R. 2233/S. 1871 (Unemployment

Insurance Modernization Act)

All

Unemployment ins11rnnce and benefits

S. 821/H.R. 2608 (SSI extension for

elderly and disabled refugees act)

Provisions relating to extending

Immigrants' eligibility for publio
Supplemental Security Income benefits for
benefits
refugees
Affordable housing assistance
Provisions relating to Tenant-based rental
assistance, the Housing Certificate Fund,
Project-Based rental Assistance, the public
Housing Capital Fund, and the p11blic
housing operating fund
Provisions relating to low-income consumers Climate change relating to low income
consumers
Provisions relating to low-income conswners Climate change relating to low income
consumers
Provisions relating to low-income consumers Climate change relating to low income

Fiscal2009 Transportation-Housing
Appropriations

S. 2191 (Americas Climate Security

Act)
S. 3036 (Lieberman-Wamer Climate
Security Act of 2008)
H.R. 6316 (Climate Market, Auction,
Trust & Txade Emissions Reduction

consumers

Bates 000157

.S:263.6 (Foreclosurd!revention,Act.. .Provisions.relatingtorentabnd,affordabk.

of2008)
ho11sing

System Act of 2008)

H.R. 6186 (Investing in Climate
Action and Protectio11 Act)
8.2684/H.R. 1851 (Section 8
Voucher Reform Act)

Provisions relating to neighborhood

stabilization funds

Affordable housing assistance

Provisions relating to neighborhood

stabilization funds

Affordable housing assistance

H.R. 3221 (American Housing

Rescue and Foreclosure Prevention
Actof2008)
H.R. 2642 (Emergency Supplemental
Appropriations Act 2008)
H.R. 2638 (Consolidated Security,
Disaster Assistance, and Continuing
A
tions Act 2009)
S.!3261'(Fiscal2009 TransportationHousing A~nnriations)
H.R. 7110 (Job Creation and
Unemployment Relief Act of 2008);
H.R. 1424 (Emergency Economic
Stabilization Act)
H.R. 7194 (Climate Change Rebate
Actof2008)

Provisions relating to the low-income

housing tax credit

Affordable housing assistance

Provisions relating to extended

unemployment benefits
Provisions relating to Project-Based Rental
Assistance

Unemployment insurance and benefits

.........

----

---

---

--------

Provisions relating topilblichousing and

Section 8 subsidies
Provisions relating to unemployment
insurance
Provisions relating to low-income consumers

Affordable housing assistance

. Affurdablehousingassistance
Unemployment insurance and benefits

Climate change relating to low income

consumers

Provisions relating to unemployment

insurance
-----------.

Unemployment insurance and benefits

------

-----

Bates 000158

H.R. 3221 (American Housing

Rescue and Foreclosure Prevention
Actof2008)
H.R. 5818 (Neighborhood
Stabilization Act of 2008)

S.3507/H.R.6867 (Unemployment
Compensation Extension Act of
2008)

'

Provisions relating to low-income consumers Climate change relating to low income

consumers
Provisioos related to low income housing
Mfordable housing assistance

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Martha Coven Lobbying Activity Chart

OGE 2011-11-2

Bates 000159

January 23, 2009

Mr. Edgar M. Swindell

Associate General Counsel/Ethics
Designated Agency Ethics Official
U.S. Department of Health and Human Sen[ices
Room 710-E,HubertH. Humphrey Building
:200 Independence Avenue, SW
Washington, DC 20201
Dear Mr. Swindell:
The purpose of this letter is to describe the steps that I will take to avoid any actual or
apparent conflict of interest in the event that I am confumed for the position of Deputy Secretary,
U.S. Department of Heath and Human Services.
Asrequb:ed by 18 U.S.C. 208(a); I will not participate personally and substantially in
any particular matter that has a direct and ptedictable effect on my fmancial interests or those of
any person whose interests are imputed to rile, unless I first obtain a written waiver, pursuant to
18 U.S.C. 208(b)(l), or qualify for aregulirtory exemption, pursuant to 18 U.S.C. 208(b)(2).
I understand that t)le interests of the follow;i!ig persons are imputed to me: any spouse or minor
child of mine; any general partner of a parl_nership in which I am a limited or general partner; any
organization in which I serve as officer, dirtor, trustee, general partner or employee; and any
person or organization with which I am negotiating or have an arrangement concerning
prospective employment.
Upon confinnation, I will resign fro11J. my position as Executive Director and Secretary
for the Campaign for Tobacco-Free Kids. For a period of one year after my resignation, I will
not participate personally and substantially, iil any particular matter involving specific parties in
which the Campaign for Tobacco-Free Kids is a party or represents a party, unless r am first
authorized to participate, pursuant to 5 c.FJl. 2635.502(d).
.

Upon confirmation, I will resign froiD. my position as the Executive Director and
Secretary for the Tobacco-Free Kids Actioii Fund. For a period of one year after my resignation,
I will not participate personally and substai"\tially in any particular matter involving specific
parties in which the Tobacco-Free Kids A~t!on FlUld is a party or represents a party, unless I am
first authorized to participate, pursuant to 5 C.P.R. 2635.502(d).
Upon confurnation, I will resign fr6in my non-paid position as a member of the Board of
Directors of the Center for Science in the Public Interest. For a period of one year after my
resignation, I will not participate personally and substantially in any pru.ticular matter involving
specific parties in which the Center for Scil5nce in the Public Interest is a party or represents a
party, unless I am firSt authorized to participate, pursuant to 5 C.P.R. 2635.502(d).

OGE 2011-11-2

Bates 000160

Mr. Edgar M. Swindell

Page2
Following my appointment, my wife and I will divest our interests in the following
entities witbln 90 days of my confirmation:

Vanguard Health Care Fund

Fidelity Real Estate Investment Fund
With regard to each of these entities, I will not participate personally and substantially in
any particular matter that has a direct and predictable effect on the fmancial interests of the entity
until I have divested it, unless I first obtain awritten wil.iver, pursuant to 18 U.S.C. 208(b)(l),
or qualify for a regulatory exemption, pursuant to 18 U.S.C. 208(b)(2).
In order 'to avojd potential conflicts of interest during my appointment as Deputy
Secretary, neither I, my spouse, or any minor children mine will acquire any interests in
entities listed on the FDA prohibited holdings list or in entities involved. directly or through
subsidiaries, in the following induslries: (1) research, ~velopment, manufacture, distribution, or
sale ofpharmaceutical, biotechnology, or medical devipes, equipment, preparations, treatment, or
products; (2) veterinary products; (3) healthcare management or delivery; (4) health, disability, or
workers compensation insurance or related services; (5) food and/o~ beverage production,
processing or distribution; (6) communications media; {7) computer hardware, computer
software, and related internet tech.riologies; (8) wireless. communications; (9) social sciences and
economic ~esearch organizations; (1 0) energy or utilitie~; (11) commercial airlines, railroads,
:shiplines, and cargo carriers; or (12) sector mutual funds that concentrate their portfolios on one
country other than the United States. In addition, we will not acquire any interests in sector
mutaal funds that concentrate in any ofthese sectors.

of

As noted on my disclosure form, my non-minor dependent daughter also owns a 32%

'shareofholdings in 18 stocks (seeattachmenttoSF-278 Report). These holdings must be
reported on my disclosure report pursuant to 5 C.P.R. ~634.309. However, since my daughter
is not a minor, I understand that her holdings are not in\.puted to me as a financial interest under
18 U.S.C. 208. Whilemydaughteris a member ofm:Yhousehold. pursuant to 5 C.F.R.
2635.502(a), I will not participate personally and sub~tantially in any particular matter
involving specific parties that will have a direct aod pietljctable effect on her financial interests.
My spouse is employed as a salaried employee for the Center on Budget and Policy
Priorities. As Deputy Secretary, I wiil not participate personally and substantially in any
particular matter that will have a direct and predictable ~ffect on my spouse's compensation or
employment with the Center on Budget and Policy Pri9ri.ties. I also will not participate
personally and substantially in any particular matter inyolving specific parties in which the
Center on Budget and Policy Priorities is a party or reprsents a party, unless I am first authorized
to participate, pursuant to 5 C.P.R. 26:35.502(d). In addition, my sponse has agreed not to
communicate directly with the U.S. Department ofH~ and f.;Iuman Services on behalf of the

OGE 2011-11-2

Bates 000161

Mr. Edgar M. Swindell

Page 3
Center on Budget and Policy Priorities during my appointment to the position of Deputy
Secretary.

William V. Corr

OGE 2011-11-2

Bates 000162

Ericsson, Sally
Recusa! Agreement
Pursuant to paragraph 3 of the ethics pledge contained in the President's Executive Order on
Ethics Commitments by Executive Branch Personnel (E?;ecutive Order 13490), I, Sally Ericsson
shall be recused for a period oftwo years from my initial date of employment, , luhoo1 ,
from participating personally and substantially in the sp~<::ific issue area of domeslie foiestry
offi<ets. I will abide by all other provisions of the ethics pledge. lfi have any(fUestions about
the scope or applicability of this recusAl to my official d)liies as~~. p,gc.~~. I will first
consult with my agency's Designated Agency Ethics Official Stuart Bender (2023957533) and
follow the gnidance provided.

Signature

Stt'--Y-f c . c

'{?fc -Ss C/.1'-"

Printed Name

/Tssoc.t trtt:I' b,Jl<;<..r Cl(f..

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OGE 2011-11-2

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THE WHITE HOUSE

Washington
June t, 2009
MEMORANDUM AND RECUSAL AGREEMENT FOR PATRICK GASPARD
FROM:

Noonan L. Eisen I}Jl;!t,_. .

Special Counsel to the President and Designated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particulat Matters

This memorandum outlines the lloiitations on your participation in particular matters

while in the position of Assistant to the President for the Office of Political Affairs. These
limitations stem from your registration as a lobbyist on behalf of 1199SEIU United Healthcare
Workers East through year-end 2007.
On January 21, 2009, President Obama signed Executive Order 13490, "Ethics
Commitments by Executive Branch Personnel." Among other things, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were a registered lobbyist within the two years
preceding the date of your appointment
Based on a review oflobbying reports identifying you as a lobbyist through yearend
2007, and the discussions you had with a.ttomeys in the Office of the Counsel to the President, I
have detennined that you do not need a waiver of Pledge Paragraph 3(c) because you did not
lobby any component of the Executive Office of the President within the last two years of your
appointment.
Pursuant to Pledge ~1 3(a) and 3(p), however, you are prohibited for two years from the
date of your appointment from participaiing in issues relating to the State Children's Health
Insurance Program (SCHIP)
The prohibitions on pruticipation stem from the particular matters identified on the yearend 2007 report that identifies you as a lobbyist. That date is controlling; although reports from
Ql through Q3 2008 erroneously identified you as alobbyist of the House of Representatives on
SCHIP issues, we have located amended reports from the Ql, Q2 and Q3 200& reporting periods
that strike you as a lobbyist.
By signing the memorandum below, you acknowledge that you will abide by the
limitations on participation set forth abo\>e, in furtherance of the tenns of the Ethics Pledge you
signed. This memorandum does not in any way modify, amend, abrogate or supersede your
commitments in the Ethics Pledge.

OGE 2011-11-2

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./'\

Signed..'= ""' .....

-;""'

Paili G pard

Assistant to the President

Date

~ J} ,2..6\\ 2

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November 18, 2009

Mr. Austin Schlick
General Counsel and
Designated Agency Ethics Official
Federal Communications Commission
Room8-C723
445 12th Street, S.W.
Washington, D.C. 20554
Dear Mr. Schlick:
The purpose of this letter is to d.escribe the steps that I will take to avoid any
actual or apparent conflict of interest ih my position as Legal Advisor in the Office of
Commissioner Meredith Baker. As required by Executive Order 13490, 74, Fed. Reg.
4673 (Jan. 21, 2009), I signed the "Ethics Pledge" on November 9, 2009. Pursuant to
paragraph 3 of the Ethics Pledge, 1 agreed as follows:
If I was a registered lobbyist within the 2 years before the date of my
appointment ... I will not for ii period of2 years after the date of my
appointment:
(a) participate in any particular matter on which I lobbied
within the 2 years before the date. of my appointment;
(b) participate in the specific issue area in which that
particular matter falls; ot
(c) seek or accept employment wit)l any executive agency
that !lobbied within 2 years before the date of my appointment.
Prior to my joining the FCC, Iwas registered as a lobbyist for DISH Network
Corporation in accord with the Lobbying Disclosure Act of 1995,2 U.S. C. 1601, et seq.
My registration as a lobbyist was terminated by the company on October 20, 2008.
While I did not act as a lobbyist before the FCC, I did lobby on Dish Network's behalf
before Congress and the National Tel&ommunicatious and h1f01mation Administration
(NTIA). Accordingly, until November 9, 2011, which represents two years from the date
of my appointment as a Legal Advisor to Commissioner Baker, I will not, in the scope of
my FCC employment, participate personally and substantially in the following specific
issue areas in which I lobbied:

OGE 2011-11-2

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Matters creating or enfordngmles pursrumt to; or otherwise int<;:rpre\itlg,

the Satellite Home Viewer Extension and Reauthorization Act of2004, 47
U.S.C. 339(e) (SHVERA);
Matters regarding required carriage of digital bTOadcast signals by Direct
Broadcast Satellite providers (HD must-ca;,-y);
Matters related to the availability and distribution ef analog-to-digital
converter boxes prioF to the June 12, 2009; 4ational transition to digital
television; and
Matters related to the imposition of &'tate taxes on Direct Broadcast
Satellite providers.

I affirm that, to the best of my recollection, t)lese are the only specifi<;> issne areas
in which I acted as a registered lobbyist for DISH Network. If itis brought. to my
atteniion that other issue ru'6as. should also b"e included, I will immediately infomi the
Office of General Counsel.
Sincerely,
I/-

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THE WHITE HOUSE

Washington
March 16,2009
MEMORANDUM AND RECUSAL AGREEMENT FOR BRANDON HURLBUT
FROM:

Norman L. Eisen
Special Counsel to the President and Designated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines the limitations on your participation in particular matters

while in the position o(Deputy Director in the Office of Cabinet Affairs. These limitations stem
from your registration as a lobbyist while amember ofB&D Consulting tlrrough 2007.

On January 21, 2009, President Obama signed Executive Order 13490, "Ethics
Commitments by Executive Branch PersoJinel." Among other things, the Executive Order
requires you to sign an Ethics Pledge ("PIdge"), in which you agree to limit participation in
certain matters and specific issue areas if ybu were a registered lobbyist within the two years
preceding the date of your appointment.
Based on a review oflobbying reports identifying you as a lobbyist in 2007, and the
discussions you had with attorneys in the Office of the Counsel to the President, I have
determined that you do not need a waiver 6 Pledge 'l]3(c) because you did not lobby any
component of the Executive Office of the President within the last two years of your
appointment.
Pursuant to Pledge 'l]'lf 3(a) and 3(b); however, you are prohibited for two years from the
date of your appointment from participating in the following particular matters or issue areas:
Terrorism insurance;
Surplus lines insurance;
Insurance insolvency;
Medicare secondary payor matters;
Conflicts between medicare and workers' compensation;
Federal preemption of state insurance law;
Antitrust insurance industry issue;
The prohibitions on participation stein from the particular matters identified on
approximately 14lobbying reports from 2007 that identify you as a lobbyist or as a person no
longer expected to lobby on specific issues.
By signing the memorandum below, you ~cknowledge that you will abide by the
limitations on participation set fnrth above, in furtherance of the terms of the Ethics Pledge you

OGE 2011-11-2

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signed. This memorandum does not in any way modify, amend, abrogate or supersede your
commitments in the Ethics Pledge.

/}

,/.~,

IJ<...r...,......., ' ~""" -- '

Brandon Hurlbut
Deputy Director. in the Office of Cabinet Affairs

Signed

~=- </-=- o-~- 1_

Date ---->..L.Js/'-'--;

Brandon Hnrlbut Lobbying Activity Chart

Particular Matter (5 CFR 2635.402(b)(3).

Terrorism Risk Insurance Act

Renewal ofTerrorism Risk Insurance Act

and whefuer Terrorism Risk Insurance Act
should be renewed
Streamlining regulatory framework for fue
surplus lines insurance industry to change
50-state laws into one federal law
Guaranty association treatment under federal
regulatory framework
Clarifying payment when conflict between
medicare and workers' compensation laws
arise
Federal anfuority to regolate insurance and
state law aufuority
Antitrust Exemption for.Jniluranceindustry

Nonadmitted and Reinsurance

Reform Act of 2007
Optional Federal Charter Bill
Medicare Secondary Payor MattE)I"S
McCarran-Ferguson Act and
Insurance Reform
AntitrnstExemption;for.Jnsurance.
Industry

Specific Issue Area

Terrorism insurance
Surplus lines insurance
Insurance insolvency
Conflicts between medicare and
workers' compensation
Federal preemption of state insurance
law
AntitrnStinsurance ind\lstryissues.
-

Bates 000169

Clients:
Environmental
Defense Action
Fund;FCCI;
National
Association of
Surplus Lines;
National
Association of
Mutual
Insu..-ance,.
Companies;

Reported Legislation

OGE 2011-11-2

Lobbying
Report
Mid Year 2007

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Tiffi WHITE HOUSE

Washington
March 12, 2009

MEMORANDUM AND RECUSAL AGREEMENT FOR JAMES KOHLENBERGER

FROM:

Rachael Leonard
Alternate Designated EtWcs Official
Office of Science and Technology Policy

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines the limitations on your participation in particular matters

while in the position of Chief of Staff for the Office of Science and Technology Policy. These
limitations stem from your registration as a lobbyist while a member of Kohlenberger Strategic
Cqnsulting through 2008.
'
On January 21, 2009, President Obama signed Executive Order 13490, "Ethics
Commitments by Executive Branch Personnel." Among other tWngs, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were a registered lobbyist within the two years
preceding the date of your appointment.

Based on a review of lobbying reports identifyjpg you as a lobbyist in 2007-2008, and the
discussions you had with attorneys in the Office of th~ Counsel to the President, I have
determined that you do not need a waiver Pledge 'l[ ~(c) because you did not lobby any
component of the Executive Office of tlie President witWn the last two years of your
appointment.

of

Pursuant to Pledge 'l['l[ 3(a) and 3(b), however, you are prohibited for two years from the
date of your appointment from participating in the fojlowing particular matters or issue areas:
u

Internet based voice communications ("Voi,P"), including VolP 91 i matters;

Caller id matters.

The prohibitions on participation stem from th(l particular matters identified on

approximately 5lobbying reports from 2007 and 200~'that identify you as a lobbyist or as a
person no longer expected to lobby on specific issues,

OGE 2011-11-2

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...
By signing the memorandum below, you acknowledge that you will abide by the
lhnitations on participation set forth above, in furtherance of the terms of the Ethics Pledge yon
signed. 'This memorandum does not in
way modify, amend, abrogate or supersede your
commitmentsjn the Ethi<)S Pledge.

!//.,,'

any

James Kohlenberg r
Chief of Staff for.the OSTP

Lobbying
Report
Midyear 2007
(Client: Voice
on the Net
. (YON)
Coalition)

Reported Legislation

Particular Matter (S CFR 2635.402(b)(3)

Specific Issue Area

Matters'regarding internet based voice

communications

Internet l)ased voice communications

covoiP'')"

H.R..2725 Alarm Customer VolP

Notification Act of 2007

Matters regarding internet based voice

communications

Jnteinet based voice communications

('OVoiP'')

H. Res. 537 designating National 9-

1-1 Education Month
S. 101 Universal Service for
Americans Act

Provisions relating to 911 calls under VOIP

VolP 911 matters

Matters regarding internet based voice

communications

Internet based voice communications

("VolP")

Sale or provision of caller id spoofing

Caller id matters

H.R. 251 Truth in Caller ID Act

. services

S 1654 Bill to probibit sale or

provision of caller ID spoofing
. .sendces
..
End year 20(}7, s 4281P~Enabled Voice
Ql2008
Communications and Public Safety
Actof2007
H.R. 3403 The 911 Moderni~tion
and Public Safety Act of 2007

Sale or provision of caller id spoofing

services
Mattersregarding:internet:based 'Voice
communications
Provisions relating to 911 calls l,Ulder VOIP

Caller id matters
Internet based voice communications
('OVolP")
VolP 911 matters

Bates 000172

S 428 lP-Bnabled .Voice

Communications and Public Safety
Actof2007

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James Koblenberger Lobbying Activity Chart

OGE 2011-11-2

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WLLL.IAM

J.

L.YNN Ill

400 SoUTH Lll<E: STREET

At.EXANDRIA, ViRGINIA 22.1 $438 I E3

January 14, 2009

Mr. Daniel J. Dell'Orto

Acting General Counsel and
Alternate Devignated Agency Ethics OffiCial
Office of the General Counsel
Department of Defense
1600 Defense Pentagon
Washington J)C 20301

Dear- Mr. Dell' Orto:

-The purpose of this letter is to describe the steps that I will take tb avoid any
actual or apparent conflict of interest in the event that I am confirmed for the position of
Deputy Secretary of Defense.
As requited by 18 U.S.C. 208@, I will not participate personally and
substantially in any particular matter that has a direct and predictable effect on my
_financial interests or those of any person ,;.,.hose interestS are imputed to me, unless I first
obtain a written waiver, pursuant to 18
208(b){J), or qualify for a regulatory
exemption, pursuant to 18 U.S. C. 208(b)(2). I understand that the interests of the
following persons art;: imputed to me: any ?pause or' minor child of mine; any general
partner of a partnership in which I am a lhnited ar general partner; any organization in
which I serve.as offiCer, c\irector, trustee, gim,ral partner or employee; and any person or
organization with whjch I am negotiating or have an arrangement concerning prospectiye
employment.

u.s.c_.

Upon my appointment, I will resigri from my position as Senior Vice President

of Govermnent Operations and Strategy atRaytbeon Company (Raytheon). I currently
hold Raytheon stock, including shares in the Raytheon Savings and Investment Plan, and
I will divest this stock within 90 days of my appointment. I do not hold stock options in
Raytheon. I hold Raytheon restricted stock units under the following incentive plans: (a)
the 2006-2008 LGng-Term Performance Plan (LTPP); (b) the 20072009 LTPP; and (c)
the 2008-2010 LTPP. Upon resignation, r will forfeit all of my restricted stock units that
I hold under the 2007-2009 LTPP'and the2008-2010 LTPP. I will retain the 6,000 shares
of restricted stock units that I hold under the 20062008 LTPP, which will vest in
February 2009. I will divest these 6,000 shares within 9(} days of the date on which they
vest. I will not participate personally illld substantially in any particular matter that has a
direct and predictable effect on the financial interests of Ra)'theon until I have divested it,

OGE 2011-11-2

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unless I first obtain awritten waiver, pursuant to 18 U.S.C. 208(b)(l), or qualifY for a
regulatory exemption, pursuant to 18 U.S.C. 208(b)(2).
Consistent with the customary practice for departing executives of Raytheon, I
will continue to participate in the Raytheon Defined B~!)efit Plan, wnich. would pay me
about$4,30Dmonthly beginning on January l, 2019. Therefore, as set out in the letter
signed by the Chairman and Ranking Memberofthe Sepate Committee on Armed
Services dated September 23, 2005, I agree that prior to i!Cfing in any particular matter
that is likely to have a direct, predictable, and substanti~l effect on the financial interest
of Raytheon, I will consult with my Designated Agency Ethics Official, and will not act
in the matter unless that official determines that the interest of the Government in my
participation outweighs any appearance of impropriety, and issues a written
determination authorizing my participation. I underst;md that such an authorization does
not constitute a waiver of 18 U.S.C. 20& and does not #feet the applicability of that
section.
.
Additionally, I will receivea cash bonus from Raytheon in March 2009 for work
in accordance with the previously established
bonus target formula. I also participate in the Raytheon -Excess Savings and Deferred .
Col)lpensation Plans. Pursuant to company policy, Raytheon will pay out my interests in
thesetwo plans to me in a lump sum, which will"be bai~d ori the value of the holdings in
my accooots'under these plans. Until I receive the bonus, lump sum payments, and
defined benefit plari pension payments, I will not participate personally and substantially
in any particular matter that has a direct and predictabie:effect on the ability or
willingness of Raytheon to mak<? each payment to me, unless I first obtain a written
waiver,_pursuant to 18 U.S. C. 208(b)(l).
perform~ during calencjar year 2008,

For a period of.one year after my resignation ft:om Raytheon, I also will not
participate personally and substantj.ally in any particular matter involving specific parties
in which Raytheon is a party or represents a party in th~t matter, unless I amfirst
authorized to participate, pursuant to 5 C.P.R. 2635.~02(d).
Upon my appointment, I will resign from my position as a board member of the
Center for New American Security. For a period of one year after my resignation, I will
riot participate personally and substantially in any parti~ular .matter involving specific
parties in which the Center for New American Security is a party or represents a party,
uli!ei>s I alit first authorized to participate pursuant to 5 C.F.R. 2635.502(d).

My spouse is employed as regulatory attorney for. Fl'L Group, the parent of

Florida Power and Light Company. She receives a fixed salary and an annual
bori:us. She receives performance stock awards through the Leveraged Employee Stock
Ownership Plan (LESOP). In addition, she owns sharps of FPL Group common stock. In
order to comply with the requirements of the Senate Armed Services Committee with
regard to Department of Defense contractors, my spo4~e will divest all of her common
stock in FPL Group with.in 90 day& of my appointment. She will retain her unvested
perfonnance stock awards. However, she will divest agy of these performance stock

OGE 2011-11-2

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awards that vest during my appointment as Deputy Secretary within 90 days ()f the date
on which they vest, in order to comply wiifi the requirements of the Senate Armed
Services Committee:. During my appointm~nl as Deputy secretary, if my spouse receives
ruiy additional performance. stock awards, s)le will divest any such vested awards within
9Qdays of receipt, and she will divest any such unvested awards within 90 ~lays of
vesting. For as long as my spouse continues to liold any equity in FPL Group, I will not
participate personally-and substantially in ru1y particular matter that has a direct and
predictable effect on the financial interests ofFPL Group, unless I first obtain a written
waiver, pmsuant to 18 U.S.C. 208(b)(1), or qualify-for a regulatory exemption,
pmsuantto 18 U.S.C. 208(b}(2).
Within 90 days of my appointment, I will divest my stock in IBM. 1 will not
participate personally and substantially in any particular Il')atter that has a direct and
predictable effect on the financial interesti! ofiEiM until I have divested it, unless I first
qbtaln a writtenwaiver, pursuant to 18 U.S,C. ;208(b)(1), or qualify for a regulatory
exemption, pmsuant to 18 U:S.C. 208(b)(2).
I understand thatI may request a Certificate of Divestitme for some of thyse
assets and that a Certificate of Divestiture effective only if obtained prior to divestiture.
H~wever, I also understand that my spous<i and I must divest the identified assets whether
or not I receive a Ce1tificate ofDivestiturci:

is

Sincerely,

/(\;;~;;;
lA )~'-'17
VW!lliam J. Lynn III

(/

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TilE WHITE HOUSE

Washington
February_, 2p09
MEMORANDUM AND RECUSAL AGREEMEI'{'f FOR DAVID MEDINA
FROM:

Norman L. Eisen
Special Counsel to the President and Oesignated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This .memorandum outlines the limitations on your p!lrficipation in particular matters

while in the position of Deputy Chief of Staff to the Eirst Lady. These limitations stem from
your registration as a lobbyist on behalf of the United States Global Leadership Campaign from
April I, 2008 through December 31, 2008.

On January 21,2009, President Obama signed Executive Order 13490, "Ethics

Commitments by Executive Branch Personnel." AmQng other things, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were a registered lobbyist within the two years
preceding the date of your appointment.

Based on a review of your lobbying reports-the Q2 2008, Q3 2008, and Q4 2008 reports
for the United States Global Leadership Campaign-and the discussions you had with attorneys
in the Office of the Counsel to the President, I have determined that you do not need a waiver of
Pledge, 3(c) because you did not lobby any compone!i~ of the Executive Office of the President
within the last two years of your appointment. You clarified that the Q4 2008 report identif'ying
you as a lobbyist before the Office of Management and Budget and the National Security
Council was filed in error, and provided a letter dated February 27, 2009 from the United States
Global Leadership Campaign confirming the same. Accordingly, you have not accepted
appointment within an executive agency that you lobbied during the two years prior to the date
of your appointment.

Pursuant to Pledge W3(a) and3(b), however, you are prohibited for two years from the
date of your appointment from participating in the fo116wing particular matters orissue areas:
international affairs budget appropriations.
The prohibitions on participation stem from the particular matters identified on the Q2, Q3
and Q4 2008 lobbying reports: provisions for FY200nn the International Affairs Budget;
H. Con. Res. 312, FY09 House Budget Resolution; S. Con. Res. 70, FY09 Senate Budget
Resolution, S. 3288, FY09 Senate State, Foreign Operations, and Related Programs
Appropriations; S. 3289, FY09 Senate Agriculture, Rur~l Development, Food and Drug
Administration and Related Agencies Appropriations..

OGE 2011-11-2

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By signing the memorandum below; you acknowledge that you will abide by the
limitations on participation set forth above, in furtherance of the terms of the Ethics Pledge you
signed. 1his memorandum does not in any way modifY, amend, abrogate or supersede your
commitments in the Ethics Pledge.

/]_,
Signed----=\.._/=-.,..,..,--::-:::-----'----'David Medina
Deputy Chief of Staff to the First Lady

Date

OGE 2011-11-2

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,;,
'
DEPARTMENT OF THE iREASURY
WASHINGTON, D.C. 2.0?20

February 4, 2009
MEMORANDUM FOR MARK PATTER.SO~ \}\)._..-FROM:

Bemard J. Knight, Jr. \...~

Assistant General Counsel for General Law, Ethics &
& Regulation and Designated Agency Ethics Official

SUBJECT:

Limitation on Pa1ticipation in PilJiicnlar Matters

This memorandum ontlit1es the limitations on your participation in particular matters.

The limitations stem fiom your previous employment rel(!tionship and representation of Goldman
Sachs in particular matters before the United States Congress from January 1, 2007 to
April 11, 2008.

In your position as Chief of Staff of the United States Department of the Treasury, you
are responsible for serving the American people. Your position will assist the Secretary of the
Treasury in strengthening national security, managing th~ 'u.S. Govemment' s finances
effectively, promoting economic growth and stability, and- ensuring the safeLy, soundness, and
secnrity of the United States and intemational financial systems. Abiding by the limitations on
participation below will ensure confidence in the Departm~nt' s actions which are of utmost
importance to the American public.
President Obamasigned an Executive Order, "Ethics Commitments by Executive Branch
Personnel," on January 21, 2009. Among other things, t11j.s Executive Orderrequires every fulltime, political appointee appointed on or after January 20, 2009 to sign an Ethics Pledge
(Pledge). In addition to the general recnsal for two years from your appointment for any
pmticular matter involving Goldman Sachs, Section 3 of the Pledge states that those appointees
that were registered lobbyists during the prior two years ciftheir appointment must

recuse, for two years after appointment, jl;9m participating in any particular matter
on which he or she lobbied during the two years prior to the appointment in the
specific issue area in which that particular matter falls, Pledge, para. 3(a) and (b);

not seek or accept employment with an agency or department that he or she

lobbied during the prior two years, Pledge,
para 3(c).
,,

The term "particular matter" includes only matt~>rs that involve deliberation, decision, or
action that is focused on the interests of specific person8, or a discrete and identifiable class of
persons. The term may.include matters that do not involve formal parties and may extend to
legislation or policy making that is narrowly focused on the interests of a discrete and identifiable
class of persons.

OGE 2011-11-2

Bates 000179

Upon. carefully reviewing the material that yol1 have submitted, and pursuant to further
discussions with you concerning these matters; I have detennined that while at Treasury, you are
prohibited for two years from your appointment from participating in the following particular
matters or issue areas:

ethanol tax credits

Internal Revenue Code 355
infrastructure financing via public-private partnerships
energy derivatives
legislation to reduce carbon emissions
mortgage foreclosure legislation
creation of covered bonds
shareholder. votes on executive compensation
wind energy production
tenorism risk insurance

I also have detennined after careful consideration that the infmmational briefing that you
provided at the request of a Treasury official July 2007 did not constitute lobbying and
therefore, the prohibition on employment at treasury, as outlined in 3(c) of the Pledge, is not
applicable to your situation. Similarly, I hav& detemuned that your facilitation of infonnational
briefings from your Goldman Sachs colleagUes to Congressional staff on auction rate securities
did not constitute lobbying so recusal on that issue area is UlllJ.ecessary. Based on the nature of
the briefings, I find that a reasonable J>erson vmuld not reach a different conclusion.

in

I have not addressed issues that are unlikely to arise during your Treasury service, such as
industrial loan companies, tribal gaming, H1 7,B visas, or patent refo:rm. In the unlikely ev<:>nt that
any of these issues arise during your Treasury service, I ask that you seek guidance from me prior
to participating in them.

OGE 2011-11-2

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DEPARTME:NT OF THE: TREASURY

WASHINGION, b. C. 2.02.20

March 19,2009
MEMORANDUM FOR MARK PAT~ERSO~
FROM:

SUBJECT:

1:,\M_

Bernard J. Kntght, Jr. ~'

Assistant General Counsel for General Law, Ethics &
Regulation and Designated Agency Ethics Official
Additional Limitation on Participation in Particular Matters or Issue
Areas

Based on new infom1ation that has come to my attention and pursuant to further
discussions with you concerning these matters, I have d~tennined that while at Treasury, you are
prohibited for two years from your appointment from participating in any matter relating to
alternative energy investment tax credits. I note that yol,l have not worked on any of these issues
since joining Treasury. Nevertheless, since you h!!ve recently recalled working during your
previous employment on energy investment tax credits :relating to thermal storage, I am further
limiting your participation to the broader issue area of altemative energy investment tax credits.
This further restriction complements the February 4, 2009 memorandum that outlined the
limitation of your participation in particular matters or i~sue areas.

OGE 2011-11-2

Bates 000181
,--

- . . .

..

:-:._

...:

'

'

THE WHITEHOUSE

'.....

Washington
March 17, 2009

MEMORANDUM AND RECUSAL AiGREEMENT FOR DESIREE PIPKINS

FROM:

Nonnan L. Eisen
Special Counsel to the Pre~ident and Designated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines the limitations on your participation in particular matters

wllile in the position of Research Associ.ate in the Office of the White Honse Counsel These
limitations stem from your registration as a lobbyist while a member of the NAACP Legal
Defense and Educational Fund, Inc. throi1gh mid-year 2007.
. .....
On j;,nuary 21, 2009, President OQama signed Executive Order 13490, "Ethi~~ ... ,, .
Commitments by Executive Branch Persqnnel." Among other things, the Executive Order
requires you to sign au Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were a registered lobbyist within the two years
preceding the date of your appointment

-~..,~:~:-:--. . ~~-.'.... ~-.,...

Based on a review oflobbying re~orts identifYing yon as a lobbyist in 2007, and the
discussions you had with attorneys in the Office of the Counsel to the President, I have
determined that you do not need a waiver of Pledge~ 3(c) because you did not lobby any
component of the Executive Office of tlie President within the last two years of your
appointment.
Pursuant to Pledge~~ 3(a) and 3(p), however, you are prohibited for two years from the
date of your appointment from participating in the following particular matters or issue areas:
Voting issues regarding the District of Columbia;
e Absentee voting;
oVoting rights for displaced voters;
Sentencing disparities between crack cocaine and powder cocaine offenses;
o Voter identification issues;
Leslie Southwick judicial confumation;
o Deceptive voting practices.
The prohibitions on participation :it~m from the particular matters identified on
approximately 13 lobbying reports from 2007 and 2008 that identify you as a lobbyist or as a
person no longer expected to lobby on specific issues. As you confinned, the NAACP Legal
Defense and Educational Fund, Inc. filed amended reports for year-end 2007, and various
1

', .
. . _,,,-

l',.'

."":...

.. -.::Z.."'. .' -.

OGE 2011-11-2

Bates 000182

quarters in 2008, in July 2008, omitting you as a lobbyist because you did not meet the
registration requirements under the Lobbying Disclosure Act of 1995.
By signing the memorandum below, you acknowledge that you will abide by the
limitations on participation set forth above, iu further~ce of the terms of the Ethics Pledge you
signed. This memorandum does not in any way modifY, amend, abrogate or supersede yonr
commitments in the Ethics Pledge.

f7'.

/""?)

Signe~ ......v.. --,- I'V

0" I

Date --'--'~'--/.-'-/...!..=T-1--'oq'---'------

Desiree'Pipkins "
Research Associate in the Office of the White HojlSe Counsel

Desiree Pipkins Lob~ying Activity Chart

Issue

regarding the District of

OGE 2011-11-2

Particular Ma;tter (5 CFR

that disproportionately affect marginalized

communities (poor, Aiiican American,
voters

narrow

connected with crack cocaine

cocaine and powder cocaine offenses

S. 543 Deceptive

practices

Bates 000183

regarding federal voter identification

OGE 2011-11-2

Bates 000184

THE WHITE l:JQUSE

Washington
March 16, 2009
MEMORANDUM AND RECUSAL AGREEMENT FORMARA RUDMAN
FROM:

Nonnan L. Eisen
Special Counsel to the President and ~esignated Agency Ethics Official

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines the limitations on your participation in particular matters

while in the position of Executive Secretary at the Naijonal Security Council. These limitations
stem from your registration as a lobbyist while a men: per of Quo rom Strategies, LLC through
2008.
On January 21, 2009, President Obama signed Executive Order 13490, "Ethics
Commitments by Executive Branch Personnel." An;ppg other things, the Executive Order
requires you to sign an Ethics Pledge ("Pledge"), in which you agree to limit participation in
certain matters and specific issue areas if you were ar~gistered lobbyist within the two years
preceding the date of your appointment.

Based on a review oflobbying reports identifjl!ng you as a lobbyist in 20072008, and the
discussions you had with attorneys in the Office of the Counsel to the President, I have
determined that you do not need a waiver of Pledge, 3(c) because you did not lobby any
component of the Executive Office of the President within the last two years of your
appointment.
Pursuantto Pledge,, 3(a) and 3(b), however, you are prohibited for two years from the
date of your appointment from participating in the fo119wing particular matters or issue areas:
Issues relating to stays in the United States afl:er the expiration of a visa;
World War II Holocaust restitution programs.

The prohibitions on participation stem from the particular matters identified on

approximately 8 lobbying reports from 2007 and 20cis that identity you as a lobbyist or as a
person no longer expected to lobby on specific issues;

OGE 2011-11-2

Bates 000185

By signing the memorandum belov!, you acknowledge that you will abide by the
limitations on participation set forth above, in furtherance of the terms of the Ethics Pledge you
signed. This memorandum does not in any way modifY, amend, abrogate or supersede your
commitments in the Ethics Pledge.
Signed

.J..
1

fJ

Y<-A"''- ,

n.

f_0_(d__,{_

Date_o__,_/

- -~- ~

/
Mara Rudman
Executive Secretary at the National Security Council

LDbbying RepDI't

Mid year, End Year

2007 (Client; Council
on International
Education Exchange)

End year 2007, Q l-Q3

2008 (Client:
American Jnsurance
Association)

Reponed Legislation

Issues related to international

student travel

Specific Issue Area

Matters related to addressing

Issues relating to stays in the United
interpretation of regulations on student
States after the expiration of a visa
visa programs which involved discussion
with House and Senate Foreigu
Relations'Affairs Committee staffers;
also discussed a particular matter
involving summer work training program
with Ukrainian embassy official.
Engaged in numerous conversations with World War II Holocaust restitution
Hill and Senate staffers, and on occasion, programs.
with Members, to provide details about
the work of ICHEIC, its history,
implementation, output, etc. The push
for the education effo!t came because
legislation was being moved that was
heavily critical of the work ofiCHEIC
and would. have effectiveiy.n~gated its
efforts had it been-enacted; Rudman was
hired to play this education role by AlA,
on behalf of several of the companies
that had been members of ICHEIC
(along with state insurance
commissioners and representatives of
Jewish organizations) because ICHEIC
itself had ceased to exist about a month
before the legislation was introduced;
and Rudman had formerly served as
chief operating officer of ICHEIC.
----

Bates 000186

Supporting work done by the

Jnternational Commissioo on
Holocaust Era Jnsurance Claims,
including defending against
litigation aimed at undennining
its efforts and its mission

Partionlar Matter (5 CFR

2635.402(b)(j)

OGE 2011-11-2

Mara Rudman Lobbying Activity Chart

--------

----------------------~

OGE 2011-11-2

Bates 000187

March 20, 2009

MEMORANDUM FOR:

Richard M. Verma

FROM:

L James H. Thessin

SUBJECT:

Limitation on Participation in Particular Matters

This memorandum outlines posiible limitations on yourpiDiicipation in certain

pmticular matters. The limitations steni from yom- .representation of Interaction and the
U.S.-India Business Council before the United States Congress from April 2008 through
October 2008 while you were employed at Steptoe and Jolmson.
In yom- position as Assistant Secretary for Congressional Affairs, you are
responsible for serving the American people. Yom- position will assist the Secretary of
State in advancing our nation's interest in foreign affairs and the Depmiment's relations
with the U.S. Congress. Abiding by the limitations on participation below will ensure
confidence in the Department's actions irhich are of utmost importance to the American
public.
President Obama signed an Executive Order, "Ethics Co1rm1itments by Executive
Branch Persom1el," on January 21, 2009. Among other things, this Executive Order
requires every full-time, political appointee appointed on after January 20, 2009 to sign
an Ethics Pledge (Pledge). In addition to the general recusal for two years from
appointment for any particular matter involving specific parties that is directly and
substantially related to Steptoe and Jo!J.ilson, section 3 of the pledge states that those
appointees that were registered lobbyistii during the prior two years of tlleir appointment
must:

Recuse, for two years after appointment, from participating in any particular
matter on which he or she lobbied during the two years prior to the appointment
and in the specific issue area in which that particular matter falls, Piedge, para.
3(a) and (b); and

Not seek or accept <:>mployment with an agency or department that he or she

lobbied during the plior two yeats, Pledge, para. 3(c).

With respect to paragraph 3(a) and 3(b) of the Pledge, the tetm "particular matter''
includes only matters that involve deliberation, decision, or action that is focused on the
interests of specific persons, or a discrete and identifiable class of persons. The tenn may
include matters that do not involve forinal parties and may extend to legislation or policy
making that is narrowly focused on the interests of a discrete and identifiable class of
persons. The term "pa1ticular matter involving specific parties" applies only to

OGE 2011-11-2

Bates 000188

communications or appearances made in connectior) with a "particular matter involving a

specific party or parties."
Although "particular matter" in paragraphs 3(a) and 3(b) is defined more broadly
to include deliberations, decisions, or actions that are. focused on the interests of specific
persons, or a discrete and identifiable class ofpersoi'is, paragraph 3(c) of the Pledge is
narrower; only those patiicnlar matters that involve a specific party or parties fall within
the scope of this paragraph 3(c) of the Pledge. A ']articular matter involving a specific
party or parties" typically involves a specific proceeding affecting the legal rights of the
parties or an isolatable transaction or related set of l]:'imsactions between identified
parties, such as a specific contract, grant, license, pix1duct approval application,
enforcement action, administrative adjudication, or gourt case.
Upon carefully reviewing the material that yqu have submitted, and pursuant to
further discussions with you concerning these matters, I have determined that while
representing Interaction and U.S.-fudia Business Co]lncil, you should recuse yourself for
two years from your appointment from participatin~ in the following particular matters or
in the specific issues areas in which those particular tnatters fall:

Screening grant recipients of the Age,ncy for futemational Development

U.S.- fudiaFree Trade Agreement

I believe that the other particular matters listed on Steptoe and Johnson's lobbying
disclosure form and the specific issue areas in which those particular matters fail are
unlikely to arise during your service as Assistant Sepretary. fu 11le unlikely event that any
of these particular matters or specific issue areas arise during your service as Assistant
Secretary, you should you seek guidance from me prior to participating in them.
Please feel free to call me if you need further assistance.

OGE 2011-11-2

Bates 000189

Appendix VII

OGE 2011-11-2

D0-09-00~

Bates 000190

January 22, 2009

Executive Order; Ethics Pledge

Provided the Ethics Pledge form to be used for appointees, defined "appointee'' and the
commitments to be made, and noted the requirements for ethics agreements and waivers
D0-09..005

February 10, 2009

Signing the Ethics :piedge

Provided guidance on when the Pledge is to be signed

D0.09-007

February 11, 2009

Lobbyist Gift Ban .(jlnidancc

Provided initial guidance concerning implementation and inte1pretation of the gift ban
D0-09..008

February 23, 2009

Authorizations Pursuant to Section 3 ofE.0.13490

"Ethics Commitme~ts by Executive Branch Personneln

Informed agencies that OMB had authorized DAEPs of each executive agency to exercise section
3 waiver authority in consultation with the Counsel to the President and that limitations had been placed
on exercising that waiver authority
D0-09-010

March 16, 2009

Who Must Sign the :E:thics Pledge?

Provided guidance about specific categories of off\cials to help DAEOs detemline which officials
are subject to the Ethics Pledge

D0-09-011

March 26, 2009

Ethics Pledge: Reyqlving Door Ban--All Appointees

Entering Governme!tt

Provided guidance on how on how to implement paragraph 2 of the Pledge by explaining phrases
that comprise paragraph 2 and how paragraph 2 interacts with existing impartiality regulations
D0.09-0l4

Apri128, 200'1

Holdover Appolntj!O~ and the Ethics Pledge

Required appointees temporarily holding over fro;m the previous Administration to sign the Ethics
Pledge and provided for limited extensions in consultation with the Special Counsel to the President
' .

D0-09-20

May26, 2009

Ethics Pledge Issu~.s: Speeches and Pledge Paragrapl1

2; Iutergovernme'1t~l Personnel Act Detallees

Addressed issues related to appointees giving offici;U speeches at events spo)lSored by fmmer
employers or clients and established that 1PA detailees ani not required to sign the Ethics Pledge
DOc10-003

February 18, 2010

Attendance of Staff Accompanying Official Speakers

Provided guidance on applying the gift rnles and the lobbyist gift ban to attendance by particular
personnel whose presence is truly essential to the perforniaiice of the speaker's official duties at a specific
event
DO-l ()..004

February 22, 2010

Post-Employment Jlnder the Ethics Pledge, FAQs

Provides answers to frequently asked questions about both the post-employment restrictions found in
paragraphs 4 and 5 of the Pledge

OGE 2011-11-2

Bates 000191

~~'til$&_.,

'~' United States

&

~Office of Govetnment Ethics

"'
~;;,

1J 1201 New Yo-rk Avenue, NW., Suite 500

.,.,reNt

?fi" Washington, DC 20005-3917

January 22, 2009

D0-09-003

MEMORANDUM
TO:

Agency Heads and Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Executive Order; Ethics Pledge

President Obama signed an Executive Order, "Ethics Commitments by Executive Branch

Personnel," on January 21, 2009. Amonf!. other things, this Executive Order requires every fullafter January 20, 2009 to sign an Ethics Pledge.
time, political appointee appointed on
Pursuant to section 4(c)(l) of the Executive Order, the Office of Government Ethics (OGE) is
link
to
obtain
a
copy
of
the
Order,
providing
you
with
a
http://www.whitehouse.gov/the press office/ExecutiveOrder-EthicsCommitments/, as well as an
Ethics Pledge fonn (attached) to be used for appointees at your agency.

or

The definition of "appointee" in the Executive Order covers all full-time, political
appointees regardless of whether they are appointed by the President, the Vice President, an
agency head, or otherwise. Executive Ol-der, sec. 2(a). Unlike certain other ethical requirements
(e.g., the restrictions on covered noncareer employees described in 5 C.F.R. part 2636), the
Pledge applies without regard to the salary level of the political appointee. Individuals appointed
to a career position are not required to sign the Pledge. Similarly, political appointees appointed
to a full-time position prior to January iO, 2009 are not presently required to sign the Pledge.
This means individuals appointed during t/:te previous administration are not now covered by the
Pledge even if they are continuing in their cunent position or are serving in an acting capacity
under the Vacancies Reform Act, 5 U.S.C. 3345 et seq.
Generally, appointees must conuriit to:

not accept gifts or gratuities. from registered lobbyists or lobbying organizations

(subject only to a limited number of the exceptions provided in the OGE Standards of
Ethical Conduct, as well as other exceptions that OGE may authorize in the future for
situations that do not implicate the purpose of the gift ban)-Pledge, par. 1

OGE 2011-11-2

Bates 000192

Agency Heads and Designated Agency Ethics Officials

Page2

recuse for two years from any particular matter involving specific patiies in which a
fmmer employer or client is or represents a party, if the appointee served that
employer or client during the two years prior to the appointment-Pledge, par. 2

if the appointee was a registered lobbyist d11ring the prior two years,

o recuse, for two years after appointment, from any particular matter on which he or
she lobbied during the two years prior to appointment (or any particular mattet
that falls within the same specific issue area)-Piedge, par. 3(a) & (b)
o not to seek or. accept employment wit!1 an agency or department that he or she
lobbied during the prior two years-Pledge, par. 3(c)
[Note the requirement for a written ethics agreement for incoming lobbyists,
described below, and tl).e waiver mechanism as to lobbyists, also described below]

if the appointee is subject to the senior employee post-employment restriction in

18 U.S. C. 207(c), to abide by such restrjction for two years after termination of the
appointment-Pledge, par. 4

not to lobby any covered executive branch official (as described in the Lobbying
Disclosure Act) or any noncareer SES appointee for as long as President Obama is in
office---Pledge, par. 5

agree that any hiring or other employment decisions will be based on the candidate's
qualifications, competence and experience~Piedge, par. 6

Section 3 of the Executive Order provides a waiver mechanism for any of the reshictions
contained in the Pledge. The waiver must come front' the Director of the Office of Management
and Budget (or designee), in consultation with the White House Counsel (or designee). The
Executive Order also provides for enforcement of the ?."ledge through civil action by the Attorney
General. Executive Order, sec. S(c). Moreover, tjle Order provides for agency debarment
proceedings against former appointees found to have violated the Pledge, pursuant to debarment
procedures established by each agency in consultation with OGE. ML sec. S(b ).
The Executive Order requires each covered apr.ointee to sign the Pledge "upon becoming
an appointee." Sec. I; see also sec, 4(a). Therefore, Agency Heads and Designated Agency
Ethics Officials must work with relevant personnel officials to ensure that all political appointees
are identified and provided with Pledge fonns to sjgn. Section 4(a) of the Executive Order
provides more detail on the responsibilities of agencies for administering the Pledge requirement.
Section 4(a) also requires agencies to address compliance with the restrictions on incoming
lobbyists (paragraph 3 of the Pledge) through a written ethics agreement, subject to approval by
the White House Counsel (or designee) prior to the appointee commencing work.

OGE 2011-11-2

Bates 000193

Agency Heads and Designated Agency Ethics Officials

Page3
OGE, in cooperation with the Office of the White House Counsel, will be providing you
with more detailed guidance concerning the Ethics Pledge and other aspects of the Executive
Order in the near future. That will also include scheduling a conference in the coming days to
discuss these matters. In the meantime, please do not hesitate to contact OGE about any
questions you may have concerning this niatter.
Attachment:
Ethics Pledge Form

OGE 2011-11-2

Bates 000194

.
a

.,

l>'l!ll

-"<\'Mn!rl'

United States

~Office

of Government Ethics

'tl 1201 New York Avenue, NW., s'uite 500

~" Washington, DC 20005-3917

F<>bruary 10, 2009

D0-09-005

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Signing the Ethics Pledge

The Office of Government Ethics (OGE) ha~ received several questions about when
appointees must sign the Ethics Pledge required under Executive Order 13490. In consultation
with the White House Counsel's office, OGE has dete):mined that Pledge forms must be signed:

in the case of individuals nominated by the President to a position requiring

Senate confirmation (PAS), after Senate coniippation but before appointment;

in the case of non-PAS appointees who have already been appointed, no later than
30 days after the date of their appointment (in'hlcoguition of the logistics of bringing new
appointees. on board during the initial implem~1jtation of the Executive Order); and

in the case of non-PAS appointees who may be appointed in the future, at the time such
person is appointed to a position covered by th<; Executive Order.

In light of the serious nature of the commitmepts embodied in the Pledge, OGE wants to
emphasize that special Government employees (SOBs) are not considered to be full-time, noncareer appointees subject to the Pledge requirement: This follows the interpretation of similar
language in section 2(a) of Executive Order 12834 aq.d section 102 of Executive Order 12731.
See OGE Advisory Memorandum 00 x 1. Note that individuals serving in an agency as
temporary advisors or counselors, pending Senate confirmation to a PAS position, are considered
SOBs unless and until they are conf111lled. See OGE Advisory Memorandum 01 x 2. Such
individuals, therefore, must sign the Pledge after their confhmation, but before their appointment
to a PAS position.

OGE 2011-11-2

Bates 000195

"I!SO)

.,

"

l\"111'6~

q. Umted States

~Office

of Government Ethics

'f:f 1201 New York Avenue, N\V., Sutte 500

~,. Washington, DC 20005-3917

February 11, 2009

D0-09-007

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Lobbyist Gift Ban Guidance

Section 1 of Executive Order 13490 requires all full-time, non-career appointees,

appointed on or after January 20, 2009;"to sign an Ethics Pledge. 74 Federal Register 4673
(January 21, 2009). Paragraph 1 of the Pledge, titled "Lobbyist Gift Ban," sets out an appointee's
agreement not to "accept gifts from registered lobbyists or lobbying organizations for the
duration of my service as an appointee.'' The purpose of this Memorandum is to provide ethics
officials with initial guidance concerning the implementation and interpretation of this gift ban.
Cutrently the ban applies only fO those who meet the defmition of "appointee" in the
Executive Order. 1 The Order directs the Office of Government Ethics (OGE) to adopt rules or
procedures to authorize limited exceptions to the lobbyist gift ban for circwnstances that do not
implicate the purposes of the ban. Executive Order 13490, sec. 4(c)(3)(iii). The guidance
provided in this Memorandum is intended solely to help ethics officials understand the scope of
the han as it applies immediately to full-tiine, non-career appointees. While the Executive Order
directs OGE to adopt rules and procedutes to apply the lobbyist gift ban to all executive branch
employees, any .such JUles or procedtires will be developed in due course, with ample
consideration of the situation of career employees. See id., sec. 4(c)(3)(ii).
What is a "Registered Lobbyist" and a "Registered Lobbying Organization"
The Pledge prohibits gifts from lobbyists and lobbying organizations that are "registered"
under the Lobbying Disclosure Act (LDA), 2 U.S.C. 1601, et seq. However, neither ethics
officials nor appointees must determine: independently whether a pruticular donor meets the
registration requirements of the LDA. Rather, in order to provide notice to appointees, the
Executive Order purposely covers only those gifts received from a lobbyist or organization that
actually has filed a registration with the Secretruy of the Senate and the Clerk of the House of

See DAEOgram 09-003 (explaining the scope of covered

http://www.usoge.gov/ethics guidance/daeograms/dgr files/2009/do09003.pdf.

"appointee"),

OGE 2011-11-2

Bates 000196

Designated Agency Ethics Officials

Page2
Representatives pursuant to 2 U.S.C. 1603(a). flxecutive Order 13490, sec. 2(e). The
Secretary and the Clerk maintain searchable registrant databases. 2 These are the only databases
upon which appointees and ethics officials may rely to determine whether a given donor is
registered, for purposes of compliance with the gifi ban. Search results must be reviewed
carefully. The databases contain the names of 21/ents as well as lobbyists and lobbying
organizations. Also, the databases contain historical information. This may indicate that an
individual was a registered lobbyist at sometime in the past but is not a lobbyist currently. OGE
can assist ethics officials who have questions about 111<;< use of the databases.
The ban is not limited to donors that provide lobbying services to others. The phrase
"registered lobbyist or lobbying organization" includ~s any "organization filing a registration,"
not just lobbying firms. Executive Order 13490, sec. 2(e). In particular, the ban includes any
organization that registers because it employs at least one in-house lobbyist on its own behalf.
See 2 U.S.C. 1603(a)(2), (3)(A)(ii). For example, appointee may not accept a bottle of wine
from a telecommunications company that is registere4 under the LDA, even though the company
is not a lobbying firm and registers only because it employs a single Governmental affairs officer
to represent that company's own interests. Of course, the ban also covers registered lobbying
firms, such as a law frrm or Governmental relations fjnn that files registrations for activities on
behalf of its clients.

an

The ban also applies without regard to wheth~~ the particular lobbyist or organization has
any dealings with the appointee's own agency. As long as the donor is registered under the
LDA, it does not matter that the donor's lobbying contacts and activities may be directed solely
to another agency--or even solely to the Legislative..~ranch. As indicated below, the lobbyist
gift ban is in addition to the OGE prohibitions OJ:\ gifts from "prohibited sources" and gifts
"given because of the employee's official position."
Furthermore, the ban is intended to prohibit gifts from any employee of a registered
lobbyist or lobbying organization. In this regard, t4e ban applies in the same way as the OGE
gift prohibitions, which treat a gift from an employee of an organization as a gift from the
organization. See 5 C.F.R. 2635.204(a)(Examp1e 3). Otherwise, a lobbyist or lobbying
organization could evade the ban simply by relying !Jn non-lobbyist employees to make gifts.
Thus, for example, an appointee could not accept a fi:.ee dinner at a restaurant from an employee
of an oil company that is registered under the LDA, j:Ven though that employee is not included
among the lobbyists listed in the company's regisgl}tion. Of course, if the appointee had a
personal relationship with the company employee, ihe gift might be permitted under 5 C.F.R.
2635.204(b). Id.
The lobbyist gift ban does not prohibit gifts from an organization that retains "outside"
lobbyists or lobbying frrms, as long as the organization
itself is not registered under the LDA.
'.
2

See http://lobbyingdisclosure.house.gov/;
http://www.senate.gov/pagelayout/legislative/g three sections with teasers/lobbyingdisc.htm.

OGE 2011-11-2

Bates 000197

Designated Agency Ethics Officials

Page 3
Organizations that are merely "clients" btit not actually employers of lobbyists do not have to file
registrations under the LDA, even though they may be listed as clients in the registrations filed
by the lobbyists and lobbying fmns they retain. 2 U.S.C. 1602(2); !603(a)(2). The
LDA definition of employee excludes both "independent contractors" and "volunteers who
receive no fmancial or other compensation from the person or entity for their services," so a
person who uses only such non-employe~s for all lobbying services would not be required to
register. 2 U.S.C. 1602(5); 1603(a)(2). These exclusions are important to keep in mind
because the House and Senate databaseS (set out in footnote 2 of this DAEOgram) contain the
names of many persons and entities that,. for example, are clients of lobbying firms but are not
themselves registered lobbyists or lobbying organizations.
The Lobbyist Gift Ban is in Addition to Existing OGE Gift Rules
The Appointee Pledge refers to c~rtain provisions in the existing OGE gift regulations
found in the Standards of Ethical Conducf for Employees of the Executive Branch (Standards of
Conduct) at 5 C.P.R. part 2635, subparl .B, including the OGE definition of "gift." Executive
Order 13490, sec. 2(c)(1); 5 C.P.R. 2635.203(b). That defmition excludes several items, such
as certain modest refieshments, presentation items of little intrinsic value, benefits available to
all Government employees, etc. 5 C.P.R.] 2635.203(b)(l)-(9). However, the prohibitions in the
Pledge are more comprehensive and pnivide far fewer exceptions than the existing OGE rules.
For example, an appointee may not accept a gift from a lobbyist or lobbying organization even if
the donor is not a "prohibited source" and the gift is not given "because of the employee's official
position." 5 C.P.R. 2635.202(a).
The only exceptions to the lobbyisi gift ban are ones that do not undermine the pmpose of
the lobbyist gift ban and are set out below:

gifts based on a personal relation?hip, 5 C.P.R. 2635.204(b);

discounts and similar benefits, 5 C.P.R. 2635.204(c);
gifts resulting from a spouse's business or employment, 5 C.P.R. 2635.204(e)(l);
customary gifts/gratuities provided by a prospective employer, 5 CPR 2635.204(e)(3);
gifts to the President or Vice President, 5 C.P.R. 2635.204(j);
gifts authorized by an OGE-approved agency supplemental regulation, 5 C.P.R.
2635.204(k); and
gifts accepted under specific stamt(ny authority, 5 C.P.R. 2635.204(1).

Because the lobbyist gift ban is very broad, these common sense exceptions are necessary to
avoid potentially absurd results. Thus, an appointee may accept a birthday present from his or
her spouse who is a registered lobbyist sign up for a training course sponsored by a registered
lobbying organization that provides a discount for Federal Govermnent employees. However,
the following exceptions in the OGE gift regulations are not exceptions to the lobbyist gift ban:

or.

$20 de minimis value, 5 C.P.R. i635.204(a);

awards and honorary degrees, 5 CPR 2635.204(d);

OGE 2011-11-2

Bates 000198

Designated Agency Ethics Officials

Page4

gifts resulting from the employee's own outside business or employment, 5 C.F .R.
2635.204(e)(2);
gifts from political organizations in connection with political participation, 5 C.F.R.
2635.204(f);
.
widely attended gatherings 0NAG), 5 C.F.R. 2635.204(g)(2); 3
social invitations from non-prohibited sources; 5 C.F.R. 2635.204(h); and
food, refreshments and entertainment from persons other than a foreign government in a

foreign area. 4

This means, for example, an appointee may not accept a $15 lunch fiom a registered lobbyist or
go to a widely attended reception sponsored by a registered lobbying organization.
The Executive Order also expressly provides. j:hat the lobbyist gift ban covers gifts that
are solicited or accepted "indirectly" within the meaning of section 2635.203(f). Executive
Order 13490, sec. 2(c)(2). The OGE gift regulations define an indirect gift as including any gift
to an employee's parent, sibling, spouse, child or dependent relative because of that person's
relationship to the employee, provided that the empl9yee !mows of and acquiesces in the gift.
2635.203(f)(l). In other words, the lobbyist gift b~)l cannot be circumvented by extending an
invitation or benefit to an appointee's family. An inditect gift also includes any gift given to any
other person, including a charitable organization, based on the employee's designation,
recommendation or other specification. 5 C.F.R. 2635 .203(f)(2). Thus, for example, if a
lobbying organization offered an appointee free tickets to a Broadway show, the appointee could
not simply suggest that the tickets be given instead to his favorite charity or even to one of
several charities whose names are provided by the appointee. See 2635.203(f)(Example 1).
Finally, appointees will not be deemed to hav~ accepted a gift in violation of the Pledge if
the gift is disposed of as provided in 5 C.F.R. 2635.205. Executive Order 13490,
sec. 4(c)(3)(iv). As provided in the OGE gift regulation, proper disposition includes paying the
donor the market value or returning a tangible item. jn the case of perishable items that cannot
3

Appointees still may accept offers of free attendance on the day of an event when they are
speaking or presenting information in an offici!iJ capacity, as described in 5 C.F.R.
2635.204(g)(l), notwithstanding the lobbyist gift bii,n. This is not a gift exception, but simply
an application of the definition of"gift" in section2635.203(b): "The employee's participation in
the event on that day is viewed as a customary and necessary part of his performance of the
assignment and does.not involve a gift to him or to th~ agency." 5 C F R 2635.204(g)(l).
4

Note that the Pledge does not prohibit an appointee from accepting "[g]ifts from a foreign
government or international or multinational organization, or its representative, when accepted
by the employee under the authority of the Foreign Gifts and Decorations Act, 5 U.S.C. 7342."
5 C.P.R. 2635.204(1)(2); see Executive Order 1349.0, sec. 2(c)(3). Whether, or under what
circumstances, any of these entities referenced in the Foreign Gifts and Decorations Act could be
a registered lobbyist or lobbying organization is beyond the scope of this Memorandum.

OGE 2011-11-2

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be retnrned, the appointee's supervisor or agency ethics official can determine that the gift will be
given to an appropriate charity, shared within the appointee's office, or destroyed. Under
section 2635.205(c), an appointee who promptly consults an agency ethics official to determine
whether an unsolicited gift may be accepted, and promptly complies with that official's
instructions, will not be deemed to have accepted a prohibited gift5 For example, if an
appointee receives an unsolicited item, hilt is unsure whether the donor is registered under the
Lobbying Disclosure Act (see discussion: below), the appointee will not be in violation of the ban
if he or she promptly contacts an agency ethics official to determine whether the gift may be
accepted and follows the instructions of that official.
Other Permissible Gifts
Although the lobbyist gift ban is broad, it was not intended to prohibit certain gifts that
do not implicate the purposes of the bail. Pending the issuance of final rules or procedures,
appointees may rely on the following interim gnidance, which OGE developed in consultation
with the White House Counsel's Office, io accept certain gifts from 50l(c)(3) organizations and
media organizations.
Charitable and other not-for-profit organizations that are exempt from taxation under
26 U.S.C. 501(c)(3) are already restricted as to the amount of lobbying in which they may
engage. See 26 U.S.C. 50l(c)(3), (h). Consequently, the practices that the Executive Order
and Pledge were intended to curb are already less implicated by 50l(c)(3) organizations than by
other entities that may employ lobbyists:. ,Furthermore, any 50l(c)(3) organizations that receive
Federal funds are subject to limitations ou the use of those funds to lobby for Federal contracts,
grants, loans or cooperative agreements . .!Jee 31 U.S.C. 1352. Given the kinds of purposes for
which 50l(c)(3) organizations are granted tax-exempt status (e.g., educational, charitable,
scientific), there is little reason to prohibit. employees from relying on the usual gift exceptions in
the Standards of Conduct, many of w!J,ich have particular relevance to the activities of such
organizations. See, e.g., 5 C.F.R. 2635.204(g)(2)(permitting attendance at conferences and
other widely attended events in the interest of the agency); 2635.204(d)(permitthlg certain
honoraty degrees and awards). This judgment is analogous to policies reflected in the Federal
Employees Training Act. See 5 U.S.C. 4111 (permitting employees to accept certain items
from 501(c)(3) organizations). Therefoi:\l, the gift ban will not apply to a gift from a 50l(c)(3)
organization, as long as the gift otherwise may be accepted under the Standards of Conduct.
However, in keeping with the proposes. of the ban, appointees still n1ay not accept a gift if the
mganization employee who extends the offer is a registered lobbyist him- or herself.
Similar considerations are relev&nt to gifts from media organizations. The LDA itself
reflects solicitude for the unique constil:litional role of the press in gathering and disseminating
5

See OGE Informal Advismy Letter 06 x 4 (employee must take initiative to consult with ethics
official and cannot wait until contacted, if ever, by an ethics official before disposing of gift
properly).

OGE 2011-11-2

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information. See 2 U.S.C. 1602(8)(B)(ii). Likewise, the lobbyist gift ban is not intended to
erect unnecessary barriers to interaction between appointees and journalists. This is consistent
with concerns about the application of the OGE gift prohibitions to certain press dinners shortly
after the Standards of Conduct became effective. See Memorandum from the Counsel to the
President to All Agency Heads, December 21, 1993 (suspending enforcement of gift rule with
respect to press dinners, pending revision of rule). Therefore, an appointee may accept a gift
from an employee of a media organization, as long as the gift is permissible under the OGE gift
rules, including any applicable exceptions. The <mly proviso, as discussed above, is that
appointees may not accept a gift if the organization employee who extends the offer is actually a
registered lobbyist.

Conclusion
OGE will continue to provide guidance on th~ lobbyist gift ban and other aspects of the
Executive Order in the future. Ethics officials should consult with OGE if they have any
questions concerning these matters.

OGE 2011-11-2

Bates 000201

United States

Office of Goveriiment Ethics

1201 New York Avenue, NW., Suite 500
Washingtoll, DC 20005-3917

February 23, 2009

D0-09-008

MEMORANDUM
TO:

Agency Heads and Designated Agency Ethics Officials

FROM:

Robe1t I. Cusick
Director

SUBJECT:

Authorizations Pursuant to Section 3 of Executive Order 13490, "Ethics

Commitments by Executive Branch Personnel"

The purpose ofthis 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 Ord.er requires all covered appointees to abide by several
commitments in an Ethics Pledge, unless they are granted a waiver under sectiot1 3. The Director
of the Office of Management and Budget tOMB) has now designated the DAEO of each
executive agency to exercise section 3 w&.iver 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 Authoritv in Consultation with White House
Qounsel
Section 3(a) of the Executive Ordtirprovides:
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 fonner appointe\\. 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
!he restriction, or (ii) that it is in the public inte1est to grant the waiver.
The Director ofOMB has, after cdnsultation with Counsel to the President, determined
that the most appropriate designee of his iiuthority 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 w~s also an important factor in the Director's decision.

OGE 2011-11-2

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Limitations on Exercise of Waiver Authoritv

It is the President's intention that waivers v.ill be granted sparingly and that their
scope will be as limited as possible. All waivers mnst 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 eithpr that the literal application ofthe
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). Fpr the latter purpose, the public interest
includes, but is not limited to, exigent circun1stances ~elating to national security or the economy.
Additionally, provisions in paragraph 3 of the Pledge, which pe1tains 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,\~ 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 acknowledge111ent affirmatively stating that the required
consultation has occurred and is complete. Your OGIi desk officers should also be consulted in
advance with respect to all waiver issues.
Conclusion
OGE will continue to publish additional guidal)Ce 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.

OGE 2011-11-2

Bates 000203

~~'tES (;_.

~.

"
"~..

--4(~

'<}. United States

..
!i Office of Government Ethics
~ 1201 New York Avenu:e, NW., Suite 500
;p Washington, DC 20005-3917

March 16, 2009

D0-09-010

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Who Must Sign the Ethics Pledge?

The Office of Government Ethics (OGE) has received numerous questions concerning
which officials must sign the Ethics Pledge required under Executive Order 13490. Therefore,
OGE is issuing this guidance to help agency ethics officials detennine which officials are subject
to the Pledge requirement.

Definition of Appointee
Section 1 of the Executive Order States that "[e]very appointee in every executive agency
appointed on or after January 20, 2009'1 shall sign the Ethics Pledge. Executive Order 13490,
sec. 1, 74 Federal Register 4673 (Janna!)' 26, 2009). The Order defines "appointee" as follows:
'Appointee' shall include every full-time, non-career Presidential or VicePresidential appointee, non-career appointee .in the Senior Executive Service (or
other SES-type system), and appointee to a position that has been excepted from
the competitive service by reason of being of a confidential or policymaking
character (Schedule C and other positions excepted under comparable criteria) in
an executive agency. It does not include any person appointed as a member of the
Senior Foreign Service or solely a uniformed service commissioned officer.

as

ld., sec. 2(b).

In broad tenns, the Pledge was intended to apply to full-time "political" appointees of all
types. Cf. OGE Informal Advisory I.ett6r 04 x 10 ("when we identify a position as 'noncareer,'
we are typically referring to a political appointment"). The tenn appointee generally irrcludes,
but is not limited to, all appointees to positions described as "covered noncareer" in 5 C.F.R.
2636.303(a) and all full-time Presidelitial appointees subject to section 102 of Executive

OGE 2011-11-2

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Order 12371. However, the term is not limited by any salary thresholds, and it covers political
employees appointed other than by the President. See.' DAEOgram D0-09-003.
In response to questions from several agencie$, OGE wants to emphasize that the term
appointee does not include every excepted service employee. Non-career is not synonymous
with excepted service. See Detailed Explanation; Ethics Reform Act of 1989: Technical
Amendments, 136 Cong. Rec. H 1646 (1990) (ethical limitations on "noncareer" appointees do
not cover "for example, attomeys hired under Schedi;!e A" of the excepted service). Rather, as
the definition of appointee makes clear, the Pledge applies to appointees excepted from the
competitive service "by reason of being of a confidential or policymaking character (Schedule C
and other positions excepted under comparable criteria)." Executive Order 13490, sec. 2(b); see
5 C.F.R. part 213, subpart C (excepted schedules). Again, the essentially political nature of a
given appointment is the touchstone. See 04 x 10 (discussing the criteria for Schedule C and
comparable appointments).
Categories of Officials
OGE has received questions about the coverage of several categories of officials under
the Pledge. These categories are discussed briefly belciw.
1. Special Govemment Employees
As explained in DAEOgram D0-09-005, spepial Govemment employees (SGEs) are not
required to sign the Pledge. SGEs are described at 18.]J.S.C. 202(a), and for most purposes the
term refers to employees who are expected to perform temporary duties on no more than
130 days during a period of 365 days. The definition of SGE and the process fot determining
who is an SGE are discussed in detail in variou. OGE documents. E.g., OGE Advisory
Memoranda 00 x 1; 01 x 2.
2. Foreign Service and Similar Positions
The definition of appointee excludes persons appointed as members of the Senior Foreign
Service, but at the same time it includes "non-cru~er" appointees in any "SES-type system."
OGE elsewhere has determined that non-career $dlior Foreign Service appointees are an
example of what is meant by non-career mem~ers of an SES-type system. 5 C.F.R.
2636.303(a)(2). The Executive Order carries forward this distinction and is intended to cover
those Senior Foreign Service members who are Cot)sidered non-career or political appointees,
but not those who are deemed career officers. The ~~me distinction applies with regard to any
agency-specific or other categories of foreign servic~pfficials: those positions that are filled by
political appointees are subject to the Pledge, whereas those positions that are not viewed as
political are not subject to the Pledge. Likewise, this distinction will apply to Ambassadors:
career Ambassadors (many of whom rotate through. multiple Ambassadorial assignments and

OGE 2011-11-2

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Page3
other posts throughout their Govemment 9areers during successive administrations) will not be
subject to the Pledge, but non-career or political Ambassador appointees must sign the Pledge.
3. Career Officials Appointed to cOnfidential Positions
OGE has received questions front several agencies about whether the Pledge applies to
career staff who are appointed to serve as confidential assistants to Commissioners and other
agency leaders. Some of these questiOJiS have come from independent agencies headed by a
collegial body comprised of members with staggered, fixed terms. Apparently, it has been a
regular practice at certain agencies to iippoint regular career staff to serve in confidential
positions with a given Commissioner, with the expectation that the confidential assistant
retutn to a career stsff position at the end of the Commissioner's term or earlier. In consultation
with the White House Counsel's Office, OGE has determined that the Pledge is not intended to
apply to such employees, provided that the right of return to a career position is established by
statute, regulation, or written agency persiinnel policy. Under such circumstances, a confidential
"rotation" would be viewed as part of an established career pattem, and imposing the exacting
requirements of the Pledge could create unintended disincentives for career employees to accept
such rotations.

will

4. Career SES Members Given Pf~sidential Ap,pointments

The Pledge requirement does apply, however, to career SES members (or other career
SES-equivalent employees) who are appointed to positions requiring Senate confirmation (PAS)
or to other Presidentially-appointed posifions (PA) that ordinarily are viewed as non-career.
Career SES members may elect to retain certain benefits of career SES status, see 5 U.S.C.
3392(c), and they also have certain reinstatement rights upon the completion of a separate
Presidential appointment, see 5 C.F.R. 317.703. However, PAS or PA appointments are of a
different character and magnitude, and career SES members who accept such appointments
become an important part of the political leadership in the administration. Therefore, they must
sign the Pledge.
5. Schedule C Employees with No Policvmaking Role
Certain Schedule C employees Who have no policymalcing role, such as chauffeurs and
private secretaries, have been exempted from public financial disclosure requirements. See
5 U.S.C. app. 101(!)(5); 5 C.F.R. 2634.203(b). These positions have been excluded from
public filing based on OGE's determination "that such exclusion would not affect adversely the
integrity of the Govemment or the public's confidence in the integrity of the Govemment."
5 C.F.R. 2634.203(a). For the same reasons, the Pledge is not intended to cover these
individuals, provided that the agency has followed the procedures prescribed in
section 2634.203(c). Apart from appointees under Schedule C and comparable authorities, the
same result obtains with respect to employees, appointed under 3 U.S.C. 105-108, who have
sintilar non-policymaking duties, as determined by the White House Counsel's Office.

OGE 2011-11-2

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6. Acting Officials and Detailees
The Pledge requirement does not apply to career officials who are acting temporarily in
the absence of an appointee to a non-career position. This includes career officials acting in the
absence of a Senate-confirmed Presidential appointee under the Vacancies Reform Act, 5 U.S.C.
3345 et seq. Similarly, a career appointee who is temporarily detailed to a position normally
occupied by a non-career appointee is not subject to the Pledge. Cf 68 Federal Register 7844,
7848 (February 18, 2003)(employees detailed to a :;enior employee position do not become
senior employees under 18 U.S.C. 207(c)).
7. Holdover APPointees
On its face, the Pledge requirement does n~t apply to individuals appointed prior to
January 20,2009, and the administration will not for 100 days ask anyone held over to complete
the Pledge. The administration has not yet determine~ whether it will extend that 100 day grace
period or at what point it will ask holdovers to comp)l)te the Pledge. Please bear in mind that in
some cases the new administration may ask a holdover to remain in the position, not merely as a
caretaker until some other choice for the position cari be appointed, but as the President's choice
for that position. In the latter situations, the appomt.;,es will be asked to sign the Pledge when
they agree to remain even though there is not a new appointment.
8. Term APPointees
Presidential appointees to positions with a fi,~ed term of office typically are non-career
appointees, even if they are removable only for cause as specified by statute. See OGB Informal
Advisory Letter 89 x 16. Therefore, non-career temi appointees are subject to the Pledge if they
are full-time and were appointed on or after January 29, 2009.
Term appointees appointed prior to January 20, 2009 are not required to sign tbe Pledge.
As a practical matter, however, agency ethics official$ should counsel such individuals to follow
the Pledge to the extent feasible, particularly paragr~P,hs 1, 2, 3 and 6 of the Pledge. Doing so
will help to prevent the confusion and questions thaf"could result if these appointees, especially
those in visible positions, do not abide by the same gift, recusal, and hiring rules that apply to
fellow appointees at the same agency.
A term appointee whose term has expired, but who is permitted by statute to holdover for
some period of time, is not subject to the Pledge, provided the appointment preceded January 20,
2009. Where the President has nominated such a term appointee for reappointment for an
additional term, the individual must sign the Pledge after Senate Confirmation but prior to
reappointment. See DAEOgram D0-09-005. Agaiit, as described in the previous paragraph,
such term appointees should be counseled to follow tlj_e Pledge where practicable.

OGE 2011-11-2

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Conclusion
Given the great variety of appoil1tment authorities in the executive branch, it is not
possible for OGE to addiess every possible category of appointee in this Memorandum. OGE, in
consultation with the White House Counsel's Office, can assist agency ethics officials as
necessary in addressing any questions on a case-by-case basis.

OGE 2011-11-2

Bates 000208

United States

Office of Government Ethics

1201 New York Avenue, NW., Suite soo
Washington, DC 20005-3917

March 26, 2009

D0-09-011

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Ethics Pledge: Revolving Door Ban--All Appointees Entering Government

Executive Order 13490 requires any covered "appointee" to sign an Ethics Pledge that
includes several commitments. 74 Fed. Reg. 4673 (January 26, 2009). OGE Memorandum
D0-09-003 explains the definition of appointee, describes the commitments included in the
Pledge, and provides a Pledge Form to be used for appointees. 1 The purpose of the present
memorandum is to advise ethics officials on how to implement paragraph 2 of the Pledge,
"Revolving Door Ban--All Appointees Entering Government."
Paragraph 2 of the Pledge requires an appointee to commit that he or she will not, for a
period of two years following appointment, participate in any particular matter involving specific
parties that is directly and substantially related to his or her former employer or former clients,
including regulations and contracts. Exec. Order. :No. 13490 sec. 1(2). To help agencies
implement this requirement, OGE is providing the following explanation of the phrases that
comprise paragraph 2 of the Pledge and of how parligraph 2 interacts with existing impartiality
regulations.

Understanding the Meaning of the Terms tha~ Comprise Paragraph 2 of the Pledge
"Particular matter involving specific parties"

In order to determine whether an appointee:s activities concern any particular matters

involving specific parties, ethics officials must follow the definition of that phrase found in
section 2(h) of the Executive Order. That definition lp.corporates the longstanding interpretation
of particular matter involving specific parties reflect~d in 5 C.P.R. 2641.20l(h). However, it
also expands the scope of the term to include any meeting or other communication with a former
employer or former client relating to the performance of the appointee's official duties, unless
1

http://www.usoge.gov/ethics guidance/daeograrns/dgr files/2009/do09003.pdf.

OGE 2011-11-2

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the communication applies to a pmticulaf. matter of general applicability and participation in the
meeting or other eve11t is open to all interested parties. The purpose of this expansion of the
traditional definition is to address concerns that former employers and clients may appear to have
privileged access, which they may exploit to influence an appointee out of the public view. 2
The expanded party matter definition has a two-part exception for cormnunications with
an appointee's former employer or client, if the communication is: (l) about a particular matter
of general applicability and (2) is made ai: a meeting or other event at which participation is open
to all interested parties. Although the exception refers to particular matters of general
applicability, it also is intended to cover communications md meetings regarding policies that do
not constitute particular matters. An appdintee may participate in communications and meetings
with a former employ('>r or client about i:hese pruiicular or non-particular matters if the meeting or
event is "open to all interested parties." Exec. Order No. 13490 sec. 2(h). Because meeting
spaces are typically limited, and time arid other practical considerations also may constrain the
size of meetings, common sense demandifthat reasonable limits be placed on what it means to be
"open to all interested patties." Such itieetings do not have to be open to every comer, but
should include a multiplicity of patties. For example, if a11 agency is holding a meeting with five
or more stal<eholders regarding a given policy or piece of legislation, an appointee could attend
such a meeting even if one of the stakeholders is a former employer or former client; such
circumstances do not raise the concerns about special access at which the Executive Order is
directed. Additionally, the Pledge is not (ntended to preclude an appointee from participating in
rnlemaking under section 553 of the Administrative Procedure Act simply because a former
employer or client may have submitted. written comments in response to a public notice of
proposed rnlemaking. 3 In any event, agency ethics officials will have to exercise judgment in
determining whether a specific forum quitlifies as a meeting or other event that is "open to all
interested parties," and OGE is prepared to assist with this analysis.
"Particular matter involving specific parties ... including regulations"

Because regulations often are cited as examples of particular mattets that do not involve
specific parties, OGE wants to emphasize that the phrase is not intended to suggest that all
mlemakings are covered. Rather, the phtase is intended to serve as a reminder that regulations
sometinles may be particular matters inyolving specific pmties, although in rare circumstances.
As OGE has observed in co!lllection w.i~h 18 U.S.C. 207, certain rulemakings may be so
focused on the rights of specifically identified parties as to be considered a pmticular matter

2
Note, however, that the expanded definitioll: of party matter is not intended to interfere with. the ability of
appointees to consult with experts at educationa~_.institutions and 11 think tanks11 on general policy matters1 at least
where those entities do not have a financial intere~t~ as opposed to an academic or ideological interest. See Office of

Legal

Counsel

Memorandum,

(distinguishing between

npinancial Interests of Nonprofit Organizations,'' January

financial

interests

11,

2006

. and
advocacy
interests
of
nonprofits),
http://www.usdoj.gov/olcllll06nonprofitboards.pdf; cj 5 C.F.R. 2635.502(b)(l)(v)(Note)(OGE impartiality rule
does not requite reousal because of employeejs politica~ religious or moral views).
3
For other reasons discussed below) however, rulemaking sometimes may constitute a particular matter involving
specific parties~ albeit rarely.

OGE 2011-11-2

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involving specific,parties. 4 Such rulemakings lik:ewi~~ are covered by paragraph 2.
"Directly and substantially related to "

The phrase "directly and substantially relate~ to," as defined in section 2(k) of the
Executive Order, means only that the fonner employer or client is a party or represents a party to
the matter. Ethics officials shonld be familiar with thi~ concept from 5 C.P.R. 2635.502(a).
"Former employer or former client"
In order to detennine who qualifies as an appointee's former employer or former client,
ethics officials must follow the definitions of eac.4 phrase found in section 2(i) and 2(j),
respectively, of the Executive Order. In effect, the Executive Order splits the treati11ent of
fonner employer found in the impartiality regula~op.s into two discrete categories, "former
employer" and "former client," and removes contract;or from the defmition of either te1m. See
5 C.P.R. 2635.502(b)(l)(iv), 2635.503(b)(2).

Fonner Employer
For purposes of the Pledge, a fonner employer is any person for whom the appointee has,
within the two years prior to the date of his or her appointment, served as an employee, officer,
director, trustee, or ge11eral partner, unless that pei~oll is an agency or e11tity of the Federal
Government, a state or local govemment, the District' of Columbia, a Native American tribe, or
any Ullited States territory or possessio11. Exec. Orcjer No. 13490, sec. 2(i). While the terms
employee, officer, director, trustee, or general partner ge11era!ly follow existi11g ethics laws and
guidance, OGE has received questions about the scope of the exclusion for government entities
from the defillitioll of fonner employer, specifiNi!ly with regard to public co!leges a11d
universities. The exclusion for state or local govel1ll)lellt entities does extend to a state or local

col!ege or nniversit:y. 5
OGE also. has received several questions about whether the definition of former employer
includes nonprofit organizations. Co11sistent with ihe interpretatioll of similar terms in other
ethics rules and statotes, the defmition of former emplqyer in the Exec11tive Order covers

See, e.g,. 73 Fed. Reg. 36168, 36176 (June 25, 2008); see also OGE Infonnal Advisory Letter 96 x 7, n.l.
See OGE Informal Advisory Opinion 93 lt 29 n.l where OGE held that for purposes of applying the
supplementation of salazy restrictions in 18 U.S.C. ~ 209, the e~ception fur payments from the treasury of any state,
5

countyf or municipality included a state university. OGE cautipps, however, that the exc1usion for state and local
entities may not extend to all entities affiliated with a state or !peal college or university. OGE notes that some
colleges and universities may create mixed public/private entitt.,s in partnership with commercial ente~prises. Such
entities should not automatically be considered as falling withih..the exclusion, but rather should be examined on a
case-by-case basis to determine whether tl1ey should be viewed !lS instrumentalities of state or local government for
the pu~poses of the Executive Order.

OGE 2011-11-2

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Page4
nonprofit organizations. 6 Moreover, it ~~eludes nonprofit organizations io which an appoiotee
served without compensation, provided of course that the appointee actually served as an
employee, officer, director, trustee, or general partner of the organization. Thus, for example,
the recusal obligations of Pledge parag~aph 2 would apply to an appoiotee who had served
without pay on the board of directors or trustees of a charity, provided that the position involved
the fiduciary duties normally associated with directors and trustees under state nonprofit
organization law. This does not include; however, purely honorific positions, such as "honorary
trustee" of a nonprofit organization. It also does not include unpaid positions as a member of an
advisory board or committee of a nonprofit organization, unless the position involved fiduciary
duties of the kind exercised by officers, directors or trustees, or involved sufficient supervision
by the organization to create a common law employee-employer relationship (which is not
typical, in OGE's experience).
Former Client
For purposes of the Pledge, a foriner client means any person for whom the appoiotee
served personally as an agent, attorney, or consultant within two years prior to date of
appointment. Excec. Order No. 13490 sec. 2(j). A former client does not include a client of the
appointee's former employer to whom the appointee did not personally provide services.
Therefore, although an appointee's former law firm provided legal services to a corporation, the
corporation is not a fonner client ofthe appointee for purposes of the Pledge if the appointee did
not personally render legal services to tlie. corporation. Moreover, based on c!iscussions with the
White House Counsel's office, OGE h.as determined that the definition of former client is
intended to exclude the same governmental entities as those excluded from the definition of
former employer. Thus, for example, B.n appointee who had provided legal services to the
Department of Energy would not be prohibited from participating personally in particular matters
in which the Department is a party.
In addition, the tenn fonner client includes nonprofit organizations. However, a fonner
client relationship is not created by ser'Vice to a nonprofit organization in which an appointee
participated solely as an unpaid advisory ~ommittee or advisory board member with no fiduciary
duties. Although a fonner client includes any person whom the appointee served as a
"consultant," OGE has not construed the tetm consultant, as used in analogous provisions of the
Ethics in Government Act and the $tandards of Ethical Conduct, to ioclude unpaid,
non-fiduciary advisory committee members of a nonprofit organization.
See
5 U.S.C. app. 102(a)(6)(A)(disclosure
of
consultant
positions);
5 C.F.R.
2635.502(b)(l)(iv)(covered relationship as former consultant). Likewise, former client does
not ioclude a nonprofit organization in which an appointee served solely in an honorific capacity.

For similar reasons, Federallyfunded research and development centers (FFRDCs), whether nonprofit or for
profit,. are intended to be included in the definitions of fonner employer and former client for purposes of
paragraph 2 ofthe Pledge.

OGE 2011-11-2

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Page 5

The defmition of fmmer client specifically excludes "instances where the service
provided was limited to a speech or similar appearance." Exec. Order No. 13490, sec. 2Q). In
addition to excluding all activities that consist merely of speaking engagements, this provision is
intended to exclude other kinds of discrete, short-tenn engagements, including certain
de minimis consulting activities. Essentially, the Plt;dge is not intended to require a two-year
recusal based on activities so insubstantial that they are not likely to engender the kind of
lingering affmity and mixed loyalties at which the Executive Order is directed. The exclusion
for speaking and similar engagements was added td' emphasize that the provision focuses on
services that involved a significant working relation~hip with a former client. Therefore, the
exclusion is not limited to speeches and speech-like activities (such as serving on a seminar
panel or discussion forum), but includes other activities that similarly involve a brief, one-time
service with little or no ongoing attaclnnent or obligation. In order to detennine whether any
services were de minimis, ethics officials will need tO. consider the totality of the circumstances,
including the following factors:

the amount of time devoted;

the presence or absence of an ongoing contractual relationship or agreement;
the nature of the services (e.g., whether they involved any representational services
or other fiduciary duties); and
the nature of compensation (e.g., one-time fee yersus a retainer fee).

For example, the recusal obligation of Pledge paragraph 2 would not apply to an appointee who
had provided consulting services on a technical or scientific issue, for three hours on a single
day, pursuant to an informal oral agreement, with llQ. representational or fiduciary relationship. 7
On the other hand, an appointee who had an ongoing contractual relationship to provide similar
services as needed over the course of several montlis would be covered. In closer cases, OGE
believes ethics officials should err on the side of coverage, with the understanding that waivers,
under section 3 of the Order, remain an option in appi'()priate cases.
The Relationship of Paragraph 2 of the Pledge t'l the Existing Impartiality Regulations
Paragraph 2 of the Pledge is not merely ?n extension of the existing impartiality
requirements of subpart E of the Standards of Ethic&! Conduct, although in some circumstances
the restrictions of the Pledge and the existing impartiality restrictions could align. The effect of
any overlap is that all of the relevant restrictions apply to the appointee and should be
acknowledged in the appointee's ethics agreement ~nd considered when granting a waiver or
authorization under either set of restrictions.

Note that appointees still will have a covered relationship for one year after they provided any consulting
services, under the OGE impartiality rule, 5 C.F.R. 2635.SO~(b)(l)(iv). Therefore, the OGE ru.le may require an
appointee to recuse from certain matters (or obtain an authorjz~tion, as appropriate), even if the Pledge does not
extend the recusal for an additional year. Indeed, the presence of the OGE rule as a "fall-back" was a factor in the

decision to exclude certain de minimis consulting services from t~e Pledge in the first place.

OGE 2011-11-2

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Designated Agency Ethics Officials

Page 6

Paragraph 2 of the Pledge and Impartiality Regulations Dtffer and Overlap

An appointee's commitments under paragraph 2 of the Pledge both overlap and diverge
from the existing impartiality regulatiolis in important ways depending upon the facts of each
appointee's circumstances. The following highlights some of the key areas in which paragraph 2
of the Pledge and the existing impartiality restrictions differ. In addition, OGE has developed a
chart as a quick reference tool to identify the key differences among the existing impartiality
regulations and paragraph 2 of the Pledge. See Attachment 1.
Paragraph 2 of the Pledge is at cince more expansive and more limited than the existing
impartiality restrictions found at 5 C.F.R, 2635.502, 2635.503. For example, an appointee is
subject to impartiality restrictions based .on his covered relationships with a much broader at;ay
of persons 8 than to the restrictions of pa~agraph 2, which are limited to the appointee's former
employer and former clients. Thus, for instance, if the appointee has served as a contractor, but
not in any of the roles described in the definitions of former employer or former client in the
Executive Order, then the appointee may have recusal obligations under 5 C.P.R. 2635.502
and 2635.503, but not under Pledge patagraph 2. Conversely, Pledge paragraph 2 is more
expansive than the definition of coverep relationship in section 2635.502 because the Pledge
provision looks back two years to define a fmnter employer or fonner client and it imposes a
two-year recusal obligation after appoint~1ent, both of which are considerably broader than the
one-year focus of section 2635.502(b)(l)(iv). Pledge paragraph 2 also is more expansive in that
the recusal obligation may apply to certain communications and meetings that do not constitute
particular matters involving specific parties as that phrase is used in sections 2635.502 and
2635.503. 9
On the subject of recusal periods alone, ethics officials will need to be especially
attentive to the possible variations, as it may be possible for as many as three periods to overlap.
For example, an appointee could have: a one-year recusal, under 5 C.P.R. 2635.502, from the
date she last served a fonner employer; a. two-year recusal, under section2635.503, from the date
she received au extraordinary payment from that san1e fonner employer; and a two-year recusal
with respect to that former employer; under Pledge paragraph 2, from the date of her
appointment.

Specific Recusals under Paragraph 2 of tlie Pledge are Not Required to be Memolialized in an
Appointee's Ethics Agreement.
Executive Order 13490 does not require recusals under paragraph 2 of the Pledge to be
addressed specifically in an appointee's ethics agreement, unlike recusals under paragraph 3 of

' See definition of"oovered relationship" at 5 C.)'.R. 2635.502(b)(l).

9
Compare Exec. Order No. 13490, sec. 2(h)(definition broader than post-employment regulation); with 5 C,F.R.
2635.502(b)(3)(defining particular matter involving specific parties solely by reference to post-employment
regulations).

OGE 2011-11-2

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Designated Agency Ethics Officials

Page7
the Pledge. See Exec. Order No. 13490 sec. 4(a). 10 However, if an appointee will have a written
ethics agreement addressing other commitments, OG:!'\ requb:es that the following language be
inserted in that written ethics agreement in order to ensure that the appointee is aware of her
commitments and restrictions under both her ethics agreement and the Pledge.
Finally, I understand that as an appointee I aJ)l required to sign the Ethics Pledge
(Exec. Order No. 13490) and that I will be bound by the requb:ements and
restrictions therein in addition to the committt>ents I have made in this and any
other ethics agreement.
Written ethics agreements will continue to add[ess section 2635.502 and 2635.503 issues
separately using the model provisions from OGE's "Guide to Drafting Ethics Agreements for
PAS Nominees." Thus, regardless of paragraph 2 of the Pledge, the one-year "covered
relationship" under the OGE impartiality rule remains in effect and may require an appointee to
recuse from certain matters, even if the Pledge does not extend the recusal for an additional year.
See 5 C.F.R. 2635.502(b)(l)(iv).
The Pledge and Impartiality Regulations Waiver Provisions

Designated Agency Ethics Officials have )leen designated to exercise the waiver
authodty for the Ethics Pledge, under section 3 of Executive Order 13490, in addition to their
existing role in the issuance of impartiality waivers <q}d authDiizations. DAEOgram D0-09-008;
5 C.F.R. 2635.502(d), 2635.503(c). Generally, it is expected that waivers of the various
requirements of the Pledge will be granted sparingly. See OGE DAEOgram D0-09-008.
Although paragraph 2 clearly adds new limits on the r~volving door, those limits are not intended
to bar the use of qualified appointees who have releyant private sector experience in their fields
of expertise. Therefore, at least where the lobbyist re$trictions of paragraph 3 of the Pledge are
not hnplicated, OGE expects that DAEOs will exercise the waiver authority for paragraph 2 in a
manner that reasonably meets the needs of their agep.Cies. In this regard, DAEOs already have
significant experience in detennining whether authorizations under 5 C.F.R. 2635.502(d) are
justified, and DAEOs should use similar good judgment in decisions about whether to waive
paragraph 2 of the Pledge. Of course, any such.' waiver decisions still must be made in
consultation with the Counsel to the President. Exec. Order No. 13490, sec. 3. Additional
details on the standards for issuing a waiver of provisions of Pledge paragraph 2, as well as on
issues related to the interaction of the waiver provisions of the hnpartiality regulations and
relevant paragraphs of the Pledge, are reserved for fu.tnre guidance.

10
An ethics agreement is defined as "any oral or written pro:r,n~se by a reporting individual to undertake specific
actions in order to alleviate an actual or apparent conflict of interest," such as recusal from participation in a

particular matter, divestiture of a financial interest, resignat~on from a position, or procuremellt of a waiver.
5 C.F.R. 2634.802.
.

OGE 2011-11-2

Bates 000215

ATTACHMENT 1
OGE developed the following table as a quic)c reference tool to highlight the main differences between
paragraph 2 of the Pledge and existing impartiality regulations. It is not intended to be a substitute for
thorough analysis, but we hope you find it nseful.

Relationship:

Fonner
Employer

Former
Client

Business
and
Personal{
Covered
Relationship

Prohibition:

Length of
recusal:

May not
participate
in
particular
matter
involving
specific
parties if:

5 C.F.R. 2635;502
Any person which the
employee served;
within the last year, as
an officer, director,
trustee, general
partner, agent,.
attorney, consultant,
contractor, or
employee; no
exclusion for ..
govemmental e~tities
(other than Federal)
Clients of attorney,

agent, consulta11t,
or contractor
covered same way as
former employer,
under 5 C.P.R.
2635.502(b)(l)(iv)

In addition to former
employers! clie11ts
discussed above;
includes various .
current business and
personal relati<ipships,
as listed in 5 C.P.R.
2635.502(b)(!)
Reasonable person
with knowledge of
fucts would question
impartiality

I year from the end of

service

5 C.F.R. 2635.503
Any person which the
employee served as an
officer, director,
trustee, general
partner, agent,
attorney, consultant,
contractor, or
employee; no
exclusiotl for
governmental entities
(other tl1an Federal)

Paragraph 2 of the Pledge

Two years prior to the date of
his or her appointment served
as an employee, officer,
director, trustee, or general
partner; contractor and
consultilllt omitted from list
(although consultant added
below under former client); is
not a former employer if
governmental entity

Clients of attorney,
agent, consultant,
or contractor
covered same way as
former employer,
under 5 C.P.R.
2635.503(b)(2)

Two years prior to date of

appointment served as IDl
agent, attorney, or consultant.
Is not former client if:
0
Only provided
speech/similar appearance
(including de minimis
consulting)
Only provided contracting
services other than as
agent, attorney, or
consultant
Served governmental entity
No equivalent concept

No equivalent concept

Extraordinary
payment from former
employer

Includes communication by
former employer or former
client unless matter of general
applicability or non-pa1ticular
matter and open to all
interested parties

2 years from date of

receipt of payment

2 years from date of

apPOintment

OGE 2011-11-2

Bates 000216

G'u""""""'

"$!~~118 Q

~Office

,.,;.

~~

of Government Ethics

'1:! 1201 New York Avenue, N'\\~, Suite 500

-,..<> Wasltington, DC 20005-3917

"'"'mll'1".

April28, 2009
00-09-014

MEMORANDUM
TO:

Agency Heads and Designated Age~cy Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Holdover Appointees and the Ethics Pledge

We have received numerous questions regarding whether appointees temporarily holding

over from the previous Administration pending the llPPOintment of a successor need to sign
the Ethics Pledge promulgated by Executive Orqer 13490 of January 21, 2009. We
previously advised that holdover appointees would be given a 100-day grace period before
being required to sign the pledge. As you koow, April 29'h will be the IOOth day of the
Administration. Accordingly, if you have not done so already, please ask all your holdover
appointees to sign the ethics pledge within the co)ning days. The pledge form may be

foundat:
http://www.usoge.gov/ethics

guidance/daeograms/~gr

files/2009/do09003a.pdf

Persons who are not prepared to sign the pledge should transition out within 30 days, by
May29th.
.
Please note that limited extensions of the deadline may be granted in situations where a
holdover declines to sign and his or her continued ~ervice is determined by the head of the
agency to be mission critical and essential for ciintinuity. In those instances, DAEOs
should submit a written extension request to the Sp~Cial Counsel to the President for Ethics
and Government Reform explaining why the req~esting holdover meets those criteria.
Limited extensions may be granted to address those concerns in an appropriate manner that
both respects the circumstances of the individual liP,pnintee' s current status as well as the
President's commitment to the principles contain~ in the ethics pledge. No mission
critical holdover appointee should be asked to leave until this consultation has taken place.

OGE 2011-11-2

Bates 000217

NlllS<),

'"' United States

iff

~Office

"'

"f. '~'

1Are~

of Governnierit Ethics

1201 New York Avemte, NW., Suite 500

{!:'~ Wasltington, DC 20005-3917

May26,2009
D0-09-020

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert L Cusick
Director

SUBJECT:

Ethics Pledge Issues: Speeches and Pledge Paragraph 2; Intergovernmental

Personnel Act Detailees

The Office of Government Ethics (OGE) continues to work with the White House
Counsel's Office to identify and answei' various questions concerning Executive Order 13490
and the Ethics Pledge for non-career appointees. OGE thought it would be useful to advise
agency ethics officials of the resolution of two questions that recently arose at several agencies.
The first question concerns how to apply paragraph 2 of the Pledge to an appointee who gives an
official speech at an event sponsored by a former employer or client. The second question is
whether the Pledge applies to non-Federal personnel detailed to an agency under the
Intergovernmental Personnel Act. The answers to these questions are set out below.
Speeches and the Effect ofPledge Paragraph 2
OGE and the White House have r~eived numerous questions about whether paragraph 2
of the Ethics Pledge prohibits an appointee from giving an official speech at an event sponsored
by a former employer or client. Paragraph 2 prohibits appointees from participating, for two
years after their appointment, in any particular matter involving specific parties that is directly
and substantially related to a former employer or client. (Paragraph 2 is discussed in more detail
in D0-09-011, http://www.usoge.gov/ethics guidance/daeograms/dgr files/2009/do090ll.pdf.)
With regard to speeches and presentations made in an official capacity OG E, in consultation with
the Whlte Honse Counsel's Office, has determined that the Pledge is not intended to prohibit an
appointee from participating in an official speech unless the speech would have a demonstrable

financial effect on the fo1mer employer client. 1

or

It is important to note that the Pledge does not apply to speeches given in an appointee's
personal capacity. Presentations given lri one's personal capacity may be subject to other ethics
provisions, including 5 C.P.R. 2635.807,5 C.P.R. 2635.808(c), and 5 C.P.R. part 2636.

OGE 2011-11-2

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Designated Agency Ethics Officials

Page2
By way of background, OGE has addressed the application of 18 U.S.C. 208 and
5 C.F.R. 2635.502 to official speeches on several occasions. See, e.g., OGE Informal Advisory
Letters 98 x 14; 96 x 2; 94 x 14. For purposes of section 208, OGE generally has viewed the
decision to give an official speech as a particular matter. 96 x 2 (Ed. Note); of OGE, Report to
the President and to Congressional Committees on 'the Conflict of Interest Laws Relating to
Executive Branch Employment 8 (January 2()06)(application of 18 U.S.C. 205 to request for
Government speaker). An employee is prohibited fiom giving an official speech to an
organization whose interests are imputed to the employee under section 208, if the speech would
have a direct and predictable effect on the organizatiop's financial interest. In OGE's experience,
usually the sponsor of an event will have a financial interest in an official speech only if an
admission fee is charged, the event is a fundraiser; or the event is some kind of business
development activity (such as a seminar for current or.prospective clients).
For purposes of 5 C.P.R. 2635.502, OGE also generally has viewed the decision to give
an official speech as a particular matter involving the event sponsor as a specific party. OGE
98 x 14; OGE 94 x 14. If an employee has a covered. relationship with the sponsor--for example,
the sponsor is a fonner employer under section 2635.502(b)(l)(iv)--the employee should not
participate in an official speech if a reasonable perspn would question his or her impartiality,
absent an authorization under section 2635.502(d). OOE 94 x 14. Nevertheless, OGE certainly
is aware of cases in which agencies have determined either that the circumstances surrounding
the speech really did not raise any reasonable impartiality concerns or that any such concerns
were outweighed by the need for the employee's services. See 5 C.P.R. 2635.502(c), (d). In
such cases, agency ethics officials often still will emp}lasize that the employee should not use the
same organization as a prefened forwn for repeated sJ:ii:leches when other comparable forwns are
available.
Pledge paragraph 2, of course, is similar in ll!'lUY respects to section 2635.502, including
the focus on particular matters involving spedfic parties. See D0-09-011. Consistent with how
speeches have been treated for purposes of 18 U.S.C.' 208 and 5 C.F.R. 2635.502, the Pledge
was not intended to sweep every official speech to a former employer or client 1Ulder the bar of
Pledge paragraph 2. The Executive order elsewhere recognizes that making a speech does not
See Exec. Order !3490,
necessarily reflect a close affinity with the event sponsor.
sec. 2G)(defmition of former client excludes services limited to speech or shnilar appearance).
While paragraph 2 does not include the same "reasoniil;,le person" clause as section 2635.502, the
Pledge provision was not intended to bar speeches t4ilt do not implicate the underlying concerns
about special access to Govermnent decisionmakers who can bestow regulatory and fmancial
benefits on former associates. Cf U.S. v. Su~~c~Diamond Growers, 526 U.S. 398, 407
(1999)(dicta)(official speech to farmers about USDA policy should not be viewed as official act
implicating illegal gratuities statute). In many cases, the sponsor will have an academic or policy
interest in the subject matter of the speech but no direct pecuniary interest in hosting the speech
itself.

This does not mean that paragraph 2 is wholly inapplicable to official speeches. Where
the decision to give an official speech actually would affect the financial interests of the sponsor,

OGE 2011-11-2

Bates 000219

Designated Agency Ethics Officials

Page 3
the concerns under the Pledge about special access are relevant. Thus, if the former employer or
client charges an admission fee or organizes the event for the purpose of fundraising or business
development, the appointee will be barre(t from giving an official speech, absent a waiver under
section 3 of the Executive Order. Even v;'here Pledge paragraph 2 is inapplicable, ethics officials
are reminded to analyze any official speaking engagements under 18 U.S.C. 208 and 5 C.F.R.
2635.502, as discussed above.
Detailees under the Intergovernmental Personnel Act Are Not Subject to the Pledge
Several agencies have asked whether detailees under the Intergovermnental Personnel
Act (IPA) are required to sign the Pledge. The short answer is no.
The IPA provides for the tempoiary assignment of personnel from certain non-Federal
5 U.S. C. 3372; see generally D0-06-031,
entities to Federal agencies.
http:f/www;usoge.gov/ethics guidance/daeograms/dgr files/2006/do0603l.pdf. The IPA clearly
distinguishes between those who actually are appointed by an agency and those who are merely
detailed from a non-Federal entity to an agency. 5 U.S.C. 3374(a)(l),(2). lPA detailees from
academia, State and local government, !1llrl non-profit entities may serve in executive branch
agencies for two years with the possibility of a two year extension. While working in the
executive branch, detailees remain employed by their institution or organization and return to
their employer when the detail is over. Simply put, lPA detailees are not appointees at all.
Therefore, they are not subject to the Pledge, which applies to ''every appointee in every
executive agency appointed on or after Jrumary 20, 2009." Exec. Order 13490, sec. 1 (emphasis
added); see also id., sec. 2(b).

to

This analysis would not apply

any personnel who actually receive an appointment
under the lPA. However, as a genetal matter, OGE rarely encounters questions about
IPA appointees. Agency ethics officials should contact OGE if they have any question about
whether a particular lPA appointee shoii.ld be considered a non-career appointee subject to the
Pledge. See generally D0-09-010 (discussing criteria for appointments subject to Pledge).

OGE 2011-11-2

~r,~ES

Bates 000220

6_,

'%-. United States

~Office of

~;

~.

"'

~..,

.1\,.,r.e~

Government Ethics

'tJ 1201 New York Avenue, NW., SuHe 500

~~ Washington, DC 20005-3917

Februaty 18,2010
D0-10-0Q3

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Attendance by Staff Accompanying Official Speakers

In OGE DAEOgram D0-09-007 dated Februrny II, 2009, the United States Office of
Government Ethics (OGE) addressed implementation of the lobbyist gift ban imposed by section
l of Executive Order 13490. 1 The lobbyist gift ban il one part of the President's efforts to curb
undue influence by special interests, but as stated hi ljlat DAEOgram, the lobbyist gift ban was
not intended to prohibit Executive Branch officiafs from communicating official views to
audiences comprised in part of registered lobbyists or at events that may be sponsored by
organizations that employ registered lobbyists. Sifch events may have a registration fee or
include a luncheon. Consequently, DAEOgram D0-{)9,-007 concluded in part:
Appointees still may accept offers of free attep.dance on the day of an event when
they are gpeaking or presenting information iQ an official capacity, as described in
5 C.F.R. 2635.204(g)(l), notwithstanding the lobbyist gift ban. This is not a gift
exception, but simply an application of the definition of "gift" in section
2635.203(b).
In short, free attendance for official Executive Branch speakers in such circumstances, consistent
with long-standing rules, falls outside the meaning of "gift." It has come to OGE' s attention that
there may be some inconsistencies in how agency etqics officials are applying these rules with
regard to employees who must accompany official agency speakers to such events. The purpose
of this memorandum is to provide guidance on such personnel, who have no speaking role
themselves but may provide essential support to an official speaker.

The OGE gift mles have always been clear on the treatment of free attendance for official
speakers at an outside event. Employees may accept offers of free attendance on the day of an
event when they are speaking or presenting information in an official capacity, notwithstanding
the gift restrictions in 5 C.F.R. 2635.202(a). The r~tionale is that "the employee's participation
in the event on that day is viewed as a customary and necessary part of his performance of the
assignment and does not involve a gift to him or to the agency." 5 C.F.R. 2635.204(g)(l).

OGE 2011-11-2

Bates 000221

Pa~e2.

This guidance also applies to agency personnel whose presence at the event is deemed
essential under agency procedures to the speaker's participation at the event. Examples could
include members of security details, a representative of the agency's public affairs division, or an
aide to assist with a presentation. The number and types of personnel necessary, if any, to the
speaker's participation will vary depending upon who the speaker is and the nature of the event.
There are obviously different considerations for the Secretary of Defense addressing several
thousand people at a convention center a$. compared to a Federal Communications Commissioner
speaking to a luncheon attended by severa.l dozen communications lawyers. OGE does not view
having essential personnel either remain outside the room where the event is taking place or
refraining from food that is offered with the event as necessary to comply with the gift rules.
Such an interpretation would not only be impractical to enforce, but it would ignore the reality
that some aspects of attendance may be difiicult or impossible to avoid. See 5 C.P.R.
2635.204(g)(4) (definition of free attenaimce includes more than food).
It must be emphasized, however, that this is not an expansion of the categories of persons
who may attend such events free of charge. Rather, it is recognition that attendance by particular
personnel whose presence is truly essential to the perfonnance of the speaker's official duties at a
specific event does not violate either OGE's long-standing gift rules or the Executive Order
13490 lobbyist gift ban.

See htto:l/www.usoge.gov/ethics guidance/daoogramsldgr filcs/2009/do09007.hnnl.

OGE 2011-11-2

Bates 000222

United States

Office of Government Ethics

lZOl New York Avenue, NW., Suite 500
Washington, DC ZOOOS-3917

Febroazy22, 2010
D0-10-004

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robert I. Cusick
Director

SUBJECT:

Post-Employment Under the Ethics Pledge: FAQs

As you know, non-career appointees appointe{J on or after Januazy 20, 2009, must sign an
Ethics Pledge that contains a number of commitments. Exec. Order 13490, sec. 1. Several of
these commitments pertain to the conduct of appointees while they are still in Government, but
two of the commitments concern post-employment activities. Specifically, paragraphs 4 and 5 of
the Pledge impose significant new post-employmenf restrictions on appointees. Paragraph 4
largely tracks the provisions of 18 U.S.C. 207(c), vijth which most ethics officials are familiar.
Paragraph 5, by contrast, introduces a number of con()~pts derived from the Lobbying Disclosure
Act (IDA), with which ethics officials may be less faipiliar.
The Office of Government Ethics (OGE) has received questions about both paragraphs 4
and 5 of the Pledge. Therefore, OGE has compiNd the following list of frequently asked
questions and answers about these new post-employriient restrictions. As always, OGE is ready
to assist agency ethics officials with any other questi()ns about the post-employment provisions
or any other requirements of the Pledge.

A. Paragraph 4: Post-Employment Cooling-OffPe!'iod

Paragraph 4 of the Pledge provides:
If, upon my departure from the Government, I am covered by the postemployment restrictions on cornmunicatinlf. with employees of my former
executive agency set forth in section 207(c) of title 18, United States Code, I
agree that I will abide by those restrictions for a period of 2 years following the

end of my appointment.

OGE 2011-11-2

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Designated Agency Ethics Officials

Page2

1. What is the relationship between p~1agraph 4 of the Pledge and 18 U.S.C. 207(c)?
For the most part, paragraph 4 of the Pledge extends the cooling-off period from one to two years
for appointees who are senior employees 1,lllder 18 U.S.C. 207(c). The Pledge does not extend
criminal penalties to conduct beyond the ?ne-year period in section 207( c)--which only Congress
can do--but the Executive Order does specify other enforcement mechanisms, including civil
proceedings and agency debarment, for violations of the two-year restriction of paragraph 4. See
Exec. Order 13490, sec. 5. (Note, however, that the trigger for the two-year period under
paragraph 4 might not always coincide with the one-year cooling-off period of section 207(c), as
illustrated in the answer to Question 6 below.)
2. Which appointees are subject to the two-year restriction ofparagtaph 4?
Like the existing restriction in 18 U.S.C. . 207(c), paragraph 4 of the Pledge is intended to cover
any appointees who are "senior employees," which reflects the judgment that it is appropriate to
impose a two-year cooling-off period onhlgher level appointees who are likely to have the most
influence within their ageneies. The categories of senior employees are described in 18 U .S.C.
207(c)(2) and 5 C.P.R. 2641.104. TJi,i,. restriction of paragraph 4 applies if the appointee is
restricted by section 207(c) at the time of his or her departure from Govermnent.

Example: A non-career Senior Executive Service appointee, whose rate of basic

pay meets the salmy threshoid for being a senior employee, leaves the
Department ofEnergy to workfor private law firm. Sixteen months later, she is
asked to represent a disappointed bidder in a bid protest suit against the
Department in the Court of Federal Claims. Paragraph 4 of the Pledge would
prohibit her from doing so. Howiiver, if she had only been a GS- I 4, Schedule C
appointee, she could engage in tlils representation without violating paragraph 4
of the Pledge because she would never have been a senior employee under 18
U.S.C, 207(c).
Nevertheless, if she had participated personally and
substantially as an employee in the contract award that led to the bid protest, she
would be pennanently prohibited from representing any other person in the
matte1; under 18 U.S. C. 207(a)(1).

3. How does paragtaph 4 affect "very senior employees?"

Very senior employees, as desctibed in 18 U.S.C. 207(d)(l) and 5 C.F.R. 2641.104, are not
covered by 18 U.S. C. 207(c), and therefore they are not subject to the two-year restriction in
paragraph 4 ofthe Pledge. However, these very senior employees are already snbject to a similar
two-year cooling-off period under section 207(d) itself (as well as additional restrictions on
contacting Executive Schedule officials even in agencies in which they did not serve).

OGE 2011-11-2

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Designated Agency Ethics Officials

Page3
4. Which officials may not be contacted under para~raph 4 of the Pledge?
Unlike paragraph 5 of the Pledge (discussed below), which augments the requirements of 18
U.S.C. 207(c), paragraph 4 in this respect tgcks 18 U.S.C. 207(c), which bars
representational contacts with any official of any age~cy in which a senior employee served in
any capacity during the one-year period prior to terrnipating from a senior position. The scope of
18 U.S. C. 207(c) is explained at length in OGE's post-employment regulations. See 5 C.F.R.
2641.204.
.
5. If post-employment activities are permitted by ;~n exception to 18 U.S.C. 207{c), are
they likewise permitted nuder paragraph 4 of the fledge?
Yes. Paragraph 4 of the Pledge incorporates the exceptions and other provisions applicable to 18
U.S.C. 207(c), as well as the relevant OGE post-employment regulations in 5 C.F.R. part 2641.
See Exec. Order 13490, sec. 2(m).

Example: An appointee leaves his senior position at the Department ofJustice to

become an employee of the State ofNew York.. He wants to represent New York
in a meeting with DOJ officials in a meeting af;out drug enforcement policy. This
activity is permissible under 18 U.S. C. 207, because itfolls within the exception
at 18 U.S. C. 2070)(2)(A) for carrying out official duties as an employee of a
state or local government. Therefore, the rzctivity also is pennissible under
paragraph 4 of the Pledge. However; if the fanner appointee does not actually
become an employee of the State, but simply provides consulting or legal services
as a contractor, he may not rely (tn this excepiion. See 5 C.F.R. 264!.30l(c)(2)
and Example 3.

6. How does paragraph 4 of the Pledge apply tq non-career appointees who later
are appointed or reinstated to career positions?
The two-year period specified in paragraph 4 runs ffilm the end of the appointee's noncareer appointment, not from the end of any separate career appointment the individual
may have. In other words, the two-year clock beg\ns to run as soon as a non-career
appointee moves to a position that is not subject to the Pledge. (By contrast, the one-year
cooling-off period of 18 U.S.C. 207(c) commence~ when an individual ceases to be a
senior employee, whether career or non-career. 5 C~F.R. 2641.204(c).) Of course, in
most cases, non-career appointees will leave Government when their non-career service
is concluded.

Example: A career member of the SES is given a non-career Presidential

appointment, at which time she signs the Ethics Pledge. After the
conclusion of her Presidential appointment, she is reinstated as a career
SES appointee, pursuant to 5 C.F.R 317.l03. After serving five more

OGE 2011-11-2

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Designated Agency Ethics Officials

Page4

years in a career SES position, she retires fiom Government. Although

she is a senior employee subject t.o 18 U.S. C. 207(c) when she retires,
she is not restricted by paragraph 4 of the Pledge because more than two
years already have elapsed since the end ofher non-career appointment.
B. Paragraph 5: Post-Employment Lobbying .Ban
Paragraph 5 of the Pledge provides:

In addition to abiding by the limitations of paragraph 4, I also agree, upon leaving

Government service, not to lobby any covered executive branch official or noncareer Senior Executive Service appointee for the remainder of the
Administration.

1. What is the relationship of the lobbying ban in pamgraph 5 to the post-employment

restrictions in paragraph 4 of the Pledge or 18 U.S.C. 207?
The restrictions of paragraph 5 are in addition to the restrictions of paragraph 4, 18 U.S.C. 207,
or any other provision oflaw (e.g., the Procurement Integrity Act, 41 U.S.C. 423(d)).

2.

Does the lobbying ban in paragraph 5 apply to appointees who a1e not "senior
employees?"

Yes. The lobbying ban applies to all appointees who sign the Pledge, unlike the restriction in
paragraph 4. Note, however, that certain Schedule C and other appointees are not required to
sign the Pledge, i.e., those with no policymaking duties (such as chauffeurs and secretaries) who
have been exempted for that reason froill; public fmancial disclosure requirements. See D0-09
01 0, http://www .usoge.gov/ethics_guidaticeldaeograms/dgr__filesf2009/do0901 0 .pdf.

Example: A non-carea SES appointee is paid below the basic pay threshold to
be considered a senior employee, under 18 U.S. C. 207(c){2)(A)(ii). Although
he is not subject to the two-year restriction in paragraph 4 of the Pledge, he is
subject to the lobbying ban in paragraph 5.

3. Does the lobbying ban extend beyon.d tile agency where the former appointee served?
Yes. Paragraph 5, unlike paragraph 4 or 18 U.S.C. 207(c), restricts a former appointee from
lobbying certain officials throughout the entire Executive Branch, not just officials ofthe agency
where the former appointee actually ser;i'ed. (What it means to "lobby," including the concepts
of "lobbying contact" and "acting as a registered lobbyist," is discussed in questions 6 through I 0
below.)

OGE 2011-11-2

Bates 000226

Designated Agency Ethics Officials

PageS
Example: A former appointee at the Department of Transportation may not, as a
registered lobbyist, make a lobbying contact with the Secretary of Health and
Human Sen>ices. This would be prohibited ev~n though she never served at HHS
in any capacity and the subject matter of the lobbying is unrelated to her former
Government position.

4. Which officials may not be contacted by fo1mer !\ppointees under pamgraph 5?

The ban extends to lobbying contacts with specified Executive Branch personnel. The officials
who may not be contacted are: any "covered exec11tjye branch official," defined in the LDA as
the President; the Vice President, any official in thi! Executive Office of the President, any
Executive Schedule official (EL I-V), any uniformed Officer at pay grade 0-7 or above, and any
Schedule C employee, 2 U.S.C. 1602(3); and any non-career SES member, even though the
latter are not covered under the LDA definition. For purposes of simplicity, the discussion
below will refer to all Executive Branch officials who may not be contacted as "covered
officials." Paragraph 5 of the Pledge does not prohibit former appointees from contacting other
Executive Branch personnel besides these covere4 officials. Nor does it prohibit former
appointees from contacting "covered legislative briipch officials," within the meaning of the
LDA, 2 U.S.C. 1602(4).
.
Example: A former appointee of the Environmental Protection Agency has
become a registered lobbyist. She may not, on behalf of one of her lobbying
clients, contact a non-career SES official at the Department of Agriculture.
However, she may contact a career SES offid{ll at the Department, and she also
may contact Legislative Branch officials.

5. How long does the lobbying ban last?

The ban lasts for the "remainder of the Aruninistratio11," This means the duration of all terms of
the President who was in office at the time the appoin~pe received an appointment covered by the
Executive Order. Executive Order 13490, sec. 2(o)(definition of "Administration"). In some
cases, holdover officials appointed during a prior A<lffiinistration have signed the Pledge as a
condition of continued employment. Such holdover officials are bound by their commitment
under paragraph 5 for the same duration as appointees who actually were appointed during the
cm:rent Administration,

6. What does it mean to "lobby?"

For purposes of the Pledge, to lobby is "to act .. , as a registered lobbyist." Exec. Order 13490,
sec. 2(t). A registered lobbyist, in tum, is a person l.isted in required filings as a lobbyist for a
particular client by a registrant under the LDA, 2 U.S.C. 1603(a), because of the person's actual
or anticipated lobbying activities and contacts- Executive Order 13490, sec. 2(e); see 2 U-S.C.
1602(IO)(definition of lobbyist). In a nntsheli; if a former appointee is a registered

OGE 2011-11-2

Bates 000227

Designated Agency Ethics Officials

Page6
lobbyist for a particular client, be or s~e is prohibited by paragraph 5 Gf the Pledge from
making any lobbying contact with a l!overed official on behalf ()f that client. The LDA
definition of lobbying contact is broad, inCluding oral or written communications made on behalf
of a client with regard to FederallegisiaHon (such as legislative proposals), executive branch
programs and policies (such as rulemaki_hg or contracts), and the nomination/confmnation of
persons for PAS positions. 2 U.S.C. 1602(8)(A). However, the definition also enumerates
certain exceptions, which should be C<ipsulted to determine if a former appointee would be
engaging in prohibite-d lobbying under the Pledge. 2 U.S.C. 1602(8)(B).
Example: An appointee recentf~ left the TreasUJy Department to join XYZ
Associates, a consulting firm. JJie firm is helping one of its clients to obtain
Federal fUnding to develop an ili"novative telecommunications security product.
XYZ Associates is registered for this client under the LDA, and it listed the former
appointee as one of three lobby(sts in its latest quarterly report of lobbying
activity filed under the LDA. Under paragraph 5 of the Pledge, the former
appointee may not meet with the Secretary ofHomeland Security to seek support
for funding of the client's research.
Example: An appointee leaves i:Jovermnent to become Chancellor of a large
university. In her new job, she. has occasion to make contacts with various
covered officials about a range bf issues of concern to her university, such as
education policy, taxation, and F~deral grants. The university itself is registered
under the LDA, because it employs an in-house loblryist in its governmental
affairs office and it meets the moi1etary threshold for registration under 2 U.S. C.
1603(a}(3)(A)(ii). However, tfie university has never listed its Chancellor as a
lobbyist and is not required to do so under the LDA, because the Chancellor's
lobbying contacts and other lobbying activities constitute a small fraction (far
less than 20%) of the total time iihe devotes to university services during any 3month period. See 2 U.S. C. 1602(JO)(definition of lobbyist). Therefore, the
fornter appointee does not act as a registered lobbyist when she contacts the
covered officials, and she does ndt violate paragraph 5 ofthe Pledge.
7. How does a former appointee kno-iv if she W()nld be making a lobbying contact "as a
registered l()bbyist"?
The most obvious way that a former appointee would know if she is acting as a registered
lobbyist is if she is already listed as a: lobbyist in a registration statement (LD-1 form) or
quarterly report (LD-2 form), based on actual or expected lobbying for a particular client. These
forms are filed by the lobbyist's employer with the Secretary of the Senate and the Clerk of the
House. Additionally, even if the former .appointee is not ah'eady listed as a lobbyist in an LDA
filing, she will be acting as a registered lobbyist if she is engaging in lobbying that is expected to
be reported in a subsequent LDA filing that will list her as a lobbyist. This interpretation
recognizes that permitting fonner appointees a "grace period" during which they may freely

OGE 2011-11-2

Bates 000228

Designated Agency Ethics Officials

Page7
lobby covered officials, when they reasonably anticipate reporting those activities in a
subsequent LOA filing, would be inconsistent with th~ pmposes oftl1e Pledge.

Example: A fanner appointee has been retained by a client expressly for the
purpose of making several lobbying contacts, and the fanner appointee's
employer has determined that the LDA registration requirement has been
triggered, under 2 U.S. C. J603(a). How,;er, the employer has unti/45 days
after the former appointee is retained to file the initial registration statement that
would list the individual as a lobbyist. 2 U.S. C. 1603(a)(l}. If the fanner
appointee makes any lobbying contact with a covered official during that 45 day
period, she will be deemed to have acted as a; registered lobbyist during that time
period.for purposes of the Pledge. This is because the registration statement that
is eventually filed will list this individual "as an employee of the registrant who
has acted ... as a lobbyist on behalf the client." 2 U.S. C. 1603{b}{6)(emphasis
added).

8. Does this mean that ethics officials have to opine about what circumstances will trigger
registration under the LDA?
Ethics officials will need some familiarity with the LPA registration syste!ll in order to counsel
appointees about their post-employment activities m1der paragraph 5 of the Pledge. However,
neither OGE nor DAEOs can give definitive advice about LDA registration requirements.
Appointees and former appointees should be advised to consult with their prospective employers
and/or private counsel about whether their anticipated activities will trigger registration and
reporting requirements under the LOA. Former appoiiJ.tees and their employers also may contact
the Secretary of the Senate and the Clerk of th' House of Representatives for guidance
concerning registration and reporting requirements.

9. Are there any circumstances under which a fop:ner appointee may become a registered
lobbyist?
There are relatively nanow circmnstances in which a former appointee may become a registered
lobbyist. Paragraph 5 of the Pledge is intended to mhjimize the potential for 1lllfair advantage or
1Uldue influence resulting from an appointee's servic(i in the Executive Branch. Consequently,
for the remainder of the Administration, a former appointee cannot become a registered lobbyist
if this will involve making any lobbying contact with a covered official in the Executive Branch.
However, the Pledge does not restrict former appoi:ht~es from registering and making contacts
with Legislative Branch officials, as this would not implicate the same concerns about exploiting
the access and influence obtained as a result of prior Executive Branch service.

Example: A fanner Commerce Department appointee is retained by a utility

company to lobby on a legislative proposal to. create tax incentives for instafling
new emissions control technology. After beinr; retained, the fanner appointee is

OGE 2011-11-2

Bates 000229

Designated Agency Ethics Officials

Page8

listed as a lobbyist in an LDA regi,itration statement for this activity. As long as

he makes no lobbying contacts with covered officials in the Executive Branch on
behalf of this client and confines all his lobbying contacts to Legislative Branch
officials, he will not viofate paragraph 5 of the Pledge.
Example: In the scenario above, the client asks the fanner appointee to attend a
meeting with the Assistant Secretatji for Tax Policy at the Treasury Department to
discuss how the legislative proposal Would be consistent with the Administration's
agenda. He may not do so, because this would be a prohibited lobbying contact
with a covered official in the Executive Branch.
10. If a former appointee is registered a_s a lobl>yist on behalf of one client, is he prohibited
from making contacts on behalf of another client fot which he is not required to registet?
No. The registration and quarterly reporting requirements of the LDA are client-specific, as is
the definition of "lobbyist." See 2 u.s:c. 1603(a)(2)(single registration for each client);
1604(a)(separate quarterly report for each. Client); 1602(10)(lobbyist is individual employed or
retained by client for certain amount oflobbying contacts and activities on behalf of that client).
Therefore, a former appointee does not "lobby" a covered official, in violation of paragraph 5 of
the Pledge, unless he does so on behalf of it specific client for which he is a registered lobbyist.

Example: Afonner appointee wo~ks for a law finn that does some lobbying. His
firm has registered him as a lobbyist for Blue Corporation, a client which he
represent in lobbying contacts with Legislative Branch official. He also has
another client, Green C01poratimi. for which he has provided only non-lobbying
services. Green Corporation now ljslcs him to make a lobbying contact with the
. Department of Transportation. Eiis firm decides it will not be necessary to
register him for Green C01poratioii: (The firm might determine, for example, that
he does not meet the definition of lObbyist for Green Cotporation, under 2 U.S. C.
1602(10), or that the firm itselfdoes not meet the monetary threshold to register
for Green Corporation, under 2 U.S.C. 1603(a)(3){A)(i).) He would be
prohibited, however, from making even a single lobbying contact with DOT on
behalf of Blue Corporation, because he is a registered lobbyist for Blue
Corporation, even though his otluir lobbying contacts for that client have been
exclusively with the Legislative Brwich.
11. Is there any exception to the requh~ments of paragraph 5 for former appointees who
signed the Pledge but served only a brief time in the Administration?

Neither paragraph 5 nor any other part of the Executive Order makes any exception for
appointees who signed the Pledge but served only a short time.

OGE 2011-11-2

Bates 000230

OGE 2011-11-2
9.'~11S n.,

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Bates 000231

United States

Office of Government Ethics

1201 New York Avenue, NW., Suite 500
Washington, DC 2000.5-3917
December 10, 2009
D0-09-032

MEMORANDUM
TO:

Designated Agency Ethics Officials

Inspectors General

FROM:

Robert I. Cusick
Director

SUBJECT:

A Reminder about Holiday Gifts & Fundraising

During the holiday season, questions often arise about the solicitation and acceptance of
gifts. As you know, even during the holidays, the Standards of Ethical Conduct apply to gifts
from outside sources and gifts between Government employees. Therefore, please remind your
agency's employees of the rules regarding gifts between employees, gifts from outside sources
(including contractor personnel), and acceptance of free attendance at holiday parties. In
addition, please emphasize that "appointees," as defined in Executive Order 13490, must also
comply with the lobbyist gift ban. You are welcome to make use of the attached poem. The
original version of the poem was distributed in 1994. The attached updated version of the poem
includes stanzas concerning gifts from foreign governments and the lobbyist gift ban.
The holiday season is also a time when employees remember those who are in need of
assistance. Therefore, this would be an opportunity to remind employees about the rules related
to fundraising in the Federal workplace for charitable organizations. Of course, the Combined
Federal Campaign (CFC) is the only authorized solicitation of employees in the Federal workplace on behalf of charitable organizations. Employees may engage in fundraising in an official
capacity in the Government workplace only in accordance with CFC rules. See 5 CFR part 950.
Beyond the CFC rules regarding official fundraising, an employee who wishes to engage
in fundraising in a personal capacity in the Federal workplace must comply with Subparts G and
H of the Standards of Ethical Conduct. Thus, an employee may not solicit funds or other support
from a subordinate for a favorite charity. 5 CFR 2635.808(c)(l). Additionally, an employee may
not use his title, position, or other authority associated with his public office to further any
fundraising effort. 5 CFR 2635.808(c)(2). And, of course, an employee may not use
Government resources such as e-mail and photocopier equipment, or Government time, in
support of a private fundraising effmt. 5 CFR 2635.704 and 2635.705.
While some agencies may have de minimis use policies that permit cettain personal uses
of Government resources, it is unlikely that any of these policies would permit broad
solicitations for charitable contributions. Moreover, any such use would still have to comply

OGE 2011-11-2

Bates 000232

with the restrictions related to solicitation of subordinates and the misuse of Government title,
position, and the authority associated with public office.
Thank you for your assistance in these matters, and please accept my best wishes for a
happy holiday season for you and your family.

OGE 2011-11-2

Bates 000233

'I:J-{'E :J-{OLI'D.Jt.Y S'E:A.SON

The lioliaay season - a time for gooa clieer!
:JoT egg nog,foT yarties,for friendS to 6e neaT.
:But I must 6e caTeju(
Lest I acceyt free
51. gift not yennitted', no matter iiow wee.

In tlie case of most yarties, tfie ru(e 5 not so dear

tfie agency must fiave an intenst, I fear.
If wortfi more tlian twenty
5\na it's no friena t1-ue,
Then I'a 6etter seeli guiaance or I cou{a 6e 6(ue.

'PaTt two six tliree five of tlie s C:J'R

Txy(ains in aetai{ tlie n{evant 6ar.
It aefines t/ie tenn gift
To mean a{{ tliings woTtfi money.
Tfiat's :N'B5\ ticli.ets oT jaTs ft,[( of lioney.

Wlien foreign officialS are giving tfie gift,

Tfie ru(es an {ess strict so I aon't cause a rift.
I can talie it if
:fair marliet va(ue 'U.S.
Is tliree fiunarea tliirtyfive ao({an or Cess.

Some gifts may 6e tali.en 6ut some are ver6oten.

The source is tfie li.ey - it's tfie ru{e tfiat I'm quo tin'.
'Wfien from me or otfiers
'1/ie source seeRs sante act,
I must fina an exceytion or I cou{a 6e saciiecf.

'1'\lfiat of tliose in tfie office witfi wfiom I sfiare mucfi?

.
5\re a{{ treats a ta6oo - must we a(ways go autcfi?
The ru(es fien are aifferent,
They '1-e in su6yart C.
Tfiey oliay some gifts even to anafrmn me.

Tv en otfien wfio give can cause yro6{ems for me.

5\s

:But (uciiy for me,

I can give to my 6oss to a limit of ten 51. 6ase6a{{, a cay, or a 6(ue 6a((point yen.
If not to my 6oss

Sante exceytions exist.

Tfiey ,-e in su6yart 1l ana sfiou(a not 6e missecf.

To a friena I can give more witliout 6eing cannecf.

I can yay marliet vatite if tfie gift I ao lili.e,

Or I can at my oytion say "go talie a liilie."
I can afways say no,
:But I neea not aedine.
If wortfi twenty or {ess tlien tfie gift can 6e mine.

I aCways Cooii forwara to my office yarty.

we're a{{ in gooa moodS ana tfie fooa is so fiearty.
If no arm is twisted',
Co{{ecting's okay
To mali.e sure tliat everyone lias a gooa aay.

If my jo6 yromyts tlie giving -my yosition, you see.

This exceytion fias yromytea some very (oua fio((en

It says gifts are oiiay if wortfi twenty ao((ars.
:But sureCy tlie yu6(ic
Is certain to see,
I cou(a never 6e 6ougfit for a sandivicli ana tea.

'Restrictions ayy(y so it aoes not suffice

To yay twenty 6uclis for a gift twice tfie yrice.
5\na in any one year
I can't use it, of cou1~se,

To go over tlie limit -fifty ao((ars yer source.

:for gifts tliat a friena or my sister migfit send',
'Tii.e ru(es recognize I aon't want to offencf.
'Regma(ess of va(ue,
It on{y must 6e
'11iat their nwtive to give wasn't 6usiness, Gut 111e.
Tlie 1-uCe 's mucli tfie same in tiie case of my syouse
Wlio fiayyens to work as sfie can't stana our fiouse.
5J.{tfiougfi lier emyCoyer
Is one of tliose sources,

I can go to tfieir fete ana avoia11101-e divorces.

Or 1ny cfiain of cmn1nanc{,

:But fina{{y, fiow wou{a tfiese ru{es affect me

If I servea tlie 'Presiaent as "ayyointee"?

I linow tfiat ayyointees

:Must sign wfien tliey 're fiina
51. sfiort etfiics y(eage (or tfiey risk 6eing fired).
Tfie same ru{es ayy{y to a yerson wfio stgnea
Txceyt tfiere's an extTa gift ru(e tfiat's enslirinecf:
No gifts from a source
Listea as "(o66yist" Tliougfi no friena or kin is requirea to 6e aissecf.
So go fortfi witfi gooa cfiea ana linow tfien 5 no reason
To tfiink tliat tlie gifts ru(es wi{( ruin your season!

OGE 2011-11-2

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OGE 2011-11-2

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Uolred S"'~

~Office of Government Ethics

<J 1201 New York Avenue, NW., Suite 500

/"" \Vashington, DC 20005-3917

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January 15, 2009

D0-09-001

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robeti I. Cusick
Director

SUBJECT:

Presidential Inaugural Events

January 20, 2009 will mark an important and historic national event, the Presidential
Inauguration. In connection with this occasion, Federal employees may receive offers of free
attendance from various sources to attend Inauguration-related events, including the Inaugural
Parade, Inaugural Balls, receptions, dinners and fundraisers.
Therefore, the Office of
Government Ethics (OGE) thought it appropriate to remind agencies and their employees of
relevant ethical requirements, particularly those petiaining to gifts.
Generally, an executive branch employee may not accept a gift from a prohibited source
or a gift given because of the employee's official position.
See 5 C.F.R.
2635.203(d)( definition of prohibited source); 2635.203(e)( definition of gift because of official
position). However, an employee may accept some gifts under certain exceptions and
exclusions. Many of the offers of free attendance at Inauguration-related events may fall within
one of these exceptions or exclusions. For your convenience, some of the more relevant
exceptions and exclusions are set out below.
Any gifts valued at $20 or less per occasion may be accepted from any source, provided
that the total value of gifts from the same source does not exceed $50 in a calendar year.
5 C.F.R. 2635.204(a). This exception could apply, for example, to gifts of food or drink at a
reception or dinner or other event. Note, however, that any events for which there are tickets are
to be valued according to the face value on the ticket. 5 C.F.R. 2635.203(c).
Gifts that are clearly motivated by a family relationship or personal friendship are
permissible. 5 C.F.R. 2635.204(b). Similarly, a gift that results from the employment or

OGE 2011-11-2

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Designated Agency Ethics Officials

Page2
business activities of the employee's spouse may be accepted, as long as it is clear that the gift
was not offered or enhanced because of the employee's official position.
5 C.F .R.
2635.204(e)(l). For example, if an employee's spouse works for a law firm that has provided
its personnel and their spouses with tickets to an Inauguration-related reception, the employee
may attend the event for free, even if the law firm is a prohibited source for the employee.
Because certain Inauguration-related gifts may be offered by political organizations, as
described in 26 U.S.C. 527(e), some employees may be able to rely on the exception for gifts
in connection with political activities. 5 C.F.R. 2635.204(e). Under this exception, employees
who actively participate in political management or campaigns may accept various benefits from
political organizations, including travel and free attendance at events, in connection with their
political participation. Examples of political organizations would be the Democratic and
Republican National Committees, Federally-registered candidate committees, State party
committees, and tax-exempt 527(e) political action committees. In this connection, note that the
official Presidential Inaugural Committee is not a political organization but rather a 50l(c)(4)
organization, although gifts of free attendance from the Presidential Inaugural Committee are
permissible for other reasons discussed below.
Another gift exception that may apply to many Inauguration-related events is the widely
attended gathering (WAG) provision. 5 C.F.R. 2635.204(g)(2). An employee may be
authorized by an agency designee to accept an offer of free attendance at a WAG, provided that
the appropriate agency designee determines that the employee's attendance is in the agency's
interest. The meaning of "widely attended gathering," as well as other requirements of this
exception, are addressed more fully in DAEOgram D0-07-047, and ethics officials
should note in particular the discussion of social events as possible WAGs.
http://www.usoge.gov/ethics guidance/daeograms/dgr files/2007/do07047.pdf.

Of course, employees may attend any event or accept any other item available for free to
the public or for which the employee pays market value. 5 C.F.R. 2635.203(b)(4), (9).
Therefore, employees may enjoy access to entertainment and other gatherings made available to
the general public in connection with the Inauguration. Moreover, employees may accept any
items actually paid for under Government contract. 5 C.F.R. 2635.203(b)(7)(Government
contract). Similarly, employees may accept any items from an entity of the Federal Government
(or an employee acting on behalf of such entity). See 5 C.F.R. 2635.102(k)(definition of
"person," which is used in gift prohibitions, excludes any "agency or entity of the Federal
Government"). Thus, for example, employees may accept tickets or other Inaugural items
offered by Members of Congress to constituents, or they may accept similar items from the
Joint Congressional Committee on Inaugural Ceremonies, which is the official committee
appointed by Congress "to arrange for the inauguration of the President-elect and the Vice
President-elect" on property under Congressional jurisdiction. 36 U.S.C. 507.
A special word is in order concerning offers of free attendance and related gifts from the
Presidential Inaugural Committee (PIC), which is separate from the Joint Congressional
Committee. The PIC occupies a unique position in American public life. First recognized by a

OGE 2011-11-2

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Designated Agency Ethics Officials

Page 3
joint resolution of Congress in 1881 and then by subsequent resolutions for each Inaugural year,
PICs were permanently recognized by the Presidential Inaugural Ceremonies Act of 1956, which
was enacted "to provide for the maintenance of public order and the protection of life and
property in connection with the Presidential inaugural ceremonies." Pub. L. No. 70-986. As
amended, the Act provides, among other things, for an Inaugural Committee "appointed by the
President-elect to be in charge of the Presidential inaugural ceremony and functions and
activities connected with the ceremony." 36 U.S.C. 501(1). The PIC "organizes and directs
the social events of a Presidential inauguration, including preinaugural receptions and
performances, the Inauguration Day parade, and the inaugural ball [and develops] and markets
souvenirs, including the official program and/or book and the official medal." NARA, Records
of Presidential Inaugural Committees, 274.1, http://www.archives.gov/research/guide-fedrecords/groups/274.html#274.1.

As noted above, gifts fiom entities and personnel of the Federal Government are not
covered by the restrictions in subpart B of the OGE Standards of Ethical Conduct for Employees
of the Executive Branch. Strictly speaking, the PIC may not be a part of the Federal
Government: among other things, it is organized as a 50l(c)(4) organization, it operates with
funds from donations and sales rather than direct appropriations, and it is appointed by the
President-elect rather than a current Federal official. However, Congress has long provided that
PICs would have direct support from, and close coordination with, Government agencies in
connection with Inaugural activities. See,~' 36 U.S.C. 503 (use of Federal reservations or
grounds); 36 U.S.C. 511 (appropriations for District of Columbia and Department of Interior);
10 U.S.C. 2553 (assistance from Secretary of Defense); GSA Inaugural Support
Team, http://www.gsa.gov/Portallgsalep/contentView.do?contentType~GSA BASIC&contentld~24775&noc~T.
Official recognition of a PIC also depends on compliance with specific requirements concerning
the acceptance and disclosure of donations. 36 U.S.C. 510. Moreover, because the
PIC oversees a national celebration of an important occasion in the democratic process, the
attendance of various Federal officials at many of these events often has been viewed as a
ceremonial duty. For these reasons, OGE has viewed P!Cs as sui generis, at least with respect to
the application of the gift rules in subpatt B, and OGE has advised in the past that employees
may accept gifts offree attendance fromPICs for PIC events.
Finally, apart from gifts, OGE wants to remind ethics officials and
employees that the usual restrictions on fundraising apply to any fundraisers held in connection
with the Inauguration.
These restrictions are set out at 5 C.F.R. 2635.808
and are described in various
OGE
documents,
including
DAEOgram
D0-93-024,
http://www.usoge.gov/ethics guidance/daeogmms/dgr files/1993/D093024.aspx.
Although
the
OGE fundraising rule does not apply to fundraising for a political party, candidate for partisan
political office, or pattisan political group, employees should remember that the Hatch Act and
implementing regulations do restrict political fundraising. See 5 U.S.C. 7323(a)(2); 5 C.F.R.
734.303.

OGE 2011-11-2

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OGE 2011-11-2

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~~~ . . (>

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Office of Government Ethics

(J 1201 New York Avenue, NW., Suite 500

"#~ washington, DC 20005-3917

September 7, 2011
LA-11-06
TO:

Alternate Designated Agency Ethics Official

FROM:

Don W. Fox
General Counsel

SUBJECT:

ETHICS ISSUES REGARDING AN EMPLOYEE RUNNING FOR OR

HOLDING A LOCAL NONPARTISAN ELECTIVE OFFICE

This responds to your request for guidance from the Office of Government Ethics (OGE)
on whether your depattment (Department) may rely on 5 C.F .R; 2635.802 to prohibit an
employee of, or an applicant for employment with, a Bureau of your department (Bureau) from
running for or holding a local nonpattisan elective office because the elective office has the
potential to create the appearance of misuse of her Federal position.
OGE is pleased to assist you with the complex ethics issues raised by your question. 1
Because the nature of the outside activity raises fundamental constitutional rights, we are
doubtful that the possible appearance of a violation of 5 C.P.R. 2635.802 can be relied upon to
categorically deny employees their right to run for or hold nonpartisan public office.
Consequently, if your Depmtment decides to pursue such a broad policy, we recommend you
obtain definitive guidance from the Office of Legal Counsel, Department of Justice (OLC).
Neve1theless, because OGE has been asked in several circumstances whether, or to what extent,
an employee may run for or hold a local nonpattisan public office, we provide the following
guidance for analyzing this kind of outside activity on a case-by-case basis.
FACTS

Your letter pettains to a [Bureau] employee who asked your office whether she could run
for office in an election to be City Commissioner. It is your understanding that the election for
City Commissioner is a nonpartisan election. 2 Your letter states that the employee's City

1
In the development of this opinion, OGE consulted with and received feedback from the U.S. Office of Special
Counsel.
2
A nonpartisan election is typically designated as such by state or local laws. "Such state and local laws, however,
create only a rebuttable presumption that an election is nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409,
413 (1983) (overruled on other grounds), Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing
tha! partisan politics actually entered a candidate's campaign may rebut this presumption. See A1cEntee v. Merit Sys.
Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005). "[A] nonpartisan election could become patiisan if, for instance, one of

the candidates were to: participate in and win a party caucus; hold himself out as having the party's political support
by advertising this in his speeches, flyers or mailings; seek and advetiise the political patty's endorsement; or

receive party support in the form of funding, supplies (e.g., wooden stakes for signs, bulk mail permit), campaign
volunteers, campaign publications (e.g., flyers, posters) or use of party headquarters." U.S. Office of Special
Counsel, Federal Hatch Act Advisory: When Does a Nonpattisan Election Become Partisan for Purposes of the

Hatch Act (Nov. 18, 2009).

OGE 2011-11-2

Bates 000240

Commissioner duties would not rmpmge upon the employee's ability to fulfill her [Bureau]
duties.
The [Bureau] conducts [a variety of surveys]. The employee at issue is one of the
thousands of [deleted] temporary employees who collect [data]. The [data] covers a wide range
of topics [topics deleted]. [Employees] visit households and sometimes conduct interviews by
telephone at randomly selected, computer-generated addresses that are typically in the area
where they live. It is our understanding that [Employees] contact every house or every other
house in a neighborhood in any given [outreach assignment]. [Employees] are required to
introduce themselves as employees of the [Bureau]. When conducting [their] work, [Employees]
do not drive Government vehicles. Most [Employees] do not supervise other employees,
although some [Employees] may serve in team leader-like positions. Once [Employees] have
collected the answers [to a survey], the employees turn over the raw data to other [Bureau]
employees who then assimilate the information and provide the data to other Government
agencies and interested parties. [Employees] do not prepare repmts, make recommendations, or
exercise any discretionary functions based on the data they collect.
The [Bureau's] hiring manual has a written policy prohibiting prospective [Employees]
from running for, or holding, any political office, whether partisan or nonpartisan. Some
applicants have questioned this policy. Your office confirmed that the [Employee] at issue is
already serving in her personal capacity as City Commissioner, [in a town of approximately
I ,500 residents]. The relevant election occurred November 3, 2009. Since then, the [Employee]
has continued both to work for the [Bureau] and to serve as a City Commissioner without
repmted incident. The [County's] Supervisor of Elections website indicates her two-year term
expires November 20 II. 3 According to your office, there is no evidence to suggest the
[Employee] engaged in electoral activities while on official time. Whether or not your employee
had a campaign committee is not known. It was your office's assessment that the 2009 election
was not highly contested. [Deleted.]
The Department has not required the [Employee] to resign from either her Government
position or her City Commissioner position despite the [Bureau's] policy of prohibiting
prospective employees from running for or holding elective office. Your office anticipates that it
will continue to receive questions from applicants and employees challenging this policy. Thus,
the issue is not moot. Because the outside activity in question is both recurring and may be
constitutionally-protected conduct, the Department asked whether it may determine, under 5
C.F.R. 2635.802 ("Conflicting outside employment and activities"), that a [Bureau's]
employee may not run for or hold nonpartisan elective office because it has the potential to
create the appearance of misuse of her Federal position. For the reasons discussed below, we are
doubtful that such a blanket prohibition can be legally supported.

[Deleted]

OGE 2011-11-2

Bates 000241

DISCUSSION
I. Ethics Laws and Regulations

An executive branch employee may not engage in outside employment or activities that
conflict with the employee's official Government duties. 5 C.P.R. 2635.10l(b)(l0). An
outside activity conflicts with an employee's duties if it is prohibited by statute or by an agency
supplemental regulation. 5 C.F.R. 2635.802(a). An outside activity also poses a conflict when,
under the standards set forth in 5 C.P.R. 2635.402 and 2635.502, "it would require the
employee's disqualification from matters so central or critical to the performance of his official
duties that the employee's ability to perform the duties of his position would be materially
impaired." 5 C.P.R. 2635.802(b).
In addition to the requirements in 5 C.P.R. 2635.802(a), 5 C.P.R. 2635.80l(c) and
2635.802(b) require agencies to determine whether a proposed outside activity is consistent with
other provisions in the Standards of Ethical Conduct for Employees of the Executive Branch
(Standards of Conduct), including the prohibition in 5 C.P.R. 2635.702 against using public
office for private gain. Based on the facts, it may be possible for the Department to prohibit, on
a case-by-case basis, an employee from campaigning for or holding a local, nonpartisan, elective
office by relying on 2635.702 ("Use of public office for private gain"). However, as explained
below, OGE lacks the authority to sanction blanket approval for such a policy due to potentially
profound constitutional issues raised by your question.
A. Conduct is Not Prohibited by Supplemental Regulation
Although several agencies have supplemental regulations requiring employees to obtain
prior approval to engage in certain outside employment or activities, 4 the Department has not
issued supplemental ethics regulations. Thus, the outside activities of running for and holding
nonpartisan elective office do not conflict with the [Employee's] duties by vittue of an agency
supplemental regulation.

The Department of Interior has a narrowly tailored supplemental regulation which prohibits employees in the
Office of the Assistant Secretary -lndian Affairs, or in the Bureau oflndian Affairs (BIA), from holding "a position
on a tribal election board or on a tribal school board which oversees BIA schools. Note to paragraph (a)(3): Except
for membership on a tribal board and a tribal school board which oversees BIA schools, an eligible person employed
in the office of the Assistant Secretary- Indian Affairs or in the BIA may become a candidate for office in his local
tribe or may be appointed as a representative of his local tribe if prior approval is obtained from the Deputy
Assistant Secretary- Indian Affairs .... " 5 C.P.R. 3501.105(3).
In contrast, the Depatiment of Health and Human Service's supplemental regulation concerning prior approval for
outside activities states that "prior approval is not requi:[ed for participation in the activities of a political, religious,
social, fraternal, or recreational organization unless" the activity involves professional services or the activity is
compensated. See 5 C.P.R. 5501.106(d)(3) (emphasis added).

OGE 2011-11-2

Bates 000242

B. Conduct is Not Prohibited by Statute

Based on our understanding of the facts, the [Employee's] nonpmtisan activities do not
appear to be prohibited by any Federal statute. Your letter states that the employee's "[suvey]
responsibilities are unrelated to any funding of local government programs and would not affect
the financial interests of the [local government]." Therefore, your letter concluded that 18
U.S.C. 208(a) does not prohibit the [Employee] at issue from working on the [surveys] while
holding a position with the [city government]. While we defer to your determination, the
Department should continue to assess whether the employee's future [Bureau] activities would
directly and predictably affect the financial interests of the [city].
OGE's position is that running for a nonpartisan office does not constitute "negotiating
for employment" under 18 U.S.C. 208. Thus, engaging in campaign activities does not
implicate 18 U.S.C. 208. 5 We caution, however, that being a candidate for elective office
could be considered "seeking employment" under subpart F of the Standards of Conduct. We
discuss the application of the seeking employment rule below.
Where there is an actual conflict of interest with an employee's official responsibilities,
at least one Federal department has prevailed in litigation over a ban on nonpattisan political
activities. The Merit Systems Protections Board (MSPB) sustained a decision by the Department
of Housing and Urban Development (HUD) to terminate an employee who ran for local,
nonpartisan public office. See Howell v. HUD, CH-0752-06-0197-I-1 (MSPB, Aug. 22, 2002),
ajJ'd, 94 M.S.P.R. 482 (2003), aff'd per curiam, Ill Fed. Appx. 605 (Fed. Cir. 2004). Howell
involved a HUD "Community Builder" who wanted to run for the nonpartisan office of Mayor of
East Cleveland, Ohio. Community Builders provided services to state and local governments,
were involved in discretionary actions and decision-making that could affect the grants available
to neighborhoods, and had significant contact with the public.
Seeking to avoid public confusion between Community Builders' official and unofficial
roles, HUD policy prohibited Community Builders from pmticipating in a variety of political
activities, including many nonpattisan elective offices. Ms. Howell was advised she could not
run for mayor, both because of the appearance of a conflict of interest and the potential for an
actual conflict of interest between her Federal position and her campaign for mayor. In defiance
ofHUD's policy, Ms. Howell ran for mayor and was removed from her employment with HUD.
In her appeal to the MSPB, Howell claimed that she had a "right to political activity."
Calling that argument "meritless," the MSPB stated that a Federal employee has "no right to
engage in 'political activity' if that activity creates a conflict of interest" with the employee's
Government position. See Howell at 6. Based on the possibility that Howell might favor the city
of East Cleveland while acting as a Federal official, the MSPB found adequate evidence that
5

OGE previously addressed the question of whether a Department employee's campaign activities would constitute
"negotiating for employment" under 18 U.S.C. 208. We provided oral guidance to your office that negotiating for
employment typically involves a "discussion or communication" mutually conducted with a view toward reaching

an agreement regarding possible employment." 5 C.P.R. 2635.603(b)(I)(i). We concluded that running for
elective office does not involve the kind of bilateral negotiations that would implicate 18 U.S.C. 208. However,
we advised that communications to a city, whether made directly or indirectly through the media or campaign
committee filings, about possible employment as an elected official could be regarded as seeking employment.

OGE 2011-11-2

Bates 000243

Ms. Howell's candidacy for mayor created the appearance of or an actual conflict of interest, and
upheld HUD's decision to terminate the employee. !d.
The facts of Howell have some similarity to the facts in the instant situation. Similar to
HUD's Community Builders, [employees such as the one at issue here] interact regularly and
personally with the public. [Employees] also work in the communities where they live, which
are the same communities where they likely would become candidates or serve in office.
However, unlike HUD's Community Builders, the [Employees here] do not directly and
predictably affect the interests of any one community. Most importantly, whereas HUD
determined that the political activity would create a serious appearance of a conflict of interest
and that there was potential for a serious actual conflict, your letter observes that the
[Employee's] [survey] responsibilities are "unrelated to any funding of local government
programs and would not affect the financial interests of the [local government]." Thus, while
Howell addressed the issue of nonpartisan political activity that creates an actual conflict of
interest under 18 U.S.C. 208, its application should not be extended to cases where there is
only a speculative appearance of a conflict of interest.
Another statute, the Hatch Act, 5 U.S.C. 7321-7326, also does not prohibit a Federal
employee from being a candidate in a nonpartisan election 6 or holding such an office. Generally,
the Hatch Act prohibits covered executive branch employees from running for public office in
pmtisan elections. See 5 U.S.C. 7323(a)(3). 7 By contrast, the Hatch Act does not prohibit a
covered employee from running for office in a nonpartisan election. 5 C.F .R. 734.207(b)
(lesser restricted employees), 734.403(b) (further restricted employees). 8 In fact, with few
exceptions, an agency may not impose additional political activity proscriptions or restrictions on
employees covered under the Hatch Act. 5 C.F.R. 734.104. Federal employees may
participate in, hold office in, and fundraise on behalf of a nonpartisan group as long as the
purpose is not for promoting or opposing a political party or candidate in a pattisan election.
Civil Serv. Comm'n v. Nat'! Letter Carriers, 413 U.S. 548, 556 (1973); see also 5 C.F.R.
734.203.

A nonpartisan election is one in which none of the candidates is to be nominated or elected as representing a party
any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential
electm~ were selected. 5 u:s.C. 1503 and 7322(2).
7
"A federal executive branch employee who works on an occasional or irregular basis is subject to the restrictions
with the Hatch Act only when the employee is on duty." See U.S. Office of Special Counsel, Federal Hatch Act
Advisory: Temporary Seasonal Employees Under a 1039 Appointment (May 6, 2010) (concluding the Hatch Act
did not prohibit a temporary seasonal employee hired under a "1039 appointment" by the USDA Forest Service
from being a candidate in a partisan election, provided the employee did not campaign while on duty). See also 5
C.F.R. 734.601. If the [Employee] was an occasional employee who satisfied the conditions of a 1039
appointment as set forth at 5 C.F.R. 213.103-4, then Hatch Act provisions would only apply to her when she was
on duty as a temporary employee and she would be permitted to pursue partisan political activity on her personal
time. But see Kane v. Merit Sys. Prot. Bd., 210 F.3d 1379, 1382 (Fed. Cir. 2000), a.IJ'g Special Counsel v. Kane, 77
M.S.P.R. 530 (1998) (finding that a U.S. Postal Service employee who worked every Saturday did not work on an
irregular or occasional basis).
8
See also U.S. Office of Special Counsel, Federal Hatch Act Advisory: When Does a Nonpartisan Election Become
Partisan for Purposes of the Hatch Act (Nov. 18, 2009).

OGE 2011-11-2

Bates 000244

Therefore, assuming the election for City Commissioner is indeed nonpartisan, the Hatch
Act would not prohibit a [Bureau] employee from being a candidate in such election. 9
For these reasons, no supplemental regulation or statute prohibits [a Department
employee] from running for or holding local, nonpartisan elective office. See 5 C.P.R.
2635.802(a). The question then becomes whether under 2635.802(b) the [Employee's]
nonpartisan local political activity requires her disqualification from matters so critical to the
performance of her official duties that the employee's ability to perform her job is materially
impaired.
C. Employee Not Disqualified From Matters So Critical to the Performance
of her Duties that Her Ability to Perform is Materially Impaired
Based on the facts presented, it does not appear that the [Employee's] outside activities
would require her disqualification from matters so central or critical to the performance of her
official duties that her ability to perform her [Federal government] duties would be materially
impaired. See 5 C.P.R. 2635.802(b). The analysis turns on whether the [Employee] would be
disqualified under 2635.402 (disqualifying financial interests), 2635.502 (personal and
business relationships), or 2635.604 (seeking employment). As noted above, disqualification in
this matter is not required under 18 U.S.C. 208 and 5 C.P.R. 2635.402.
Running for local office could involve activities that would be considered "seeking
employment." In addition to actual negotiations, as described in 5 C.P.R. 2635.603(b)(l)(i),
seeking employment also includes unsolicited communications by an employee regarding
possible employment, as described in 2635.603(b)(l)(ii). You may recall a similar matter
involving another of your employees in which the employee's official duties were to do outreach
work for the [government] in [a different city]. The employee then became a candidate for a
nonpartisan position on the City Council. OGE orally advised your office that the employee had
begun "seeking employment" within the meaning of 2635.603(b) because he had made
communications, whether directly or indirectly through media or required candidate filings, to
the city concerning employment on the City Council. We also advised that the employee could
not benefit from the exception that permits communication solely for the purpose of submitting a
resume or employment proposal to a person affected by the employee's duties only as part of a
class. See 5 C.P.R. 2635.603(b)(l)(ii)(B). Here, the [Employee's] Federal duties focus not just
on [the local district], but on all of the municipalities of [the county]. Thus, it appears that the
[Employee] could benefit from the exception to the "seeking employment" rule because [the
city] is affected by the [Employee's] duties only as part of a class of cities in that [region].
Moreover, since the [Employee] in question already holds office, any "seeking employment"
question is moot, at least for the time-being.

The Hatch Act implementing regulations state that a lesser restricted employee may "[p]mticipate fully in public

affairs, except as prohibited by other Federal law, in a manner which does .not compromise his or her efficiency or

integrity as an employee or the neutrality, efficiency, or integrity of the agency or instrumentality of the United
States Government ... " 5 C.F.R. 734.203(d) ("Participation in nonpartisan activities"). The Hatch Act regulations
futiher remind a candidate that although he may run for nonpartisan office, he is still subject to ''part 2635 of this
title as well as any other directives that might apply .... " 5 C.F.R. 734.207(b) (Example !).

OGE 2011-11-2

Bates 000245

Under the impartiality provisions ofthe Standards of Conduct, running for or holding a
local elective office could appear to conflict with the official duties of the [Bureau] employee. 5
C.P.R. 2635.502. An employee has a "covered relationship" with, among other persons:
Any person for whom the employee has, within the last year, served as officer,
director, trustee, general pattner, agent, attorney, consultant, contractor or
employee; or
An organization, other than a political party described in 26 U.S.C. 527(e), in
which the employee is an active patticipant. Patticipation is active if, for example,
it involves service as an official of the organization or in a capacity similar to that
of a committee or subcommittee chairperson or spokesperson, or patticipation in
directing the activities of the organization.
5 C.P.R. 2635.502(b)(I)(iv), (v).
The [Employee], as a City Commissioner, has a covered relationship with the [city]. Where
there is a covered relationship, Subpatt E requires an employee to take appropriate steps to avoid
the appearance of loss of impartiality in the performance of her official duties. OGE defers to
your detennination that the [Employee] need not disqualify herself from any patticular matter
involving specific patties. According to your staff, your office determined that, much like there
is no concern that the [Employee's] official duties would affect the financial interests of [the
city], disqualification has not been required under 2635.502. Of course, your office could
grant an authorization under 2635.502(d) if the Government's interest in permitting the
[Employee] both to participate in any given party matter outweighs the concern that a reasonable
person may question the integrity of the agency's programs and operations.
Given that the [Employee's] nonpartisan political activity is not prohibited by agency
supplemental regulation, is not prohibited by statute, and does not require her disqualification
from any particular matters, her City Commissioner position would not "conflict with" her
officialBureau duties under 5 C.P.R. 2635.802. However, under 5 C.P.R. 2635.802, the
Depattment is correct to analyze whether the conduct at issue is consistent with other Standards
of Conduct rules, namely those of. 2635.702, which prevent employees from using public office
for private gain. 10
D. Misuse of Official Position
Executive Order 12731 prohibits an executive branch employee from using public office
for private gain or creating the appearance of such use. 11 This principle is implemented, in part,
in Subpart G of the Standards of Conduct. In general, an employee may not use his public office
10

As OGE stated in the Preamble to the proposed Standards of Conduct regulations:

"In most cases, outside

employment should be permitted unless, under the standards proposed in 2635.802, it cOJif/icts. with performance
of the employee's duties. Where outside employment involves a violation of some other provision of this part or a
statute or reg;1/ation referenced in this part, that violation should be addressed." 56 Fed. Reg. 33778, 33788 (July
23, 1991) (emphasis added).
11
Exec. Order No. 12731, Pt. I, !Ol(g) & (n), 55 Fed. Reg. 42547 (1990).

OGE 2011-11-2

Bates 000246

for the private gain of himself or any organization with which he is affiliated in a private
capacity. 5 C.P.R. 2635.702. Specifically, this Subpart prohibits:
The use of public office for private gain,
The use of official time, includin~ a subordinate's time, to perform non-official duties,
The use of government prope1ty 1 for unauthorized purposes, and
The use ofnonpublic information to fmther a private interest.
See 5 C.P.R. 2635.702-705.

The essence of Subpart G is that it is unseemly for a Government employee to take advantage of
his Government job for any private interest, whether his own or someone else's.
I. Possible Appearance of Endorsement

Your lette1: identifies three potential misuses of position concerns, the first of which is
whether permitting the [Employee] to conduct [her official govemment work] and to participate
in nonpmtisan political activity suggests that the Government sanctions or endorses her outside
activity. An employee who is running for or holding elective office may not use or permit the
use of her official position to suggest that the Government endorses or sanctions her personal
activities, the activities of her campaign committee (if any), or the activities of a local
government to which she is elected or appointed. See 5 C.P.R. 2635.702(b); 5 C.P.R.
2635.807(b).
The [Employee] was asked to consider running for the [deleted] City
Commissioner position. Information from a local [state] newspaper's online site indicates that
your employee was the only candidate for the position and that she ran "unopposed." These
facts strongly suggest that the employee did not need to actively campaign for what appears to
have been an uncontested election. Moreover, your office is not aware of any allegations that the
employee engaged in campaign or other political activities while on official time. For these
reasons, we do not believe there is an appearance of Government sanction or endorsement.
Assuming arguendo that the [Employee] is not engaging in campaign-related activities
while conducting [her work], the next issue is whether it might appear that the Government
endorses this employee if she engages in political activity during her off-duty hours. Merely
permitting an employee to engage in an otherwise permissible outside activity on her own time
does not equate to Government endorsement of the employee running for public office.
Admittedly, an [Employee] could collect publicly available data from the very community which
she seeks to or does represent. Neve1theless, we do not believe permitting [an Employee] to do
[Federal] work on official time and City Commissioner work on her own time suggests that the
Government either favors the employee at issue or disfavors another person who might run for
that particular elective office in the future.

12

The circumstances do not seem to raise any issues concerning the [Employee's] use of Government property. See
5 C.F.R. 2635.704. If [Employees] had Government vehicles to conduct their [deleted] work and an employee
used one for unauthorized purposes, then .704 might be implicated. However, there are no facts to suggest that

[Employees] would violate .704 simply by running for office in a nonpartisan election.or holding such office.

OGE 2011-11-2

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2. Possible Perception that Official Position Could be Used for the Employee's
Personal Advantage

The second potential concern identified in your letter-that there could be a perception
that the [Bureau] is compensating its employee to meet constituents-seems to raise perhaps the
most potentially valid governmental concern about the [Employee's] pursuit of a local political
office. At the heart of this appearance concern is the [Employee's] use of her title, position, and
authority.
Section 2635.702(a) specifically prohibits an employee from using or permitting the use
of "his government position or title or any authority associated with his public office in a manner
that is intended to induce or coerce" another person to provide a benefit to the employee or to
"persons with whom.the employee is affiliated in a nongovernmental capacity." 13 Applying this
standard, the real potential for an appearance concern stems from the opportunity to do both
[Federal] work and campaign for public office at the same time. For example, if the [Employee],
or someone acting on her behalf, used her official title repeatedly in connection with a campaignrelated activity, event, or communication, the public could be confused as to whether the
employee is acting in her official or personal capacity. Similarly, if the [Employee] gave undue
prominence to her title or official position in campaign literature, it might appear that the
employee was using her public office for private gain. 14 However, absent any indication that an
[Employee] is inducing or coercing someone who she is [communicating with] to vote for her,
there seems to be little risk of an [Employee] implicating 2635.702(a) while the employee is
running for office in a local, uncontested, nonpartisan election. Similarly, this [Employee] could
violate 5 C.F.R. 2635.702(a) if, for example, she used her official title or authority to advance
the interests of [the city]. We are not aware of any facts suggesting there is a direct connection
between this [Employee's] official authority doing [her Federal] work and any potential benefit
to the [city].
Another issue is this [Employee's] use of official time, pursuant to 5 C.F.R. 635.705.
Section 2635.705(a) provides that employees must use official time in an honest effort to
perform official duties. To the extent that [an Employee] actively campaigned while conducting
[her Bureau work], such action could implicate 2635.705(a). However, the fact that the
[individuals the employee communicates with in the course of her Bureau duties] are chosen at
random and not by the [Emfloyee] herself should allay some of the concern about electioneering
during official duty hours. 1 Also, since [the city] is only one of several municipalities in [the]
County, and [the ward] is only one of several wards in [the city], the [Employee] necessarily
conducts most [of her work] in areas other than where her potential voters or constituents live.
13

See also 5 C.P.R. 2635.807(b), as discussed in OGE DAEOgram Book Deals Involving Government Employees,
D0-08-006b, 26 (Mar. 6, 2008) and OGE Informal Advisory Letter 98 x 4 (Mar. 21, 1997).
14
See 5 C.P.R. 2635.807(b)(l) providing that any employee "may include or permit the inclusion of his title or
position as one of several biographical details when such information is given to identify him ... provided his title is
given no more prominence than other significant biographical details." See also OGE Informal Advisory Opinion
10 xI, Letter to a Designated Agency Ethics Official dated March 19, 2010, Regarding Uncompensated Teaching,
Writing, and Speaking.
15
Although 5 C.P.R. 2635.705 extends to the misuse of a subordinate's time, [Employees] generally do not
supervise other employees. We are not aware of any facts to suggest that this [Employee] could implicate
2635.705 by using the official time of subordinates for nonofficial purposes.

OGE 2011-11-2

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The [Employee) should be counseled not to mention that she is running for or serving as City
Commissioner while [gathering data for the Bureau). If someone [deleted) the [Employee) is
[speaking with] were to recognize the employee as a City Commissioner, the [Employee) simply
could state that the purpose of her visit is to conduct a Government [activity] and that she is not
permitted to discuss her outside activities while on Government time.
3. Possible Perception ofMisuse ofNonpublic Information
Your letter identifies as a third concern the "possible perception" that the [Employee)
"may have access to non-public information that would aid her in performing the duties of her
elected position." The relevant Standards of Conduct provision provides that "[a)n employee
shall not engage in a financial transaction using nonpublic information, nor allow the improper
use of nonpublic information to further his own private interest or that of another." See 5 C.F .R.
2635.703(a). "Nonpublic information" is defined at 5 C.P.R. 2635.703(b) as "information
that the employee gains by reason of Federal employment and that he knows or should know has
not been made available to the general public." 16 Significantly, a Federal law prohibits
Department employees from improperly disclosing covered [information) and imposes possible
fines or imprisonment for wrongful disclosure. [Citation deleted). In fact, [these Employees)
take an oath not to reveal [data] to anyone other than an authorized [Bureau) employee. Your
Department has not indicated that the [Employee) has disclosed any protected information or
used any nonpublic information to further either her own private interest or that of [the city).
Significantly, both the [the Federal law] and 5 C.P.R. 2635.703(a) address only actual
disclosure and misuse of nonpublic information, not the speculative appearance of such misuse.
In sum, if there were some factual basis for doing so, the Department could conclude that
appearance of misuse of position concerns were so serious as to outweigh [an Employee's)
interest in seeking or holding nonpattisan elective office. However, where the appearance
concerns are purely speculative, we do not think a wholesale policy prohibiting [Bureau]
employees from running for office in nonpartisan elections or holding such offices can be
justified.
Our recommendation comports with the practice of another large agency that has
thousands of employees who interact with the public on a daily basis. The agency generally does
not constrain nonpartisan political activities because of its concern about interfering with
employees' First Amendment rights. Specifically, if a nonpartisan political activity is not
prohibited by the Hatch Act, is not conducted during official duty hours, and is not conducted on
Government property, this agency typically permits the nonpartisan political activity. In fact,
many of that agency's employees hold nonpartisan political offices, such as town council
positions, and routinely perform such outside activities on their own time. Of course, each
agency's mission is different, but we note this agency's practice for your consideration.

16

Nonpublic information "includes information that [an employee] knows or reasonably should know: (1) [i]s
routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive
order or regulation; (2) [i]s designated as confidential by an agency; or (3) [h]as not actually been disseminated to
the general public and is not authorized to be made available to the public on request." 5 C.F.R. 2635.703(b).

10

OGE 2011-11-2

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II. Limits on This Employee's Right to Seek or Hold Elective Office

Assuming that there are no actual conflicts of interest and no actual violations of the
Standards of Conduct, it is important to discuss the larger context in which this request to
participate in nonpmtisan political activity takes place. Given that this [Employee's] conduct
does not implicate any ethics rules, we are not aware of any vital government end that justifies
the [Bureau's] hiring policy of prohibiting all [Employees] from running for office in
nonpartisan elections or holding such offices.
The issue of whether and the extent to which a government employee's First Amendment
rights as a citizen may be restricted because of government's interest in regulating public
employment is not new and, in fact, is a heavily litigated one. "Precedent in the area of
constitutional protection for candidacy can best be described as a legal morass." Randall v.
Scott, 610 F.3d 701,710 (11th Cir., 2010).
The Hatch Act was passed because Congress sought to "protect civil service employees
from undue political influence by prohibiting Federal workers from engaging in partisan
political activities altogether." 139 Cong. Rec. S. 690 (emphasis added). The Act's legislative
history includes several statements by U.S. Senators indicating that Congress expressly sought to
carve out nonpartisan activities from the scope of the Act. For example, Senator Schwartz asked
whether an aJnendment would "protect nonpartisan activities." Senator Brown replied, "It would
protect such activity." 86 Cong. Rec. 2922 (March 15, 1940). Similarly, Senator Brown sought
to exclude from the law's prohibition "patticipation in political campaigns of a nature totally
disconnected from partisan politics." 86 Cong. Rec. 2347 (March 15, 1940). Senator Hatch,
himself, agreed to support an amendment, if one was necessary, to ensure that a "nonpartisan
election, such as for a school trustee or on a bond issue, is not within the language" of the bill.
Id. In developing the Hatch Act Reform Amendments of 1993, Senator Glenn observed that the
Senate Government Affairs Committee "exercised extreme caution in balancing the need to
protect the integrity of the civil service with our duty to protect the constitutional right of all
citizens to participate in the Nation's political processes." 139 Cong. Rec. S. 690-02, 697-98
(1993).
Yet partisan political activity by civil servants, which Congress sought to limit, has
weathered legal challenges. For the most part, the Hatch Act's narrowly tailored prohibitions on
partisan political activity by Federal employees have survived because the Supreme Court has
recognized that the Hatch Act carefully balances government employees' constitutional rights
and the government's interest in achieving legitimate governmental interests. "Neither the right
to associate nor the right to participate in political activities is absolute." United Pub. Workers of
America v. Mitchell, 330 U.S. 75 (1947). Public employees "do not relinquish their First
Amendment rights" to free speech merely because they enter into an employment relationship
with the government, but "the government's interest in the efficiency and integrity of public
service can be sufficient to limit those rights." Pickering v. Board of Education, 391 U.S. 563,
568 (1969). Pickering set fmth the current First Amendment analysis, under which a public
employee's right to speak as a citizen addressing matters of public concern is balanced against
the interest of the government, as an employer, in promoting the efficiency of the public service.

11

OGE 2011-11-2

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In sustaining the constitutionality of the Hatch Act, the Court has deferred to Congress'
judgment that "partisan political activities by Federal employees must be limited if the
Government is to operate effectively and fairly, elections are to play their proper part in
representative govemment, and employees themselves are to be sufficiently free from improper
influences." Civil Serv. Comm'n v. Nat'! Letter Carriers, 413 U.S. 548 (1973) (sustaining the
constitutionality of 9(a) of the Hatch Act of 1940 prohibiting Federal employees in the
executive branch from taking "any active part in political management or in political
campaigns"). Yet even these pivotal Supreme Court cases caution that the "prohibition against
political activity was not to be construed to prohibit political activity in nonpartisan elections" Id.
at 562.
Moreover, the Eleventh Circuit Coutt of Appeals recently concluded that the individual's
"right to candidacy" does enjoy some First Amendment protection. See Randall, 610 F.3d at 713
(equating the right to candidacy with the right to support a candidate). In Randall, a city worker
filed a 42 U.S.C. 1983 civil rights action against his employer after he was fired for running for
chairman of his county board of commissioners. Although Randall did not decide what level of
constitutional scrutiny is required when the government seeks to limit employees' right to seek
elective office, the court held that government employees do enjoy some First Amendment
protection for political candidacy. "Restricting candidacy," the court concluded, "must be the
least restrictive means of fmthering a 'vital government end."' See id. at 711 (quoting Elrod v.
Burns, 427 U.S. 347, 363 (1976)).
Based on the existing First Amendment balancing test, the Department must balance its
interest in avoiding a potential appearance of misuse of an employee's Federal position against
the individual's right to seek public office in a nonpartisan election. Accordingly, any [Bureau]
policy on nonpartisan political activity should operate in a way that achieves legitimate
governmental interests while preserving its employees' First Amendment rights. We do not
believe the [Bureau's] blanket restriction prohibiting all [Employees] from running for or
holding nonpartisan elective positions is narrowly tailored enough to pass the Pickering First
Amendment balancing test for public employee speech. 17 It could be that restricting a particular
[Employee] from running for or holding a certain elective office in other circumstances could be
justifiable. But we do not believe the burden has been met here.
III. Additional Ethics Considerations

If your Department decides to permit this [EmployeeJ to engage in nonpartisan political

activity, she should be counseled about relevant conflicts of interest laws and the Standards of
Conduct. 18 In addition to the restrictions discussed above, OGE notes briefly that there are
certain other rules that could apply to this [Employee].

17

Moreover, a blanket restriction may be a prohibited personnel practice under 5 U.S.C. 2302(b)(l2), which

generally provides that a federal employee who has authority over personnel actions may not take or fail to take a
personnel action if taking or failing to take the action would violate any law, rule or regulation implementing or

directly concerning merit systems principles at 5 U.S.C. 2301.

18
The Depmiment has provided no information that would indicate whether the employee at issue is a "covered
noncareer employee," as defined in 5 C.P.R. 2636.303(a). Please note that additional restrictions on outside
activities and outside earned income apply to cettain covered noncareer employees.

12

OGE 2011-11-2

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As you know, a Federal employee is barred from acting as an agent or attorney, or

otherwise representing someone before a Federal agency or court. See 18 U.S.C. 203, 205.
Prohibited representation means any communication with the intent to influence Government
action, including but not limited to phone calls, meetings, and written letters. This restriction
does not bar an employee from contacting a Federal agency on her own behalf, but it does bar
contacts on behalf of a separate legal entity, such as a campaign or a city commission. Although
205 would not bar the employee from providing "behind-the-scenes" assistance to the [city],
the employee should be counseled to ensure that she does not represent a campaign committee or
a local municipality before the Government in connection with any pmiicular matter in which the
United States is a party or has a direct and substantial interest. Section 205 not only would
prohibit her from representing another entity in contacts with the [Bureau] or the Depmiment,
but would also prohibit her from making representations before any other Federal agency.
Political activities invoke cetiain other Standards of Conduct provisions. Campaign
activities in particular trigger the teaching, speaking, and writing restrictions of 5 C.P.R.
2635.807. For example, an employee is not allowed to use his official Government title or
position to identify himself in connection with a speaking activity, except that an employee may
include "his title or position as one of several biographical details when such information is
given to identify him in connection with his teaching, speaking or writing, provided that his title
or position is given no more prominence than other significant biographical details." See
5 C.P.R. 2635.807(b). "The purpose of [this] section ... is to ensure that [the] public is not
misled as to whether the views expressed by an Executive Branch employee in uncompensated
teaching, writing, or speaking are those of the employee or those of the Government." OGE
Informal Advisory Letter 10 x 1 (March 19, 2010). When the employee at issue was running for
City Commissioner, her candidate biography stated that she "works for [your Bureau]," 19 but
she included other information about herself in her biography, as well. Based on the totality of
the circumstances, we believe this is a permissible reference to the employee's vocation.
Nonetheless, as a general matter, the employee and/or the ethics office should try to review any
future candidate campaign materials to ensure that the employee's position and title are among
several biographical details and whether an appropriate disclaimer would be prudent. See OGE
Informal Advisory Letter 10 x 1.
As with any outside activity, the [Employee] should ensure that she does not use Federal
buildings, vehicles, equipment, time, or personnel to accomplish otherwise permissible activities.
5 C.P.R. 2635.704- 2635.705. In addition, any use of Government propetiy in furtherance of
an outside activity should fully comply with the Department's limited personal use policy. The
employee should be aware that any use of Government property in violation of or in excess of
the limited personal use policy could result in an appropriate disciplinary action. Finally,
political fundraising (which was not presented as an issue here) could implicate Subpart B of the
Standards of Conduct if she were to solicit or accept a gift of campaign funds from a prohibited
source.

19

[Citation deleted.]

13

OGE 2011-11-2

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CONCLUSION

OGE recognizes that an employee's outside activities, and political activities, in

particular, can be a sensitive subject for both the employee and the agency. Therefore, OGE has
endeavored not only to answer your question about 5 C.P.R. 2635.802 but also to provide
related guidance.
In conclusion, OGE generally will not question an agency's judgment regarding whether
it may prohibit an employee from pursuing an outside activity because it creates the appearance
of misuse of the employee's Federal position. However, because of the core constitutional
values potentially at stake, we cannot opine authoritatively on whether the [Bureau] should
continue its blanket prohibition on [Employees] running for or holding political office, including
nonpmtisan office. If your Department desires definitive advice on whether the [Bureau] may
continue its policy of prohibiting [Bureau] employees, or applicants for positions with the
[Bureau] from running for public office in nonpmtisan elections or holding such offices, you
should address that question to the Office of Legal Counsel.
I hope you find this guidance helpful. Please do not hesitate to contact Associate General
Counsel Allison George or me if OGE may be of further assistance.

14

OGE 2011-11-2

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si''t&S (}./<

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g ~~
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~~<),. United States

-~Office of Government Ethics

. 1J 1201 New York Avenue, NW., Suite 500

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1-"'~ Washington, DC 20005-3917

May26,2009
D0-09-020

MEMORANDUM
TO:

Designated Agency Ethics Officials

FROM:

Robett I. Cusick
Director

SUBJECT:

Ethics Pledge Issues: Speeches and Pledge Paragraph 2; Intergovernmental

Personnel Act Detailees

The Office of Government Ethics (OGE) continues to work with the White House
Counsel's Office to identify and answer various questions concerning Executive Order 13490
and the Ethics Pledge for non-career appointees. OGE thought it would be useful to advise
agency ethics officials of the resolution of two questions that recently arose at several agencies.
The first question concerns how to apply paragraph 2 of the Pledge to an appointee who gives an
official speech at an event sponsored by a former employer or client. The second question is
whether the Pledge applies to non-Federal personnel detailed to an agency under the
Intergovernmental Personnel Act The answers to these questions are set out below.
Speeches and the Effect of Pledge Paragraph 2
OGE and the White House have received numerous questions about whether paragraph 2
of the Ethics Pledge prohibits an appointee from giving an official speech at an event sponsored
by a former employer or client. Paragraph 2 prohibits appointees from participating, for two
years after their appointment, in any particular matter involving specific pmties that is directly
and substantially related to a former employer or client. (Paragraph 2 is discussed in more detail
in D0-09-011, http://www.usoge.gov/ethics guidance/daeograms/dgr files/2009/do090ll.pdf.)
With regard to speeches and presentations made in an official capacity OGE, in consultation with
the White House Counsel's Office, has determined that the Pledge is not intended to prohibit an
appointee fiom pmticipating in an official speech unless the speech would have a demonstrable
financial effect on the former employer or client 1

It is important to note that the Pledge does not apply to speeches given in an appointee's
personal capacity. Presentations given in one's personal capacity may be subject to other ethics
provisions, including 5 C.F.R. 2635.807, 5 C.F.R. 2635.808(c), and 5 C.F.R. part 2636.

OGE 2011-11-2

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Designated Agency Ethics Officials

Page2
By way of background, OGE has addressed the application of 18 U.S.C. 208 and
5 C.F.R. 2635.502 to official speeches on several occasions. See, e.g., OGE Informal Advisory
Letters 98 x 14; 96 x 2; 94 x 14. For purposes of section 208, OGE generally has viewed the
decision to give an official speech'as a particular matter. 96 x 2 (Ed. Note); cf OGE, Report to
the President and to Congressional Committees on the Conflict of Interest Laws Relating to
Executive Branch Employment 8 (January 2006)(application of 18 U.S.C. 205 to request for
Government speaker). An employee is prohibited from giving an official speech to an
organization whose interests are imputed to the employee under section 208, if the speech would
have a direct and predictable effect on the organization's financial interest. ln OGE's experience,
usually the sponsor of an event will have a financial interest in an official speech only if an
admission fee is charged, the event is a fundraiser, or the event is some kind of business
development activity (such as a seminar for current or prospective clients).
For purposes of 5 C.F.R. 2635.502, OGE also generally has viewed the decision to give
an official speech as a patiicular matter involving the event sponsor as a specific patiy. OGE
98 x 14; OGE 94 x 14. If an employee has a covered relationship with the sponsor--for example,
the sponsor is a former employer under section 2635.502(b)(l)(iv)--the employee should not
participate in an official speech if a reasonable person would question his or her impartiality,
absent an authorization under section 2635.502(d). OGE 94 x 14. Nevertheless, OGE certainly
is aware of cases in which agencies have determined either that the circumstances surrounding
the speech really did not raise any reasonable impartiality concerns or that any such concerns
were outweighed by the need for the employee's services. See 5 C.F .R. 2635.502(c), (d). In
such cases, agency ethics officials often still will emphasize that the employee should not use the
same organization as a preferred forum for repeated speeches when other comparable forums are
available.
Pledge paragraph 2, of course, is similar in many respects to section 2635.502, including
the focus on particular matters involving specific parties. See D0-09-0 II. Consistent with how
speeches have been treated for purposes of 18 U.S.C. 208 and 5 C.F.R. 2635.502, the Pledge
was not intended to sweep every official speech to a former employer or client under the bar of
Pledge paragraph 2. The Executive order elsewhere recognizes that making a speech does not
necessarily reflect a close affinity with the event sponsor.
See Exec. Order 13490,
sec. 2G)(definition of former client excludes services limited to speech or similar appearance).
While paragraph 2 does not include the same "reasonable person" clause as section 2635.502, the
Pledge provision was not intended to bar speeches that do not implicate the underlying concerns
about special access to Government decisionmakers who can bestow regulatory and financial
benefits on former associates. Cf US. v. Sun-Diamond Growers, 526 U.S. 398, 407
(1999)( dicta)(official. speech to farmers about USDA policy should not be viewed as official act
implicating illegal gratuities statute). In many cases, the sponsor will have an academic or policy
interest in the subject matter of the speech but no direct pecuniary interest in hosting the speech
itself.
This does not mean that paragraph 2 is wholly inapplicable to official speeches. Where
the decision to give an official speech actually would affect the financial interests of the sponsor,

OGE 2011-11-2

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Designated Agency Ethics Officials

Page 3
the concerns under the Pledge about special access are relevant. Thus, if the former employer or
client charges an admission fee or organizes the event for the purpose of fnndraising or business
development, the appointee will be barred from giving an official speech, absent a waiver under
section 3 of the Executive Order. Even where Pledge paragraph 2 is inapplicable, ethics officials
are reminded to analyze any official speaking engagements under 18 U.S.C. 208 and 5 C.F.R.
2635.502, as discussed above.
Detailees under the Intergovernmental Personnel Act Are Not Subject to the Pledge
Several agencies have asked whether detailees under the Intergovernmental Personnel
Act (IP A) are required to sign the Pledge. The short answer is no.
The IPA provides for the temporary assignment of personnel from certain non-Federal
entities to Federal agencies.
5 U.S.C. 3372; see generally D0-06-03!,
http://www.usoge.gov/ethics guidance/daeograms/dgr files/2006/do0603l.pdf. The IPA clearly
distinguishes between those who actually are appointed by an agency and those who are merely
detailed from a non-Federal entity to an agency. 5 U.S.C. 3374(a)(1),(2). IPA detailees from
academia, State and local government, and non-profit entities may serve in executive branch
agencies for two years with the possibility of a two year extension. While working in the
executive branch, detailees remain employed by their institution or organization and return to
their employer when the detail is over. Simply put, IPA detailees are not appointees at all.
Therefore, they are not subject to the Pledge, which applies to "eve1y appointee in every
executive agency appointed on or after January 20, 2009." Exec. Order 13490, sec. I (emphasis
added); see also id., sec. 2(b).
This analysis would not apply to any personnel who actually receive an appointment
under the IPA. However, as a general matter, OGE rarely encounters questions about
IPA appointees. Agency ethics officials should contact OGE if they have any question about
whether a particular IP A appointee should be considered a non-career appointee subject to the
Pledge. See generally D0-09-010 (discussing criteria for appointments subject to Pledge).

OGE 2011-11-2

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OGE 2011-11-2

Bates 000257

MEMORANDUM TO AARONS. WILLIAMS, PEACE CORPS DIRECTOR

From:

Nancy G. Miller
Associate General Counsel
Designated Agency Ethics Official

Subject:

Limited Waiver of Paragraph 2 of the Ethics Pledge

Date:

December 7, 2010

Executive Summary
You have been invited to attend the Society for International Development-Washington's Annual
Gala Dinner fundraising event on December 8, 2010, accept an honor on behalf ofthe Peace
Corps in celebration of its 50th Anniversary, and make remarks. Because you were on SID-W's
board of directors during the two-year period before your appointment as Peace Corps Director
on August 24, 2009, a waiver of the Ethics Pledge that you signed pursuant to Section 3 of
Executive Order 13490, "Ethics Commitments by Executive Branch Personnel" is required.
Following consultation with the White House Counsel's Office, I hereby certify that it is in the
public interest to grant a limited waiver from the provisions of Paragraph 2 of the Ethics Pledge
to pennit you to attend, accept an honor on behalf of the Peace Corps, and to make official
remarks at the SID- W' s December 8 event.
However, this is a limited waiver that relates only to this particular event. Moreover, there are
specific limitations on what you may do at the event. For example, you may not actively promote
the event. Nor may you solicit donations for the event or to the organization. You may,
however, accept free attendance at the event as a speaker. See Discussion.
Discussion
Section 1 of Executive Order 13490, "Ethics Commitments by Executive Branch Personnel,"
issued by President Obama on January 21, 2009, requires all political appointees to sign an
Ethics Pledge. Paragraph 2 of the Ethics Pledge prohibits participation, for a period of two years
from the date of your appointment, in any particular matter involving specific parties that is
directly and substantially related to a former employer. "Former employer" is defined in Section
2(i) of the Executive Order to include "any person for whom the appointee has within: the 2 years
prior to the date of his or her appointment served as an employee, officer, director, trustee or

Paul D. Coverdell Peace Corps Headquarters

1111 20th Street NW Washington, DC 20526
1.800.424.8580 www.peacecorps.gov

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general partner .... " Section 3 of the Executive Order permits waivers to be granted under
certain limited conditions.
The Office of Government Ethics, in its DAEOgram D0-09-020, states that the decision to give
an official speech is considered a particular matter involving specific parties. In general, giving
an official speech is not precluded if it will have no impact on the financial interests of the
sponsoring organization. On the other hand, "where the decision to give an official speech
actually would affect the financial interest of the sponsor, the concerns under the Pledge about
special access are relevant. Thus, if the former employer charges an admission fee or organizes
the event for the purposes of fundraising ... , the appointee will be barred from giving an official
speech, absent a waiver." !d. at 2-3.
You have been invited to attend SID-W's Annual Gala Dinner fundraising event, on December
8, 2010, accept an honor on behalf of the Peace Corps in celebration of its so'h Anniversary, and
make remarks. Because you served as a volunteer and uncompensated member ofSID-W's
board of directors during the two-year period before your appointment as Peace Corps Director
on August 24, 2009, a waiver of the Ethics Pledge is required in order for you to be able to
participate in the event. Waivers may be granted based on a certification by the Designated
Agency Ethics Official after consultation with the White House Counsel's Office that it is in the
public interest to do so. See E.O 13490 at Section 3; OGE DAEOGrarn D0-09-008.
SID-W is a 501 (c)(3) organization designed to provide an opportunity for the full range of
professionals and organizations working in the field of international development to come
together for discussions, sharing of best practices, and networking. It is not an advocacy
organization, nor is it a registered lobbying organization. It gives out no grants. The Peace
Corps has no business or other relationship with SID-W other than being an "honorary member,"
along with US AID and the Millennium Challenge Corporation.
The Peace Corps is one of the U.S. government's key players in public diplomacy, with more
than 200,000 Volunteers having served overseas since 1961 and with more than 8600 Volunteers
currently serving in 77 countries. The President has stated his support for the Peace Corps on an
ongoing basis, and described his goal of engaging all Americans in volunteer service.
Moreover, the Peace Corps is celebrating its SO'h Anniversary from October 20 I 0 through
September, 2011. President Kennedy's first speech introducing the idea of the Peace Corps was
made on October 14, 1960, at the University of Michigan. He signed the executive order
creating the Peace Corps on March I, 1961, and the Peace Corps Act was signed into law on
September 23, 1961.
The agency is using this landmark 50 1h Anniversary year to educate and engage the public about
the Peace Corps' history and effectiveness and inspire the next generation of Volunteers.
Because the Peace Corps' statutory missions include providing trained men and women to
countries requesting its assistance, and educating Americans about the countries in which
Volunteers serve, recruitment and outreach are absolutely vital to ensuring the Peace Corps'
continuing success. Your participation as Peace Corps Director in the SID-W event will play a
significant part in this ongoing effort.
2

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The SID-W Annual Gala is expected to attract hundreds of attendees with interests in
international development. This is an excellent forum for the Peace Corps Director to convey the
President's message on volunteerism and on global engagement and to describe the Peace Corps'
legacy, role and future. To have the opportunity to spread the message of the Administration and
the Peace Corps to this highly receptive audience is in the public interest.
Granting this waiver would not run counter to the purpose ofthe Ethics Pledge to avoid special
access. SID-W serves a unique role in the international development community, so that your
participation in this event would risk no reasonable likelihood of perceived partiality or special
access at the expense of similarly situated groups.
Please keep in mind that this is a limited waiver only for this particular event. The Ethics Pledge
continues to prohibit your participation in any other particular matter involving specific parties
that relates to SID-W until after August 24, 2011. Moreover, there are specific limitations on
what you may do at the event. Pursuant to 5 C.P.R. Section 2635.808, you may not actively
promote the event. Nor may you solicit donations for the event or to the organization. Finally,
you. must also otherwise comply with the remainder of the Ethics Pledge and with all preexisting
government ethics rules.

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P.eace

<___;orps

MEMORANDUM
OFFICE OF THE GENERAL COUNSEL

To:

Aaron S. Williams, Direcror

From:

Carl R. Sosebee, Designated Agency Ethics Official

Date:

August 24, 2009

Presidenr Obam"'s Ethics Pledge- Limited Waiver on Pardcular Matters Pertaining

to National Peace Corps Assodarion

EXECUTIVE SUMMARY
Pursuant to Secrion 3 of Exccunve Order 13490 Qanuary 21, 2009), and delegated authority from
rhe Director of rhe Office of Man';\gemem and Budget, this 1s a limite-d waiver pcrmin:ing you to
panictp~He in or speak ar meetings and conferences or mher evenrs involving or hosted by the
Nauonal Peace Corps Association (NPCA) or its leadership, including futldraising eVCtlts. provided
thar your participation wou1d orherwls.e be permissible under rhe Standards of Ethical Conducr for
Employees of the Exccunve Branch (5 CFR 2635,808), and where such aetivicies would continue tO
promote and maintain a. posHive reladonship between Peace Corps and the Rerorned Peace Co cps
Volunteer (RPCV) communicy or would otherwise advance or promote he programs and actJvirics
of Peace Corps.
This wa1ver docs nor extend co your participation during che applicable two-year period in any
present or fumre Peace Corps coopernove agreemen[ 1 contract> or other funding mechamsm
berween Peace Corps and NPCA> nor ro any other pankular matters that would direccly and
predicrabl)' affect NPCA's financial inrerescs.

DISCUSSION AND ANALYSIS

Under Presidenr Obama's Executive Order 13490 Oanuary 21, 2009), you are required w sign and
abJde by rcrms set torch in an Ethics Pledge.
Under the Pledge, Sewon 1, Paragraph 2, because of your service on the board of direccors of
NPCA during rhe two-year period prior to the Jare of your appoinnnenr as Direcwr, you may nor
particip-ate in any particular matter Involving specific parries rhat is directly and substant!aUy relarcd
to NPCA. This restriction ex:rends for a period of rwo years from rhe dace of your appoJntrnenc.
However, m accordance wic-h Secrion 3 of rhe Executive Order and pursuant to my aurhority, as
delegated by rhe Director of the Office of Management and Budget (00-09-008), 1 have determined
tht~t it is in che public imeresr ro granl you a limite.d waiver from rhe resniction jn the Pledge in
order w enable you more effectively ro carry om your ducies as Peace Corps Director.

Paul D. C<>verdell Peace Corps Headquarters

1111 20th Street NW Washington. DC 20526
1 Ann d.?.d RhAr1 . lMtMIAT nP~r~rnTn~ rr01r

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This walYer will enable ~ou ro attend, participate in, or speak at meetings, conferences, or other
c\ems involving or hosted by the NPCA or its leadership, includJng fund raising events, provided
th\H ~our participation would otherwise be permissible under the Standards of Ethical Conduct for
l':mployccs of the Executive nranch (5 CFR 2635.808), and where such activities would continue to
promote and maintain a positive relationship between the Peace Corps and the Returned Peace
Cnrps Volunteer communiry or would otherwise advance or promote the programs and acdvities of
the Peace Corps, as determined in consultations between you and agency ethics officials.
Under terms negotiated with and agreed to by the Office of White House Counsel, this willver does
not extend to your participation, during the applicable two-year period, in any present or future
Pence Corps cooperative agreement, contract, or other funding mechanism between Peace Corps
and NPCA, nor to anv other particular ma[[ers that would directly and predictably affect NPCA's
fin::~ncial interests.
Peace Corps promo res world peace and friendship by makjng trained Volunteers available to
inrere::;red countries overseas to help meet their needs, particularly in meeting the basic needs of
douse llving 1n the poorest areas ofsucb countries. See22 U.S.C. 2501(a)
Iris nlso Pt::ace Corps' sraturory goal to promote a better understanding of other peoples on rhe pan
of the American people (Third Goal). As a key part of its efforr to meet this goal, Peace Corps has
historically encouraged and relied on Returned Peace Corps Volunteers to work actively in a variety
of :~reas <1nd activhies, including sharing their experiences with other Americans when they return
through Pe"<lce Corps programs such as World \'<lise Schools and through group and individual
activities in their communities. In addition, recognizing the value Returned Volunteers can have in
efforts tO recruit new Volunteers, Peace Corps has actively sought (and received) assistance from
rhern in connection with its recruitment and outreach activities.
Promo ring and mainHuning a positive relationship with the community of Returned Volunteers is
rherdore critical to Peace Corps' mission. The Director of the Peace Corps, as rhe head of the
agency und its most public face, plays a vital and necessary role in this effort. The inability or failure
of a Director to pt~rricipate in ncciviries involving RPCVs would raise questions within the Rerurned
Peflce Corps Volunteer community. The Director's interaction with Returned Volunteers and their
organizations is llkely to be of particular importance as Peace Corps approaches its fiftieth
annhersary in 2011.
ln this reg:\rd, NPCA is the only nation~wide umbrella orgarrization representing Returned Peace
Corps Volunteers and/or their respective membership organizations. NPCA is a 501(c)(3)
organiz<Hion, a parr of whose stated mission is to "connect, inform, and .engage people impacted or
inspired by Pe<1ce Corps." In addition to its individual members, NPCA has about 70 member
groups of RPCVs, grouped by geographical area or by country of service. The NPCA has historicaUy
provided direct assistance to Peace Corps by providing support for recruiting activities and
promoting Peace Corps' Third Goal.
That NPCA IS presently the only nationwide group representing RPCVs significantly reduces the
likelihood of perceived partiality ar the expense of similarly situated groups. TVforeover) most
particul<lr matters involving parties relating to NPCA are not likely to involve highly controversial
lSSUCS.

. 2.

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Due to the scope nf Section 2 nf the ( )rder, il bro:1d flpplicarlon of its prohibition \vould be
ddriment:Jl w rhe Pe:lCc Cmvs been use it would preclude you from parricip:uing in a wide v:1rier~ of
marters involving the largest (and unlr nationwide) org'IJnization of Returned 1Je<~ce Corps
Volunteers, thereby diminishing ~:our ability to take a visible le~tdersbip role in working with
Returned Pc<1ce Corps. Volunteers and Jdvancing Peace Corps interests with this viral universe uf
stnkehulders. This in turn could adversely t~ffect Pe::tce Corps' important efforts to promme and
encourage RPCV assist;mce in recruiting, outreach, and Third Goal activities.
CONCLUSION

T ha\'t clcrerminecl thnt, lJecause of rhe nmure ~1nd import<1nce of the Pe<tce Corps Direcror as :1
spokesman ~tnd Jjnk ro Returned Peace Corps Voluntt.;ers, iris in rhe public interest to gr~lnt you
lirnited wai\er, :~s set fonh herein, in accordance with Secrion .) of Executive Order 1.1400. This
w:tiver has been approved by rhe Office of \Vhire House Counsel.

:1

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UNITEDSTATESDEPARTMENTOFEDUCATION
OFFICE OF Tim GENERAL COUNSEL

April28,2009

J~me-~6,.,..) \-1. 611~-.ro... ILJI'

CERTIFICATION OF PUBLIC INTEREST WAIVER FOR .M>AlWQ'f ItO CElt

FROM:

Susan Winchell
Designated Agency Ethics Official, Department of Education

SUBJECT:

Waiver from Restrictions Related to the Bill and Melinda Gates

Foundation

Pursuant to the authority delegated under Section 3 of Executive Order 13490 and
for the reasons stated in the attached memorandum and after consultation with the
Counsel to the President, I hereby certify that a waiver of the restrictions of paragraph 2
of the ethics pledge is in the public interest for appointee James (Jim) H. Shelton Ill in
the position of Assistant Deputy Secretary for Innovation and Improvement in the
Department of Education. Jim Shelton shall not be restricted from participating in any
particular matter involving specific parties that is directly and substantially related to his
former employer, the Bill and Melinda Gates Foundation. This waiver does not
otherwise affect Mr. Shelton's obligation to comply with other provisions of the Ethics
Pledge o-r 'llli'th

Signed

all nfho''t' T\'N".-P"Vi<ri-Tntr 0'1'\"0P.rrunent

e1hlcs rules.

'

~ v
'V'-"(_;;/
~ Susan inchell
Designated Agency Ethics Official
Department of Education

400 MAl\YLAND AVE., S.W, WASHINGTON, D.C. 20201-2110

/!f)

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UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF THE GENERAL COUNSEL

March 23, 2009

CERTIFICATION OF PUBLIC INTEREST WAIVER FOR MARGOT ROGERS

FROM:

Susan Winchell
Designated Agency Ethics Official, Department of Education

SUBJECT:

Waiver from Restrictions Related to the Bill and Melinda Gates

Foundation

Pursuant to the authority delegated under Section 3 of Executive Order 13490 and
for the reasons stated in the attached memorandum and after consultation with the
Counsel to the President, I hereby certify that a waiver of the restrictions of paragraph 2
of the ethics pledge is in the public interest for appointee Margot Rogers in the position
of Senior Counselor to the Secretary of Education in the Department of Education.
Margot Rogers shall not be restricted from participating in any particular matter
involving specific parties that is directly and substantially related to her former employer,
the Bill and Melinda Gates Foundation. This waiver does not otherwise affect Ms.
Rogers's obligation to comply wi,th other provisions of the Ethics Pledge or with all other
pre-existing goverl)!l'ent (hici rules.
ff ./7{1./ I/ 4 /1 /7
Signed _---L.f4.--f,!-0~Vi:.fV"--'v.';Ov';;-"{/-;-"'V\~d::......~--'/:__ _ _
:=:Ysusan Winchell
a
Designated Agency Ethics Official
Department of Education

400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2110

Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation

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U.S. Department of Lal:wrr

Ofl:ce d lhe Solic~tor

Washtng1on, D.C. 20210

UMTTED WAIVER OF EXECUTIVE ORDER 13490

FOH JOSEPH MAiN

In accordance with Section 3 ofFxecutive Order 13490 (.Tanuaty 21, 2009) and after
consultation with the Office of the Co1msel to the Presidwt, 1 h<lve uetennined that it is in
the public i.ntcrest to grant to Joseph '1.1ain a limited waiver of the Ethics Pledge
restriction in Section l. pmagraph 2. ofthe Executive Order w enable him to etJectively
carry nut his Julies as Assistant Secrc!ary of La1mr for Mine Safety and Hualth. Absent
tbis waiver, Mr. Main would be restricted for two years following his appointment from
participating in any particular matter involving specific partie> in which bis former
employer. the United Mine Workers of America (UMW A), is a pill'ty or represents a

pa.rty.
Pursuanllo this \vniver, !vir. Main may meet or communicuk with any authorized miner
representative, as idc:ntiiicd in Section !03(1) of the Fcderall\finc Safety and Health .1\ct,
or any local of11cial of the UMW A, either individually or in a group setting, conceming
any matter relating to mine safety and health. Authori.wd miner rcproscntalives or \neal
UMWA of!iciuls may typically be present when Mr. Main interacts with miners. Subject
to the limitations set forth below, this waiver will therefore &erve to facilitate Mr. Main's
meetings or communications with miners .since he will not be first required to dctcm1inc
wh.,ther any miner participating in the meeting or communiwtion is :m authorized miner
repiesentative or local UMW A oflicial who may be deemed to qualify as his "former
employer" 1

The Mine Safely and Health Administration (MSHA) is an ugency est~tblished within the
United States Dcpmiment of Labor with the responsibility for safety and health in the
Nation's mines. li aJmini~ters the provisions oflhe Federal Mine Satety a11d Health Act
or 1977, as amended by the lVlinc Improvmncnt and New Emergency Response Act of
2006. MSHA ':;mission is to: 1) enforce compliance with mandatory safety and health
sta.n.dards as a means to eliminate fatal accidents; 2) reduce th<:: frequency and severity of
nonfatal accidents; 3) minimize health hazards; and 4) promote improved sarety aod
b~allh condition~ in the Nation's min.es.
The AssJ.sla.nt Secretary for Mine Saiety and Health oversees !he Hdministration and
enforcement of lhe Mine Safety and Health Act, as amended, and is charged with
rromoting the safety and health of America's miners by developing and enforcing
-standards; providing training, outreach and educatioa; establishing alliances; and
1
l have di..'(Vnnincd that a miner's membership in tht: UMWA, stAnding alone. does no1 cause a miner to
qualify as Mr. Ma.ins ~-former employern within the meaning of Section J~paragraph 2, of Ex,:;cntivc OrJ-:r
13490

OGE 2011-11-2

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encouraging improvement in mining safety and health. 'Ihe Assistant Secretary also
decides appeals of Petitions for Modification of mandatory satety stand<lrds when an
appeal is filed.
As pan of his responsibilities, the Assistant Secretary tor MSUA l}equcntly meets with
miners, representatives of the labor unions representing miners, mine ovv11ers and
operators, and other individuals or organizations involved in mine safety and health.
These contacts take place at fomu1lmeeting~ at MSHA's headquarters h1 Arlington,
Virginia, at MSHA offices lhroughout the country, and many non-governmental sites.
The MSHA As~istant Secretary also trequen\ly visits mine sites and other venues where
he can obtain infonnation and dirt."Ctly learn the conccms of individual miners and their
representatives. These exchanges provide valuable infonnalion to !he Assistant Secretary
that he mighl not othcr.vise receive. Similarly, this may he the most effective melli!S for
individual miners to convey U1is information or raise concerns without the potential
inhibition of having their cmployerpn;sen1.
Since retiring fiom the Ul\1WA in 2004, Mr. Main has been self employed as an
international mining health and safety advisor/consultant in which he has provided his
expettise to a o.umhcr of organizations, including as a training consultant to the United
Mine \Vorkcrs oflune1~ca Career Centers, Tnc. ("UMWA Career Centers") dUJing 20072009. The UMWA Career Centers has the stated mission of offering trailling programs
for new miners, as well as individuals who have been dislocated from employment in lh"
mines.
Due to the swpe of Section 2 ofthc Order and the definition of 'particular matt..:;r
involving specific parties" in Section 2(h), a broad application of this prohibition would
be detrimental to both the !Vlinc Safety and Health Administration and individual miners
who ;;remembers of the UMWA, as it would preclud.e Mr. Main from speaking wilh
those indiv:idttal miners in any situation, such as a tour or other site visit, where
authorized miner representatives or local uM W A officials would also be present.
Without a limited waiver, Mr. Main would be significantly limited in the performance of
critical duties. This would deprive the Department of Luhor of the service of an
individual who brings unique and extensive relevant cxpeiicncc to the position, und it
would also deprive mem hers m1d representatives of the lnrgest union repTesenting coal
miners the opportunity to provide input and raise concerns with the nation's top mine
safety and health orficial.

2 It should be noted that authorized miner re.presentallVCS may or may not be members of the
! ilvlWA. !n sltcwions where they are lJI'vlWA members, there may be circumstances where they
are etJectively spcakmg on behalf of the uniOJL Accordingly, the waiver" neceso.ary to cover
conversations or n1eetlngs hei\.veen the authorized tmncr rcprcscntathes and t-1r. J\..iain.

OGE 2011-11-2

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ConclusioniT-imited Scop.~_gf.Wgjver.
AGcordingly, J have dctcnnined that- bec<mse of the nature and importance of the
position of Assistant Secretu:ry for Mine Safety and Health and Mr. Main's uniquely
suited qualifications- it is in tl10 public interest to grant a limited waiver of the Executive
Order, in accordance with Section 3 of that Order. This waiver is limited to enable Mr.
Main to me~l or communicate \Vith any autholized miner represent:rlive or local orlicial
nf the Ul'v1WA. either individually or in a group setting, concerning any matter relating to
mi.ne safely and health. In all other situations and respects, the resllictions o !Section 1,
paragraph 2 of the Order willltpply. Specifically, Mr. IV!ain will abide by these
restrictions when the meetings or commtmications uwolve any: I) pending li.tigation in
judicial or administrative tribunals to which the Ul\1WA or UMWA Career Centers is a
party or represents u paTty; 2) grant determinations in which either the UMWA or
U.MWA Career Centers is an applicant; or 3) <my particular matters involving specitlc
parties in which Mr. :..1ain previously patticipatcd as a consultant to the UM WA rmd
U!viWA Career Centers . including regulations tmd mandalory safely and health standards.
!vlr. Main has been, and will continue to be advised on the applicability of aJ I other
aspects of the Order, as well as the restrictions imposed by all other ethics laws and
regu.lutions, and has agreed to take the necessary steps to be in full compliance with these
authorities.

November 10, 2009

Robctt A. Shapiro
Associate Solicitor for Lega.l Counsel
A lternatc Designated Ethics Ot1iclal

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U.S. Department of Labor

(/lllU tl' !';(~ f;;,i::<;,:,;

VVnl:h:~q~Dn,

;".~: ..

:,; C. t_>(el (I

,.,
;

May \8. 2009

CERTIFICATION OF PUBLIC INTEREST WAIVER FOR NAOMI WALKER

FROM:

ROBERT A. SHAPIRO
Associate Solicitor for Legal Counsel
Alternate Designated Agency Ethics Official. Department of Labor

SUBJECT:

Waiver from Restrictions Related to the AFL-ClO

Pursuant to the authority delegated under Section 3 o!Txecutive Order 13490 and for the
reasons stated in the attached memorandum and after consultation with the Counsel to the
President, l hereby certify that a limited waiver oflhe restrictions of paragraph 2 of the ethics
pledge is in the public interest tor appointee Naomi Walker in the position of Associate Deputy
Secretary in the Department of Labor. Ms. Walker shall not be restricted from participating in
any particular maHer involving specific parties that is directly and substantially related to her
former employer, the AFL-CTO, subject to the limitations set forth in the attached memorandum.
This waiver does nol otherwise affect l:vis. Walker's obtig~lion l" rl"\r'rtr'\lv with nlhP-r r"IT'tWic:irms
of the Ethics Pledge or with all other pre-existing government e

Signed_ -
Robert A. Shapiro
Associate Solicitor for Legal Counsel
Alternate Designated Agency Ethics Offlcia\
Department of Labor

Altachmcnl

Date

/1,. r

18 .<-oo f

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May 18,2009

MEMORANDUM IN SUPPORT OF PUBLIC INTEREST WAIVER FOR NAOMI

WALKER, ASSOCIATE DEPUTY SECRETARY, UNITED STATES
DE.PARTMENT OF LABOR

In accordance with Section 3 of Executive Order 13490 (January 21, 2009), 1 have
determined that it is in the public interest to grant a limited waiver to Naomi Walker in
order for her to effectively carry out her duties as Associate Deputy Secretary, United
States Department of Labor. This waiver is limited to enable Ms. Walker to have certain
individual communications with her former employer on particular matters of general
applicability notwithstanding the definition of"particular matter involving specific
parties" in Section 2(h) of the Order.
Background. The United States Department of Labor was established in 1913. Its stated
purpose is "to foster, promote, and develop the welfare of wage earners of the United
Stales, to improve their working conditions, and to advance their opportunities for
profitable employment." 29 U.S.C. 55 I. The Department's broad responsibililies are
not limited to those persons currently in the workforce. It serves persons who seek the
skills to enter the workforce through its employment and training program. It also serves
those who are temporarily out of work through the unemployment insurance system.
Finally, through the pension laws it administers, the Department protects the retirement
savings of those who have left the workforce. The Department administers a variety of
Federal labor laws, including those that guarantee workers' rights to safe and healthful
working conditions; a minimum hourly wage and overtime pay; freedom from
employment discrimination; unemployment insurance; and other income support. In
carrying out its responsibilities, the Department necessarily interfaces and maintains
dialogues with a large number of external groups, including labor unions, businesses,
trade associations, public interest groups, and other stakeholders.
Justification for the Waiver. To carry out these public liaison and outreach activities, the
Department has historically assigned one or more persons at very senior levels in the
Depa.rtment whose principal responsibilities include communication with i.ndividuals and
groups about the Department's responsibilities and programs. One of these senior
positions is the Associate Deputy Secretary. Based on an expert understanding of the
views and philosophy of the Secretary, the Associate Deputy Secretary is charged with
spearheading several initiatives and programs for the Secretary. This responsibility is
carried out in several ways. First, the Associate Deputy Secretary fully participates in the
overall management of the agency and exercises primary responsibility for matters
pertaining to policy and program coordination, especially for those dealing with the labor
movement, worker advocacy organizations, and other related organizations. The
Associate Deputy Secretary also analyzes and advises on the implications of proposed,
new or revised policies, regulations, and legislative proposals and assesses their impact
on outside groups, organizations and businesses. ln this regard, the incumbent

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coordinates and consults with senior management officials of the Department, other
agencies, and external stakeholders, as appropriate, regarding major initiatives, actions
accomplished, milestones to be achieved, and any issues or problems as related. The
Associate Deputy Secretary also has the very important role of representing the
Department of Labor in discussions and negotiations with representatives of public and
private organizations and officials of other Government agencies. Jn this capacity, the
incumbent presents and explains the views and proposals of the Secretary and in tum
conveys to the Secretary the views and proposals of other parties, accompanied by indepth analyses of the impact of such proposals. lt should be noted, however, that this
position has no regulatory or enforcement responsibilities, nor does it have authority to
award contracts or grants on behalf of the Department.
In order to effectively carry out all of these responsibilities and duties, the Associate
Deputy Secretary must bring to the job a wide range of job skills and experiences. While
some of these qualifications can be obtained through education and training, most require
job experiences with the very kinds of groups and organizations that the Associate
Deputy Secretary will interface as part of her responsibilities at the Department of Labor.
In addition to the practical experience and knowledge of their workings, prior work with
these public and private sector organizations inherently enhances the incumbent's
credibility and effectiveness.

Naomi Walker, the Associate Deputy Secretary, brings a wide range of relevant
experiences to this position. Since 1997, she has held several responsible positions with
the AFL-CJO. Most recently, she has been Director of State Government Affairs. ln that
role she has developed and Jed the federation's state legislative agenda in coordination
with affiliated unions, departments within the AFL-CJO, and policy organizations. ln
doing so, she worked with key state and national policy organizations to develop strategy,
coordinate message, and provide research and technical assistance to state federations and
state legislators. She established and directed the Nationa.l Labor Caucus of State
Legislators, now consisting of over 1000 members. She convened regular conference
calls and meetings to discuss key legislative issues and represented labor at meetings of
intergovernmental organizations like the National Conference of State Legislators.
Earlier in her. tenure at the AFL-CJO, she served as Media Outreach Coordinator. In this
capacity she designed and developed communications strategies to highlight family and
policy issues, from Social Security and affordable health care to paycheck deception and
campaign finance reform. In this role, she wrote sample press materials and talking
points to assist state federations with state and national legislative campaigns. She also
worked with allied organizations to coordinate message and grassroots events.
Prior to joining the AFL-ClO, Ms. Walker held a number of other positions utilizing
skiJJs needed in her current position. Specifically she served as: Field Director for the
Center for Public Policy in Washington, D.C.; Midwestern Regional Field Organizer for
the Children's Defense Fund in Columbus, Ohio; and Training Coordinator for the Ohio
Youth Services Network in Columbus, Ohio.

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Conclusion. Section I of Executive Order 13490 provides that every appointee in every
executive branch agency appointed on or after January 20, shall sign, and upon signing
shall be contractually committed to, a pledge that contains a number of provisions. Of
relevance here is the "Revolving Door Ban - All Employees Entering Government."
Appointees signing this pledge commit to the following:

1 will not for a period of 2 years from that date of my appointment, participate in
any particular ma/ler involving ,peciflc parties that is directly and substantially
related to my former employer or former clients, including regulations and
contracts.
The tenn "particular matter involving specific parties" is defined as follows:

"Particular mauer involving specific parties" shall have 1he same meaning as set
forth in section 2641.201 (b) of title 5, Code of Federal Regulations, except that it
shal! also include any meeting or other communication rei aling to the
performance of one's ojjicial duties with a former employer or former client,
unless the communication applies to a par1icular matter of general applicabi!it)'
and participation in the meeting or other event is open to ali interested parties."
Executive Order 13490, Section 2(h).
As explained above, the core responsibilities of the Associate Deputy Secretary position
involve communication and outreach to labor unions, public interest groups, and others.
Any incumbent in this position has a real advantage, and one that benefits the Department
and the public, if he or she has background working in one of these organizations. This is
especially true when the organization is a major labor union, such as the AFL-ClO, which
represents 56 national and international unions representing II million workers.
Regardless of the Presidential Administration, the .Department of Labor has maintained
regular lines of communication with the AFL-CIO on a wide range of Departmental
programs or activities. Limiting the Associate Deputy Secretary's communications
would be detrimental to the Department and to the millions of persons represented by the
AFL-CIO. There is no other position in the Department whose incumbent has similar
responsibilities.
Accordingly, I have detennined that- because of the nature and importance of the
Associate Deputy Secretary position and Ms. Walker's uniquely suited qualifications- it
is in the public interest to grant a limited waiver of Executive Order 13490, in accordance
with Section 3 of that Order. As staled earlier, this waiver is limited to enable Ms.
Walker to have individual communications with the AFL-C[O on particular matters of
general applicability as defined in Section 3(h) of the Order. Ms. Walker has been, and
will continue to be advised, on the applicability of all other aspects of the Order, as well
as the restrictions imposed by all other ethics laws and regulations, and has agreed to take
the necessary steps to be in full compliance with these authorities. In particular, she will

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abide by the restriction in Section 1.2 of the Order prohibiting, for a 2 year period from
the date of her appointment, her participation in any particular matter involving specific
parties that is directly and substantially related to the AFL-CIO, including regulations and
contracts.
()

Robert A. Shapiro
Associate Solicitor for Legal Counsel
Alternate Designated Agency Ethics Official
United States Department of Labor