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WASHINGTON, DC 20510

June 10, 2009
The Honorable Robert I. Cusick
Director
Office of Government Ethics
1201 New York Avenue, N .W., Suite 500
Washington, DC 20005
Dear Director Cusick:
The work of the Government is the work of the people and it should be public and available
for all to see. It has been said that sunlight is the best disinfectant and that opening up the
business of the Government will ensure that the public trust is not lost. As a senior member of
the United States Senate, I have consistently worked to ensure that the business of the
Government is done in as open and transparent manner as possible.
President Obama issued Executive Order 13490, Ethics Commitments by Executive Branch
Personnel, (herein Order) on January 21, 2009, to much fanfare. The White House Press
Secretary said the Executive Order was signed because the American people "deserve more than
simply an assurance that those coming to Washington will serve their interests. They deserve to
1
know that there are rules on the books to keep it that way."
The Order requires that "every appointee in every executive agency" shall sign a pledge that:
(1) prohibits them from obtaining gifts from registered lobbyists or lobbying organizations, (2)
limits appointees from working on matters involving specific parties that are directly and
substantially related to former employers or former clients, including regulations or contracts, (3)
limits individuals that were registered lobbyists in the two years before the appointment from
participating in a matter or specific issue area that they lobbied on prior to their appointment for
two years and restricts them from being employed by any executive agency they lobbied. These
provisions, known as the gift ban and revolving door bans, are the heart of the Executive Order
and were designed, "as a downpayment on the change LPresident Obama] has promised to bring
to Washington.2
I have watched with interest the implementation and enforcement of the Order. However, the
implementation of the Order has not matched the promises of openness and transparency that
were made supporting it when it was signed. I write today to request that the Office of
Government Ethics (OGE) take immediate action under its authority granted in the Ethics in
Government Act of 1978, as amended, (herein Act) to ensure that all waivers issued under
Section 3 of the Order be consolidated and publicly displayed on the OGE website.
Specifically, Section 3 provides that the Director of the Office of Management and Budget
(OMB), or his or her designee, the authority to grant "a written waiver of any restrictions

1

Press Release, Office of the Press Secretary, Statement from the Press Secretary on the President's Signing of Two
Executive Orders and Three Memoranda (Jan. 21 , 2009), available at
http://www. wh itehouse. gov/the press office/Statement from the PressSecretaryonthe Pres identssi gn in goftwo Executi v
eOrdersandthreeMe/ (last visited 6/8/09).
2
Id.

 contained in the pledge signed by such an appointee." 3 Section 3 also states that the Director of
OMB, or his or her designee, must certify 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."4 In a February 23, 2009, memorandum to all "Agency Heads and
Designated Agency Ethics Officials" you wrote that OMB Director Peter Orszag delegated his
authority to issue Section 3 waivers to each Designated Agency Ethics Official (DAEO) of each
executive agency, in consultation with the Counsel to the President. 5 You added that "[i]t is the
President's intention that waivers will be granted sparingly and that their scope will be as limited
as possible."6 Your memorandum also outlined that the "advance consultation with the Counsel
to the President remains and is to be strictly enforced." 7
I am concerned that Section 3 could be used to gut the ethical heart of the Order. Each day,
new nominees to key Government positions are reported. Many of these nominees have been
nominated despite the fact that they have previously served as lobbyists or in a manner that
would preclude their participation under the Order absent a Section 3 waiver. For example, I
publicly objected to a waiver for the nomination of William Lynn to be the Deputy Secretary of
Defense because, among other things, of his previous role as the principle Department of
Defense lobbyist for Raytheon Company- a large defense contractor. Further, it was announced
just a few weeks ago that the nomination of Charles Bolden for Administrator of NASA will
require a waiver because of his work as a lobbyist for a NASA contractor. 8 Other examples
include the waivers granted Jocelyn Frye who was a registered lobbyist prior to her service in the
Office of the First Lady9, and Cecilia Munoz who was a lobbyist prior to serving in the White
House Office of Intergovernmental Affairs. 10 These are just a couple of the public examples of
those who either received waivers or were forced to recuse themselves from working on issues
related to their former employment-as was the case for Mark Patterson, the Chief of Staff to
11
Treasury Secretary Timothy Geithner who previously served as a lobbyist for Goldman Sachs.
In a February 17 letter to OMB Director Orszag, I requested information regarding any and
all waivers and recusals issued under the Order. On March 3, 2009, Counsel to the President,
Gregory B. Craig attached a memorandum prepared by Norman Eisen, Special Counsel to the
President that said this information will not be available until the annual report required by the
Order is published. That is unacceptable and the American people deserve this information in
real time. That memorandum also stated that the White House has, "asked the Office of
Government Ethics (OGE) to take the lead in developing and promulgating guidance with
respect to the handling and disclosure of waivers in addition to the annual report [outlined by the

3

Exec. Order No. 13490, Ethics Commitments by Executive Branch Personnel (Jan. 21, 2009), available at
http://www.whitehouse.gov/the press office/Ethics-Commitments-By-Executive-Branch-Personnel/ (last visited
June 4, 2009).
4
Id.
5
Memorandum from Robert I. Cusick, Director, U.S. Office of Government Ethics, to Designated Agency Ethics
Officials D0-09-008, (Feb. 23, 2009).
6 Id.
7 Id.
8
Kenneth Chang, Former Astronaut Nominated to Lead NASA , THE NEW YORK T IMES, May 24, 2009.
9
Waiver Pursuant to Section 3 of Executive Order 13490, (Feb. 20, 2009), available at
http://www.whitehouse.gov/assets/documents/fiye waiver final 2009.pdf(last visited June 5, 2009).
10
Waiver Pursuant to Section 3 of Executive Order 13490, (Feb. 20, 2009), available at
http://www.whitehouse.gov/assets/documents/munoz waiver final 2009.pdf (last visited June 5, 2009).
11
Fredreka Schouten, Geithner Names Ex-lobbyist as Treasury Chief ofStaff, USA T ODAY, Jan. 27, 2009.

 12

Order]." Further, the memorandum noted that the White House Counsel is, "in the process of
working with OGE to determine the most appropriate method for disclosing recusal information
and ... expect[s] a uniform procedure for this to be addressed in the ... OGE guidance." 13
The current decentralized system delegating Section 3 waiver authority to each agency
DAEO has created a situation where the transparency and accountability touted by the White
House are lost because there is no comprehensive database of the waivers and recusals granted.
Instead, the White House has chosen to selectively publish Section 3 waivers on the White
House website and wait for an annual report to produce a full accounting of all waivers and
recusals. As the Director of OGE, you are in the position to immediately change this and bring
the transparency promised by the Obama Administration.
In addition to the authority granted to you in the Order and the guidance requested by the
White House Counsel, the Ethics in Government Act provides the Director of OGE a number of
authorities to bring sunlight upon Section 3 waivers issued by DAEOs. Specifically, the Act
explicitly provides the Director of OGE the authority to, among other things, "interpret rules and
regulations issued by the President or the Director governing conflict of interest and ethical
14
problems and the filing of financial statements." The Act also provides the Director of OGE
the authority to require "such reports from executive agencies as the Director deems
necessary." 15 Further, the Act authorizes the Director to prescribe regulations that requires each
executive agency to submit to OGE a report containing "any other information that the Director
may require in order to carry out the responsibilities of the Director under this title." 16 Finally,
the Act is clear that when the Director makes a request to an executive agency, the agency shall
furnish "all information and records in its possession which the Director may determine to be
17
necessary for the performance of his duties."
Based upon these existing statutory authorities you have the authority to require each DAEO
to provide OGE with an accounting of all waivers and recusals issued. The existing statutory
authority also allows you to provide that information to Congress in your biennial Report to
Congress required under the Act. 18 In addition to the statutory authority granted your office,
Executive Order 13490 also requires that you provide an "annual public report on the
administration of the pledge and this order." 19 Taken together these provisions provide you with
the authority to account for all waivers and recusals issued by executive agencies. I also believe
that OGE should utilize any and all authority to consolidate all waivers and recusals pursuant to
the Order and make them public on the OGE website as soon as possible-not simply wait for an
annual report.
Accordingly, I call upon you in your capacity as Director to immediately implement policies
and procedures to collect all waivers granted by DAEOs and recusals by former lobbyists. As
my previous request to OMB went unanswered, I ask that you provide me a full accounting of all
waivers and recusals since January 21 , 2009, including: (1) the name of the individual, (2) the
agency employing the individual, (3) the reason and justification for granting any waiver, (4) the
12

Memorandum for Gregory B. Craig, Counsel to the President, from Norman Eisen, Special Counsel to the
President, 2 (March 3, 2009).
13 Id.
14
5 U.S.C. App. 4 § 402(b)(6) (2006).
15
5 U.S.C. App. 4 § 402(b)(10) (2006).
16
5 U.S.C. App. 4 § 402(e)(l)(C) (2006).
17
See 5 U.S.C. App. 4 § 403 (a) (2006).
18
5 U.S.C. App. 4 § 408 (2006).
19
Exec. Order No. 13490, Sec. 4(c)(5), supra note 3.

 name of the DAEO that issued any waiver, and (5) a description of any and all issue areas from
which the employee is recused.
The American people deserve a full accounting of all waivers and recusals to better
understand who is running the Goverrunent and whether the Administration is adhering to its
promise to be open, transparent, and accountable. I urge you to take immediate action to make
any waivers and recusals public and ask for your response to my requests no later than June 19,
2009.

Charles E. Grassley
United States Senator

Cc: The Honorable Peter Orszag
Director, Office of Management and Budget
Gregory B. Craig
Counsel to the President
Norm Eisen
Special Counsel to the President for
Ethics and Goverrunent Reform