UNITED STATES OFFICE OF GOVERNMENT ETHICS * February 13, 2017 The Honorable Jason Chaffetz Chairman Committee on Oversight and Government Reform United States House of Representatives 2157 Rayburn House Office Building Washington, D.C. 20515 The Honorable Elijah E. Cummings Ranking Member Committee on Oversight and Government Reform United States House of Representatives 2471 Rayburn House Office Building Washington, D.C. 20515 Dear Chairman Chaffetz and Ranking Member Cummings: I am in receipt of your letter dated February 9, 2017, requesting that the U.S. Office of Government Ethics (OGE) review statements made by Kellyanne E. Conway regarding the business interests of the President' s daughter, act promptly on any findings, and repo11 back to the Committee with a recommendation for disciplinary action if warranted. 1 Prior to receiving your letter, OGE had begun consulting with the White House regarding this matter, pursuant to OGE's regulations for addressing potential violations by individual employees of the executive branch. 2 This letter is to explain the applicable legal process and to confirm that OGE will take the actions you request in your letter. As you know, Congress has not provided OGE with any actual investigative authority or resources for hiring investigators. Unlike the Committee, OGE cannot issue subpoenas, question witnesses, compel the production of documents, or take action against individuals .who refuse to cooperate.3 Unlike employing federal agencies, OGE cannot take disciplinary action against an 4 executive branch employee other than an OGE employee. Thus, OGE is limited with respect to the actions it can take. When OGE has reason to believe that an employee may have violated the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Conduct), the law 1 OGE received a similar letter from Representative Ted W. Lieu, as well as a separate letter signed by 42 Members of Congress. 2 See 5 C.F.R. part 2638, subpart E. 3 See 5 U.S.C. app. § 402. 4 See id. 120 1 NEW YORK AVE NW·SUITE SOO·WASHINGTON DC·20005 * * * * Chairman Jason E. Chaffetz Ranking Member Elijah E. Cummings Page 2 authorizes OGE to make only an informal recommendation that the employing agency investigate the matter and consider taking disciplinary action against the employee. 5 In the enclosed letter to the Designated Agency Ethics Official for the White House, OGE exercises this authority and requests a response by February 28, 2017. Only in the event that this informal process fails to resolve the matter does the law authorize OGE to recommend disciplinary action.6 Even in that case, however, Congress limited OGE's authority by requiring that, before OGE may make a recommendation, OGE must provide the employee with written notice of the alleged violation and an opportunity to respond either orally or in writing. 7 Congress also required OGE to establish a formal procedure for the employee's response, which OGE has established through regulations that provide the employee 30 days to respond. 8 Thereafter, OGE's General Counsel is required to provide OGE's Director with written findings and recommendations, which the Director must carefully consider before issuing a nonbinding recommendation that the employing agency take disciplinary action against the employee. 9 OGE is also authorized to notify the President if the agency fails to take appropriate disciplinary action; however, such notice would be ineffective in this case because any decision not to take disciplinary action will have been made by the President. 10 OGE will move deliberately to complete this process as expeditiously as possible. As explained above, however, completing the legal process that Congress established for OGE will likely take until late April or early May, due to the legally mandated timeframes involved. OGE will report back to you as promptly as possible thereafter. Sincerely, Walter M. Shaub, Jr. Director Enclosure 5 5 U.S.C. app. § 402(f)(2)(A)(ii)(l); 5 C.F.R. § 2638 .503. 5 U.S.C. app. § 402(f)(2)(B); 5 C.F.R. § 2638.504. 7 5 U.S.C. app. § 402(f)(2)(B)(ii)(l); 5 C.F.R. § 2638.504(b)(l). 8 5 U.S.C. app. § 402(f)(2)(B)(ii)(ll); 5 C.F.R. § 2638.504(c). 9 5 U.S .C. § 402(f)(2)(A)(iv)(I); 5 C.F.R. §2638.504(d), (e). 10 5 U.S.C. § 402(f)(2)(A)(iv)(ll); 5 C.F.R. §2638.504(e)(2). 6 UNITED STATES OFFICE OF GOVERNMENT ETHICS * February 13, 2017 Stefan C. Passantino Deputy Counsel to the President and Designated Agency Ethics Official The White House 1600 Pennsylvania A venue, NW Washington, DC 20500 Dear Mr. Passantino : I write to you in your capacity as the Designated Agency Ethics Official for the White House, pursuant to written designation by President Donald J. Trump on January 24, 2017. I am following up on your conversation on February 9, 2017, with David J. Apol, General Counsel of the U.S. Office of Government Ethics (OGE) regarding Kellyanne E. Conway, Special Counselor to the President. During the conversation on February 9, 2017, Mr. Apol requested that you notify OGE of any disciplinary or other corrective action taken by the White House in connection with Ms. Conway's public statements regarding the business interests of the President's daughter, Ivanka Trump. Subsequently, OGE received a letter from Chairman Jason E. Chaffetz (R-Utah) and Ranking Member Elijah E. Cummings CD-Maryland) of the House Committee on Oversight and Government Reform asking OGE to review Ms. Conway's statements, act promptly on any findings, and report back to the Committee with a recommendation for disciplinary action if warranted.2 Although Press Secretary Sean Spicer stated during a press conference on February 9, 2017, that, "Kellyanne has been counseled, and that's all we're going to go with," OGE has not yet received notification of any disciplinary or other corrective action against Ms. Conway.3 When OGE has reason to believe that an employee may have violated the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Conduct), OGE is authorized to recommend that the employing agency investigate the matter and consider taking disciplinary 1 See 5 C.F.R. § 2635.702. 2 OGE received a similar letter from Representative Ted W. Lieu, as well as one signed by 42 Members of Congress. 3 White House: Conway has been 'counseled'for urging people to buy lvanka 's products, POLITICO, Feb. 9, 2017, available at http ://www. politico. com/video/201 7 /02/wh ite-house-conwa y-has-been-counseled-for-urgin g-peop 1e-to-buy-ivan kas-products062202 (video). See also Louis Nelson, White House: Conway has been 'counseled' for urging people to buy !vanka's products, POLITICO, Feb. 9, 2017, available at http://www.politico.com/story/20 l 7 /02/kellyanne-conway-ivanka-nordstrom-white-housereact-234856; Drew Harwell, Tom Hamburger and Rosalind S. Helderman, White House says Conway has been "counseled" after touting !vanka Trump 's products, The Washington Post, Feb. 9, 2017, available at https ://www. wash in gtonpost. com/po 1iti cs/conway-may-have-broken-key-eth ics-rul e-by-touting-i vanka-trumps-prod ucts-expertssa y/2017/02/09/fd I cc64a-eeda- l l e6-b4ff-ac2cf509efe5 story.html?utm term=.5cd0f4 l fd54c. , '