In the spirit of transparency, Norm Eisen, special counsel to the president for ethics and government reform, asked us to pass along this update on the President’s Executive Order on Ethics:
The White House periodically gets questions about the President’s Executive Order on Ethics and how it is being implemented. In addition to responding to these questions individually, we thought it might make sense to provide an overview to the public of the background for the Order and how it has been working so far.
One of President Obama’s first official acts upon taking office was to sign the ethics Executive Order. The Order establishes some of the toughest ethics rules ever imposed on executive branch appointees. It has been widely praised by commentators and leading good government advocates for the hard line it takes on lobbyists and others riding the revolving door between government service and the private sector in order to achieve personal gain at the expense of the public interest.
Because the rules are so stringent, it is important to have reasonable exceptions in case of exigency or when the public interest so demands. That is why the Order provides that a waiver of the restrictions may be granted when it is determined "(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." Sec. 3(a). The Order goes on to explain that the "public interest" may include, but is not limited to, exigent circumstances relating to national security or to the economy and that de minimis contact with an executive agency shall also be cause for a waiver. Sec. 3(b). As we discuss below, this provision was intended to be used sparingly, and has been so used.
The availability of a waiver has been praised by ethics experts and commentators alike:
*Norman Ornstein, a Resident Scholar at the American Enterprise Institute stated that "This tough and commendable new set of ethics provisions goes a long way toward breaking the worst effects of the revolving door. There are many qualified people for the vast majority of government posts. But a tough ethics provision cannot be so tough and rigid that it hurts the country unintentionally. Kudos to President Obama for adding a waiver provision, to be used sparingly for special cases in the national interest. This is all about appropriate balance, and this new executive order strikes just the right balance."
*Thomas Mann, Senior Fellow of Governance Studies and the Brookings Institution said that "The new Obama ethics code is strict and should advance the objective of reducing the purely financial incentives in public service. I applaud another provision of the EO, namely the waiver provision that allows the government to secure the essential services of individuals who might formally be constrained from doing so by the letter of the code. The safeguards built into the waiver provision strike the right balance."
*The Washington Post editorialized that the President had "adopted a tough ethics policy . . . sweeping in time and scope." Specifically endorsing the waiver granted to Bill Lynn, the editorial board wrote that "The president's rule ensures that any conflicts will be carefully watched, and his flexibility despite certain criticism signals an ability to make hard but reasonable calls."
Out of the approximately 800 appointments to the executive branch made to date, only three waivers have been granted. In addition to Bill Lynn, Jocelyn Frye and Cecilia Muñoz have received the only other waivers to date. Both Ms. Frye and Ms. Muñoz were granted waivers from paragraphs 2 and 3 of the ethics pledge pursuant to section 3(a)(ii) of the Executive Order. The waivers are attached. Both Ms. Frye and Ms. Muñoz will otherwise comply with the remainder of the pledge and with all preexisting government ethics rules.
We took the rare step of granting the waivers to Ms. Frye and Ms. Muñoz because of the importance of their respective positions and because of each woman’s unequalled qualifications for her job. Each is a leading substantive expert on the relevant issue areas and each also has long-standing relationships with constituencies important to their respective offices.
Ms. Frye now serves as the Director of Policy and Projects in the Office of the First Lady. In that regard, she is responsible for the entire range of issues with which Mrs. Obama is concerned, with a particular focus on women, families and on engagement with the greater D.C. community. She was previously General Counsel at the National Partnership for Women & Families, where she directed the National Partnership’s Workplace Fairness Program and, in that capacity, focused primarily on a wide range of employment and gender discrimination issues, with a particular emphasis on employment barriers facing women of color and low-income women. Her work involved monitoring and analyzing the effectiveness of federal equal employment enforcement efforts, as well as the scope of gender- and race-based employment barriers. In these areas, she became an expert on the relevant employment laws and their applications. She has also worked with federal agencies as a technical expert on these issues, and has testified before Congress and the Equal Employment Opportunity Commission on federal enforcement of employment discrimination laws. She coordinated the organization’s work on amicus curiae briefs and judicial nominations and worked with the public to improve education on employment discrimination, women’s rights and civil rights policies.
Ms. Frye has also written extensively on a wide range of issues affecting women and employment. Her assessment of the Equal Employment Opportunity Commission appeared in Change for America: A Progressive Blueprint for the 44th President (Mark Green and Michele Jolin eds., 2008). And she has written or co-authored numerous articles on women’s rights and civil rights, including "The Pregnancy Discrimination Act: Where We Stand 30 Years Later," (National Partnership for Women & Families, 2008) (co-author); "Women at Work: Looking Behind The Numbers 40 Years After The Civil Rights Act of 1964," (National Partnership for Women & Families, 2004) (co-author) and "Affirmative Action: Understanding the Past and Present," in THE AMERICAN WOMAN 1996-97 (Cynthia Costello and Barbara K. Krimgold eds., 1996).
Ms. Frye has also participated in numerous coalitions and volunteer organizations. She has served as the co-chair of the economic security and employment task forces for the Leadership Conference on Civil Rights. She served on the Board of Directors at the National Cathedral School for Girls. She was on the Board of Deacons at the Shiloh Baptist Church. And she has served as a volunteer attorney at the Washington Legal Clinic for the Homeless. We note her deep involvement in these community endeavors because, in addition to her mastery of the policy areas of significance to her new role, the strong community ties she brings with her to the First Lady’s Office make her an ideal aide to a First Lady committed to being a part of the local Washington, D.C., community.
Ms. Muñoz now serves as the Director of Intergovernmental Affairs in the Executive Office of the President. In that capacity, she manages the White House’s relationships with state and local governmental entities and also serves as a principal liaison to the Hispanic community. She was previously the Senior Vice President for the National Council of La Raza (NCLR), where she supervised all legislative and advocacy activities conducted by NCLR policy staff nationally, including on the state and local levels.
In her twenty years at NCLR, Ms. Muñoz became one of the nation’s foremost experts on a range of issues critically important to the Latino community, including immigration, civil rights, employment, poverty, farm worker issues, education, and housing. Ms. Muñoz regularly represented NCLR before the media, Congress, and policy-makers on a variety of issues of concern to Latinos, and received regular requests from members of Congress, major media outlets, and Latino community institutions for presentations and strategic advice.
Prior to her time at NCLR, Ms. Muñoz worked as a community organizer for the Catholic Charities of the Archdiocese of Chicago. In that capacity, she trained Latino community groups to set up neighborhood community services to address local problems and directed Chicago's largest non-profit legalization program under the Immigration Reform and Control Act of 1986.
Ms. Muñoz has written extensively on immigration and civil rights issues. Her writing has appeared in publications such as Migration Week, The American Prospect, and NACLA Report on the Americas, and she has published opinion editorials for the Washington Post, Christian Science Monitor, American Enterprise, and the Miami Herald, among others.
Ms. Muñoz’s leadership skills have been widely recognized. She has served as the Chair of the Board of the Center for Community Change, and served on the U.S. Programs Board of the Open Society Institute and the Board of Directors of the Atlantic Philanthropies. She has received the Irma Flores Gonzalez Award from the Farmworker Justice Fund, an advocacy achievement award from the Washington, D.C. NCLR affiliate AYUDA, and was honored by the Chair of the Congressional Black Caucus as a leader of the 21st century civil rights movement.
In June 2000, Ms. Muñoz was awarded a MacArthur Foundation "genius grant" in recognition of her innovative work, including on immigration and civil rights. As the daughter of immigrants from Bolivia, she brings a deep personal commitment to these causes that makes her an authoritative voice nationally. As with Ms. Frye, we felt the public interest would be sacrificed if she could not serve in the White House, and so made the determination to grant the waiver.
* View the signed waiver for Jocelyn Frye (pdf)
* View the signed waiver for Cecilia Muñoz (pdf)