[Weekly Compilation of Presidential Documents Volume 29, Number 3 (Monday, January 25, 1993)]
[Pages 77-82]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 12834--Ethics Commitments by Executive Branch Appointees
January 20, 1993
By the authority vested in me as President of the United States by
the Constitution and laws of the United States of America, including
section 301 of title 3, United States Code, and sections 3301 and 7301
of title 5, United States Code, it is hereby ordered as follows:
Section 1. Ethics Pledges. (a) Every senior appointee in every
executive agency appointed on or after January 20, 1993, shall sign, and
upon signing shall be contractually committed to, the following pledge
(``senior appointee pledge'') upon becoming a senior appointee:
``As a condition, and in consideration, of my employment in the
United States Government in a senior appointee position invested with
the public trust, I commit myself to the following obligations, which I
understand are binding on me and are enforceable under law:
``1. I will not, within five years after the termination of my
employment as a senior appointee in any executive agency in which I am
appointed to serve, lobby any officer or employee of that agency.
``2. In the event that I serve as a senior appointee in the
Executive Office of the President (`EOP'), I also will not, within five
years after I cease to be a senior appointee in the EOP, lobby any
officer or employee of any other executive agency with respect to which
I had personal and substantial responsibility as a senior appointee in
the EOP.
``3. I will not, at any time after the termination of my employment
in the United States Government, engage in any activity on behalf of any
foreign government or foreign political party which, if undertaken on
January 20, 1993, would require me to register under the Foreign Agents
Registration Act of 1938, as amended.
``4. I will not, within five years after termination of my personal
and substantial participation in a trade negotiation, represent, aid or
advise any foreign government, foreign political party or foreign
business entity with the intent to influence a decision of any officer
or employee of any executive agency, in carrying out his or her official
duties.
``5. I acknowledge that the Executive order entitled `Ethics
Commitments by Executive Branch Appointees,' issued by the President on
January 20, 1993, which I have read before signing this document,
defines certain of the terms applicable to the foregoing obligations and
sets forth 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.''
(b) Every trade negotiator who is not a senior appointee and is
appointed to a position in an executive agency on or after January 20,
1993, shall (prior to personally and substantially participating in a
trade negotia-
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tion) sign, and upon signing be contractually committed to, the
following pledge (``trade negotiator pledge''):
``As a condition, and in consideration, of my employment in the
United States Government as a trade negotiator, which is a position
invested with the public trust, I commit myself to the following
obligations, which I understand are binding on me and are enforceable
under law:
``1. I will not, within five years after termination of my personal
and substantial participation in a trade negotiation, represent, aid or
advise any foreign government, foreign political party or foreign
business entity with the intent to influence a decision of any officer
or employee of any executive agency, in carrying out his or her official
duties.
``2. I acknowledge that the Executive order entitled `Ethics
Commitments by Executive Branch Appointees,' issued by the President on
January 20, 1993, which I have read before signing this document,
defines certain of the terms applicable to the foregoing obligations and
sets forth 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. 2. Definitions. As used herein and in the pledges:
(a) ``Senior appointee'' means every full-time, non-career
Presidential, Vice-presidential or agency head appointee in an executive
agency whose rate of basic pay is not less than the rate for level V of
the Executive Schedule (5 U.S.C. 5316) but does not include any person
appointed as a member of the senior foreign service or solely as a
uniformed service commissioned officer.
(b) ``Trade negotiator'' means a full-time, non-career Presidential,
Vice-presidential or agency head appointee (whether or not a senior
appointee) who personally and substantially participates in a trade
negotiation as an employee of an executive agency.
(c) ``Lobby'' means to knowingly communicate to or appear before any
officer or employee of any executive agency on behalf of another (except
the United States) with the intent to influence official action, except
that the term ``lobby'' does not include:
(1) communicating or appearing on behalf of and as an officer or
employee of a State or local government or the government of the
District of Columbia, a Native American tribe or a United States
territory or possession;
(2) communicating or appearing with regard to a judicial
proceeding, or a criminal or civil law enforcement inquiry,
investigation or proceeding (but not with regard to an
administrative proceeding) or with regard to an administrative
proceeding to the extent that such communications or appearances
are made after the commencement of and in connection with the
conduct or disposition of a judicial proceeding;
(3) communicating or appearing with regard to any government
grant, contract or similar benefit on behalf of and as an officer
or employee of:
(A) an accredited, degree-granting institution of higher
education, as defined in section 1201(a) of title 20, United
States Code; or
(B) a hospital; a medical, scientific or environmental
research institution; or a charitable or educational
institution; provided that such entity is a not-for-profit
organization exempted from Federal income taxes under
sections 501(a) and 501(c)(3) of title 26, United States
Code;
(4) communicating or appearing on behalf of an international
organization in which the United States participates, if the
Secretary of State certifies in advance that such activity is in
the interest of the United States;
(5) communicating or appearing solely for the purpose of
furnishing scientific or technological information, subject to the
procedures and conditions applicable under section 207(j)(5) of
title 18, United States Code; or
(6) giving testimony under oath, subject to the conditions
applicable under section 207(j)(6) of title 18, United States
Code.
(d) ``On behalf of another'' means on behalf of a person or entity
other than the indi-
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vidual signing the pledge or his or her spouse, child or parent.
(e) ``Administrative proceeding'' means any agency process for
rulemaking, adjudication or licensing, as defined in and governed by the
Administrative Procedure Act, as amended (5 U.S.C. 551, et seq.).
(f) ``Executive agency'' and ``agency'' mean ``Executive agency'' as
defined in section 105 of title 5, United States Code, except that the
term includes the Executive Office of the President, the United States
Postal Service and the Postal Rate Commission and excludes the General
Accounting Office. As used in paragraph 1 of the senior appointee
pledge, ``executive agency'' means the entire agency in which the senior
appointee is appointed to serve, except that:
(1) with respect to those senior appointees to whom such
designations are applicable under section 207(h) of title 18,
United States Code, the term means an agency or bureau designated
by the Director of the Office of Government Ethics under section
207(h) as a separate department or agency at the time the senior
appointee ceased to serve in that department or agency; and
(2) a senior appointee who is detailed from one executive agency
to another for more than sixty days in any calendar year shall be
deemed to be an officer or employee of both agencies during the
period such person is detailed.
(g) ``Personal and substantial responsibility'' ``with respect to''
an executive agency, as used in paragraph 2 of the senior appointee
pledge, means ongoing oversight of, or significant ongoing decision-
making involvement in, the agency's budget, major programs or personnel
actions, when acting both ``personally'' and ``substantially'' (as those
terms are defined for purposes of sections 207 (a) and (b) of title 18,
United States Code).
(h) ``Personal and substantial participation'' and ``personally and
substantially participates'' mean acting both ``personally'' and
``substantially'' (as those terms are defined for purposes of sections
207(a) and (b) of title 18, United States Code) as an employee through
decision, approval, disapproval, recommendation, the rendering of
advice, investigation or other such action.
(i) ``Trade negotiation'' means a negotiation that the President
determines to undertake to enter into a trade agreement with one or more
foreign governments, and does not include any action taken before that
determination.
(j) ``Foreign Agents Registration Act of 1938, as amended'' means
sections 611-621 of title 22, United States Code.
(k) ``Foreign government'' means ``the government of a foreign
country,'' as defined in section 1(e) of the Foreign Agents Registration
Act of 1938, as amended (22 U.S.C. 611(e)).
(l) ``Foreign political party'' has the same meaning as that term in
section 1(f) of the Foreign Agents Registration Act of 1938, as amended
(22 U.S.C. 611(f)).
(m) ``Foreign business entity'' means a partnership, association,
corporation, organization or other combination of persons organized
under the laws of or having its principal place of business in a foreign
country.
(n) Terms that are used herein and in the pledges, and also used in
section 207 of title 18, United States Code, shall be given the same
meaning as they have in section 207 and any implementing regulations
issued or to be issued by the Office of Government Ethics, except to the
extent those terms are otherwise defined in this order.
Sec. 3. Waiver. (a) The President may grant to any person a waiver
of any restrictions contained in the pledge signed by such person if,
and to the extent that, the President certifies in writing that it is in
the public interest to grant the waiver.
(b) A waiver shall take effect when the certification is signed by
the President.
(c) The waiver certification shall be published in the Federal
Register, identifying the name and executive agency position of the
person covered by the waiver and the reasons for granting it.
(d) A copy of the waiver certification shall be furnished to the
person covered by the waiver and filed with the head of the agency in
which that person is or was appointed to serve.
Sec. 4. Administration. (a) The head of every executive agency shall
establish for that
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agency such rules or procedures (conforming 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:
(1) to ensure that every senior appointee in the agency signs
the senior appointee pledge upon assuming the appointed office or
otherwise becoming a senior appointee;
(2) to ensure that every trade negotiator in the agency who is
not a senior appointee signs the trade negotiator pledge prior to
personally and substantially participating in a trade negotiation;
(3) to ensure that no senior appointee or trade negotiator in
the agency personally and substantially participates in a trade
negotiation prior to signing the pledge; and
(4) 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), above, shall be the responsibility of
the White House Counsel or such other official or officials to whom the
President delegates those duties.
(c) The Director of the Office of Government Ethics shall:
(1) subject to the prior approval of the White House Counsel,
develop a form of the pledges to be completed by senior appointees
and trade negotiators and see that the pledges and a copy of this
Executive 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 White House
Counsel, when appropriate, assist designated agency ethics
officers in providing advice to current or former senior
appointees and trade negotiators regarding the application of the
pledges; and
(3) subject to the prior approval of the White House Counsel,
adopt such rules or procedures (conforming as nearly as
practicable to its generally applicable rules and procedures) as
are necessary or appropriate to carry out the foregoing
responsibilities.
(d) In order to promote clarity and fairness in the application of
paragraph 3 of the senior appointee pledge:
(1) the Attorney General shall, within six months after the
issuance of this order, publish in the Federal Register a
``Statement of Covered Activities,'' based on the statute,
applicable regulations and published guidelines, and any other
material reflecting the Attorney General's current interpretation
of the law, describing in sufficient detail to provide adequate
guidance the activities on behalf of a foreign government or
foreign political party which, if undertaken as of January 20,
1993, would require a person to register as an agent for such
foreign government or political party under the Foreign Agents
Registration Act of 1938, as amended; and
(2) the Attorney General's ``Statement of Covered Activities''
shall be presumed to be the definitive statement of the activities
in which the senior appointee agrees not to engage under paragraph
3 of the pledge.
(e) A senior appointee who has signed the senior appointee pledge is
not required to sign the pledge again upon appointment to a different
office, except that a person who has ceased to be a senior appointee,
due to termination of employment in the executive branch or otherwise,
shall sign the senior appointee pledge prior to thereafter assuming
office as a senior appointee.
(f) A trade negotiator who is not also a senior appointee and who
has once signed the trade negotiator pledge is not required to sign the
pledge again prior to personally and substantially participating in a
subsequent trade negotiation, except that a person who has ceased
employment in the executive branch shall, after returning to such
employment, be obligated to sign a pledge as provided herein
notwithstanding the signing of any previous pledge.
(g) All pledges signed by senior appointees and trade negotiators,
and all waiver certifications with respect thereto, shall be filed with
the head of the appointee's agency for permanent retention in the
appointee's official personnel folder or equivalent folder.
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Sec. 5. Enforcement. (a) The contractual, fiduciary and ethical
commitments in the pledges provided for herein are enforceable by any
legally available means, including any or all of the following:
debarment proceedings within any affected executive agency or judicial
civil proceedings for declaratory, injunctive or monetary relief.
(b) Any former senior appointee or trade negotiator who is
determined, after notice and hearing, by the duly designated authority
within any agency, to have violated his or her pledge not to lobby any
officer or employee of that agency, or not to represent, aid or advise a
foreign entity specified in the pledge with the intent to influence the
official decision of that agency, may be barred from lobbying any
officer or employee of that agency for up to five years in addition to
the five-year time period covered by the pledge.
(1) The head of every executive agency shall, in consultation
with the Director of the Office of Government Ethics, establish
procedures to implement the foregoing subsection, which shall
conform as nearly as practicable to the procedures for debarment
of former employees found to have violated section 207 of title
18, United States Code (1988 ed.), set forth in section 2637.212
of title 5, Code of Federal Regulations (revised as of January 1,
1992).
(2) Any person who is debarred from lobbying following an agency
proceeding pursuant to the foregoing subsection may seek judicial
review of the administrative determination, which shall be subject
to established standards for judicial review of comparable agency
actions.
(c) The Attorney General is authorized:
(1) upon receiving information 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 determining 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 Court with
jurisdiction to consider the matter.
(d) In such civil action, the Attorney General is authorized to
request any and all relief authorized by law, including but not limited
to:
(1) such temporary restraining orders and preliminary and
permanent injunctions as may be appropriate to restrain future,
recurring or continuing conduct by the former employee in breach
of the commitments in the pledge he or she signed; and
(2) establishment of a constructive trust for the benefit of the
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 former employee arising out of any breach
or attempted breach of the pledge signed by the former employee.
Sec. 6. 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 of this order and other
dissimilar applications of such provision shall not be affected.
(c) Except as expressly provided in section 5(b)(2) of this order,
nothing in the pledges or in this order is intended to create any right
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any person.
William J. Clinton
The White House,
January 20, 1993.
[Filed with the Office of the Federal Register, 12:29 p.m., January 21,
1993]
Note: This Executive order was published in the Federal Register on
January 22.
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