NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/alt/newsmed/1778

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From: [e-mail] (Clinton/Gore '92)
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Subject: CLINTON: ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES
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Date: 27 Jan 93 19:00:17 GMT
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 For immediate release
 posted by: The White House


                          EXECUTIVE ORDER

         ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES

    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 negotiation) 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 individual 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 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.

    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.

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