Tuesday, January 21, 2009
Executive Order -- Ethics Commitments by Executive
Branch Personnel
By the authority vested in me as President by the
Constitution and the 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 Pledge. Every appointee in every
executive agency appointed on or after January 20, 2009,
shall sign, and upon signing shall be contractually
committed to, the following pledge upon becoming an
appointee:
"As a condition, and in consideration, of my
employment in the United States Government in 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. Lobbyist Gift Ban. I will not accept gifts from
registered lobbyists or lobbying organizations for the
duration of my service as an appointee.
"2. Revolving Door Ban All Appointees Entering
Government. I will not for a period of 2 years from the
date of my appointment participate in any particular
matter involving specific parties that is directly and
substantially related to my former employer or former
clients, including regulations and contracts.
"3. Revolving Door Ban Lobbyists Entering Government.
If I was a registered lobbyist within the 2 years before
the date of my appointment, in addition to abiding by the
limitations of paragraph 2, I will not for a period of 2
years after the date of my appointment:
(a) participate in any particular matter on which I
lobbied within the 2 years before the date of my
appointment;
(b) participate in the specific issue area in which
that particular matter falls; or
(c) seek or accept employment with any executive
agency that I lobbied within the 2 years before the date
of my appointment.
"4. Revolving Door Ban Appointees Leaving Government.
If, upon my departure from the Government, I am covered
by the post employment restrictions on communicating with
employees of my former executive agency set forth in
section 207(c) of title 18, United States Code, I agree
that I will abide by those restrictions for a period of 2
years following the end of my appointment.
"5. Revolving Door Ban Appointees Leaving Government
to Lobby. In addition to abiding by the limitations of
paragraph 4, I also agree, upon leaving Government
service, not to lobby any covered executive branch
official or non career Senior Executive Service appointee
for the remainder of the Administration.
"6. Employment Qualification Commitment. I agree that
any hiring or other employment decisions I make will be
based on the candidate's qualifications, competence, and
experience.
"7. Assent to Enforcement. I acknowledge that the
Executive Order entitled 'Ethics Commitments by Executive
Branch Personnel,' issued by the President on January 21,
2009, 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 pledge
set forth in section 1 of this order:
(a) "Executive agency" shall include each "executive
agency" as defined by section 105 of title 5, United
States Code, and shall include the Executive Office of
the President; provided, however, that for purposes of
this order "executive agency" shall include the United
States Postal Service and Postal Regulatory Commission,
but shall exclude the Government Accountability
Office.
(b) "Appointee" shall include every full time, non
career Presidential or Vice-Presidential appointee, non
career appointee in the Senior Executive Service (or
other SES type system), and appointee to a position that
has been excepted from the competitive service by reason
of being of a confidential or policymaking character
(Schedule C and other positions excepted under comparable
criteria) in an executive agency. It does not include any
person appointed as a member of the Senior Foreign
Service or solely as a uniformed service commissioned
officer.
(c) "Gift"
(1) shall have the definition set forth in section
2635.203(b) of title 5, Code of Federal Regulations;
(2) shall include gifts that are solicited or accepted
indirectly as defined at section 2635.203(f) of title 5,
Code of Federal Regulations; and
(3) shall exclude those items excluded by sections
2635.204(b), (c), (e)(1) & (3) and (j) (l) of title
5, Code of Federal Regulations.
(d) "Covered executive branch official" and "lobbyist"
shall have the definitions set forth in section 1602 of
title 2, United States Code.
(e) "Registered lobbyist or lobbying organization"
shall mean a lobbyist or an organization filing a
registration pursuant to section 1603(a) of title 2,
United States Code, and in the case of an organization
filing such a registration, "registered lobbyist" shall
include each of the lobbyists identified therein.
(f) "Lobby" and "lobbied" shall mean to act or have
acted as a registered lobbyist.
(g) "Particular matter" shall have the same meaning as
set forth in section 207 of title 18, United States Code,
and section 2635.402(b)(3) of title 5, Code of Federal
Regulations.
(h) "Particular matter involving specific parties"
shall have the same meaning as set forth in section
2641.201(h) of title 5, Code of Federal Regulations,
except that it shall also include any meeting or other
communication relating to the performance of one's
official duties with a former employer or former client,
unless the communication applies to a particular matter
of general applicability and participation in the meeting
or other event is open to all interested parties.
(i) "Former employer" is any person for whom the
appointee has within the 2 years prior to the date of his
or her appointment served as an employee, officer,
director, trustee, or general partner, except that
"former employer" does not include any executive agency
or other entity of the Federal Government, State or local
government, the District of Columbia, Native American
tribe, or any United States territory or possession.
(j) "Former client" is any person for whom the
appointee served personally as agent, attorney, or
consultant within the 2 years prior to the date of his or
her appointment, but excluding instances where the
service provided was limited to a speech or similar
appearance. It does not include clients of the
appointee's former employer to whom the appointee did not
personally provide services.
(k) "Directly and substantially related to my former
employer or former clients" shall mean matters in which
the appointee's former employer or a former client is a
party or represents a party.
(l) "Participate" means to participate personally and
substantially.
(m) "Post-employment restrictions" shall include the
provisions and exceptions in section 207(c) of title 18,
United States Code, and the implementing regulations.
(n) "Government official" means any employee of the
executive branch.
(o) "Administration" means all terms of office of the
incumbent President serving at the time of the
appointment of an appointee covered by this order.
(p) "Pledge" means the ethics pledge set forth in
section 1 of this order.
(q) All references to provisions of law and
regulations shall refer to such provisions as in effect
on January 20, 2009.
Sec. 3. Waiver.
(a) The Director of the Office of Management and
Budget, or his or her designee, in consultation with the
Counsel to the President or his or her designee, may
grant to any current or former appointee a written waiver
of any restrictions contained in the pledge signed by
such appointee if, and to the extent that, the Director
of the Office of Management and Budget, or his or her
designee, certifies 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. A waiver shall take
effect when the certification is signed by the Director
of the Office of Management and Budget or his or her
designee.
(b) The public interest shall include, but not be
limited to, exigent circumstances relating to national
security or to the economy. De minimis contact with an
executive agency shall be cause for a waiver of the
restrictions contained in paragraph 3 of the pledge.
Sec. 4. Administration.
(a) The head of every executive agency shall, in
consultation with the Director of the Office of
Government Ethics, establish 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 to ensure that every appointee
in the agency signs the pledge upon assuming the
appointed office or otherwise becoming an appointee; to
ensure that compliance with paragraph 3 of the pledge is
addressed in a written ethics agreement with each
appointee to whom it applies, which agreement shall also
be approved by the Counsel to the President or his or her
designee prior to the appointee commencing work; to
ensure that spousal employment issues and other conflicts
not expressly addressed by the pledge are addressed in
ethics agreements with appointees or, where no such
agreements are required, through ethics counseling; and
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) shall be
the responsibility of the Counsel to the President or his
or her designee.
(c) The Director of the Office of Government Ethics
shall:
(1) ensure that the pledge and a copy of this 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 the
Counsel to the President or their designees, when
appropriate, assist designated agency ethics officers in
providing advice to current or former appointees
regarding the application of the pledge; and
(3) in consultation with the Attorney General and the
Counsel to the President or their designees, adopt such
rules or procedures as are necessary or appropriate:
(i) to carry out the foregoing responsibilities;
(ii) to apply the lobbyist gift ban set forth in
paragraph 1 of the pledge to all executive branch
employees;
(iii) to authorize limited exceptions to the lobbyist
gift ban for circumstances that do not implicate the
purposes of the ban;
(iv) to make clear that no person shall have violated
the lobbyist gift ban if the person properly disposes of
a gift as provided by section 2635.205 of title 5, Code
of Federal Regulations;
(v) to ensure that existing rules and procedures for
Government employees engaged in negotiations for future
employment with private businesses that are affected by
their official actions do not affect the integrity of the
Government's programs and operations;
(vi) to ensure, in consultation with the Director of
the Office of Personnel Management, that the requirement
set forth in paragraph 6 of the pledge is honored by
every employee of the executive branch;
(4) in consultation with the Director of the Office of
Management and Budget, report to the President on whether
full compliance is being achieved with existing laws and
regulations governing executive branch procurement
lobbying disclosure and on steps the executive branch can
take to expand to the fullest extent practicable
disclosure of such executive branch procurement lobbying
and of lobbying for presidential pardons, and to include
in the report both immediate action the executive branch
can take and, if necessary, recommendations for
legislation; and
(5) provide an annual public report on the
administration of the pledge and this order.
(d) The Director of the Office of Government Ethics
shall, in consultation with the Attorney General, the
Counsel to the President, and the Director of the Office
of Personnel Management, or their designees, report to
the President on steps the executive branch can take to
expand to the fullest extent practicable the revolving
door ban set forth in paragraph 5 of the pledge to all
executive branch employees who are involved in the
procurement process such that they may not for 2 years
after leaving Government service lobby any Government
official regarding a Government contract that was under
their official responsibility in the last 2 years of
their Government
service; and to include in the report both immediate
action the executive branch can take and, if necessary,
recommendations for legislation.
(e) All pledges signed by appointees, 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 pledge provided for herein are solely
enforceable by the United States pursuant to this section
by any legally available means, including debarment
proceedings within any affected executive agency or
judicial civil proceedings for declaratory, injunctive,
or monetary relief.
(b) Any former appointee who is determined, after
notice and hearing, by the duly designated authority
within any agency, to have violated his or her pledge may
be barred from lobbying any officer or employee of that
agency for up to 5 years in addition to the time period
covered by the pledge. The head of every executive agency
shall, in consultation with the Director of the Office of
Government Ethics, establish procedures to implement this
subsection, which procedures shall include (but not be
limited to) providing for factfinding and investigation
of possible violations of this order and for referrals to
the Attorney General for his or her consideration
pursuant to subsection (c).
(c) The Attorney General or his or her designee 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 any such civil action, the Attorney General or
his or her designee 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) Nothing in this order shall be construed to impair
or otherwise affect:
(1) authority granted by law to a department, agency,
or the head thereof; or
(2) functions of the Director of the Office of
Management and Budget relating to budget, administrative,
or legislative proposals.
(d) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(e) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other
person.
(f) The definitions set forth in this order are solely
applicable to the terms of this order, and are not
otherwise intended to impair or affect existing law.
BARACK OBAMA
THE WHITE HOUSE,
January 21, 2009
Source: http://www.whitehouse.gov/the_press_office/ExecutiveOrder-EthicsCommitments/