Davidson v. Oregon Government Ethics Commission

ROSSMAN, J.

Petitioner seeks review of an order by the Oregon Government Ethics Commission (OGEC) in a contested case under ORS 244.260(3), which determined that he had violated ORS 244.040(1) and ordered him to pay a forfeiture of $2,575. Among other contentions, petitioner asserts that the order is based on an incorrect interpretation of the statute. We disagree and affirm.

ORS 244.040(1) states:

“No public official shall use his official position or office to obtain financial gain for himself, other than official salary, honoraria or reimbursement of expenses, or for any member of his household, or for any business with which he or a member of his household is associated.”

The issue in this case is whether petitioner “use[d] his official position * * * to obtain financial gain.”

Petitioner was vice-president and actuary of the State Accident Insurance Fund (SAIF) at the time of the conduct with which he is charged. In 1982, the management of SAIF decided to buy a fleet of cars. Petitioner was a member of the senior management group which gave its blessing to the plan before it was approved by SAIF’s Board of Directors. However, he was not directly involved in choosing the dealers from whom the purchases were to be made. After bids for the cars were received, another vice-president informed petitioner during a casual conversation that the quoted prices were “extraordinarily good” and that the purchase of a fleet provided any interested individual with a good opportunity to purchase a car for his personal use as an “add-on” to the fleet purchase. Although it is not altogether clear, it appears that only a handful of employes were notified of the opportunity.

Following that conversation, petitioner asked a SAIF staff lawyer for his informal legal opinion as to whether his purchase of a car as an “add-on” would violate the Code of Ethics, ORS 244.040. Petitioner was told that it would not and thereafter ordered a vehicle from SAIF’s director of administrative services, who then relayed the order to the dealer. To take advantage of the price break, it was necessary that the car be ordered in SAIF’s name. On delivery, SAIF paid for the car and was reimbursed by petitioner. The title to the car was originally issued to SAIF and was later transfered to petitioner. Petitioner saved almost $1,300 in comparison to the price that was available to an ordinary consumer. Add-ons were not the general rule. In fact, another vice president testified that, since he had joined SAIF in 1980, petitioner’s add-on was the only one he had ever known of.

OGEC found that petitioner’s conduct was a use of “his official position or office to obtain financial gain for himself’ proscribed by ORS 244.040(1). It argues that we should interpret broadly the term “use” to cover the situation in which a public official avails himself of an opportunity to save money presented by the fact of his employment. Petitioner contends that the statute is intended to apply to a more narrow class of situations in which a public official uses, or attempts to use, the power and influence of his office to obtain a financial gain for himself or a member of his household. We must set aside the order if we find that OGEC erroneously interpreted the law. ORS 183.482(8)(a)(A).

Petitioner and the dissent rely on Groener v. Oregon Gov’t Ethics Comm., 59 Or App 459, 651 P2d 736 (1982), to contend that the term “use,” as employed in ORS 244.040(1), means only influence peddling. In Groener, we affirmed OGEC’s order which found a violation of ORS 244.040(1). A state senator, who had received payments for consulting services from Williams, used the influence of his office to obtain business for Williams. On one occasion, the Senator stated that he knew the Governor and could use his influence to obtain a promotion for someone if that person continued to refer business to Williams. On other occasions he used the influence of his position to obtain a directorship for someone and to push through legislation in exchange for the referral of business to Williams. This court held that the evidence supported a conclusion that the Senator had used his position for financial gain. We said:

“[I]t is not necessary for a public official to identify expressly the public office he holds when attempting to influence someone, so long as that someone knows it.” 59 Or App at 471-72. (Emphasis supplied.)

Although the financial gain to the Senator was received indirectly from Williams, it was the quid pro quo for his exercise of the power and influence of his official position.

Petitioner’s reliance on Groener is misplaced. Just because Groener involved influence peddling does not mean that influence peddling is the only type of conduct at which the statute is aimed. Three other subsections, ORS 244.040(2), (3) and (5), provide:

“(2) No public official or candidate for office or a member of his household shall solicit or receive, whether directly or indirectly, during any calendar year, any gift or gifts with an aggregate value in excess of $100 from any single source who could reasonably be known to have a legislative or administrative interest in any governmental agency in which the official has any official position or over which the official exercises any authority.

“(3) No public official shall solicit or receive, either directly or indirectly, and no person shall offer or give to any public official any pledge or promise of future employment, based on any understanding that such public official’s vote, official action or judgment would be influenced thereby.

* * * *

“(5) No person shall offer during any calendar year any gifts with an aggregate value in excess of $100 to any public official or candidate therefor or a member of his household if the person has a legislative or administrative interest in a governmental agency in which the official has any official position or over which the official exercises any authority.”

Inasmuch as these provisions expressly cover influence peddling, it seems highly unlikely that the legislature intended “use” as it is employed in ORS 244.040(1) to deal exclusively with that kind of conduct as well. More than likely, ORS 244.040(1) was intended to be a broad catch-all provision covering many types of unethical conduct.

In ORS 244.010(1), the legislature declared the policy of the Oregon Government Ethics Law:

“The Legislative Assembly hereby declares that a public office is a public trust, and that as one safeguard for that trust, the people require all public officials to adhere to the code of ethics set forth in ORS 244.040.”

Labeling public office as a public trust was no accident. It was intended, in a general way, to define the limits of acceptable behavior. One’s duty with respect to a public trust, or any other kind of trust for that matter, must be in accordance with the highest standards the law can impose.

Accordingly, we must give “use” the meaning which best effectuates the declared policy. We can best do that by giving it its common and ordinary meaning. See James v. Carnation Co., 278 Or 65, 72-73, 562 P2d 1192 (1977). As the Supreme Court stated in Camenzind v. Freeland Furniture Co., 89 Or 158, 181, 174 P 139 (1918), the ordinary dictionary definition of “use” is “to make use of; to avail oneself of * *

Petitioner clearly availed himself of his position in purchasing the automobile. It was only by reason of his employment in a position that he was aware of the opportunity, and it was only because of his position that he was able to use SAIF as his agent. In other words, but for his position, he would have been unable to purchase the car and thus to obtain a personal financial gain. To interpret “use” otherwise would effectively make waste paper out of the statute. Therefore, we conclude that OGEC’s interpretation of the statute was correct.

Petitioner raises a number of other arguments which merit only a brief response. First, he contends that his due process and equal protection rights were violated as a result of the substitution of a “biased” hearings officer — a former Chief Justice of the Oregon Supreme Court — midway through the proceedings, the failure to adjudicate his case in a speedy manner and the selective enforcement of the ethics code against him. We have reviewed the record and find the contention unpersuasive.

Second, he argues in connection with his assertion that he did not “use” his position, that ORS 244.040(1) is impermissibly vague and overbroad. In Groener v. Oregon Gov’t Ethics Comm., supra, we rejected a challenge to ORS 244.040(1) on vagueness grounds, because we concluded that the statute does not require people of common intelligence to guess at its meaning and because ORS 244.280 provides a procedure by which a public official can obtain a ruling on proposed conduct which is binding on the commission. 59 Or App at 469-70. See also Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d 273 (1980). With respect to petitioner’s overbreadth argument, we do not believe that ORS 244.040(1) reaches conduct that may not be prohibited. See State v. Blocker, 291 Or 255, 630 P2d 824 (1981).

Third, petitioner contends that OGEC is estopped from asserting that his conduct violated the statute, because he sought legal advice from SAIF’s staff attorney. In this case, the attorney was authorized to handle SAIF’s legal work, not give private legal advice. Clearly, his opinion with respect to the propriety of petitioner’s car purchase exceeded the scope of his authority. The government cannot be estopped by whatever he told petitioner. See City of Molalla v. Coover, et ux, 192 Or 233, 235 P2d 142 (1951).

Lastly, petitioner asserts that the commission erred in its assessment of the fine that was imposed. ORS 244.360 requires the commission to order a public official who has financially benefited himself to forfeit twice the amount that he realized from the violation. There is substantial evidence in the record to support the commission’s determination that petitioner derived a financial benefit of $1,287.70. Twice that amount equals $2,575.40, the amount of his penalty he was ordered to forfeit.

Affirmed.