Davidson v. Oregon Government Ethics Commission

415. 24, 1985

Argued November affirmed December and submitted Alleged In the Matter of the 244.040(1) by Violation Petitioner, Davidson, David A.

DAVIDSON, review, Petitioner on ETHICS OREGON GOVERNMENT COMMISSION, Respondent on review.

(CA A31304; S32001) SC P2d

416-a Ridgway Foley, argued Jr., K. Portland, the cause for petitioner petition on review. himWith on the were William Replogle Wyatt, Schwabe, Williamson, H. & Moore Roberts, Portland. Attorney Wasserman, General,

Richard D. Assistant argued respondent Salem, the cause for on review. With him response petition Frohnmayer, on the were Dave Attorney General, Mountain, Jr., and James E. Solicitor General, Salem.

JONES, J.

Campbell, dissenting opinion. J., filed a 416-b

JONES, J. petitioner, The issue in this case is whether David position Davidson, official, a used his official to obtain meaning gain financial for himself within the of ORS 244.040(1). provision This states: position “No officialshallusehis official or officeto salary, gain himself,

obtain financial honorariaor reimbursementof of his memberof his householdis associated.” other than official expenses, any or for member household, or for business with which he or a Appeals upheld Oregon The Court of a decision of the (Commission) peti- Government Ethics Commission that the App 160, tioner violated this statute. 74 Or (1985). We affirm. followingfindings:

The Commission made the David- president actuary son was a vice of the State Accident (SAIF), public corporation. Insurance Fund a In SAIF’s management, member, senior of which Davidson was a approved plan purchase approval a a fleet of cars. Ultimate plan was vested in SAIF’sboard of directors. After bids president received, for the cars were vice another informed during quoted prices Davidson casual conversation that the “extraordinarily good” provide were and would a SAIF employe good opportunity purchase with a a car for his personal purchase. use an “add-on” to the fleet any possible impropriety,

Concerned with Davidson legal opinion asked SAIF’s General Counsel for his informal purchase proper. whether his of a car He would be was told there would be no ethical violation and Davidson subse- quently through purchasing ordered a car SAIF’s officer. price paid Davidson reimbursed SAIF for the it for the car. $1,300. The transaction saved Davidson almost The Commission found that Davidson violated ORS 244.040(1) savings because he obtained a he would not have position official, realized but for his him to as SAIF and ordered pay penalty $2,575, a forfeiture twice the financial benefit. petitioned Appeals judicial the Court of 244.260(3),

review of the Commission’s order. Under ORS case,” and its order is Commission’s order is “contested 183.482(8)(a), which errors under ORS legal reviewable ' provides: affirm, If remand the order. the may reverse or “The court erroneously interpreted a agency finds that the has court interpretation compels a correct provision of law and that a action, particular it shall: order;

(A) modify the or Set aside or (B) agency for further action Remand the case provision interpretation the of law.” of under a correct affirmed the Commission’s Appeals The Court interpretation order, holding that the Commission’s safeguard policy to legislative with the compatible was statute 244.010(1). legislature Because trust. ORS public statute, this applying the task of to the Commission delegated the Commis- only whether review we determine judicial on statutory policy. text and within the sion’s order is THE STATUTE OF I. INTERPRETATION that at contended before its case and state had rested hearing on June and had employe a that he was state no more than proved had his “add on” as the result of financial benefit some received there was He asserted that wagon. of a station purchase meaning of “use” within the prove to a evidence insufficient “use” the word 244.040(1). Davidson contended that, according to ordinary meaning and its given should be means verb “use” Dictionary, World Webster’s New * “* * service; employ for or or put bring into action to or given purpose.” apply for a required the verb “use” meaning of

He maintained to exercise, promise least or at exercise, attempt derived from influence or prerogatives powers, exercise office. hear- record of the from the found had employe, a Davidson was 8,1983, June

ing on purchase the “add on” from a financial benefit received affirmative that he took admitted and had wagon, station previous at a Davidson testified secure that benefit. action to as follows: hearing I could add or not purchasing officer whether

“I asked our * * * car to the order? She said she didn’t feel that there was ” So, said, anything wrong with that. I ‘I’d like to do that.’ Thus, accepting the Commission found that even Davidson’s “use,” proposed request, definition of the verb his state official, purchasing “put bring to the SAIF officer did into action or service” and “employ apply given i.e., purpose,” purchase wagon. the “add on” of the station In its opinion, doing the Commission concluded that so position” purchase Davidson “used” his “official the sta- wagon price $7,012, tion at a because it from the was clear 8,1983, evidence at the on June hearing that the dealer would not have sold it to someone “off the price. street” at that supported by Commission its conclusion stating in opinion: its

“* * * Co., In Camenzind v. Freeland Furniture 89 Or (1918), 174 P 139 cited in one of memo- [Davidson] [his] briefs, (at 181) only quoted p. randum the court not from one dictionary a definition of the verb “use” consistent with that urged by [Davidson], now but went on to state as follows: ‘Webster defines the word as: * * of;

“To make use to avail one’s self of Century Dictionary says primarily ‘The that the term means employ end; purpose “To for the attainment of some ” ’ added.) (Emphasis avail one’s self of. (4th 1951). Dictionary See also Black’s Law ed Oregon Commission, “In Groener v. Government Ethics (1982), 59 Or Oregon Court of (at 467) Appeals, referring chapter 244, p. after to ORS held that this Commission

‘* * * expressly interpret statutory is authorized to language, by advisory opinion, either advance * * adjudicatory process after the fact in the *.’ “Although, pointed by respondent, out Groener did not case, question presented decide the in this the court also held (at 471) p. interpretation by that the the Commission of the use, including word ‘use’ as both ‘direct and indirect’ is ‘within plain, dictionary meaning compatible of the term and is legislative policy public safeguard with the trust.’ Cf. al, 1, 12-13, Smith et v. al Cameron et 210 P 716 (1922).” that when David- then concluded a car” if he could “add purchasing agent

son asked the SAIF that,” do it followed he would “like to and said that motion the himself of’ and set into at least “availed price at a available wagon station purchase on” “add so he “used” official, by doing and that public him as a only to for himself within gain to obtain a financial public his office 244.040(1). meaning ORS decision, David- Commission appeal In his from the proved the three has not son contends (2) 244.040(1): (1) uses his public official1 elements of ORS Davidson admits (3) gain. a financial to cause or realize office realize a financial and that he did official that he was he However, he asserts that the car. purchased he gain when asserts before so. Davidson doing his office in did not “use” ped- influence (1) prohibits only the statute this court that and the benefit (2) office the use of dling, and causally connected. must be received function function and this court’s The Commission’s give language is to construe the statutes interpreting 174.020; State legislature. the intent of effect to (1977). done That is not 747, 750, P2d 172 Wilson, Or words, unless there definitions of dictionary by consulting the same consulted legislature reason to believe differences, and Dictionary have subtle dictionary. definitions prior judicial are Nor dictionary is authoritative. single no meaning in a authority for its aof word interpretations in instance, interpreted statute the context. For different Co., P 139 89 Or 174 Furniture v. Freeland Camenzind liability Commission, employers’ was an (1918), by the cited likely machinery. It is not duty to “use” and referred to act public Ethics for a Code of enacting in legislature, that the from quotation this court’s 1974, “availed itself of’ in officials decision. dictionary in a 1918 in Groener Appeals wrote Court of What the 1 244.020(9) “public official” defines ORS “* * * capacity of serving governmental for the State any person in a who is body any public the state as any political or other Oregon subdivisions of its otherwise, person irrespective officer, the employe, agent of whether and an compensated for such services.” P2d 736 Comm., App 59 Or Ethics Oregon Gov’t of law under ORS questions its review of (1982), exercising in interpretation the Commission’s 183.482(8)(a), was that plain, the it was “within because should be sustained “use” with compatible of the term and dictionary meanings [was] agree. trust.” We public policy safeguard legislative 244.010(1), states: which in ORS That is enunciated policy public hereby Assembly declares that Legislative “The trust, trust, safeguard for that public that as one is a and office code of require public to adhere to the people all officials in ORS 244.040.” ethics set forth when legislative policy, that this argues

Davidson solely at statute, was aimed the rest of the construed with responds peddling. influence prohibiting statute are not so inherent in the whole policies Rather, applica- intended a broader legislature restricted. obtaining personal from prohibit public employes tion to public position. their gain financial because of the statute Appeals interpreted The Court of i.e., ordinary meaning, giving the word “use” its common of.” Davidson asserts that the Court “to avail oneself in a sense. incorrectly interpreted passive that word Appeals applied actively should be and that He claims that “use” not in of ORS interpretation under such an he is violation 244.040(1) to influ- actively he did not use his office because Further, he dealer to sell him a car at a discount. ence the car have similarly private individual could asserts that a situated deals were available to same benefit since similar received the made a employer whose employe non-state or executive purchase. fleet Appeals Court of dissent argues it peddling to influence when

correctly defined “use” to refer exercise of attempted meant “the actual or stated that “use” execu- position and the of an official power and influence in order of a office responsibilities tion of the duties and App Or at 168 improper gain.” an financial to achieve interpretation, (emphasis original). support in To enacting the evil to be cured dissent concluded and influence inherent power 244 is the “misuse of the chapter at 170. But advantage.” private office for means other than gained through can be private advantage peddling. influence This is such a case. public

Davidson used his office because he “availed by buying price a car at a purchase himself of’ the add-on him a official. As a only public private available to citizen dealership, not have into the car asked for an he could walked purchase Only add-on fleet discount and received it. because he for the employe qualify he was an of SAIF did SAIF only The term “use” is not restricted purchase price discount. to influence peddling. concept trust extends to all matters

The The of the policy within the duties of the office. broad employes gain do not government ethics laws is to ensure that personal advantage through financial their access the assets Here, government. Davidson used his and other attributes of advantage buying executive to take of SAIF’s access as a SAIF a purchase personal make a fleet so he could obtain power to gain. financial Appeals’ final attack on the Court of

Davidson’s requires finding is that it a of a interpretation of the statute the office and the benefit causal connection between the use of because, just also as we have received. He loses on this score stated, found that Davidson’s use of his office agree We with the gain. did cause him to realize a financial he position, statement that “but for his Appeals’ Court of the car and thus to obtain purchase would have been unable to at 165. personal gain.” a financial II. COMMISSION NOT ESTOPPED VIOLATION TO ASSERT STATUTORY rely he is entitled to on Davidson contends that services,” “legal General Counsel as state advice of SAIF’s 180.060,2 propriety Davidson of the advising ORS under asserts that because the Commission He further transaction. bars the equitable estoppel agencies, and SAIF are both state statutory violation. asserting from Commission legal 180.060(5) Attorney “perform provides General shall all ORS any department Davidson thus asserts or officer of the state.” for the state or services authority delegated by acting the state within his Counsel was that SAIF’s General 180.235, employ permits Attorney its own counsel SAIF to which General under attorney general. performs the role of an assistant who estoppel argument equitable Davidson’s

findWe to assert estopped not merit. be without General taken SAIF’s position with claim inconsistent through one acting Oregon, while State Counsel. agency another actions of by bound the is not agency, v. Highway Commission a different function. performs (1965). Anderegg, 241 Or statutory pro the exclusive provides 244.2803 ORS propriety about the in doubt public official by cedure which by action questioned resolve the can proposed of a transaction the issue. interpretation on advisory an obtaining procedure. this did not utilize order which proposed

In the statute, correctly analyzed this hearings the officer adopted, stating: enacting in ORS Oregon Legislature, that the “We believe provided by

244.280(2), procedure intended that the Commission, by advisory opinions statutory provision for legislature with the agency charged which is the 244, shall be the interpretation of ORS ch. and enforcement right to upon public official has a only procedure which a state case, be rely intended that this Commission in such a and also advisory opinions give only agency entitled to state 244 interpretation application of ORS ch. relating to right rely. We so public have a upon which state officials 244.280(2). interpret provisions ORS of rely upon the right to had no “It follows [Davidson] * * opinion by Counsel the SAIF General 3 provides: 244.280 official, public any public “(1) request Upon candidate for written of motion, may upon issue and any person, the commission or its own

office hypo- chapter, requirements opinions based on actual publish of this on the thetical circumstances. in doubt “(2) any public he is associated is with which If official or business chapter, of this proposed a violation or action constitutes whether a transaction writing may request from the in a determination or the business official receipt request, issue days the commission shall of commission. Within supply question. requester interpretation shall such advisory on the an interpretation. requests enable it to issue information as the commission “(3) not be is associated shall with which he A official or business chapter, out in accordance transaction carried action or liable under this (2) advisory interpretation this section.” under subsection issued with an III. STATUTE NOT UNCONSTITUTIONALLY VAGUE

Arguing statutory chapter that the scheme of ORS penal nature, Davidson attacks the statute as unconstitutionally vague provide adequate because it fails to prohibited notice of conduct. question nonpenal

We last reviewed the whether vagueness Megdal statutes can be unconstitutional for (1980). Examiners, Board Dental 293, 605 P2d 273 In Megdal, challenged a dentist a license revocation on the ground phrase “unprofessional that the conduct” was uncon stitutionally vague as a standard for an administrative board to decide individual cases. This court wrote: may petitioner “We prosecuted assume that could not be statutory

for a only ‘unprofessional crime described as con premises obviously duct.’ But the same apply do not to a professional revocation of his license under that If standard. practice right profession loss of the employed one’s were punishment delinquencies form of apart safeguard from ing proper performance professional role, implica the the go beyond adequacy tions would of the standard to issues generally, see Brown v. Multnomah procedure of criminal County Ct., Dist. 95, 100, 105, (1977) 280 Or 570 P2d 52 Davis, Dickinsonv. 665, 670-671, cf. (1977), punishment if indeed its use for would be constitu Garland, tional at all. Ex Parte A.H. (4 Wall.) 333, 71 US Cf. (1867) L18 Ed (invalidating disqualification supporters practice former Confederate courts). from law in federal disqualified person’s equally No doubt the loss is grave punishment it wrongdoing whether is inflicted as or * * *” professional discipline. as enforcement of 288 Or at 299-300.

This court held that aas matter of statute rather than due process, required the Board of Dental Examiners was explain phrase “unprofessional by rulemaking conduct” disciplining before a dentist under that standard. Megdal important

This case differs from in an respect. practice dentistry occupations and other or require performance activities licenses to assure consistent safety, protective with desired standards of health or other policies. respect practice law, As we have written with to the disciplinary procedures may partial, rules and result in occupa- disqualifications temporary permanent from such designed punish substandard are not tions or activities may greater although impact on the individual be conduct, penal A civil for an unrelated offense. than a minor sanction protective penalty, penalty, case, not a dis- in this is a employ- disciplinary reprimand qualification directed at his “penal” has been not a sanction as that term ment. Yet it is Supreme Court of the United States or used in decisions of the penal concerning vague laws. of this court pursue question whether, since But we need not process Megdal, that due also there have been indications penalties government power civil denies to inflict vague they give fair violations of standards so “do not they proscribe person let a conform notice of what time to Megdal, enjoining law,” 288 Or at 298-99. The law see position financial one not to “use his official or officeto obtain vague. against vagueness gain” is not too The rule does not every invalidate law that leaves room for two or more inter pretations legislators, lawyers may differ; on which and courts require most laws do. Nor does the rule that one must be able predict certainty application every with of the law to hypothetical question set of facts. Here the chief concerns interpretation correct of the “use.” Once the Commis verb (or altered) interpretation approved sion’s court, has been respect vagueness eliminated, in that even imagined application though facts can be in which the possibility does statute remains debatable. We hold that this not invalidate the statute. IV. DUE PROCESS DAVIDSON NOT DENIED that he was denied his federal

Davidson asserts right process grounds constitutional to due on the additional (a) at the he was not able to cross-examine witnesses (b) preliminary hearing, and Commission’s change hearings during should not have allowed a officers 244.260(3)4 proceeding. authorizes the the contested case ORS 4 244.260(3) provides: ORS may “Hearings any charge alleged chapter relating to violation of this be hearings appointed by a officer held before the commission or before procedure case under 183.310 commission. The shall be that for a contested ORS

to 183.550.” 426 investigate any

Commission to violation chapter of ORS findings, hearings to make and to hold relating charge to addition, 183.464(1) alleged provides: violation. In ORS (1) (4) “Except provided in as otherwise subsections section, hearings required unless a officer is authorized or order, agency hearings law or rule to issue a final officer prepare agency parties shall and serve on the and all to a order, hearing proposed including contested case recom- findings proposed mended of fact and conclusions of law. The day following order shall become final after the 30th the date order, proposed agency of service of the unless the within that period issues an amended order.” probable

The cause hearing is not a contested case 183.310(2) (a) legal right, duty under ORS since no individual yet or privilege is affected. Under the Commission’s own rule, 199-20-035(3), required administrative OAR it is to find probable justify cause to further of an investigation alleged adversarial, hearing investigatory, violation. The not and is deciding probable proba directed at whether cause exists. The ble cause results in a hearing determination of whether charge person chapter with violation of ORS 244. When the action, Commission votes to take formal the contested case Fadeley See protections then become procedural applicable. 5 Comm., (1977). Ethics 795, 801, of a procedures hearing contested case are cod- a hearings ified ORS 183.413 to 183.497. When officer hears charge, proposed findings he makes of fact and conclusions parties of law to the Commission. Both are allowed to file exceptions hearings proposed officer’s order before the Commission makes the final decision and order. ORS 183.460. order, may modify proposed reject it and own, adopt proposed its order as its own. prepare process concerning Davidson’s federal due claim is without merit. He claims that he was probable hearing cause right denied the to' cross-examine witnesses and was denied audit6 under which the Secretary access to the of State’s (1960) Larche, 420, 446, See Hannah v. US 80 S Ct 4 L Ed 2d 1307 (when nonadjudicative, fact-finding investigations, rights “conducting such as obtain”). confrontation, apprisal, generally not and cross-examination do record, 192.410(4), every person right which has the The audit is a inspect, ORS 192.420. above, due As we stated was discovered. alleged violation cause apply probable do not process requirements hearing. quasi- as categorization proceeding of the

Davidson’s The argument. advance his criminal in nature also does not similar to a district finding probable cause is Commission’s complaint. a criminal Hannah attorney’s preparation of (1960); 1502, Larche, 4 L Ed 2d 1307 363 US 80 S Ct 801; Comm., see, Fadeley supra, App at e.g., v. Ethics (Fla Ethics, 1244, 1247 2d Tenney v. State Comm’n on 395 So 1977); of an information or indictment preparation Likewise, a hearing. probable an adversarial require not ¡jjloes Davidson hearing hearing entitling cause is not an adversarial Hannah, at 442. process rights. to due See 363 US change hearings Davidson next asserts that him during proceeding officers the contested case denied Karl process. appointed federal due The Commission first Craine case Craine’s preside hearing. to over contested proposed complaint order recommended that the be dismissed on because the Commission failed to introduce evidence whether Davidson had “used” his office. The Commission order, in the continua- rejected proposed which resulted tion of the contested case The Commission decided to hearing. using hearing consider other officers to resume the hearings (1) (2) scheduling problems, potential disagree- because of order, (3) final proposed ment with Craine’s Craine’s misunderstanding of the ethics statute. The Commission Supreme Jus- subsequently appointed Oregon retired Court Tongue hearings tice Thomas as the new officer. The Com- order, proposed finding adopted hearings mission officer’s 244.040(1). that Davidson violated ORS “judge- was Davidson claims that the Commission inter- hearings agreed officer who with its shopping” for meeting on pretation of the statute. At the Commission 24, 1983, strenuously objected October counsel for Davidson Craine, original naming hearings to officer other than officer, hearing as resumed after hearings to conduct order. Counsel rejected proposed Commission Craine’s “highly officers was objected, claiming hearings the switch of to no for the Commission irregular,” precedent that there was officers, and that it was change hearings make such a “go shopping” hearings improper for the Commission to get you “that like.” officer one 14, 1983, hearing At on December resumed response questions from the objection repeated. was In officer, counsel to have the hearings agreed new hearing 8,1983, testimony and exhibits offered at the on June record, subject retained as a of the such additional part hearing. resumption evidence as be offered on might at time that agreed Counsel proceedings hearing could have continued or resumed the at time the Commission itself. At no did Davidson’s before in prejudice that Davidson had suffered counsel contend hearings the result the selection of a new specific manner as of hearing hearing to resume the that the notice of the officer or any way defective. was it was

Hearings Tongue Officer determined that by proposed the order proper the Commission to consider a meeting at of the Commission and Hearings Officer Craine order, accept to that reject proposed to decide whether or “summary would allowed Davidson’s motion for a which have rejected proposed order and Having determination.” motion, properly the Commission ordered denied Davidson to hearing, which had been recessed enable of attorney, purpose be resumed engage another the hear- receiving testimony. further Davidson conceded that purpose could resumed for that before the ing have been itself. Commission Officer concluded:

Hearings Tongue by hearing of a different “The selection resumed, hearing, was unusual. officer to as conduct Apparently, done Nei- the Commission has never so before. ther, however, previously been con- had the Commission presented problem in this It was not fronted with the case. so, however, in view of its illegal for the Commission to do hearing statutory power hearings by to have conducted it, by appointed at in the absence of claimed officers least hearing officer prejudice to Such demonstrated [Davidson]. supported if findings binding, which are does not make fact * ** evidence, judge. trial as does a “Also, noted, has claimed previously neither [Davidson] prejudice any specific he nor demonstrated that suffered

429 manner as the result of the selection of a new and different hearing hearing If officer conduct as resumed. there had depended credibility upon been an of fact issue which of a witness, might there been some basis for have a claim Davis, prejudice. See Administrative Law in the Seventies (1976) 10.04,pp. There no such in this 314-330. was issue § substantially case and the facts of this case are dispute.” without hearings change officer was correct. While such unusual, officers hearings was Davidson has failed to or prejudice. prejudice, establish bias To show bias or David Commission only son must show not that the predisposed was interpret statute certain but way, in a that the Commis case, sion the facts prejudged of Davidson’s Trade v. Comm’n Institute, 683, 701-03, 793, Cement 333 68 US S Ct 92 L Ed (1948), 1010 personally against Davidson, Berger was biased States, 230, United (1921), US S Ct 65 L Ed 481 gain financially, 564, 93 would v. Berryhill, Gibson S Ct US (1973). Schwartz, 36 L Ed 2d 488 See also Admin 303-12, (1976). istrative Law 106-08 Davidson has not §§ shown that personally financially Commission was biased.

V. CALCULATING FORFEITURE PENALTY

Lastly, that, Davidson contends even if the statute is law, constitutional and his conduct was in violation of Commission failed prove of gain amount realized many because were there too specifically variables to establish what average Thus, the car would have cost buyer. no penalty have should been assessed. amount gain calculated the based

on that a $8,300 evidence similar car would sell for average buyer only $7,012.30. and that Davidson paid There fore, substantial evidence showed that Davidson’s was gain $1,287.70. imposed The properly penalty Commission under ORS 244.360. Court of Appeals is affirmed. J.,

CAMPBELL, dissenting. I out in dissenting dissent the reasons set opinions Judge Buttler and in the Court of Judge Warren Appeals. (1985).

Case Details

Case Name: Davidson v. Oregon Government Ethics Commission

Court Name: Oregon Supreme Court

Date Published: Dec 24, 1985

Citation: 712 P.2d 87

Docket Number: CA A31304; SC S32001

Court Abbreviation: Or.