Oregon Advisory Opinions January 01, 1976: OP 7240
Collection: Oregon Attorney General Opinions
Date: Jan. 1, 1976
Advisory Opinion Text
DEPATRMENT OF JUSTICE
100 STATE OFFICE BUILDING
SALEM,OREGON 97310
TELEPHONE:(503)378-6368
January 5, 1976
No. 7240
This opinion is issued in response to a question submitted by J. Pat Horton, District Attorney of Lane County.
QUESTION PRESENTED
Does ORS 8.790 prohibit a district attorney or a deputy from receiving any income other than his official salary, or does merely prohibit additional compensation for the statutory services of the office of district attorney as directed in ORS ch 8?
ANSWER GIVEN
ORS 8.790 only prohibits a district attorney or deputy from receiving compensation other than official salary for performing his statutory duties. It does not prohibit a district attorney or deputy from receiving income unrelated to his statutory duties.
DISCUSSION
Our opinion has been requested on several questions arising under ORS 8.7 90 and the Oregon Conflict of Interest Law (Oregon Laws 1974 (Special Session) ch 72, as amended by Oregon Laws 1975, ch 543). ORS 8.790 states:
"No salary, fees, percentage or compensation of any kind shall be allowed, paid to, or received by a district attorney or deputy district attorney except as provided in this chapter."
Our attention is directed to section 3 of the Oregon Conflict of Interest Law which states in part:
"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* * *"
We have been furnished copies of the Economic Interest Statements for calendar year 1974 of five Oregon district attorneys. The statements indicate that each of these district attorneys received income from various sources other than official salary during calendar year 1974. Examples of the sources of income indicated by the statements are: consulting fees from the National District Attorneys Association; real property investments; authorship fees; honoraria for speaking engagements; teaching fees for classes taught at the State Board of Police Standards and Training; and compensation for service in the United States Armed Forces.
We believe each of the questions is really the same question: Does ORS 8.7 90 prohibit a district attorney or a deputy from receiving any income other than his official salary, or does the statute only prohibit additional compensation to a district attorney or a deputy for providing the statutory services of the office of district attorney as directed in ORS ch 8?
ORS 8.650 through 8.690 prescribe the duties of the office of district attorney in Oregon. He is the public prosecutor, with jurisdiction extending to violations of city ordinances as well as of state law. He initiates arrests and conducts grand jury proceedings. He enforces the public assistance and support laws. He enforces penalties and forfeitures due to the state. He assists the court in juvenile proceedings, and is legal advisor to county officers, prosecuting or defending all proceedings to which the county is a party.
In return for performing these duties, district attorneys and their deputies are paid a fixed salary by the State of Oregon (See Oregon Laws 1975, ch 378.) ORS 8.830 allows each county to pay additional amounts to district attorneys or deputies "as will properly compensate each officer for the service performed. "
However, ORS 8.790 then prohibits any additional "salary, fees, percentage or compensation* * *"
We believe the proper interpretation of ORS 8.790 can only be made by examining the historical context of this law.
Before the office of the Attorney General was created, the district attorneys of the various judicial districts in Oregon appeared in court on behalf of both the counties and the state on all legal matters. State agencies and officers could, if they so desired, retain private counsel or could utilize the services of a district attorney. See Claim of Ison , 6 Or 465 (1877).
It was also possible in parts of the United States for private citizens to retain private counsel or to retain the district attorney to prosecute criminal matters in the name of the state. This practice was prohibited early in Oregon. Sec. 981, Hills Annot. Laws 1892:
"Sec. 981. He shall not receive any fee or reward from any private person for his service in any criminal action, nor during the pendency of such prosecution can he act as attorney for either party in any civil action, suit or proceeding involving substantially the same controversy."
More importantly, when the district attorney performed the statutory functions of his office, he was paid on a percentage or fixed fee basis such as the following:
"Sec. 1073. The district attorney, in addition to the salary and per diem allowed him by law, shall receive the following fees :
"1. In a criminal action when the punishment is death or imprisonment for life, if the defendant is convicted, twenty-five dollars, or if acquitted, one half thereof;
"2. In a criminal action when the punishment is imprisonment in the penitentiary for a term of years, if the defendant is convicted, fifteen dollars, or if acquitted, one half thereof;
"3. In a criminal action for a misdemeanor, if the defendant is convicted, ten dollars, or if acquitted, one half thereof;
"4. In a civil action for the recovery of any fine, penalty, or forfeiture, ten per centum on the amount annually collected;
"5. For prosecuting or defending any other civil action, suit, or proceeding not herein mentioned, to which the state or any county in his district is a party, twenty-five dollars;
"6. For actually defending, on behalf of the state, a suit for the dissolution of the marriage contract, or to declare the same void, ten dollars;
"7. For prosecuting or defending any action, suit, or proceeding herein mentioned, or appeal to the
supreme court, twenty dollars." (emphasis supplied) (Hills Annot. Laws 1892.) In 1899, this law was repealed. House Bill 263 adopted by the 1899 legislature contained this language:
"The district attorneys of the several judicial Districts of this state during their continuance in office shall be entitled to receive from the State Treasury* * * as full compensation for their services , the following named salaries* * *" (emphasis supplied) This provision was followed by section 3 of HB 263, which contained this language:
" And no salary, fees, percentage or compensation of any kind shall be allowed or paid to or received by any district attorney, except as herein provided, and no deputy district attorney shall receive any compensation for his services as such , except from the district attorney who appointed him." (emphasis supplied) We note that the language "as full compensation for their services" in the section prescribing salaries for district attorneys remained as part of the law until 1953.
We note further that section 3 of HB 263 is not the identical language of ORS 8.790 although the Legislature has never amended the statute. The identical language of HB 263 also survived until 1953. We will discuss the revision of all Oregon Laws in 1953 below.
The enactment of HB 263 in 1899 (and the repeal of prior laws governing payment of district attorneys) was a positive step by the Legislature to improve the administration of the public's legal business, both civil and criminal. It would be unthinkable in modern criminal law to base a prosecutor's compensation on the outcome of the case, particularly when the death penalty or life imprisonment is at stake. We doubt that any appellate court in this country would affirm any criminal conviction under those circumstances.
Further, the concept of paying district attorneys on a percentage basis or contingency basis evidently did not work smoothly and was the subject of some litigation. See Ison's Claim , cited above; Howard v. Clatsop County . 41 Or 149, 68 P 425 (1902), Union County v. Hyde , 26 Or 24, 37 P 76 (1894).
There is no legislative history from the 1899 session available for reference, and there are no statements by an appellate court in Oregon as to the meaning of ORS 8.790. We interpret the original language of HB 263 to prohibit additional compensation of district attorneys for the performance of their statutory duties. We do not find that this language was intended to prohibit a district attorney from receiving income unrelated to the statutory duties of his or her office.
A strict construction of ORS 8.790 could prohibit a district attorney or any deputy from participating in any investment opportunity, including owning rental property; placing money in an interest bearing savings account; owning stocks or bonds; receiving compensation for service in the United States armed services; receiving compensation and travel expenses for speaking engagements unrelated to the statutory duties of district attorney; or any participation in a business opportunity.
This interpretation is inconsistent with ORS 8.710:
"If a district attorney fails to attend any court at which he is required to be, or is related to the accused by consanguinity or affinity, or, prior to his election as district attorney, represented the accused in the natter to be investigated by the grand jury or the crime charged in the indictment, or is associated with the accused in business, or is interested financially in the matter or property out of which the alleged crime or criminal action arose, or is a stockholder in any corporation, any officer or stockholder of which is charged with the commission of any crime, and such facts appear to the satisfaction of the court by affidavit or otherwise, the court shall appoint a regularly licensed and practicing attorney of this state to perform the duties of such attorney during his absence, or the trial or investigation of such accused. When the district attorney is disqualified as provided in this section, the person so appointed by the court shall receive reasonable compensation for his attendance, to be allowed by the court and paid from the county treasury upon order of the court."
This section, originally enacted in 1862, was intended to provide a statutory means of appointing a special prosecutor when the district attorney is financially associated with a criminal defendant. This statute, and the legislative intent behind it, cannot be harmonized with a strict interpretation of ORS 8.790.
To strictly construe ORS 8.790 to prohibit district attorneys and their deputies from supplementing their income from sources unrelated to"their official duties, or from participating in investment opportunities in any form would tend to deter many competent persons from seeking the office and could ultimately lead to a situation where only those who could afford to hold the office would seek it. We find this interpretation inconsistent with a. close reading of all of ORS ch 8.
In 40 Op Atty Gen 400 (1964) we stated that it was improper for the State Board of Engineering Examiners to hire or retain additional counsel to assist district attorneys in prosecuting violations of the professional engineering law. We noted the provisions of ORS 8.790 and quoted from 43 Am Jur Public Officers Sec. 362 as follows:
"The measure and amount of compensation to which a public officer is entitled is generally not fixed upon a quantum meruit basis, but rests on the judgment and consideration of the legislature or other public body to which the matter is intrusted."
"* * *if the fixed compensation is more than the service is worth, the public* * * must pay it; if less, the officer must be content with it. "
Our opinion cited above found that additional deputy district attorneys could not be retained by the Board of Engineering Examiners because they would be paid from funds appropriated to the board and not to the district attorney. We believe that opinion is consistent with the intent of the 1899 law. We also find that the language quoted from Am Jur is relevant here. If the amount of money appropriated by the legislature for a district attorney's salary is excessive, the public must pay it. If the amount is too small in relation to the amount of work performed [i.e., for the discharge of statutory duties] the district attorney must convince the legislature more money is appropriate for the services being rendered.
ORS 8.726 (as amended in 197 5) prohibits those district attorneys and their deputies who receive more than $16,000 per year in salary from engaging in the private practice of law. Here the legislature obviously intended to permit district attorneys and their deputies earning below $16,000 per year to practice privately. This constitutes a prohibition against additional income from one particular source for those earning in excess of $16,000, but the statute is silent regarding any other source of income.
When ORS 8.726 was adopted as HB 1659 in 1965, the Joint Ways and Means Committee was informed that even with the increased salary proposed for district attorneys, even those prohibited from practicing law privately would probably supplement their incomes. Ways and Means Committee Hearings, April 26, 1975 (p. 212).
ORS 8.790 was not mentioned during the deliberations on this bill. We know of no instance in the past 7 5 years when this statute has been interpreted by the legislature, the bar, or the public to mean that district attorneys and their deputies are prohibited from receiving any income other than official salary. Certain state and federal agencies have compensated deputy district attorneys for years for lecture and authorship services in regard to police training law enforcement programs.
Finally, we note that the revisor authorized by the legislature in 1949 to reorganize all Oregon statutes was given the authority to delete, rephrase, and juxtapose the language of existing statutes. He did so in assembling what is now ORS ch 8 by deleting the words "in full compensation for their services"
from the language authorizing payment of district attorneys' salaries.
He also reworded and rephrased section 3 of HB 263 (now ORS 8.790). We do not quarrel with the choice of words of the revisor although we do believe the present language of ORS 8.790 is more susceptible to an interpretation that district attorneys are prohibited from receiving any income other than official salary than the original language.
In order to construe ORS 8.790 to mean that district attorney and their deputies are prohibited from receiving any income other than official salary, it is necessary to find that the 1899 legislature intended that result. We find the legislature intended only to make clear in section 3 of HB 263 that the former additional allowable methods of compensating district attorneys for their official duties rendered were strictly prohibited.
Section 3 of the Oregon Conflict of Interest Law has no great weight in our interpretation of ORS 8.7 90, although it is a legislative recognition that public officials who are members of a profession are often requested to speak to various groups throughout the state and throughout the country and are often reimbursed for travel expenses and are sometimes given cash honorariums for speaking.
The prohibition of the Conflict of Interest Act against using a public office for private gain applies to all public officials as public officials. We find the prohibition against additional compensation in ORS 8.790 is directed against district attorneys and their deputies only when they are discharging the duties of ORS 8.650 through 8.690.
The Oregon Government Ethics Commission requires by rule that public officials who receive honorariums report each such honorarium on the annual statement of economic interest required to be filed with the commission. We conclude by stating that none of the examples of receipt of income listed in the statements of economic interest attached to the inquiry violate ORS 8.790 as we interpret it.
LEE JOHNSON Attorney General
LJ:JCR:bk
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The revisor may have interpreted the prohibition or section 3, HB 263 in this way. See revisor's note to ORS 8.790, 1953 Annotations to ORS. We are not bound by his interpretation.