Oregon Advisory Opinions March 10, 1954: OAG 54-18 (March 10, 1954)
Collection: Oregon Attorney General Opinions
Docket: OAG 54-18
Date: March 10, 1954
Advisory Opinion Text
OAG 54-18.
In your letter of March 8, 1954, you ask that we advise you as to whether or not an agent appointed to sell alcoholic liquors for the commission is either an employe or an officer of the state and as such is precluded from becoming a candidate for the legislature or from taking a seat in the legislative assembly if elected.
The commission is authorized by ORS 471.750 to "employ agents in the sale of said liquor, upon such stipulated salary as the commission may fix but not on a percentage or commission basis, and under such regulations as it may prescribe."
Agents are appointed by the commission and the nature of the relationship and the responsibilities of principal and agent are enumerated in a document captioned "Agency Agreement". Under the terms of this agreement the agent furnishes a store building, fixtures and utilities, as well as the labor necessary to operate the store, all at his expense. The agent may also be required to take an inventory and transmit the same to the commission at the request of the commission. The commission specifies that sales be conducted during certain established hours of the day and that certain non-sale days be observed. The commission exercises no control over the agent's employes other than to provide that no minors be employed.
The contract finally provides for termination at the will of either party upon either written or oral notice. The determination as to whether the relationship of the "agent" is that of employe, agent or independent contractor is dependent on the factual situation and the actual operation.
The principal criterion of both employment and agency is lacking, that of supervision. Both an employer and a principal have the right to control the conduct of an employe or agent with respect to matters entrusted to him. The liquor-selling agent is free to carry on his business with but minor restrictions; he performs a service for the commission in a manner of his own choosing.
It is our opinion that he is one who, in exercising an independent employment, contracts to do a certain work according to his own methods, and without being subject to the control of his employer except as to the product or result of his work, and, as such, is an independent contractor. See 27 Am. Jur., "Independent Contractors", § 2, p. 481.
As an independent contractor, an agent would not be prevented from engaging in political activities such as are prohibited to employes of the commission by ORS 471.720. Nor does the agent come within the prohibition of Article II, § 10, Oregon Constitution, so as to be prohibited from taking a seat in the legislative as
sembly. He does not have the qualifications of a public officer as set forth in Morris v. Parks, 145 Or. 481.
There is, however, a prohibition against a legislator's entering into or maintaining contractual relations with the state and, as has been stated in prior opinions of this office, such contracts between public officers and governmental entities of which they are officers are invalid. The cases and decisions are reviewed at length in opinion No. 2424, dated May 6, 1953. It would be incumbent upon the commission, on the election of one of its agents to a state office, to terminate the contract then in force.