Oregon Advisory Opinions March 30, 1964: OAG 64-34 (March 30, 1964)

OAG 64-34.

You request an opinion on the legality of a campaign promise made by a candidate for county commissioner.

Your letter states:

"It has been brought to my attention that a candidate for County Commissioner has begun advertising and publicly stating that if elected to the office of County Commissioner he would attempt to curb juvenile delinquency and would cooperate with ORGAnizations such as 4-H, Boy Scouts, and Junior Baseball Leagues, and in this regard the candidate further states, 'To further this effort I will contribute up to $1000.00 of my salary each year I remain in office to such ORGAnizations mentioned. Understand I am not seeking to buy your votes in offering this contribution in order to be elected.' "

You inquire as to whether a promise of this kind can be lawfully made by a candidate for public office.

In State ex rel. Church v. Dustin, (1875) 5 Or. 375, 20 Am. Rep. 746, the election of a candidate for county judge in Grant County was contested because of the candidate's promise to the taxpayers to pay $200 of his salary into the county treasury each year if elected. A criminal code provision made it a felony to pay or promise to pay any valuable consideration or thing whatever to influence a voter for or against a particular person and denounced the act as bribery or offering to bribe a voter. In addition, Article II, § 7, Oregon Constitution, provided:

"Every person shall be disqualified from holding office, during the term for which he may have been elected, who shall have given, or offered a bribe, threat, or reward to procure his election."

While the court did not reach the merits of the case since the particular complaint was held to be defective because of the absence of an allegation that the voters were taxpayers of Grant County, the court stated at page 378:

"In order to contstitute the rewarding or the bribing of a voter by a candidate for office, we do not think it essential that the candidate should pay the price agreed upon for such vote directly into the hands of the voter in question; but the same results would follow the payment of the purchase-price to a third person, or to an association or community of persons, if so made by the direction of the voter, and for his use and benefit. A payment, under such circumstances, would be made to the agent of the voter, and in contemplation of law, would be a payment to him.

"It is doubtless true, in some instances, in cases like this, that an offer made by a candidate to discharge the duties of the office which he seeks for less than the salary fixed by law, is made in good faith and for the purpose of promoting retrenchment and reform in the administration of public affairs. Such may have been the motives which actuated the respondent in this case; but of that we cannot speak, because the merits of the case are not before us in that respect. Yet we are clearly of the opinion that the general tendency of the practice, by candidates for office, in offering, directly or indirectly, any pecuniary consideration whatsoever to secure the votes of electors, is demoralizing in its effects, and contravenes well-established principles of public policy; although the act may, in many cases, fall short of bribery under the criminal law. * * *" (Emphasis supplied)

We note that since that case was decided, ORS 260.390 (1) was enacted and provides:

"Any person is guilty of a corrupt practice if he expends any money for election purposes contrary to the provisions of any statute of this state, or if he is guilty of undue influence, impersonation, the giving or promising to give, or offer of any money or valuable thing to any elector with intent to induce such elector to vote for or to refrain from voting for any candidate for public office, the ticket of any political party or ORGAnization or any measure submitted to the people at any election, or to register or refrain from registering as a voter at any state, district, county, city or school district election for public offices or on public measures."

A similar statute was liberally construed in Sparks v. Boggs, (Ky. 1960) 339 S.W. (2d) 480, to prohibit a candidate from promising to donate his salary to charity in an effort to win an election. ORS 260.390 (1) has not been judicially construed in connection with a fact situation similar to the instant case. Further, Article II, § 7, Oregon Constitution, supra, still disqualifies from office any person who gives or offers a reward to procure his election.

It is our opinion, based on the Dustin case, that it is against public policy and unlawful for a candidate for county commissioner to promise to donate a part of his salary to charitable or civic ORGAnizations in order to procure his election to office.