Oregon Advisory Opinions May 25, 1962: OAG 62-74 (May 25, 1962)

OAG 62-74.

You request an opinion as to whether ORS 260.220, prohibiting the promising of appointments or aid in securing employment by candidates, is violated where a candidate for sheriff places a political advertisement in a newspaper stating that, if elected, he will select a particular person as his chief deputy.

Promising to appoint a particular person to an office has been permitted in some jurisdictions and prohibited in others. 18 Am. Jur., Elections, § 231, p. 335; 29 C.J.S., Elections, § 216, p. 317; Ann. Cas. 1918A, 889, 890. In the absence of statute, a promise by a candidate for office to appoint a certain person to office, if he is elected, has been held not to constitute bribery in Van Meter v. Burns, (1917) 176 Ky. 153, 195 S.W. 470, and in several subsequent decisions in that jurisdiction where the making of such a promise has been a common political practice. In other states a promise of this kind is forbidden by statute. State v. Good, (1898) 15 Ohio C.C. 386, 8 Ohio C.D. 401;

Hunt v. Gibson, (1916) 99 Kan. 371, 161 P. 666; Berg v. Penttila, (1928) 173 Minn. 512, 217 N.W. 935.

ORS 260.220 provides as follows:

"No person shall, in order to aid or promote his nomination or election, directly or indirectly, himself or through any other person, promise to appoint another person, or promise to secure or aid in securing the appointment, nomination or election of another person to any public or private position or employment, or to any position of honor, trust or emolument. However, he may publicly announce or define what is his choice or purpose in relation to any election in which he may be called to take part, if elected ." (Emphasis supplied)

Under an analogous but more sweeping statute against the promising of appointments by a candidate, the election of an incumbent city mayor was contested for alleged violation of the statute in Wiedenheft v. Frick, (1943) 234 Iowa 51, 11 N.W. (2d) 561. At a Republican women's meeting the mayor had "pointed with pride" to the police department and stated that, if elected, he would re-appoint Reed Phillips as chief of police. The statute provided that:

"It shall be unlawful for any candidate * * * to promise, either directly or indirectly, to support or use his influence in behalf of any person * * * for any position, place, or office, or to promise, directly or indirectly, to name or appoint any person * * * to any place, position, or office in consideration of any person * * * supporting him or using his * * * influence in securing his * * * election." (Section 837, Iowa Code of 1939)

There was no evidence that the promise to appoint Reed Phillips was made in consideration of any person supporting the mayor's candidacy and, to the contention that the mayor was employing Reed Phillips' popularity to obtain votes for himself, the court quoted the trial court's opinion with approval as follows, at page 565:

"* * * 'It would be strange indeed if one seeking the office of Mayor could not commend or condemn the conduct of street commissioners, chiefs of police and other appointive officers coming in general contact with the public and it would be equally strange if one seeking the office of Mayor could not publicly declare his intention to offer to a satisfactory employee an opportunity to continue in the discharge of his duties, if the result of the election permitted the candidate to do so. The sections alluded to are intended to prevent fraud, bribery and corruption. * * * They were not intended to preclude anyone from making an honest and honorable bid for preferment by the electorate.' * * *"

The scope of ORS 260.220 was considered in Fordham v. Stearns, (1927) 122 Or. 311, 258 P. 822, in an election contest concerning a school director. At a special meeting of the electors to elect a director, after the close of nominations and before the ballots were cast, the school director stated as follows:

" 'I was a member of the school board which brought Mr. and Mrs. Howard here as teachers, and I believe we have had the best school we ever had, and I want to see them remain in the school. If you want Mr. and Mrs. Howard to teach this next year, then you should vote for me; if you don't want them, vote for Frank Bogue.' "

" 'I have been asked by several people to run for this office, and I will say that if I am elected there will be a change of teachers.' "

"From the foregoing statements, we see the real issue between the candidates. Each declared his principle. Neither was engaged in unlawful electioneering. This was not a violation of the Corrupt Practice Act, but was clearly within the privilege of the candidate as defined by Section 4131, Or. L. (ORS 260.220) The Corrupt Practice Act was designed to prevent corruption and to guarantee purity in elections, and not for the purpose of preventing a man from properly defining his principles. It is not in the interest of the public welfare for a candidate for any office to keep his constituents in ignorance of his views.

"The complaint in this case must be considered in the light of Section 8, Article I, Or. Const., reading:

" 'No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.' "

Accordingly, it is our opinion that ORS 260.220, prohibiting the promising of appointments or aid in securing employment by candidates, is not violated where a candidate for sheriff places a political advertisement in a newspaper stating that, if elected, he will select a particular person as his chief deputy.