Oregon Advisory Opinions June 06, 1966: OAG 66-80 (June 6, 1966)

OAG 66-80.

An investigator employed by district attorney and paid from public funds is a holder of public position and may not lend his name as campaign chairman for nomination of candidate for sheriff.

ORS 260.230 contemplates monetary help and includes direct or indirect conduct, service, aid or assistance that contributes to the promotion of candidate for public office.

Your request for an opinion involves an alleged election violation. The facts given are as follows:

"The alleged violation occurred by a person employed by the District Attorney as a non-support investigator and paid by public funds lending his name to be used as campaign chairman for the nomination of a candidate for Sheriff. There is no evidence of money contribution, only the name. The investigator's name was used in a newspaper ad and also in the Voter's Pamphlet as Campaign Chairman."

Your questions are as follows:

"1. Is an investigator employed by the District Attorney and paid out of public moneys holding a public position or office?

"2. Does ORS 260.230 contemplate monetary help or does it mean 'Promote' in the broadest sense of the word?

"3. Is the fact situation as set forth above covered under ORS 260.240?"

You have referred to ORS 260.230, which reads as follows:

"No holder of a public position or office other than an office filled by the voters, shall pay or contribute to aid or promote the nomination or election of any other person to public office. No person shall invite, demand or accept payment or contribution from such holder of a public position or office for campaign purposes."

Investigators are employed by the county to perform such investigative duties as are required by law, or as are necessary to the performance of duties prescribed by law. Such investigators are county employes; their compensation is paid from county funds. ORS 204.601 and 107.430. Therefore,

as stated in Opinions of the Attorney General, 1960-1962, p. 146:

"The question immediately arises as to the meaning of the language 'holder of a public position or office.' An 'office' is a public position but every public position is not an office. State ex rel. Hooper v. Hahn, (1943) 69 S.D. 275, 9 N.W. (2d) 502, 504. An office has been defined 'as a public station or employment conferred by the appointment of government, or the right, authority, and duty created and conferred by law, by which for a given period an individual is invested with part of the sovereign functions of the government.' Recall Bennett Committee v. Bennett, (1952) 196 Or. 299, 325, 249 P. (2d) 479. The statute obviously encompasses more than the holders of an 'office.' " (Emphasis supplied)

"The faculty member is appointed and employed by the State Board of Education. ORS 351.070. His position is designated as a position in the unclassified service of the state. ORS 240.195 to 240.205. It is clear that a faculty member is an 'holder of a public position within the meaning of ORS 260.230.' "

In Opinions of the Attorney General, 1962-1964, p. 22, it was held that ORS 260.230 prohibiting a "holder of a public position" from making a money contribution to a candidate for public office has application to a public school teacher.

The language "no holder of a public position" introduced the prohibition in § 36-2421, Oregon Code 1930 (ORS 260.240), and, with respect thereto, the Attorney General said:

"As to a deputy sheriff or a deputy or employee of any other county officer, the language of the foregoing section is clearly applicable and prohibitive. * * *." Opinions of the Attorney General, 1938-1940, p. 5.

Guided by the construction applied to earlier opinions, we conclude that a county investigator is a holder of a public position within the meaning of ORS 260.230.

Your second inquiry involves the application of the phrase "pay or contribute to aid or promote," to the facts set forth in your request. As so applied, we believe the key word is "contribute," and the question is whether the lending of the name of a holder of a public position to be used as campaign chairman for the nomination of a candidate for sheriff is equivalent to contributing to aid or promote the nomination or election of such candidate to public office.

The word "contribute" is defined in ORS 260.010 to mean:

"* * * money, its equivalent, or any other valuable thing; * * *"

"The word 'contribution' as used in the statute frequently has a literal meaning of something of a pecuniary or monetary nature; however, Webster defines it as any aid or assistance or services rendered, directly or indirectly. * * *" (Emphasis supplied)

Opinions of the Attorney General, 1956-1958, p. 283, also refers to the meaning that has been given to the word "contribute":

"* * * the word 'contribute' means to 'furnish as a share or constituent part of anything',---'to give to a common stock or for a common purpose; to give or supply a right; to lend assistance; to have a share in any act or effect.' * * * Words and Phrases, vol. XI, and LaBelle v. Hennepin County Bar Association, 206 Minn. 290 * * * held that the word 'contribute' meant 'the transfer, giving or delivery of money, property, or services.' * * *" (Emphasis supplied)

The word "promote" is defined, in part, in Webster's New International Dictionary, 2d ed., as meaning:

"* * * 3. To contribute to the growth, enlargement, or prosperity of (something in course); to forward; further; encourage; advance; * * *" (Emphasis supplied)

In view of the accepted meaning generally given to the words "contribute" and "promote," it would necessarily follow that the lending of the name of a holder of public office to be used as campaign chairman for the nomination of a candidate for sheriff would be rendering aid and assistance, and would be forwarding, furthering, encouraging and advancing the nomination of such person. Our conclusion is that the lending of the public investigator's name in such manner is a contribution for promoting the success of the candidate, and that such conduct is proscribed by ORS 260.230.

Your third question asks that we give consideration to the application of ORS 260.240 to the facts presented.

ORS 260.240 reads as follows:

"No holder of a public position other than an office filled by the voters shall be a delegate to a convention for the election district that elects the officer or board under whom he directly or indirectly holds such position, nor shall he be a member of a political committee for such district."

Your facts do not indicate that the public investigator was a delegate to a

convention or a member of a political committee for the election district that elects the district attorney. Therefore, the application of ORS 260.240 to your facts is not required.

In conclusion, your first question is answered in the affirmative; and it is our opinion that ORS 260.230 contemplates monetary help and also includes any direct or indirect conduct, service, aid or assistance that contributes to the promotion of a candidate for public office, including the lending of a name under the circumstances set forth above.