Oregon Advisory Opinions January 01, 1956: OP 3280

Advisory Opinion Text

The State Highway Commission is prohibited by chapter 563, Oregon Laws 1955, from agreeing: with a state officer, agent or employe in the purchase of the latter's real property and must acquire the same by condemnation.

No. 3280 January 18, 1956 Mr. R. H. Baldock

State Highway Engineer

This is in response to your letter of January 6, 1956, in which you submit­ted four questions involving the inter­pretation and application of chapter 563, Oregon Laws 1955, now contained in ORS 279.360, 279.362 and 279.990 (4). Your first question is:

"Under Chapter 563, Oregon Laws 1955, can any State officer or employee lawfully have an interest in a contract made by a public committee, board, commission or de­partment other than the one of which he is an officer, member or employee?" (Emphasis supplied) ORS 279.360 provides:

"No officer, agent or employe of the state or of any political subdivision of the state shall have any interest in any contract made by him in his official capacity or by any public committee, board, commission or de­partment of which he is a member, agent or employe. The employment of the officer, agent or employe shall not be considered a contract for the purposes of this section."

The prohibition of this section is against having an interest in any con­tract made by the board or commission of which an individual is an officer or employe, and does not prohibit a state officer or employe from entering into a contract with any other state agency.

Question 2 is:

"Would compliance or noncompliance with the conditions set forth in Section 2 of the Act vary your conclusion as to the question numbered 1 above?"

Section 2 of chapter 563 is contained in ORS 279.362 and provides:

"Except as otherwise provided by Consti­tution or statute, including ORS 279.360, an officer, agent or employe of the state or of any political subdivision may contract with the state, any political subdivision or any agency of either if:

"(1) He is not authorized by law to parti­cipate, on behalf of the state, the political subdivision or any agency of either, in the awarding of the contract; and "(2) The contract is made upon a compe­titive bid in writing, publicly invited and publicly opened; and "(3) All bids received and all documents pertaining to the award of the contract are held available for public inspection for at least three months next following the date of such award."

This section recognizes that a state officer or employe may contract with a state board or commission other than that of which he is a member or em­ploye, except as otherwise prohibited by the Constitution or other statute, if the conditions stated therein are met. In this connection the Constitution not only ex­pressly prohibits some such contracts, but Sec. 7, Article XVIII, Oregon Consti­tution, makes the common-law prohibi­tions applicable as well.

Your attention is directed to opinion of the Attorney General No. 3082, dated June 23, 1955, in which the State Land Board was advised that under ORS 279.362 it could not enter into a contract for an oil and gas lease of state land with an applicant therefor who was a state employe even though the appli­cant was employed by a department other than the land board for the reason that the process by which such leases are granted did not meet the require­ment of being based upon publicly in­vited and opened bids.

Question 3 is:

"Under Chapter 563, Oregon Laws 1955, can any State officer or employee lawfully have an interest in a contract made by the public committee, board, commission or de­partment of which he is an officer, member or employee if the conditions set forth in Section 2 of the Act are met?"

The answer to this question must obviously be in the negative since Sec. 2, or ORS 279.362, is expressly qualified by the prohibition contained in Sec. 1, or ORS 279.360.

Your last question is:

"Under Chapter 563, Oregon Laws 1955, can any State officer or employee lawfully convey to any public committee, board, com­mission or department (including the one of which he is an officer or employee) real prop­erty required for a public use, or would it be necessary for the property to be ac­quired by a judgment in condemnation pro­ceedings?"

The Attorney General has been orally informed that not infrequently the State Highway Commission has need to acquire the property of a state officer or em­ploye for highway right-of-way pur­poses. In considering whether or not such conveyances are contracts within the scope of these sections it is observed that the reference to contracts in the law is general, is applicable to all contracts and is not limited in any way. A con­veyance of realty is such a contract: 9 Words and Phrases 208, 233.

It will be equally readily observed that, for example, the danger of im­proper influence in appraising the value of such property is just as great as im­proper influence in any other state con­tract. It is for this reason that only those contracts are permitted which are based upon publicly invited and opened bids and which otherwise satisfy the re­quirements of ORS 279.362. It is in the interest of maintaining ethics in govern­ment, the avoidance of any hint of im­proper conduct or scandal and the pres­ervation of the public's confidence in public officials that the conditions set forth in ORS 279.362 have been adopted.

Since the State Highway Commission, as well as other public bodies, is, as a matter of law, "unable to agree" with a state officer or employe with respect to the conveyance of the latter's property, the invocation of condemnation proceed­ings is justified: ORS 366.370.

In conclusion I find it necessary to point out that the questions submitted request a broad general interpretation of the statutes rather than being related to specific problems. In Opinions of the Attorney General, 1940-1942, p. 465, General Van Winkle made the follow­ing pertinent statement:

"* * * An attempted analysis not based upon definite facts would involve consider­ation of hypothetical questions. It is not with­in the scope of my official duties to issue opinions on such a basis, and if I attempted to do so the result would in all probability be insufficient to cover every contingency that might arise in your administration of the laws, and would lead to misunderstand­ing and inconvenience."

I trust that in meeting specific prob­lems you will find this opinion a suffi­cient guide.

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