OAG 66-144.

• Case Date: December 08, 1966
• Court: Oregon

Oregon Attorney General Opinions 1966. OAG 66-144. 83OPINION NO. 66-144[33 Or. Op. Atty. Gen. 83]ORS 56.012, 696.375 (4), 736.500 (2) and 706.215 (2) do not import a mandatory requirement that the corporation, real estate and insurance commissioners and superintendent of banks, respectively, be covered by bonds individually executed by them and a position bond will suffice for such officers. ORS 184.540 (1) authorizes the use of a position bond to cover all of the agencies comprising the Department of Commerce provided that such bond satisfies the requirements of any statute calling for a bond on an employe or officer of any agency in the Department of Commerce and provided further that such bond is approved by the officers required by the various statutes to approve the form or amount of the bond. The particular position bond examined in the opinion is found not to satisfy the foregoing conditions for the five reasons given in the opinion.No. 6205December 8, 1966Mr. Hillman LueddemannDirector of CommerceDepartment of CommerceYou advise: "The Director of Commerce is attempting to coordinate and administratively consolidate the agencies which make up the Department of Commerce. By this consolidation it is anticipated that economies can be realized. One of the moves in this direction was the purchase of a blanket position bond (copy attached) covering all employes within the Department---employes of each division and board being considered as employes of the Department. A substantial premium saving was realized over the previous method of each division and board purchasing position bonds. "The bonds required by statute for the Director of Commerce, the Real Estate Commissioner, Insurance Commissioner and Corporation Commissioner and the Superintendent of Banks were retained. The bonds required for various board members were retained." (Emphasis supplied) Your first question is: "Does the new relationship of the Real Estate, Corporation and Insurance Commissioners and the Superintendent of Banks to the Director of Commerce allow substitution of a blanket position bond for their present individual bond?" In considering this question we proceed from the principle that a public officer has no power or authority except that which has been expressly granted by law or that which must be implied to make effective the grant of express authority. 67 C.J.S., Officers, § 102, p. 365; State v. Des Chutes Land Co., (1913) 64 Or. 167, 175, 129 P. 764; 73 C.J.S., Public Administrative Bodies and Procedure, § 48--50, pp. 367-374; Gouge v. David et al., (1949) 185 Or. 437, 459, 202 P. (2d) 489. Also, in looking to the statutes to determine your authority in the matter, our duty is to ascertain and if possible give effect to the legislative intention expressed in those statutes. 82 C.J.S., Statutes, § 321, p. 560; ORS 174.010. That intention is to be ascertained primarily from the language or phraseology used. Berry Transport, Inc. v. Heltzel, (1954) 202 Or. 161, 167, 272 P. (2d) 965; Peters et al. v. McKay et al., (1952) 195 Or. 412, 438, 238 P. (2d) 225, 246 P. (2d) 535. Turning specifically to your first question we note that each of the four 84individuals you mention is a public officer in that each holds "* * * a position * * * created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent * * *." See Annotation, 140 A.L.R. 1076, at 1078. Each such officer is by statute required to give a bond. Thus ORS 56.012 and 696.375 (4) require the Corporation Commissioner and Real Estate Commissioner, respectively, to "* * * give to the state a fidelity bond with one or more corporate sureties * * *." ORS 706.215 (2) requires that the Superintendent of Banks "* * * shall execute to the State of Oregon a fidelity bond with one or more corporate sureties * * *. The bond shall be conditioned that the superintendent will faithfully and impartially discharge the duties of his office, and pay over to the persons entitled by law to receive it all money coming into his hands by virtue of his office. * * *" (Emphasis supplied) The issue raised by your first question is whether a blanket position bond such as the form of bond you have forwarded to this office rather than a bond individually executed by the above officers can satisfy the bonding requirements of the statutes applicable to those officers. According to the Surety Association of America's pamphlet on Fidelity Bonds, page 10, "The Blanket Position Bond is a standard form and covers all employees, no schedule or list forming a part of the bond being necessary, and all new employees are automatically bonded. The bond provides separate coverage on each employee for a uniform amount, the net effect being the same as though a separate bond were issued on each employee and all of the bonds were for a uniform amount." (Emphasis supplied) Supplementing the above definition we point out that a blanket position bond is not executed by the public officer or employe as principal with the bonding company executing as a surety (as in the case of the customary form of an individual official bond), but is simply a two party form of contract with the bonding company executing the bond as the sole obligor on the contract in favor of the obligee, the insured. Thus in the case of an individual bond executed by the public officer or employe as principal and a bonding company as surety the officer or employe is liable on the bond as a matter of contract, Askay v. Maloney, (1919) 92 Or. 566, 572-573, 179 P. 899. But in the case of a blanket position bond executed by the bonding company only there is no...