OAG 90-3.

• Case Date: April 09, 1990
• Court: Oregon

Oregon Attorney General Opinions 1990. OAG 90-3. 350OPINION NO. 90-3 [46 Or. Op. Atty. Gen. 350]No. 8214April 9, 1990The Honorable Vera KatzSpeaker of the House These questions concern the application of the Oregon Government Ethics Law to persons who provide contractual services to the government.FIRST QUESTION PRESENTEDAs a general rule, are persons who provide contractual services to the government "public officials" subject to the requirements of ORS chapter 244?ANSWER GIVENA person does not become a "public official" subject to the ethics law merely by contracting to provide services to the government, or by being an officer, employee, or agent of an entity that provides services to the government under contract. Rather, only persons who are part of the government are subject to the ethics law. Thus, an individual who, pursuant to contract, performs governmental functions or responsibilities on behalf of the government --- e.g., a hearings officer --- is a "public official" subject to the ethics law. Similarly, where a corporation or other entity that is essentially governmental (i.e., performs governmental functions on behalf of government) contracts with a state agency, that entity's officers, employees and agents are "public officials." In the answer to the third question we discuss the attributes that make an entity part of government for purposes of this analysis.SECOND QUESTION PRESENTEDFor purposes of the first question, is there any distinction between "for-profit" and "non-profit" contractors?ANSWER GIVENNo.THIRD QUESTION PRESENTEDFor purposes of the first question, is there any distinction between entities that have been created independently of the government and entities that have been created by or with the government's assistance?ANSWER GIVENThe answer in any specific case depends primarily on the degree of governmental control over the contractor. Where the level of governmental control renders the contracting entity an arm of government rather than a private body, the contractor's officers, employees and agents are "public officials" subject to the ethics law. 351DISCUSSION The questions submitted are framed to focus on the definition of "public official" in ORS 244.020(16), part of the Oregon Government Ethics Law. The question underlying these questions is to what extent, if any, do the substantive mandates and prohibitions of the ethics law apply to persons or entities who contract with government. As we recently said in a related context, our answers "implicate crucial public policy issues. The resolution of these policy issues is the responsibility of the Governor, the legislature and, ultimately, the voters." 46 Op Atty Gen 97, 97--98 (1988) (application of several public oversight laws to Oregon Trade and Marketing Center, Inc.). In addressing the questions we consider not only the definition of "public official" but also the policy underlying the ethics law, as well as the substantive provisions themselves. We conclude that private contractors supplying services to the government do not become subject to the ethics law solely through that contractual relationship. An individual from the private sector, however, will become a public official by contracting to perform governmental functions or responsibilities on behalf of the government. Our answer to the first question concentrates on this situation. There also may be instances in which contracting entities are so controlled by government that they are, in essence, part of the government. In these cases the contracting entity's officers, employees and agents are "public officials" subject to the relevant provisions of the ethics law. We analyze this scenario in our discussion of the third question.I. The Meaning of "Public Official"The ethics law imposes numerous duties and prohibitions on "public officials." See, e.g., ORS 244.040(1), (2), (5), (6) (prohibitions contained in code of ethics); 244.120 (duty to declare potential conflicts). ORS 244.020(16) defines "public official" to mean

any person who is serving the State of Oregon or any of its political subdivisions or any other public body of the state as an officer, employee, agent or otherwise, and irrespective of whether the person is compensated for such services.

The Oregon Government Ethics Commission (OGEC or commission) has taken the position that every person who provides contractual services to the government is a "public official" within the meaning of this statute. See, e.g., Oregon Government Ethics Commission Advisory Opinion #118, dated October 27, 1980, to Chris Thomas, City Attorney, City of Portland. On the other hand, Legislative Counsel recently issued an advisory opinion disagreeing with OGEC's categorical conclusion that all government contractors are "public officials" subject to the ethics law. See Letter dated October 10, 1989, from Kathleen Beaufait, Chief Deputy Legislative Counsel, to The Honorable Vera Katz. While concluding that some contractors may be "public officials," 352Legislative Counsel did not attempt to analyze the factors that would bring a contractor within the law. We too disagree with OGEC's stated position that all government contractors are "public officials." Our reasoning, however, departs from that applied by either OGEC or Legislative Counsel. The legal debate on this question typically has centered on whether a contractor is an "agent or otherwise," as those terms are used in ORS 244.020(16). That analysis, we believe, proceeds from the wrong starting point. The proper place to begin is the language of ORS 244.020(16) that calls for a determination whether a person "is serving the State of Oregon or any of its political subdivisions or any other public body of the state." Id. If so, that person is a "public official" whether serving as an "officer, employee, agent or otherwise." That is, we construe the phrase "officer, employee, agent or otherwise" as all-inclusive, exhibiting the legislature's intent that every person "serving" the government is a "public official" regardless of the precise legal characterization of the person's relationship with the government. We begin, therefore, by trying to ascertain the concept the legislature intended to convey by denominating as "public officials" only persons who are "serving" the government. Our analysis starts with the policy expressed in the ethics law. See ORS 174.020 (goal is to pursue the intention of the legislature). The legislature stated that policy in ORS 244.010(1), which provides:

The Legislative Assembly hereby declares that a public office is a public trust, and that as one safeguard for that trust, the people require all public officials to adhere to the code of ethics set forth in ORS 244.040.

In Davidson v. Oregon Government Ethics Comm., 300 Or 415, 712 P2d 87 (1985), the court addressed this idea of a "public trust":

The concept of public trust extends to all matters within the duties of the public office. The broad policy of the ethics

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