State v. Florea

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent on Review, v. David A. FLOREA, Petitioner on Review. 39577; CA A25448; SC 29870.
• Citation: 296 Or. 500,677 P.2d 698
• Docket Number: No. TC,TC
• Court: Oregon Supreme Court
• Decision Date: 06 March 1984

Page 698

677 P.2d 698

296 Or. 500

STATE of Oregon, Respondent on Review, v. David A. FLOREA, Petitioner on Review.

No. TC 39577; CA A25448; SC 29870.

Supreme Court of Oregon In Banc.

Argued and Submitted Dec. 6, 1983.

Decided March 6, 1984.

J. Marvin Kuhn, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.

James E. Mountain, Jr., Deputy Sol. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.

LINDE, Justice.

Defendant, a former chief of police of Monroe, Oregon, was convicted by a jury of theft and of official misconduct in the first degree. By demurrer to the indictment and on appeal he asserted that the statutory definition of official misconduct is unconstitutionally vague, as well as assigning as error certain rulings by the trial court. ¹ The Court of Appeals, 63 Or.App 871, 667 P.2d 583, affirmed the conviction without opinion, and we allowed review limited to the validity of the statute. We find the statute constitutional and affirm the Court of Appeals.

ORS 162.415(1) provides:

"A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:

"(a) He knowingly fails to perform a duty imposed upon him by law or one clearly inherent in the nature of his office; or

"(b) He knowingly performs an act constituting an unauthorized exercise in his official duties."

The part of the indictment under which defendant was convicted charged that defendant, "while employed by the City of Monroe as a public servant, ... did knowingly perform an act constituting an unauthorized exercise of his official duties, to-wit: transferring possession of the said .22 magnum 'Hi-Standard' derringer to Sharon Simpson."

Defendant points out that the indictment refers to the unlawful exercise of his official duties, while the statute uses the phrase "in his official duties." The statutory phrasing is awkward. By using "in" for "of" it removes "official duties" as the object of "exercise" and leaves dangling just what it is one is exercising. The Criminal Law Revision Commission took the section from the proposed Michigan Revised Criminal Code of 1967, which used the words "exercise of his official functions." The commission's commentary itself referred to the performance "of" official duties. Proposed Oregon Criminal Code, Final Draft and Report (July 1970) at 109-110.

The substitution may have been intended to avoid an apparent paradox: How can an unauthorized act constitute the exercise of one's official duties? Evidently the legislature intended to forbid unauthorized acts by officials in the course of exercising their official functions. We think the use of the word "in" means to forbid knowing performance of an act that constitutes an unauthorized exercise of the powers or opportunities of one's official position.

Defendant's main attack is on the phrase "official duties." The phrase is not further defined in the criminal code. Defendant argues that because the statute applies to a great variety of public servants whose duties are not fixed by any law, written job description, or other document, judges and juries will not be able to refer to any fixed standard, and potential defendants themselves cannot clearly determine just what their "official duties" are. We doubt that the reference to "official duties" poses a genuine problem. If there is a problem, it is in determining what is "unauthorized."

The statute requires these elements: (1) The defendant must be a "public servant." ² (2) He or she must knowingly perform an act. (3) The act must be performed "in" his or her official duties; that is to say, in the defendant's official capacity, exercising the powers or opportunities available by virtue of his or her official position. (4) The act must be an unauthorized exercise of this official capacity, power, or opportunity. (5) The act must be done "with intent to obtain a benefit or to harm another." Neither a public servant nor a judge or jury should have a conceptual problem with the requirement that the act be performed in one's official capacity or in exercising the power of one's official position, although this of course may be a disputed factual issue in a given case. ³ Certainly this element should pose no question of definiteness for a police chief who appropriates for his personal disposition firearms confiscated by the police in the course of law enforcement.

What is "unauthorized" will often be a conclusion of law on which a judge will instruct the jury. It may be an issue of fact when there is a dispute what directives were given an employee by his or her superior and the purported directives did not exceed permissible authorization...