dissenting.
Although I concur generally in the dissent of Warren, J., I write separately to summarize my concern about the majority’s interpretation of the relevant statute and the effect its interpretation may well have on public officials.
First, the majority holds that the phrase “use his official position or office” is the equivalent of, “by virtue of his official position or office.” I think that is wrong and may lead to absurd results. The word “use” as employed in ORS 244.040(1), I think, means active, not passive, use of official position. Here, petitioner did obtain a financial benefit by virtue of his position; he did not, however, actively assert his official position or authority in order to gain that advantage.
Second, it is at least questionable whether the legislature intended to proscribe the gaining of some benefit by a public official simply by virtue of his position when the agency of which he is an official loses nothing, the taxpayers lose *167nothing and no one is influenced, or attempted to be influenced, by his passive acceptance of the benefit. For examples: Would it make a difference here if the agency offered the add-on to petitioner in order to retain its fleet discount? Or if the agency would obtain a better price by having its employes’ add-on for their personal use? Suppose the agency employes were encouraged to use its copy machine, paying the agency its cost (or more) but substantially less than a member of the public would be required to pay for copies from a commercial vendor?
Without intending to open the floodgates, suppose a judge makes an insurance claim through his long-time agent friend, who knows he is a judge. Must the judge question the insurer, which pays the claim as submitted, to be sure that he is not getting a private benefit because of his official position? If the judge negotiates with an automobile dealer, with whom he has dealt for years and who knows he is a judge, must he not bargain as hard as he did when he was in private practice? Must he voluntarily pay more than the price he reasonably believes he can negotiate, because he fears that he may be accused of getting a better price by virtue of his official position?
The consequences of the majority’s reading of the statute are endless — so much so that public officials are very likely to become so timorous as to fit Robert Burn’s description of a mouse on turning her up in her nest with the plough in November, 1785:
“Wee, sleekit, cowerin’, timorous beastie, 0, what a panic’s in thy breastie!”1
Because I think the majority’s interpretation of the statute is wrong and is likely to have unintended, unnecessary and unwise consequences in its effect on public officials, I dissent.
Joseph, C. J. and Warren, J., join in this dissent.Robert Burns, “To a Mouse.’