dissenting.
I think that the majority’s interpretation of ORS 244.040(1) is unreasonable and incorrect and fails to accord *168any recognition to the intent of the legislature in enacting the Code of Ethics and related statutes. The court should interpret this statute to proscribe only the actual or attempted exercise of the power and influence of an official position and the execution of the duties and responsibilities of a public office in order to achieve an improper financial gain. This interpretation finds support in the language of the statute, its statutory context, the legislative history and the experience of other jurisdictions in dealing with the same problem. I would reverse, because I think that OGEC did not establish that petitioner used his official position for financial gain. Accordingly, I dissent.
The parties assert different definitions of “use.” The majority adopts a more inclusive definition, “to avail oneself of,” stating, “but for his job, [petitioner] would have been unable to purchase the car * * *.” I would adopt a less inclusive definition which would result in an ethics violation only when the power or influence which a public official has by virtue of his public office is employed for the purpose of obtaining a private gain. To support its interpretation, the majority states that statutory terms should be given their “common and ordinary meaning.” That may be so if a statute is clear and unambiguous; however, the judicial task is not so simple when a term is susceptible to two or more interpretations. Our responsibility in construing a statute is to give effect to the intention of the legislature. ORS 174.020.
“* * * We * * * look to the legislative intent, the logical form of the statute and to the legislative policy as expressed in other statutes to resolve the ambiguity. * * *” Sager v. McClenden, 296 Or 33, 40, 672 P2d 697 (1983).
The majority’s resort to Camenzind v. Freeland Furniture Co., 89 Or 158, 181, 174 P 139 (1918), to support a broad definition of “use” in this case, is unpersuasive.1 In that case, *169the court interpreted a phrase in the Employers’ Liability Act, which reads:
“[A]ll owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or to the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb * * 89 Or at 166. (Emphasis supplied.)
In that context, the meaning of the term “use” is clear and unambiguous, and it was appropriate to apply a broad definition. The interpretation of “use” in that case is not relevant to this case which construes an entirely different statute. Reference to the definition applied in Camenzind cannot be made to avoid our obligation to construe the term in its statutory context. As the court stated in James v. Carnation Co., 278 Or 65, 74, 562 P2d 1192 (1977):
“* * * [I]t is not necessarily required that the same phrase have the same meaning when it is used in different statutory contexts. * * *”
The language of ORS 244.040(1) supports the interpretation of “use” which I propose. The statute lists “salary, honoraria or reimbursement of expenses” as the only items of financial gain which a public official may “use” his official position or office to obtain. It is clear that an official salary is paid precisely for a public official’s exercising the influence and power and executing the duties and responsibilities of his official position. People are commonly held deserving of honoraria because of the prestige of their office; it is the power and influence of their official positions which earn them honoraria. Likewise, a reimbursement of expenses is justified *170only if the expenses are incurred in executing the duties and responsibilities of a public office. The listing of these three terms indicates the legislature’s intent that “use” be given a more narrow meaning. The legislature did not intend to classify as ethical violations incidental instances of financial gain which may accrue to a public official by reason of his working in a particular office which do not involve the actual or attempted exercise of the power and influence of an official position.
That this is the legislature’s intent is borne out by analyzing the other provisions of ORS 244.040. ORS 244.040(2) prohibits the solicitation and receipt of gifts from sources “who could reasonably be known” to be interested in an agency in which the official holds a position or over which he exercises authority. ORS 244.040(3) prohibits soliciting, receiving, offering or giving a promise of future employment to an official to influence his vote, action or judgment. ORS 244.040(4) prohibits an official’s using confidential information obtained through his position for personal gain. ORS 244.040(5) prohibits the offer of gifts by persons who are interested in an agency in which the official holds a position or over which he exercises authority. As I read those provisions, I conclude that the purpose of ORS 244.040 is to prevent public officials from using, attempting to use or appearing to use the power or influence of their office to obtain financial gain. It is also intended to prevent others from offering financial gain to public officials. Otherwise stated, I believe that the evil sought to be avoided is the actual or apparent misuse of the power and influence inherent in public office for private advantage.
ORS 244.040(1) prohibits a type of conduct which is not covered by the other provisions. It proscribes serious ethical violations by which an official profits through employing the power of his official position. One example of conduct clearly covered by subsection (1) and not covered by the other provisions of the statute is an official’s corruptly awarding a public contract to a company in which he has a financial interest. Another example is a legislator’s accepting a bribe to influence his vote. Contrary to the majority’s assertion, my interpretation of ORS 244.040(1) does not “effectively make waste paper of the statute.”
Examples of the type of conduct which ORS *171244.040(1) is intended to prohibit are found in two Oregon cases. One is Groener v. Oregon Gov’t Ethics Comm., 59 Or App 459, 651 P2d 736 (1982), which the majority discusses. The other is In the Matter of Royce Pierce, Mayor and City Councilor, City of Lakeside (OGEC order, June 17, 1982). OGEC concluded that Pierce had violated ORS 244.040(1) by using the influence of his positions to obtain from a subordinate, the city recorder, two gas company credit cards for his personal use. The city recorder had expressed reservations about providing the cards to Pierce. The unwritten policy of the city was1 that the cards were to be used only for city business. Although Pierce reimbursed the city for the expenses that he charged, his gain was the opportunity to defer payments for several months. In that case, Pierce used his office for financial gain by exercising the power and influence of his official positions to create an opportunity for personal gain. His actions were prohibited by ORS 244.040(1), even though his gain was not received in exchange for benefit to another, because they involved an abuse of the public trust. These cases are examples of the kind of conduct that I think ORS 244.040(1) is intended to prohibit, the exercise of the power and influence of an official position for personal gain.
OGEC did not show that petitioner used his official position, in the sense that I interpret the term, by purchasing the car. It was not part of his official responsibilities to purchase vehicles for SAIF, nor did he exercise the influence of his position by dealing with the seller in order to obtain a reduced price.2 The case would be different had petitioner, for example, promised or implied to the dealer that he would obtain an exceptional rate for insurance coverage in exchange for a good deal on a car. Petitioner did not exercise the power and influence of his position, but merely took advantage of an *172opportunity which, apparently, would have been made available to any employe, of whatever status, of SAIF.3
My interpretation of the statute also finds support in its legislative history. It is significant to note that the Code of Ethics was enacted along with other statutes in an attempt to deal with the problem of “conflicts of interest” on the part of public officials and government employes. The bill was considered by the Senate Subcommittee on Conflict of Interest. “Conflict of interest” connotes a tension or incompatability between a personal interest and the public interest which an official must serve. By enacting ORS 244.040(1), the legislature intended to interdict a public official’s personal financial gain when its achievement would interfere with his impartially serving the best interests of the public. There is absolutely no indication in the record that petitioner’s decision to purchase a car as an “add-on” could interfere with his executing his official responsibilities and serving the public as an actuary for SAIF.
Other public bodies have identified and attempted to deal with types of unethical conduct similar to that covered by ORS 244.040. It is clear from the legislative history of this statute that the legislature solicited and considered such information from other jurisdictions. The experience of these other bodies in identifying the offending unethical conduct *173and drafting and interpreting statutory language to deal with it is helpful to our determining the legislature’s intent.
A significant study was produced by the Association of the Bar of the City of New York, entitled Conflict of Interest and Federal Service (1960) (hereinafter cited as REPORT). This study considered the types of unethical conduct which should be prohibited for federal employes and drafted a statute on which the federal conflict of interest law is based. Regarding abuse of office, the study discussed several actual instances of unethical conduct which a statute ought to prohibit. These included a presidential advisor’s “using his White House influence to persuade the [Reconstruction Finance Corporation] to grant certain loans”; a Major General and a President’s military aide’s abusing his White House position by “accepting gifts from favor seekers”; a Secretary of the Air Force’s recommending “the services of a firm in which he was a partner to certain companies doing business with the military departments, including the Air Force”; the chairman of the ICC’s attempting “to have certain railroads give a contract to a company with which he apparently desired to assume a position upon leaving government employ”; the Public Building Commissioner’s soliciting business for a firm of consulting engineers in which he retained a partnership interest; and a president’s chief aide’s receiving “gifts from a manufacturer who had matters pending in federal agencies” when the aide “admitted that he had communicated with agency officials on matters involving the manufacturer.” REPORT at 124-29.
The study later identified the unethical conduct involved in the use of public office for personal gain as follows:
“* * * The essential concept is that the government employee should not, in his dealings with persons who have a direct relationship with his job and his agency, use the power or authority of his office to induce them to provide him or another with something of economic value. * * *” REPORT at 223. (Emphasis supplied.)
The statutory provision which the study drafted to deal with this type of unethical conduct reads:
“Except in the course of his official duties or incident thereto, no Government employee shall, in his relationships with any person specified in the succeeding sentence, use the *174power or authority of his office or position, within the Government in a manner intended to induce or coerce such other person to provide such Government employee or any other person with any thing of economic value, directly or indirectly. This section shall apply to relationships with any person, or any officer or director of such person, from whom such Government employee, if he were a regular Government employee, would be prohibited by section 6(b) from receiving a gift.” (Emphasis supplied.)
Section 6(b) prohibits a government employe from receiving a gift from a person who:
“(1) has or is seeking to obtain contractual or other business or financial relationships with such employee’s agency; or
“(2) conducts operations or activities which are regulated by such employee’s agency; or
“ (3) has interests which may be substantially affected by such employee’s performance or nonperformance of official duty.” REPORT at 290-91.
It does not appear that this study was before the legislature, but I would interpret ORS 244.040(1) to have the same effect and to prohibit exercising the power, influence or authority of a public office to obtain a financial gain.
Several other states have or had Codes of Ethics which contain language similar to ORS 244.040(1).4 Other states’ statutes are worded differently and in ways more explicitly than prohibiting “use” of public office for financial gain.5 The experience of some of these states is helpful in interpreting ORS 244.040(1).
A New York appellate court in Hanley v. Wickham, 32 AD 2d 680, 299 NYS2d 745 (1969), found a violation of its Code of Ethics in a milk and food inspector’s falsification of reports and records. The court held that:
*175“* * * petitioner’s misconduct * * * involved using the power of his position for his own benefit at the expense of store owners and insurance companies and failing to take proper steps to destroy condemned food which could be dangerous to the health if consumed.” 32 AD 2d at 681. (Emphasis supplied.)
In that case, the court interpreted the statutory language “no officer * * * should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others,”6 to prohibit acts which involve the exercise of the power and influence of an official position or failing to execute the duties of a public office, in exchange for private gain. The statute prohibits a derogation of duty for personal gain which involves a conflict between an official’s responsibilities as a public trustee and his personal financial interests.
In State v. Rou, 366 So 2d 385 (Fla 1978), the Florida Supreme Court held that its Code of Ethics was unconstitutionally vague. Fla. Stat. § 112.313(3) (1973), provided:
“No officer * * * shall use, or attempt to use, his official position to secure special privileges or exemptions for himself or others, except as may be otherwise provided by law.” 395 So 2d at 1245.
The legislature amended the statute to read:
“No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. * * *” Fla. Stat. Ann. § 112.313(6) (West 1982). (Emphasis supplied.)
Tenney v. State Comm’n on Ethics, 395 So 2d 1244 (Fla App 1981), held that adding “corruptly” cured the vagueness, because that word was statutorily defined as:
“* * * done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.” Fla. Stat. Ann. § 112.312(7) (West 1982). (Emphasis supplied.)
The addition of “corruptly” to modify “use” gave adequate *176notice of prohibited conduct. We should construe statutes to preserve their constitutionality. Megdal v. Board of Dental Examiners, 288 Or 293, 297, 605 P2d 273 (1980). This can be accomplished by interpreting “use” to require the exercise of an officer’s power or responsibilities for his private benefit in a way which conflicts with the proper performance of his public duties.
The Texas legislature enacted a Code of Ethics which read, in pertinent part:
“No officer or employee of a state agency, legislator, or legislative employee shall use his official position to secure special privileges or exemptions for himself or others, except as may be otherwise provided by law.” Tex. Stat. Ann. Article 6252-9 § 3(c) (Vernon 1970).
That provision was repealed and replaced with this language:
“No state officer or state employee should intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised his official powers or performed his official duties in favor of another.” Tex. Stat. Ann. Article 6252-9b § 8(e) (Vernon Supp 1984). (Emphasis supplied.)
It would appear that the Texas legislature attempted to be more specific as to what it originally meant by “use his official position” by enacting the language “having exercised his official powers or performed his official duties * *
I have reviewed the cases and statutes from other jurisdictions and associations to make the point that in every case, both in Oregon and in other states with similar statutory languge, in which a violation of the Code of Ethics was found, a financial gain was received, directly or indirectly, for the officer’s exercise of the power and influence of his official position, or executing or failing to execute the duties and responsibilities of a public office. No case has extended liability, as would the majority, to a situation in which an official received a financial gain from conduct which did not involve the exercise of the power and influence of an official position.
OGEC did not establish that petitioner’s ordering the car as an add-on involved the exercise of the power and influence of his position or his executing the duties and responsibilities of his public office. By finding a violation of *177ORS 244.040(1), OGEC interpreted the statute incorrectly, in a manner which is overbroad in that it includes conduct which is not unethical and which does not implicate a conflict between petitioner’s official responsibilities and duties and his private interest. For these reasons, I would reverse its order.
Joseph, C. J., and Buttler, J., join in this dissent.The majority selectively quotes from the several definitions of “use” cited in Camenzind. The definitions of “use” quoted in Camenzind are as follows:
“* * * In the New Standard Dictionary the primary meaning of the word ‘use’ is said to be:
“ ‘To employ for the accomplishment of a purpose; make use of; as, to use tools.’
*169“Webster defines the word thus:
“ ‘To make use of; to avail one’s self of; to employ.’
“The Century Dictionary says that the term primarily means
“ ‘To employ for the attainment of some purpose or end; avail one’s self of.’ ” 89 Or at 181.
Webster’s Third New International Dictionary, 2523 (1976) defines “use”: “to put into action or service; employ; exercise.” I would apply this definition to the statute to require OGEC to prove that a public official exercised the power and influence of his official position for financial gain to establish a violation of the Code of Ethics.
The majority suggests that petitioner had a significant role in orchestrating SAIF’s purchase of the vehicle by its flowery statement that “[petitioner was a member of the senior management group which gave its blessing to the plan.” The senior management group, of which petitioner was a member, only endorsed the recommendation of the chief financial officer and vice-president that SAIF purchase a fleet of cars instead of continuing to lease cars. It appears from the record that the final decision to purchase the cars was made by SAIF’s board of directors, of which petitioner was not a member. Petitioner did not participate at all in soliciting bids, awarding the contract, or in any of the dealings with the seller. Neither is there any evidence in the record that petitioner used the influence of his position to persuade any subordinates at SAIF to assist him in ordering his car.
The chief financial officer and vice-president of SAIF, who was responsible for the fleet purchase, testified:
«q * * * Who else would’ve been eligible to get an add-on, in your judgment, a the time that Mr. Davidson did?
“A. We would’ve considered adding for anyone who might’ve made — might’ve asked.
“Q. Did you put up a notice on a bulletin board and say — anybody that wants to get a car at fifty-five hundred dollars for a station wagon can get one, for all SAIF employes?
“A. (No).
“Q. Well, was there any limit, I mean is the entry-level clerk down in payroll, would she or he had been eligible to get an add-on?
“A. Had they come and asked me, I would like a unit, I’d like to add it on, I’m sure we would’ve done it.”
It bears mention that defendant did not initiate conversation concerning the purchase. He was approached by another vice-president, who recommended the opportunity to him.
Fla. Stat. § 112.313(3) (1973); N.Y. Public Officers Law § 74(3)(d) (McKinney Supp 1984); Pa. Stat. Ann. Legislature Law § 143.4(3) (Purdon 1969); Tex. Stat. Ann. Article 6252-9 § 3(c) (Vernon 1970), repealed 1973; Wash. Rev. Code Ann. § 42.21.030 (1972).
Cal. Gov’t Code § 8920 (West 1980); Fla. Stat. Ann. § 112.313(6) (West 1982); Hawaii Rev. Stat. § 84-11 (1976); Tex. Stat. Ann. Article 6252-9b § 8 (Vernon Supp 1984).
N.Y. Public Officers Law § 74(3)(d) (McKinney Supp 1984).