concurring.
I am writing separately to explain my views on three details of our decision.
The offense of receiving a bribe defined in AS 11.56.110(a)(2) requires proof that a public servant knowingly accepted or agreed to accept a benefit “upon an understanding or agreement” that the public servant’s official conduct would be influenced by the benefit. The majority opinion suggests that, through this language, the statute requires proof of a mutual agreement between the benefit-provider and the public servant. While the facts of Bachlet’s case firmly support a finding of mutual agreement between Baehlet and Carter, I do not believe that the statute necessarily requires a “meeting of the minds” between the benefit-provider and the public servant.
The corresponding Model Penal Code bribery provision, § 240.1, uses similar language to define the offense. Under Model Penal Code § 240.1(1), a person commits bribery if *210he or she “offers, confers!,] or agrees to confer ... any pecuniary benefit [upon a public servant] as consideration for the recipient’s ... exercise of discretion”. Likewise, a public servant commits bribery if he or she “solicits, accepts[,] or agrees to accept ... any pecuniary benefit as consideration for the recipient’s ... exercise of discretion”. Explaining this language, the drafters of the Model Penal Code stated:
[0]ne who agrees to confer a benefit upon another as consideration for official action by the other party, both as a matter of the common sense of these terms and by analogy to the law of conspiracy, is one who knows that he is committing himself to confer a benefit and who desires that the benefit be in exchange for official action. The same is true of [a public servant] who agrees to accept a benefit as consideration for his official action.... Thus, the term “agrees” should be construed as expressing a unilateral concept, much as the words “agrees with such other person” are construed in [the Model Penal Code provision defining “criminal conspiracy”,] Section 5.03. The result is that “agrees” does not necessarily mean a bilateral agreement signifying an actual meeting of the minds. It is sufficient if the actor believes that he has agreed to confer or agreed to accept a benefit for the proscribed purpose, regardless of whether the other person actually accepts the bargain in any contract sense.
American Law Institute, Model Penal Code and Commentaries (Official Draft & Revised Comments 1980), Comment to § 240.1 (footnotes omitted), found in the volume labeled “Part II, §§ 240.0 to 251.4” at page 20.
This commentary indicates that a public servant violates AS 11.56.110(a)(2) regardless of whether the intended benefit-provider ever “agrees” to provide the benefit in the sense required to establish a contract. The commentary also indicates that the public official’s bad faith is no defense — that the offense is committed regardless of whether the public servant really intends to follow through on the promised official action. The facts of Bachlet’s case do not raise these issues, and so there is no need to decide them now. However, the majority opinion’s broad language about “mutual agreement” must be understood in this context.
On the collateral issue of what the statute means by “agreement or understanding”, I interpret the legislature’s inclusion of the word “understanding” as an attempt to reach not only express agreements but also the informal type of agreement that is communicated in an indirect way but still manifests a “mutual comprehension ... of ... intentions”. See Webster’s New World Dictionary of American English (Third College Edition, 1988), page 1455.
Regarding the merger of the three solicitation charges under Whitton v. State, 479 P.2d 302 (Alaska 1970), the State conceded at oral argument that these charges were all based upon Bachlet’s solicitation of Carter to help her establish a marijuana growing operation. Because Bachlet intended to engage in large-scale marijuana cultivation, Bachlet’s proposal necessarily envisioned that she and Carter would possess more than one pound of marijuana (Count V of the indictment), that she and Carter would deliver or sell one ounce or more of marijuana (Count VI of the indictment), and that she and Carter would maintain a building or other structure to be used for keeping or distributing marijuana (Count VII of the indictment).
While these three counts are all valid theories as to why Bachlet’s proposal to Carter amounted to criminal solicitation, these counts do not “involve! ] differences in intent or conduct ... substantial or significant enough to warrant multiple punishments” when evaluated “in light of the basic interests of society to be vindicated or protected”. Whitton, 479 P.2d at 312. The State forthrightly conceded this at oral argument, and the concession is well-founded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).