Old Rule Casts a Pall Over Free Upgrades in Travel by Officials

Several top government officials, including Gov. George Deukmejian, Atty. Gen. John Van de Kamp and Los Angeles Mayor Tom Bradley, may have tripped over a 108-year-old provision of the state Constitution by accepting free upgrades to first-class seats while traveling on commercial airlines.

An obscure--some say archaic--provision of the California Constitution bars virtually everyone holding public office in the state from accepting “free passes or discounts” from transportation companies.

Whether first-class upgrades violate that law is not entirely certain. But the constitutional section, enacted in 1879 to loosen the grip of the railroad barons on state government, carries a penalty severe enough to give any officeholder pause. That penalty is forfeiture of office.

Deukmejian himself concluded in a 1982 legal opinion, when he was state attorney general, that drafters of the provision intended for the penalty to apply whenever public officials accept “transportation other than at customary prices.”

Not at issue are the kinds of discounts and upgrades available to the public generally, including frequent-flier plans that allow passengers to exchange mileage credits for first-class seats at coach fares. It is when an airline offers VIP treatment to a public official because of his government post that an officeholder ought to think twice about accepting, according to a number of attorneys who are regarded as authorities on the discount ban. All asked not to be identified.

Possible Consequences

None of these attorneys believe it likely that a court would remove someone from office for using a free upgrade. But several said the issue is so murky, with few legal precedents, that they could not give any advice with absolute certainty.

“I don’t think that a court would think (that accepting an upgrade) is a violation,” said one former government lawyer, whose views are typical of those interviewed, “but if asked for advice, I’d tell the guy don’t take it because of the possible consequences.”

Deukmejian, who as governor is permitted to fly first-class on state business whenever he chooses, has accepted first-class upgrades five times since assuming office in 1983, according to his former press secretary, Larry Thomas.

“If there is a benefit, it is to the state, because the governor doesn’t have to pay first-class fare,” Thomas argued.

But so sensitive is the governor’s office to the subject that neither Chief of Staff Steven A. Merksamer nor any of Deukmejian’s present top aides would answer any questions about the upgrades. Instead, without explanation, they lateraled all queries to former spokesman Thomas, who had left the governor’s employ to become Vice President George Bush’s press secretary.

Trip to Tokyo

Deukmejian accepted free upgrades to first class while traveling on business-class tickets during his recent trip to Tokyo to open a California trade office. In addition to the governor and his wife, those given upgrades were Merksamer and his wife, Thomas and--on the return trip--a handful of other Administration officials. The difference in cost between first class and business class was $761 each way, or $1,522 round-trip.

United Airlines of its own volition upgraded the Deukmejians, the Merksamers and one state policeman on the flight to Japan for “security reasons,” said Peter Cosovich, United’s head of corporate sales. “It was just a precaution, there were no threats,” he said. On the return trip, other Deukmejian appointees also were upgraded to the first-class section because business class was overbooked.

Thomas insisted that first-class treatment at business-class fare does not violate the state Constitution: “Accepting an upgrade is not accepting (free or discounted) transportation because everyone arrives on the same airplane regardless of seating. What is received is a different level of service aboard the airline and that does not in any way constitute a discount, but an enhancement of service.”

Change of Plans

But an aide said that Deukmejian intends to travel business-class when he flies to London, Brussels and Paris next month on another trade mission.

Van de Kamp twice has accepted free upgrades to first class while traveling on state business, according to a spokesman, Duane Peterson. “He does not recall the circumstances, if it was for the convenience of the airline or just as a gift,” Peterson said.

Now that the issue has been raised, however, Van de Kamp in the future “will not accept upgrades, absent some security or overcrowding issue,” Peterson subsequently reported. “Having given it some thought, he wants to avoid even the appearance of impropriety.”

Mayor Bradley has been “occasionally” upgraded on flights within California and on one trip to Washington, said his press secretary, Ali Webb.

She said the mayor’s office is aware of the constitutional ban on free or discounted travel, but she said Bradley’s staff did not think of upgrades as discounts.

None Removed From Office

No lawyer interviewed knew of any public official who ever had been removed from office as a result of the constitutional provision. “It is an archaic provision that should be repealed,” said former Fair Political Practices Commission general counsel Robert M. Stern. “It is the death penalty (to an official).”

The constitutional section, reaffirmed in a somewhat simplified form by voters in 1974, simply states: “A transportation company may not grant free passes or discounts to anyone holding an office in this state; and the acceptance of a pass or discount by a public officer, other than a Public Utilities Commissioner, shall work a forfeiture of that office. (Article XII, section 7).”

(The exception for public utility commissioners dates to 1878, when the Legislature ordered railroads to give free transportation to the state transportation commissioner. The constitutional provision apparently was intended to protect free rides for the railroad commissioners who were required to travel a great deal while inspecting the railroads.)

Assemblyman Tom Bane (D-Tarzana), who chairs the Assembly Rules Committee, believes that legislators may even have a legal problem when traveling back and forth to their districts if they take advantage of discounted fares negotiated by the state Department of General Services for state employees. While the department believes that such discounts are permitted for all state officials traveling on state business, Bane advises his fellow lawmakers to avoid the risk.

Penalty Too Great

“The penalty if you are wrong is being removed from public office,” said Bane, who has drawn up a proposed constitutional amendment that would permit legislators to use the state-negotiated fares. But because of the long history of the discount prohibition, he believes that the amendment would have tough going among the voters--who ultimately would have to approve it--and he may never formally introduce the measure.

“Some people like oddities (in the law) and hate to give them up,” Bane said.

Bane said that in the meantime he will advise legislators to shun free airline upgrades unless they are offered as part of a frequent-flier program open to the public at large.

Lawyers say that officeholders who accept free travel run the risk of having a disaffected citizen or group raise the job-forfeiture issue.

Santa Monica Case

In 1982, local carpenters union leaders charged that two Santa Monica officials, Mayor Ruth Yannatta Goldway and Planning Commissioner Derek Shearer, should be removed from office because they accepted a free trip to London from Laker Airways. Shortly after the December, 1981, trip, the two officeholders learned about the constitutional prohibition and paid the airline for their tickets.

But the carpenters, angry at the city because of a construction moratorium, pursued the case anyway. They went to the state attorney general, who determines whether there is a reasonable legal basis for such a suit. And then-Atty. Gen. Deukmejian ruled that there was a a basis, despite objections from the Santa Monica officials that the state does not regulate airlines.

Deukmejian, in his legal opinion, wrote that the purpose of the constitutional provision was to “inhibit and if possible preclude the undue influence of railroads and other transportation companies over legislators and public officials.” And, he said, “One means adopted to achieve such end was by providing for forfeitures of office when legislators and public officials accepted free transportation or transportation other than at customary prices.”

However, after the Santa Monica building moratorium ended and the city eased other controls, the carpenters decided to drop their lawsuit against Goldway and Shearer.