This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on March 1, 2002, basing its approval solely on the facts and circumstances stated herein.

May the spouse of a county sheriffs civil process department employee write bail bonds for defendants not arrested by the county deputies but housed by the county sheriffs department?

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(c), (d), (e), (f)(i)(ii), (g)(i), (h), (i), (k)(i)(ii)(iii)(iv), (l), (p)(i)(ii)(iii) and (q) states:

"(c) "Business" means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual,joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(d) "Business with which he is associated" means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than One Thousand Dollars ($1,000.00) in annual income or over which such public servant or his relative exercises control.

(e) "Compensation" mean money or thing of value received, or to be received, from any person for services rendered.

(f) "Contract" means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) "Governmental" means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties.

(h) "Governmental entity" means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(i) "Income" means money or thing of value received, or to be received, from any source derived, including but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.

(k) "Material financial interest" means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:

(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);

(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);

(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or

(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.

(l) "Pecuniary benefit" means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(p) "Public servant" means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, h e a d, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government.

(q) "Relative" means the spouse, child or parent."

Code Section 25-4-105(1) and (3)(a) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(3) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent."

Pursuant to the referenced opinion mentioned above I am seeking clarification. I have an employee in the Civil Process Department. Her spouse is a bail bondsman and is on the approved list of bondsmen for our facility. My question is: is the spouse excluded from writing bonds for all arrestees housed here in my facility or is he excluded from writing for arrestees made by the county deputies only?

Code Section 25-4-105(3)(a), cited above, prohibits a sheriffs department civil process employee from having a material financial interest in a bail bonding company that writes bail bonds for the release of defendants in the custody of the county sheriff.¹

The prohibition imposed by Code Section 25-4-105(3)(a) includes all defendants held in the custody of the county sheriff at the county detention center including those who were not arrested by the county sheriff, his employees and/or his department.

If neither the civil process employee nor her spouse is an officer, director or partner in the bail bond company, and they have no ownership interest in the bail bond company and if the civil process employee's spouse~ s income from the bail bond company does not qualify as a material financial interestunderthe above cited Code Section 25-4-103(k)(iv), then Code Section 25-4-105(3)(a) does not prohibit the civil process employee's spouse from writing bail bonds for the release of the defendants confined in the county detention center as a bail bond company soliciting bail agent.

If the bail bonding company is owned by the civil process employee's spouse, Code Section 25-4-105(3)(a) prohibits the bail bonding company from writing bail bonds for defendants confined in the county detention center of the county the civil process employee serves. The civil process employee has a material financial interest in the bail bonding company as set forth in Code Section 25-4-103(k), cited above, not only if he personally owns and operates the bail bonding company, but also when it is owned and operated by his spouse.

Code Section 25-4-103 (k)(iv) provides that the civil process employee is not considered to have a material financial interest when the income in question is solely that of her spouse, and the civil process employee exercises no control, direct or indirect, over the bail bond contract between the spouse and the county.²

In addition to the above, the civil process employee is prohibited by Code Section 25-4-105(1), cited above, from using her position to obtain a pecuniary benefit for her spouse or the bail bond company employing the spouse.

Specifically, Code Section 25-4-105(1) prohibits public servants, including a civil process employee, from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.

In order to avoid using her official position to obtain a pecuniary benefit for her spouse or the spouse's bail bond company employer, the civil process employee must totally and completely remove herself from the approval of any surety bail bond with which the spouse or the spouse's bail bond company employer is associated.

A total and complete removal requires that the civil process employee avoid discussing her spouse or the spouse's bail bond company employer with the individual, or individuals, responsible for the approval of any surety bail bond. In addition, the civil process employee must totally and completely avoid any action that could be construed as promoting the county detention center staff, or any other person, to have defendants contact or use her spouse or the spouse's bail bond company employer as their surety. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

Clearly, the civil process employee should never be in the room or area where a defendant is discussing obtaining a surety bail bond from her spouse or the spouse's bail bond company employer. Also, the civil process employee should never discuss nor suggest that any other person discuss with a defendant, who is eligible to post bail, that her spouse or the spouse's bail bond company employer are available to provide the defendant a bail bond.

Code Section 25-4-101 must also be considered as set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

The question of whether the civil process employee exercises control, direct or indirect, over the bail bond contracts is a question of fact that must be evaluated in each specific instance for purposes of applying the exception set forth in Code Section 25-4-103 (k)(iv) discussed above. However, the potential for indirect control, if not direct, to be exerted by the civil process employee, can create public suspicion, and thereby, reflect badly upon the county for purposes of Code Section 25-4-101.

Also, a bail bonding company using a soliciting agent to write bail bonds in a county in which its soliciting agent's spouse is a county civil process employee is a circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the county.

Therefore to comply with Code Section 25-4-101, the county sheriff must establish rules and procedures for the county detention center sufficient to prevent the civil process employee from violating the above discussed conflict of interest laws. Without the establishment of such rules and procedures, a bail bonding company using a soliciting agent to write bail bonds for the release of defendants confined in the detention center of the county employing the soliciting agent's spouse as a civil process employee, is contrary to public policy, and therefore, should be avoided.

In addition, the requestor is advised of the prohibition imposed by Section 83-39-3(2)(b)(i), 1972 Mississippi Code Annotated (amended), which provides, in part, that the spouse of a county law enforcement official or the employee of a county law enforcement official or entity shall not write a bail bond for a person arrested by the county law enforcement official, county law enforcement employee or the official or employee's law enforcement entity. The requestor should seek the advice of the Attomey General in interpreting this law.

Scott Rankin

Executive Director
 

1 Mississippi Supreme Court, in Warren v. State, 179 So. 2d 181 (1965), ruled that the government's acceptance of a bond constituted a contract between the surety and the government.

2 See Footnote 1, supra.