This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 16, 2004, basing its approval solely on the facts and circumstances stated herein.

 
May the spouse of an alderman write bail bonds for defendants held in the custody of the law enforcement authority of the municipality the alderman serves?

State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890.  Therefore, this opinion does not address the Mississippi laws outside the Commission’s jurisdiction nor the governmental entity’s internal rules and regulations.

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)(ii), (h), (i), (k)(i)(ii)(iii), (l), (p)(i) 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) ‘Government’ means the state and all political entities thereof, both collectively and separately, including but not limited to:

(ii) Municipalities.

(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.

(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.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

 
I am an Alderman for the City, my spouse is an employee of a Bail Bonding Company and has been for two years.  She earned less than $5,000.00.  On July 6, 2004 she was told that she could not write any bonds for the city because it was not ethical. I would like to get and opinion on this.

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

First, it is well settled that a bail bond is a contract between the obligor, i.e., the surety, and the state, i.e., the political subdivision having custody of the defendant. The obligor contracts:  1) to protect the state against the expense of keeping a defendant in jail; and 2) to accept the state’s transferal of the custodial obligation. Warren v. State, 179 So. 2d 181, 183 (1965), State v. Brooks, 781 So. 2d 929, (Miss. App. 2001), and Resolute Insurance Company v. State, 290 So. 2d 599 (1974).

Code Section 25-4-105(3)(a), cited above, provides that a  municipal official, including an alderman, may not have a material financial interest in a business that is a contractor with the municipality.

Code Section 25-4-103(k), cited above, provides that a material financial interest is a personal or pecuniary interest accruing to a municipal official and/or the municipal official’s spouse. However, Code Section 25-4-103(k)(iii) provides that the income of a spouse as an employee of a business, in which the municipal official nor the spouse is an officer, director or partner, is not a material financial interest when the municipal official and the spouse have no ownership interest  and the spouse’s aggregate annual net income from the business is less than $5,000.00.

Moreover, Section 25-4-103(k)(iv) excludes the income of a public servant’s spouse only when “the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.” Under these facts, the potential exists for an alderman to exert influence over the municipal court to forego enforcement of the bond against the surety employing the alderman’s spouse. Such conduct would amount to an exercise of indirect control by the alderman over the bail bond contract and would obviate any protection otherwise provided by Section 25-4-103(k)(iv).

Therefore, Code Section 25-4-105(3)(a) will absolutely prohibit the bail bond surety business employing the requestor’s spouse from writing bail bonds for defendants held by the municipality’s law enforcement authority if the spouse has an aggregate annual net income from the bail bond surety business of $5,000.00 or more. This prohibition applies regardless of whether the requestor’s spouse is the soliciting agent on the bail bond or not.

In regard to the specific question of an alderman’s spouse being a soliciting agent on a bail bond issued for the release of a defendant held by the alderman’s municipality’s law enforcement authority, the Commission finds that there are two laws that are sufficient when read together to prohibit this situation. These two laws are Code Section 25-4-105(1) and Code Section 25-4-101, both cited above.

Code Section 25-4-105(1) prohibits a public servant, including an alderman, from using his official position to obtain a pecuniary benefit for his spouse or a business employing his spouse.

Aldermen in code-chartered municipalities have the ultimate authority over the departments and the employees of the municipality. Therefore, an alderman’s spouse acting as a bail bond soliciting agent within the municipality will prohibit the alderman from participating in exercising his share of the authority and power the board has over the municipal police department, especially in regard to bail matters.

Code Section 25-4-101 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.

Clearly, the broad authority and power an alderman has over the municipal police department and its employees, and the municipal court and its employees, raises a potential for indirect control, if not direct control, over police department decisions, including the use of bail bond surety companies and their soliciting agents. Therefore, an alderman’s spouse acting as a bail bond soliciting agent within the municipality should not be allowed as it will certainly create public suspicion among the public and reflect unfavorably upon the municipality.  The municipality should consider approving a written policy that prohibits a bail bonding company using a soliciting agent who is an alderman’s spouse to write bail bonds for the release of defendants held by the municipality’s law enforcement authority to assist its law enforcement and municipal court  personnel in complying with the public policy mandate set forth in Code Section 25-4-101.
 

Scott Rankin
Executive Director