ADVISORY OPINION NO. 07-053-E

May 11, 2007

The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section 25-4-17(i), Mississippi Code of 1972, as reflected upon its minutes of even date. The Commission is empowered to interpret and opine only upon Article IV, Section 109, Mississippi Constitution of 1890, and Article 3, Chapter 4, Title 25, Mississippi Code of 1972. This opinion does not interpret or offer indemnity from liability for any other laws, rules or regulations. The Commission based this opinion solely on the facts and circumstances provided by the requestor as restated herein. The indemnity provided under Section 25-4-17(i) is limited to the individual who requested this opinion and to the accuracy and completeness of these facts.

I. LAW

The pertinent Ethics in Government Laws to be considered here are as follows, to wit:

Section 25-4-103, Miss. Code of 1972.

(b) “Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

(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.

(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, head, 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.

Section 25-4-105, Miss. Code of 1972.

(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.

II. FACTS

Facts provided by the requestor are set forth below, with identifying information redacted, and are considered a part of this opinion.

I write to you at this time in regard to the following concern. My Court Administrator has recently divorced and is now in a relationship with a bail bondsman whose company regularly writes bonds in my court. She has advised me of this situation and asked that I make sure this did not present some type of conflict. In her position, she meets and works regularly with the various bondsmen although the Court obviously sets the bonds and signs all applicable orders regarding the bonds.

Does this circumstance present any type of conflict or ethical concern for either the Court or the Administrator? Is the opinion the same if they were to reside together? Is the opinion the same if they were married?

III. ANALYSIS

Section 25-4-105(1), Miss. Code of 1972, prohibits a court administrator from using her position in government to obtain any monetary benefit for herself, her spouse, or a “business with which [she] is associated,” as defined in Section 25-4-103(d). If the court administrator and the bondsman marry or reside together; or if the court administrator receives more than $1,000.00 per year of income from the bail bonding business; or if the bonding business otherwise becomes a business with which the court administrator becomes associated, then the court administrator may avoid a violation by fully recusing herself from any action which would benefit that business.

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during official meetings or deliberations, but must also avoid discussing the subject matter with anyone. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.

MISSISSIPPI ETHICS COMMISSION


BY: Tom Hood, Executive Director and
Chief Counsel