This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The opinion is based solely on the facts and circumstances as stated below and was approved by the Commission on January 5, 1996.

May the spouse of a municipal law enforcement officer write bail bonds for the release of defendants confined in the jail of the law enforcement officer's municipality?

    Your opinion request to the Office of the Attorney General dated November 22, 1995, was referred by that Office to the Mississippi Ethics Commission on December 4, 1995, as your request involved an issue that concerns the Mississippi conflict of interest laws.

    The Mississippi Ethics Commission is restricted 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, Mississippi laws outside the jurisdiction of the Commission and internal rules and regulations of the governmental entity are not addressed by this opinion.

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

I am requesting a written opinion in the following matter. if one of my officer's wife is a bailperson can this person write bail bonds in this city without it being a conflict of interest. if she can under what circumstances may this be done.

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

Code Section 25-4-103(e), (f)(i)(ii), (k)(i)(ii)(iii)(iv) and (q) states:

"(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.

(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 two percent (2%) 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.

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

Code Section 25-4-105(1) and (3)(a)(d) 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.

(d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member."

    The Commission formally adopts Advisory Opinion No. 94-126-E and by attachment incorporates it into this opinion.

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

    The law enforcement officer's spouse is not prohibited by the conflict of interest laws from writing bail bonds for the release of defendants confined by the municipality as a soliciting bail agent for a bail bond company if neither the law enforcement officer or his spouse is an officer, director or partner in the bail bond company and they have no ownership interest in the bail bond company. This finding is based on the spouse's income from the bail bond company not qualifying as a "material financial interest" under the above cited Code Section 25-4-103(k)(iii) and/or (iv).

    The law enforcement officer's spouse is prohibited by Code Section 25-4- 105(3)(a), cited above, from writing bail bonds for the release of defendant's confined by the municipality for a bail bond company in which the law enforcement officer and/or his spouse have an ownership interest that would be deemed material pursuant to the above cited Code Section 25-4- 1 03(k)(i)(ii).

    In addition, the law enforcement officer must be extremely cautious of the above cited Code Section 25-4-1 05(3)(d). This code section prohibits the law enforcement officer from attempting to influence his employing law enforcement entity to approve the surety on a bail bond from which he would receive compensation. The compensation being the bail bond fee.

    Notwithstanding the above, the law enforcement officer is prohibited by Code Section 25-4-105(1), cited above, from using his position to obtain a pecuniary benefit for his spouse or the bail bond company employing her.

    Specifically, Code Section 25-4-105(1) prohibits public servants 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 his official position to obtain a pecuniary benefit for his spouse or her bail bond company employer, the law enforcement officer must totally and completely remove himself from the approval of any surety bail bond with which she or her bail bond company employer is associated.

    A total and complete removal requires that the law enforcement officer avoid discussing his spouse or her bail bond company with the individual, or individuals, responsible for the approval of any surety bail bond on behalf of the municipality. In addition, the law enforcement officer must totally and completely avoid any action that could be construed as promoting the law enforcement staff, or any other person, to have defendants contact or use his spouse or her bail bond company as their surety. This includes casual comments, as well as detail discussions, made in person, by telephone or by any other means.

    Clearly, the law enforcement officer should never be in the room or area where a defendant is discussing obtaining a surety bail bond from his spouse or her bail bond company employer.
 
 
 
 

Ronald E. Crowe Executive Director