CEO 86-4 -- January 9, 1986

CONFLICT OF INTEREST

COUNTY COMMISSIONER LICENSED AS BAIL BONDSMAN

To: Mr. Joe Mosier, Member, Okaloosa County Board of County Commissioners

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a county commissioner to be licensed and to work as a bail bondsman. Bail bondsmen and surety companies are not regulated by the county commission and do not do business with the county commission. Nor does the county commission have anything to do with prisoners except in regard to determining extra gain time on the recommendation of the sheriff for those already incarcerated.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to be licensed and to work as a bail bondsman?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you serve as a member of the Okaloosa County Board of County Commissioners. You question whether the Code of Ethics for Public Officers and Employees would prohibit you from being licensed and working as a bail bondsman.

The Code of Ethics provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1985).]

The first part of this provision prohibits a public officer from having any employment or contractual relationship with a business entity which either is doing business with, or is subject to the regulation of, his agency. Bail bondsmen and surety companies are not regulated by the County Commission. Under Chapter 648, Florida Statutes (Supp. 1984), bail bondsmen are licensed and regulated by the Department of Insurance and the Bail Bond Regulatory Board, and insurers are regulated by the Department of Insurance under the Florida Insurance Code.

Under Section 903.26, Florida Statutes (1983), a bail bond is automatically forfeited by the clerk of the court when the defendant fails to appear as required. If the forfeiture is not paid or discharged by court order within 35 days, Section 903.27, Florida Statutes (Supp. 1984), requires the clerk to enter a judgment against the surety and to issue execution. After a forfeiture has been paid, Section 903.28, Florida Statutes (Supp. 1984), authorizes the court to order remission of a forfeiture if the defendant surrenders or is apprehended, with the amount of the remission varying with the length of time that has passed since the forfeiture. Section 903.28(8) requires that the State Attorney and the County Attorney are to be given 20 days' notice of a remission proceeding; no other mention is made of the County, the County Commission, or the County Attorney in these three sections.

In a telephone conversation with our staff, you advised that bond forfeitures are paid to the County's fine and forfeiture fund. You also advised that if licensed as a bondsman you plan to act as an agent for a surety company, writing bonds with the authorization of the company for which the company would be liable in the event of forfeiture. Your compensation would come in the form of commissions on bonds which were written for the surety.

The County Attorney advised our staff that in the 14 years he has served in that capacity neither he nor the County Commission has had any involvement in a forfeiture or remission proceeding. Once a forfeited bond has been paid to the clerk, he advised, the funds belong to the County and apparently that is the reason he would get notice of a remission proceeding.

As an agent of the surety company, you would have a contractual relationship with that company. However, we do not believe that the surety company would be "doing business with" the County Commission as contemplated by Section 112.313(7) by virtue of the fact that the County stands to receive funds if a bond issued by the company is forfeited.

We generally have advised that a business entity is doing business with an agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See, for example, CEO 77-36, CEO 80-87, and CEO 82-50. Here, neither the County Commission nor any of its employees takes any action to enter into any agreement or contract with the surety, although the County may benefit from the contract between the surety and the defendant. Under the statutorily prescribed procedures, the County Commission would play no role in bonding or forfeiture matters with the possible exception of remissions of forfeitures, at which time the County Commission conceivably could be called upon to give some direction to the County Attorney. If that were to occur with respect to a surety company for which you were acting as an agent, you would be required to abstain from voting and to follow the disclosure requirements of Section 112.3143(3), Florida Statutes.

Finally, we do not find that your employment as a bail bondsman would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your duties as a County Commissioner, in violation of the second part of Section 112.313(7)(a). In a telephone conversation with our staff, you advised that the County Commission is responsible for funding the County Sheriff's Department and the County Jail, but that the Commission has nothing to do with prisoners except in regard to determining extra gaintime for prisoners on the recommendation of the Sheriff. Under these circumstances, as well as for the reasons given earlier in this opinion, we do not find that your activities as a bail bondsman would present a conflict of interest with your duties as a member of the County Commission.

Accordingly, we find that no prohibited conflict of interest would be created under the circumstances presented were you to be licensed and work as a bail bondsman while remaining a member of the County Commission.