Mississippi Advisory Opinions May 30, 1991: 19910530 (May 30, 1991)

Advisory Opinion Text

Mr. Frank W. Harrington

City of Aberdeen

125 West Commerce St.

Aberdeen, MS 39730

Re: Nepotism Statute

Dear Mr. Harrington:

Attorney General Mike Moore has received your recent letter and has referred it to me to answer. Your letter states:

Last year we called the Attorney General's office to ask if relatives of employees could be employed for summer employment. Your response was “Yes” they could so long as the employee did not hire them or supervise them directly. I have read Code 25-1-53 -55 on Nepotism that reads within the third degree. I was also at a meeting last year where the man holding the meeting stated the same decision as your office did when we called.

Would you please put this in writing for our City Board. We also have a Personnel Handbook that states the same as the telephone conversation. (See Attached).

Miss.Code Ann. § 25-1-53 states:

It shall be unlawful for any person elected, appointed or selected in any manner whatsoever to any state, county, district or municipal office, or for any board of trustees of any state institution to appoint or employ, as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds, any person related by blood or marriage within the third degree, computed by the rule of the civil law, to the person or any member of the board of trustees having the authority to make such appointment, or contract such employment as employer. This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution or member of said board of trustees. The provision herein contained shall not apply in the instance of the employment of physicians, nurses, or medical technicians by governing boards of charity hospitals or other public hospitals.

This statute prohibits the employment of a person related by blood or marriage within the third degree to the appointing authority. This prohibition applies only to certain positions, specifically, “officer, clerk, stenographer, deputy or assistant.”

We employ a three part analysis to determine whether an employment relationship violates the nepotism statute. First, are the parties related within the third degree? Second, is the relative who is a public official the “appointing authority”? Third, is the job included in the list of prohibited positions? If the answer to any of these three questions is “no”, there is no violation of the statute. See attached prior opinions to Darryl Hurt, Joseph Ward and Benny Robinson. Whether an employee is hired for the summer only or permanently is irrelevant to the question of whether the employment violates the nepotism statute.

If we may be of any further assistance, please let us know.

Sincerely,

Mike Moore, Attorney General

Alice D. Wise, Special Assistant Attorney General.

ATTACHMENT 1

May 15, 1991

State of Mississippi

Attorney General's Office

P.O. Box 220

Jackson, Ms. 39205

Dear Sir:

Last year we called the Attorney General's Office to ask if relatives of employees could be employed for summer employment. Your response was “Yes” they could so long as the employee did not hire them or supervise them directly. I have read code 25-1-53 -55 on Nepotism that reads within the third degree. I was also at a meeting last year where the man holding the meeting stated the same decision as your office did when we called.

Would you please put this in writing for our City Board. We also have a Personnel Handbook that states the same as the telephone conversation. (See Attached).

Sincerely, Frank W. Harrington Mayor

ATTACHMENT 2

CANDIDATE FOR PUBLIC OFFICE

In the event any employee of the City shall file a request or application for a nominee of any political party or a candidate for public office, with the Chairman or other proper official of any political party within the State, or with the proper official of the State of Mississippi, or any City, County Precinct, or other political subdivision of the State of Mississippi, shall constitute an automatic resignation, unless waived by action of the City Council.

NEPOTISM

No person who is a “Relative” of the Mayor and Board of Aldermen or any employee with the City shall be eligible for employment by the City, except by approval of the Mayor and Board of Aldermen.

Relative shall include spouse, parent, child, brother, sister, grandparent, grandchild, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, and sister-in-law.

When two (2) employees become “Relatives” by marriage or otherwise, one of them will be required to terminate his or her employment with the City of Aberdeen. The determination as to which employee shall terminate will be made by the two (2) employees.

This policy does not apply to temporary or seasonal employees except that such employees may not directly supervise or be supervised by a “Relative”.