Mississippi Advisory Opinions August 26, 1983: 19830826 (August 26, 1983)

Advisory Opinion Text

Honorable Joni L. Jones

Alderperson of the City of Ellisville

203 Roosevelt Street

Ellisville, Mississippi 39437

Re: Municipalities — Powers of the Governing Authorities

Dear Alderperson Jones:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply.

Your letter poses several questions which are set out below with responses.

Question : “Being an elected official, 'Alderman', can your relatives be hired?”

Response : The statutory provisions which state prohibitions against nepotism are in Section 25-1-53 of the Mississippi Code of 1972, Annotated, (the “Code”):

“ § 25-1-53 . Nepotism prohibited.

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.”

Question : “If so, in what areas, and in what areas may they not be hired.”

Response : The statute prohibits the appointment or employment in any one of the five listed positions of any person related to a municipal officer in the degree described when that officer has the power of appointment or employment to the position. If the person is not so related or the position is not included in the five listed positions then there is no statutory prohibition. “Related ... within the third degree...” includes parents, children and grandchildren; brothers and sisters; aunts and uncles; and nieces and nephews.

If you wish, you may write and ask questions concerning specific relationships and specific positions.

Question : “Can the City Board turn over its duty to hire and fire to any one else?”

Response : We are informed that Ellisville has a Code charter form of municipal government. Section 21-3-5 of the Code states how people are appointed and employed by the governing authorities of this form of municipal government:

“ § 21-3-5 . Appointive officers.

From and after the expiration of the terms of office of present municipal officers, the mayor and board of aldermen of all municipalities operating under this chapter shall have the power and authority to appoint a street commissioner, and such other officers and employees as may be necessary, and to prescribe the duties and fix the compensation of all such officers and employees. All officers and employees so appointed shall hold office at the pleasure of the governing authorities and may be discharged by such governing authorities at any time, either with or without cause. ... The terms of office or employment of all officers and employees so appointed shall expire at the expiration of the term of office of the governing authorities making the appointment, unless such officers or employees shall have been sooner discharged as herein provided.”

Question : “If an elected official quits his or her job, does the city have to call a special election to replace them or leave position open until regular election?”

Response : Section 21-15-5 of the Code provides: “ § 21-15-5 . Appointment to fill vacancy in public office. When it shall happen that there is any vacancy in a city, town or village office which is elective, the unexpired term of which shall not exceed six months, the same shall be filled by appointment by the governing authority, or remainder of the governing authority, of said city, town or village. The municipal clerk shall certify to the secretary of state the fact of such appointment, and the person or persons so appointed shall be commissioned by the governor.”

When the unexpired term exceeds six months, reference is made to Section 21-11-9 of the Code which provides in part:

“ § 21-11-9 . Election to fill vacancy in elective office; time for holding. When it shall happen that there is any vacancy in an elective office in a city, town or village, the unexpired term of which shall exceed six months, the governing authority, or remainder of the governing authority, of said city, town or village shall make and enter on the minutes an order for an election to be held in such city, town or village to fill the vacancy. At least thirty days' notice of such election shall be given. Each candidate is required to qualify at least ten days before the date of the election in the same manner as if said election were a general election under the provisions of section 23-1-63, ...”

Enclosed for additional information are copies of Pages 113 through 117 of “Guide to Municipal Elections, Revised Edition, 1981”, made by this office, which states in some detail how a special election to fill a vacant municipal office is carried out. A copy of this publication may be on file in the City Hall since when it was published, two copies were mailed to every municipality.

Question : “Should applications for employment be viewed by the Board or the Mayor and head of departments?”

Response : This is a matter for the determination of the municipal governing authorities. When the governing authorities shall act to appoint or employ, they would necessarily have to read applications for employment.

Question : “If I need similar information, would it be at the City Hall? Courthouse? or in your office?”

Response : Similar information may be found in the provisions of the Code. Presumably there is a set of the Code in City Hall and there is one in the Courthouse. You are advised that you may consult a professional near at hand — the Ellisville City Attorney. Further, you are welcome to address other questions to this office concerning the duties of your office and we will respond as the law permits.

With kind regards, I am

Very truly yours,

Bill Allain Attorney General