Mississippi Advisory Opinions April 04, 2014: AGO 2014-00126 (April 04, 2014)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Lisa Cameron

SUBJ: Elections-Municipal

SBCD: 69

TEXT: Ms. Lisa Cameron

Chair, McComb Election Commission

608 West Georgia Ave.

McComb, MS 39648

Dear Ms. Cameron:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Question Presented

You currently serve as chair of the McComb Municipal Election Commission, and your husband is a selectman for the City of McComb. Your letter states that you were appointed to the election commission by a previous administration prior to your husband serving as a selectman. Your husband is currently a candidate for selectman, and you ask whether you may serve in the appointed position as chair of the McComb Election Commission.

Response

A municipal election commissioner may continue to serve out her current term when the commissioner's husband is a candidate for selectman.

Applicable Law and Analysis

This office has previously opined that a municipal election commissioner may continue to serve where the commissioner's son is a candidate for alderman. MS AG Op., Ratcliff (March 10, 2009). The opinion recognized that in order to safeguard the integrity of the election under such circumstances, the commissioner should recuse herself from participation in decisions which may affect her son's race.

We should also point out that Mississippi Code Section 25-1-53, the nepotism statute, prohibits governing authorities from appointing a person who is related to any of the governing authorities by blood or marriage within the third degree to five specific positions. The statute states in part:

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. ...

We have previously opined that municipal election commissioners are municipal officers covered by the nepotism statute. MS AG Ops., Hicks (September 16, 1992); Navarro (September 16, 1992). In our opinion to Dewitt Hicks, we stated that the nepotism statute prohibited a city council from appointing the uncle of a councilperson to the municipal election commission.

Section 5 of the City of McComb's Charter states in part: "That at the first regular meeting of the Board of Mayor and Selectmen of the City of McComb City, Pike County, Mississippi, following their election, the said Board shall select and appoint all officers and employees provided by the Charter and laws of this state." The wife of a selectman is a relative within the third degree by the rule of civil law. Accordingly, if the election commissioner's husband is re-elected as a selectman, the nepotism statute prohibits the board of mayor and selectmen from re-appointing the selectman's wife to the municipal election commission.

Conclusion

A municipal election commissioner may continue to serve out her current term when the commissioner's husband is a candidate for selectman. In order to avoid any perception of impropriety in the conduct of the election, the commissioner should recuse herself from decisions involving her husband's candidacy and the results of his race. If the commissioner's husband is re-elected as selectman, the nepotism statute prohibits the board of mayor and selectmen from re-appointing the selectman's wife to the municipal election commission.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Elizabeth S. Bolin, Special Assistant Attorney General.