Mississippi Advisory Opinions August 02, 2002: AGO 000015158 (August 2, 2002)

AGO 000015158.

Dear Mr. Twiford:

Attorney General Mike Moore has received your recent letter on behalf of the City of Clarksdale and has asked me to respond. Your letter states:

Your office issued an Opinion to me dated December 23 1998 (Opinion No. 98-0751, 1998 WL 958167) on the topic of nepotism to the effect that the Board of Mayor and Commissioners of the City of Clarksdale could appoint the son of a City Commissioner as a commissioner of the Clarksdale Public Utilities Commission, provided that the proposed nominee to the Public Utilities Commission did not receive any payment or compensation for serving in such position. We attach a copy of the Opinion herewith for your ease of reference.

Simultaneously, the Mississippi Ethics Commission issued Opinion No. 98-137-E dated December 7, 1998, opinion that, so long as the City Commissioner recused (and removed) himself from any and all deliberations or vote on the appointment of the son and the City Commissioner received no financial remuneration and the City Commissioner received no pecuniary benefit, the appointment was permissible. We also attach a copy of the Ethics Commission Opinion for your reference.

The appointment of the son to the Public Utility Commission was made by the Board of Mayor and Commissioners of Clarksdale on January 19, 1999 for a four year term, upon the conditions set forth in both Attorney General's Opinion No. 98-0751 and Ethics Commission Advisory Opinion No. 98-137-E. The Public Utility Commissioner has received no payments or compensation for his service since his appointment.

In the municipal elections in the spring and summer of 2001, the City Commissioner who is the father of the Public Utility Commissioner was defeated in his reelection. A new City Commissioner took office from the same Ward on the first Monday of July, 2001, who is unrelated to either the former City Commissioner or the Public Utility Commissioner. The son of the former City Commissioner continues to serve on the Public Utilities Commission, and his term is currently scheduled to expire on October 1, 2003.

We are familiar with the provisions of Miss. Code Ann. Section 25-4-101 et seq., which provide that no elected or appointed official may take any act which would financially benefit him or any member of his immediate family during his term and for a period of one year thereafter. On July 2, 2002, the former City Commissioner will have been out of office for a period of one year.

The query raised by the City of Clarksdale and the Clarksdale Public Utilities Commission is whether, since the father of the Clarksdale Public Utilities Commissioner is no longer a sitting City Commissioner and has been out of office for a period of one year, may the Public Utilities Commission begin paying the son of the former City Commissioner the same compensation which all other Public Utilities Commissioners are paid, as set by the ordinances of the City of Clarksdale and the rules of the Clarksdale Public Utilities Commission? Please assume for the purposes of this question that there are no other circumstances, other than the father-son relationship, which would preclude the Public Utilities Commissioner from receiving compensation.

Miss. Code Ann. Section 25-1-53 (attached), our nepotism statute, prohibits a board from hiring a person who is to be paid out of the public funds and who is a relative of a board member within the third degree to one of five specific positions: officer, clerk, stenographer, deputy and assistant. We opined in MS AG Op., Twiford (December 23, 1998) that the appointment of the son of a member of the Board of Commissioners of the City of Clarksdale as a public service commissioner, an officer, would violate the provisions of the nepotism statute. An officer serves for a term, and the nepotism statute prohibits appointments of officers who are close relatives of board members. We are of the opinion that the nepotism statute prohibits the public service commissioner who was appointed by the commission on which his father served from receiving a salary during the four year term for which he was appointed. If the city commission appoints him for a new term, he may receive a salary during that term.

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

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Alice Wise

Special Assistant Attorney General