Mississippi Advisory Opinions March 10, 2009: No. 2009-00065 (March 10, 2009)

No. 2009-00065.

Dear Mr. Ratliff:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Issues Presented

1. Can an appointed municipal election commissioner, who has served the City of Laurel in this capacity for the past nine years, continue to serve in the upcoming election if her son runs for a seat on the Laurel City Council? Is recusal from decisions regarding her son's election an option?

2. Will the election commissioner's length of service negate any potential conflict of interest?

3. If the election is decided in the Democratic primary, rather than the general election, will that make a difference?

Response

1. Yes. It is the opinion of this office that the nepotism statute, Miss. Code Ann. Section 25-1-53, does not apply to a municipal election commissioner who is serving out her four-year term prior to her kinsman's candidacy for alderman. To safeguard the integrity of the election process, an option would be for municipal election commissioner to recuse herself from participation in any decisions that must be made with respect to her son's candidacy for office and subsequent election results.

2. We refer you to the Mississippi Ethics Commission for issues regarding any potential conflicts of interest.

3. No. It matters not whether the election is decided in the primary rather than general election since the municipal election commission passes on certification and other actions of a municipal party executive committee.

Applicable Law and Discussion

Mississippi Code Annotated Section 25-1-53, commonly referred to as the Nepotism Statute, states in relevant 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. 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;

Our office has previously opined that municipal election commissioners serve terms of four years running with the terms of the governing authorities. See MS AG Op., Navarro (September 16, 1992).

In an opinion issued to Edwin H. Roberts, Jr., dated July 6, 2001, which concerned nepotism and existing employment, we opined:

Our nepotism statute, by its own terms does not apply to a person who served in an office before his or her kinsman was elected to the board which is the hiring authority; that person is grandfathered in the office. Therefore, the governing authorities of the City of Oxford may not reappoint a person who served as a commissioner of the Oxford Housing Authority before his brother was elected mayor to a new term.

In response to your first question, there is no prohibition against a municipal election commissioner's continued service where the commissioner's son runs for alderman. In this instance, to safeguard the integrity of the election process, one option would be for the commissioner to recuse herself from participation in any decisions that must be made with respect to her son's candidacy for office and election results. You may wish to seek further guidance in this question from the Mississippi Ethics Commission. In the event the election commissioner's son is elected to the office of alderman, the governing authorities of the City of Laurel may not reappoint her for a new term as election commissioner.

With respect to your second question, the Mississippi Ethics Commission addresses issues regarding any potential conflicts of interest. Regarding your third question, we are of the opinion that it matters not whether the election is decided in the primary rather than general election since the municipal election commission passes on certification and other actions of a municipal party executive committee. (See MS AG Op., Craig (February 28, 1984)).

Conclusion

Accordingly, it is the opinion of this office that the nepotism statute does not apply to a municipal election commissioner who is serving out her four-year term prior to her kinsman's candidacy for and election to the city council. We refer you to the Mississippi Ethics Commission for further guidance regarding conflicts of interests.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Margarette L. Meeks

Special Assistant Attorney General