Mississippi Advisory Opinions August 07, 2009: No. 2009-00452 (August 7, 2009)

No. 2009-00452.

Dear Mr. Lawrence:

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

Issues Presented

You inquire as to whether the Mayor and Board of Alderman may appoint the brother-in-law of a sitting alderman to the position of Police Chief. You provide the following relevant facts:

The City of Crystal Springs, MS is a code charter municipality. The Police Chief position existing under Section 21-3-3 MCA, is vacant and is to be filled by appointment and not election. One of the potential candidates for the position is a twenty year veteran of the police force. The potential candidate is the brother-in-law of a sitting alderman but they are totally financially independent of each other. The potential candidate for the office was a police officer with the city prior to his brother-in-law being elected.

Response

Mississippi's nepotism law prohibits the board of aldermen from hiring the brother-in-law of an alderman as police chief.

Applicable Law and Discussion

Section 25-1-53 of the Mississippi Code ("nepotism statute") prohibits a board of aldermen from hiring a relative within the third degree by blood or marriage of a board member to one of five specific positions, i.e., officer, clerk, stenographer, deputy and assistant, stating 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.

The police chief of a code charter municipality is a municipal officer pursuant to Miss. Code Ann. § 21-3-3 and a brother-in-law is a relationship within the third degree. State ex rel. Summer v. Denton, 382 So.2d 461 (Miss. 1980). A board of aldermen is therefore prohibited by Mississippi's nepotism statute from appointing the brother-in-law of an alderman to the position of police chief. There is no violation of the nepotism statute; however, in allowing the brother-in-law of an alderman to retain his position as a police officer.

If our office may be of further assistance, please let us know

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Jane L. Mapp

Special Assistant Attorney General