Mississippi Advisory Opinions June 17, 2010: No. 2010-00334 (June 17, 2010)

No. 2010-00334.

Dear Mr. Miller:

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

On behalf of a member of the Forrest County Election Commission, you inquire as to certain issues pertaining to commissioners and poll workers. Specifically, you ask the following:

1. May an election commissioner appoint his son as an election manager or clerk pursuant to Mississippi Code Sections 23-15-231 or 23-15-235?

2. May an election commissioner participate in his son's nonpartisan campaign for district judicial office?

3. May an election manager or clerk participate in his brother's nonpartisan campaign for district judicial office?

1. No.

2. No.

3. No.

Miss. Code Ann. Section 25-1-53, commonly known as the Nepotism Statute, provides that:

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; and this section shall not apply to any person seeking appointment as an election worker who has served as an election worker in the election immediately preceding the commencement of a term of office as an election commissioner by his kinsman within the third degree. 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.

Pursuant to the language above, our office has developed a three-tiered analysis for determining whether an appointment is in violation of the Nepotism Statute:

First, are the parties related within the third degree? Secondly, is the relative who is a public official the appointing authority? And finally, is the position one of the five specific positions listed in the nepotism statute? If the answer to any of these questions is no, then the prospective employment or appointment is not prohibited. See MS AG Op., Cochran (March 6, 1998).

Applying this analysis, the appointment in question would clearly violate the Nepotism Statute. First, fathers and sons are obviously related within the third degree. Second, as you pointed out, Sections 23-25-231 and -235 authorize election commissioners to appoint poll workers, so the related public official is the appointing authority. Finally, as evidenced by the specific language in the statute an "election worker" is a position covered by the Nepotism Statute.

Specifically, the Nepotism Statute excepts "election workers" from its coverage when they served in the election immediately preceding the election at issue. As such, the appointment in question would be valid only if this exception applies.

We also refer you to the Mississippi Ethics Commission, which has opined similarly. See attached Advisory Opinions No. 07-062-E and 04-094-E.

Regarding question two, the Mississippi Supreme Court has issued an instructive opinion in which it stated:

Perhaps more so than is the case with any other public official, the integrity of the office of Elections Commissioner must be totally beyond compromise or even perception of the possibility of compromise. The legislature has enacted that elections commissioners shall totally remove themselves from any taint or hint of suspicion of partnership. . .[When a person] assumes the office of Elections Commissioner, he becomes obligated to stay out of any other electoral endeavor for the term of his office, period . If this seems harsh, it is certainly less so than the adverse impact upon the public interest if our people come to doubt the integrity of the system. Meeks v. Tallahatchie County , 513 So. 2d 563, 570 (Miss. 1987) (emphasis added).

While the participation of an election commissioner in their relative's campaign would not necessarily lead to corruption, the appearance of impropriety in such an arrangement is undeniable. It is irrelevant that the campaign in question involves a nonpartisan office. As such, we are of the opinion that elections commissioners are precluded from participating in campaigns other than their own.

Regarding question three, it would be an inherent conflict of interest for one to campaign for any candidate whose name will be on the ballot in an election in which he or she will be, in part, conducting.

Please advise if our office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General