Mississippi Advisory Opinions April 22, 2013: AGO 2013-00142 (April 22, 2013)

Advisory Opinion Text

TEXT: David Ringer, Esq.

Ringer Law Firm

Post Office Box 737

Florence, MS 38903

AUTH: Ricky G. Luke

RQNM: David Ringer

SUBJ: Nepotism

SBCD: 151

Re: Application of Nepotism Statute to Hiring of City Attorney

Dear Mr. Ringer:

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

Facts and Issue Presented

Your letter indicates that you are currently the city attorney and city prosecutor for the City of Florence and that you wish to continue in that roll. You also indicate that your firm wishes to hire an attorney and that you anticipate that the attorney’s mother will be elected as mayor of the City of Florence in the upcoming 2013 municipal elections. Your letter asks whether it would violate Mississippi’s nepotism law if you hire the attorney and continue to serve as city attorney and city prosecutor after the mother is elected as Mayor.

Analysis and Discussion

Section 25-1-53 of the Mississippi Code Annotated 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 . . .

We have repeatedly opined that Section 25-1-53 applies only to the five specified positions of “officer, clerk, stenographer, deputy or assistant.” Neither a city attorney nor city prosecutor falls within the list of covered offices. MS AG Op Childre (Sept. 1, 1993)(“[A] board of aldermen of a municipality may retain an attorney who is a brother to one of the members of the board.”); MS AG Op Fielding (Jan. 24, 2003)(The nepotism statute applies to five specific positions which does not include the position of city attorney.). Accordingly, it is our opinion that if your firm hires the subject attorney and his mother is elected as mayor, there will be no violation of the nepotism statute if you continue to serve as city attorney and city prosecutor.

Your letter also states that you want to be sure that there will be no violation of the Mississippi constitution by your proposed course of conduct. As you are aware, there are constitutional provisions governing ethics issues, but as you note in your letter, you have already sought advice from the Mississippi Ethics Commission on this matter. We do not generally opine on ethics in government issues, and we are unaware of any other constitutional provisions that would be implicated under the factual scenario stated in your letter.

If our office can be of further assistance, feel free to contact us.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Ricky G. Luke, Assistant Attorney General.