Mississippi Advisory Opinions July 28, 1994: AGO 94-0449 (July 28, 1994)

Advisory Opinion Text

Honorable Wayne Myrick

Circuit Clerk

Route 7, Box 445

Laurel, Mississippi 39440

RE: RESIDENCY OF DEPUTY CIRCUIT CLERK

Dear Mr. Myrick:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“We send to you warm greetings from Jones County. We request your official opinion on the following questions

1. Must a person be a resident and or a registered voter, in order to be employed and perform the duties as a sworn-in (taken the oath) Deputy Circuit Clerk. In other words, can a person who is a registered voter in one county be a Deputy Clerk in another county?

2. Is it legal for a Circuit Clerk to employ and pay a member of his family as a Deputy Clerk? (i.e. mother, sister-in-law or brother-in-law)?”

In response to your first question, we have reviewed the statutes regarding the appointment of deputy circuit clerks and find no requirement that one be a resident of the county which they are to serve.

In response to your second question, Mississippi Code Annotated § 25-1-53 (Revised 1991) provides in 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. . . .” (emphasis ours)

Based on the above, if the brother-in-law of the appointing authority is to be paid with public funds, such appointment would be prohibited. Conversely, if he is to be paid out of the fees earned by the appointing authority, the appointment would not be prohibited.

We note that Section 9-7-126 specifically provides that deputy circuit clerks employed under the authority granted by said statute are deemed to be employees of the county.

Sincerely,

Mike Moore, Attorney General.

Phil Carter, Assistant Attorney General.