Mississippi Advisory Opinions April 29, 2016: AGO 2016-00149 (April 29, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Dorian Turner

SUBJ: Schools - Nepotism

SBCD: 188

TEXT: Dorian E. Turner, Esquire

Attorney for Claiborne County School District

300 West Capitol Street, Suite 200

Jackson, Mississippi 39203

Re: School Nepotism Law

Dear Ms. Turner:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

You state that the Claiborne County School District (the District) is in the process of employing a new superintendent of schools and that one of the applicants is the great-aunt of a school board member.

Questions and Responses

Question 1: Under Section 37-9-21, should the degrees of kinship between a great-niece and great-aunt be computed according to civil law or common law?

Response : The first sentence of Section 37-9-21 mandates that the determination of whether a prospective superintendent is related within the third degree by blood or marriage to a majority of the school board members is to be made according to the common law. We are of the opinion that such mandate indicates that the determination of the degree of kinship for the entire statute is to be based on common law.

Question 2: Utilizing the proper methodology, either civil or common law, as determined in your response to our first question, is the great-aunt of a school board member related to her within the third degree such that the board member cannot vote for the applicant as a superintendent, principal or other licensed employee?

Response : Having opined that the determination of the degree of kinship for the purposes of Section 37-9-21 is governed by common law, the school board member could not lawfully vote for her great-aunt as superintendent, principal or other licensed employee, because they have a third degree kinship.

Question 3: If you opine that a school board member’s great-aunt is related to her within the third degree, is the school board member only prohibited from voting for her great-aunt as superintendent or are there any other restrictions on the school board member’s ability to participate in the employment process?

a. More specifically, may the great-niece/school board member participate in discussions and deliberations regarding her great-aunt’s candidacy for superintendent?

b. During its deliberation process, the school board may need to vote on other matters relative to reaching a final decision on the employment of the superintendent. For example, there are currently four applicants under consideration by the Board, one of whom is the school board member’s great-aunt. If the board votes to narrow the field of applicants from four to three or two applicants, one of whom is the school board member’s great-aunt, may the great-niece/school board member participate in that vote?

c. Finally, are there any restrictions on the great-niece/school board member’s ability to participate in discussions, deliberations and votes regarding the other superintendent applicants to whom she is not related or, otherwise, in the search and employment process in general? In particular, would the inability to vote for a relative as a superintendent or other licensed employee under the nepotism statute operate like a conflict of interest that requires a complete recusal from the process, or does the nepotism restriction only affect the great-niece/school board member’s ability to vote regarding her great-aunt?

Response : We are of the opinion that Section 37-9-21 does not prohibit a great-niece/school board member from participating in discussions and deliberations regarding all applicants, including her great-aunt. However, we are also of the opinion that a great-niece/school board member may not cast a vote that could result in the elimination of any applicant that, consequently, would leave her great-aunt in a better position to receive the appointment.

As long as the great-aunt of a board member is in contention for appointment, a vote by the great-niece on the appointment of a superintendent would be lawful only if that vote is for an applicant other than her great-aunt.

Applicable Law and Discussion

Section 37-9-21 provides:

It shall be illegal for any superintendent, principal or other licensed employee to be elected by the school board if such superintendent, principal or licensed employee is related within the third degree by blood or marriage according to the common law to a majority of the members of the school board. No member of the school board shall vote for any person as a superintendent, principal or licensed employee who is related to him within the third degree by blood or marriage or who is dependent upon him in a financial way. Any contract entered into in violation of the provisions of this section shall be null and void. (Emphasis added)

You cite Section 1-3-71, which provides:

In each and every statute of this state heretofore enacted, and now in effect, in which the phrase “kindred within the third degree” or “relationship within the third degree” is used, and in which no other rule is applied or indicated, the civil law rule in computing relationship shall govern.

It is clear from the language in Section 37-9-21 that, for its purposes, the degree of kinship is to be determined according to common law. You included with your letter a relationship chart that clearly shows that, according to common law, the relationship of a great-niece to her great-aunt is within the third degree. Other charts confirm that relationship.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.