Mississippi Advisory Opinions September 29, 1987: AGO 000008062 (September 29, 1987)

AGO 000008062.

Dear Mr. Creekmore:

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

"I represent the City of Amory, Mississippi. Our city is going to elect a new alderman through a special election during the first part of 1988. One the potential candidates for that position currently has a son employed with the City of Amory Water Department. His son is approximately 27 years of age and is financially independent. He is married, and lives in his own home. He has been employed with the water department for approximately seven (7) years and his title is that of an Assistant Water Treatment Superintendent.

"Should this man be elected alderman, is there any conflict that could exist as a result of his son's above described position."

As to nepotism, Miss. Code Ann. 25-1-53 (Supp. 1986) states:

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 #r her kinsman, within the third degree, became the head of said department or institution or member of said board of trustees. 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. (Emphasis added.)

Since the son of the candidate for aldermen has been employed by the city water department for seven (7) years, the above nepotism statute would not apply if the candidate is in fact elected to the office of alderman.

In addition, this office, by a prior opinion issued to Robert S. Cooper, dated December 11, 1984, has stated that the position of water and street superintendent does not fall within any of the five enumerated positions set forth in 25-1-53. A copy of the referenced opinion is attached hereto.

Accordingly, it is the opinion of this office that the position of assistant water treatment superintendent is not an "officer, clerk, stenographer, deputy or assistant" for purposes of 25-1-53, and said statute would not apply if the candidate is in fact elected and his son's reemployment comes before the board of aldermen for consideration in the future.

However, we caution you concerning the provisions of Miss. Code Ann. 25-4-105(1) (Supp. 1986) and enclose a copy of an opinion of the Mississippi Ethics Commission issued to Honorable J. P. Compretta dated December 14, 1984, which should be of assistance to you.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY: Pete J. Cajoleas Assistant Attorney

General PJC/lcm Enclosure