Can a Mississippi elected official hire their grandchildren temporarily to open mail and answer phones during a busy season?
Plain-English summary
DeSoto County's board attorney asked whether the Nepotism Statute, Miss. Code Ann. § 25-1-53, blocks an elected county official from hiring two grandchildren for temporary, busy-season work opening mail and answering phones. The Attorney General did not give a yes or no. Instead, the AG laid out a three-part test:
- Are the prospective employee and the hiring official related within the third degree?
- Is the hiring official the "appointing authority" under the statute?
- Does the job fall within one of the five prohibited categories: officer, clerk, stenographer, deputy, or assistant paid out of public funds?
Grandchildren are within the third degree, so the first question was answered yes. The second was assumed yes by the facts. The third question, whether mail-opening and phone-answering counts as "clerk" or "assistant" work, is a factual determination the AG cannot make. The hiring authority must answer that itself.
The opinion also flags the consequence of getting it wrong: under § 25-1-55, the appointing authority forfeits to the State of Mississippi an amount equal to all wages paid to the improperly hired employee, with personal liability backed by the official's bond.
Currency note
This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Mississippi's nepotism rule is straightforward in structure but trap-laden in application. The statute makes it unlawful for any state, county, district, or municipal official, or any state-institution board of trustees, to "appoint or employ" certain categories of paid public employees who are related within the third degree (computed by civil law) to the appointing person or to a board member. The five protected job categories are: officer, clerk, stenographer, deputy, and assistant.
The third-degree civil-law calculation walks up to a common ancestor and back down. Parents, children, grandparents, grandchildren, siblings, aunts, uncles, nieces, nephews, and great-grandparents/great-grandchildren are within the third degree. So the grandchildren in this opinion clearly qualify on the relationship prong.
The harder question is what counts as a "clerk" or "assistant." A 1982 AG opinion to Jones concluded that a city could not hire an alderman's wife to "fill in and collect water bills" for ten days each month, because the duties were clerical even though temporary. The Nowak opinion does not decide whether mail-opening and phone-answering crosses that line; it shifts the question to the hiring authority, citing Miss. Code Ann. § 7-5-25, which limits AG opinions to legal analysis based on the facts presented and bars the AG from making factual determinations.
If a violation is found, § 25-1-55 imposes a forfeiture: the appointing authority is liable, on the official bond, for "an amount equal to the sum of all moneys paid" to the improperly hired person. This is personal financial exposure for the elected official, not just a regulatory wrist-slap.
The opinion also notes that conflicts of interest under Miss. Code Ann. § 25-4-105 are administered by the Mississippi Ethics Commission, not the AG, so the requesting attorney was directed there for that piece of the analysis.
Common questions
Q: Are grandchildren really within the "third degree" under Mississippi's rule?
A: Yes. Under the civil-law method of computation referenced in the statute, grandchildren are second-degree relatives of the official (one generation up to the parent, one generation down to the grandchild). Anything from first through third degree is covered.
Q: Why did the AG not just answer the question?
A: Mississippi's AG opinions are restricted by Miss. Code Ann. § 7-5-25 to questions of law on stated facts. Whether a particular set of duties qualifies as "clerk" or "assistant" work is a factual question, and AG opinions cannot make those calls. The opinion sets up the legal test; the hiring authority applies it.
Q: What if the official is not the actual decision-maker but sits on a board that votes to hire?
A: The statute also covers "any board of trustees" and any kinship to "any member of the board." So if the relative is a member of a hiring board, the relationship is enough to trigger the analysis even if the relative recused or did not personally vote.
Q: How serious is the financial penalty?
A: Under § 25-1-55 the appointing authority forfeits an amount equal to all wages paid to the improperly hired person, and the liability runs against the official's personal bond. Even a temporary, low-wage hire can produce a meaningful forfeiture if the violation runs for weeks or months before being caught.
Q: Does the Mississippi Ethics Commission conflict-of-interest rule overlap?
A: It can. Miss. Code Ann. § 25-4-105 reaches conflicts more broadly than the Nepotism Statute and is enforced by the Ethics Commission. A hire that satisfies one rule may still violate the other; both should be checked.
Citations and references
Statutes:
- Miss. Code Ann. § 25-1-53 (Nepotism Statute, prohibited employment of relatives)
- Miss. Code Ann. § 25-1-55 (Liability of appointing authority for nepotistic hiring)
- Miss. Code Ann. § 25-4-105 (Ethics in Government, conflicts of interest)
- Miss. Code Ann. § 7-5-25 (Limits AG opinions to questions of law)
Source
- Index page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/A.Nowak_June-5-2020-Nepotism.pdf
Original opinion text
June 5, 2020
Anthony E. Nowak, Esq.
Attorney for the DeSoto County Board of Supervisors
Post Office Box 346
Hernando, Mississippi 38632
Re: Nepotism
Dear Mr. Nowak:
The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.
Questions Presented
Would a violation of the Nepotism Statute result if an elected official employed his/her grandchildren for temporary positions during a particularly busy time of the year to perform certain ministerial duties, such as opening the mail and answering the phone?
What would be the potential for liability if it is determined that such employment is in violation of the Nepotism Statute or Miss. Code Ann. Section 25-4-105 (conflicts of interest)?
Background Facts
An elected county official seeks to hire his/her two (2) grandchildren for temporary positions within his/her office during a particularly busy time of the year. The grandchildren will open and distribute the mail to the office clerks and answer the telephones when the regular staff members are too busy to do so. The grandchildren will perform only ministerial tasks.
Brief Response
Whether the hiring of an elected official's grandchildren to perform the ministerial duties described in your letter would violate the Nepotism Statute, Miss. Code Ann. Section 25-1-53, would be a question of fact to be determined by the hiring authority.
Miss. Code Ann. Section 25-1-55 renders an appointing authority liable for all amounts paid to a person appointed in violation of the Nepotism Statute.
Questions pertaining to a potential conflict of interest and a resulting penalty arising from the proposed employment should be addressed to the Mississippi Ethics Commission.
Applicable Law and Discussion
Section 25-1-53, provides, in pertinent 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 office has consistently employed a three-part analysis to determine whether an employment relationship violates the Nepotism Statute. First, are the parties related within the third degree? Second, is the relative who is a public official the "appointing authority"? Third, is the job included in the list of prohibited positions? If the answer to any of these three questions is "no", there is no violation of the statute. MS AG Op., Dickinson (February 3, 2017) citing MS AG Op., Harrington (May 30, 1991).
By reference to the facts as stated in your request, the prospective employees are related within the third degree to the hiring authority for the positions. However, whether the job duties contemplated by the proposed positions are those of any one of the five positions listed by Section 25-1-53 is a question of fact. An official opinion cannot determine facts but must be based on the facts as presented. Miss. Code Ann. Section 7-5-25. Thus, the hiring or appointing authority must answer the third question of the analysis and if that answer is in the affirmative, then the proposed employment would be a violation of Section 25-1-53.
If the proposed employment results in a violation of the Nepotism Statute, the appointing authority shall be held liable for all amounts paid to those employees. Section 25-1-55 states:
[a]ny person violating the provisions of Section 25-1-53 shall forfeit to the State of Mississippi, and shall be liable on his official bond for, an amount equal to the sum of all moneys paid to any person appointed or employed in violation of the provisions aforesaid.
[Footnote: See, MS AG Op., Jones (April 12, 1982)(the wife of an alderman could not be employed by the City to "just fill in and collect water bills the first ten working days of each month").]
This office cannot address your question pertaining to a potential conflict of interest resulting from the proposed employment, please direct this question to the Mississippi Ethics Commission.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General