MS 2020-07-W-Griffin-May-13-2020-Nepotism May 13, 2020

Can a Mississippi sheriff put his own son on as a volunteer deputy without violating the state nepotism law?

Short answer: The AG concluded that the Mississippi nepotism statute did not bar a sheriff's son from serving as an unpaid auxiliary deputy or using county-issued equipment, but it did bar the Sheriff's Department from paying his academy training or bond from public funds.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

The Washington County Sheriff wanted to enlist his son as a volunteer or auxiliary deputy. The Sheriff's office also wanted to send the son to the law enforcement training academy and pay for his bond and equipment. The county attorney asked whether any of that violated Mississippi's general nepotism statute, Section 25-1-53.

The AG's analysis split the question into two halves based on whether public money flowed to the relative.

No public money, no violation. The nepotism statute bans appointing or employing relatives within the third degree of kinship "as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds." The key phrase is "paid out of the public funds." A sheriff's son who serves as an unpaid auxiliary deputy, with no county compensation, falls outside the statute. The AG also approved the use of county-issued equipment, including a uniform, weapon, and vehicle, in the performance of those duties. That equipment use was not a payment from public funds; it was an operational arrangement of an auxiliary deputy program.

Public money, even indirect, is a violation. The sheriff could not have the department pay academy training fees or the bond cost on his son's behalf. The AG read prior precedent (MS AG Op., Ball, December 7, 2007) as treating direct payment to a third party for the benefit of a relative as a payment from public funds. So sponsoring the son's academy attendance or bond would push the arrangement back inside Section 25-1-53's prohibition.

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.

Common questions

What is the third-degree-of-kinship rule?

Section 25-1-53 bans an elected official from hiring relatives within the third degree, computed by the rule of civil law, as a paid officer, clerk, stenographer, deputy, or assistant. A son is within the first degree of kinship, well inside the prohibition.

Why does it matter that the son is "unpaid"?

The statute's words tie the prohibition to people "to be paid out of the public funds." If the relative receives no compensation, the statute's text simply doesn't reach the relationship.

Why would academy tuition be different from a uniform or vehicle?

The AG reads "paid out of the public funds" broadly enough to capture money sent to a third party for the relative's benefit. Academy tuition or a bond premium is a direct cash outlay to a third party that benefits the son personally. A county vehicle or uniform issued to an auxiliary deputy is part of operating the auxiliary deputy program; the deputy uses the equipment in the performance of his duties on behalf of the county and returns it.

What does an "auxiliary deputy" do in Mississippi?

The AG cited a 1979 opinion (MS AG Op., Ready, April 5, 1979) describing an auxiliary deputy sheriff's department as part of the sheriff's office, operating under the sheriff's direction, and authorized within statutory limits to use county equipment.

Are there ethics concerns the AG flagged?

The AG limited its discussion to Section 25-1-53. It did not address Sections 25-4-101 et seq. (the Mississippi Ethics in Government Laws), and a sheriff in this position would want to consult the Mississippi Ethics Commission separately about any conflict-of-interest concerns.

Background and statutory framework

Section 25-1-53 of the Mississippi Code provides:

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.

The AG had previously read the statute as a five-position-and-pay test: it bars hiring a relative within the third degree to one of five positions (officer, clerk, stenographer, deputy, assistant) when public funds compensate the position (MS AG Op., Holcomb, April 27, 2018). The AG's opinion to Ball (December 7, 2007) extended the same logic to indirect payments. Direct payment of registration fees and lodging expenses to a third party from public funds on behalf of a relative was treated as a violation of the nepotism prohibition.

The Ready opinion (April 5, 1979) established that an Auxiliary Deputy Sheriff's Department is part of the sheriff's office and may use county equipment under the sheriff's direction. The Griffin opinion combines those strands: unpaid service plus operational use of county equipment is fine; cash outlays to third parties for the relative's benefit are not.

The opinion is signed by Special Assistant Attorney General Emiko Hemleben on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 25-1-53 (general nepotism statute)
MS AG Op., Harper (June 28, 1995)
MS AG Op., Holcomb (April 27, 2018)
MS AG Op., Ball (December 7, 2007)
MS AG Op., Ready (April 5, 1979)

Source

Original opinion text

May 13, 2020

Willie Griffin, Esq.
Attorney for the Washington County Board of Supervisors
Post Office Box 189
Greenville, Mississippi 38702

Re: Nepotism

Dear Mr. Griffin:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Questions Presented

May the son of the Washington County Sheriff serve as a volunteer or auxiliary deputy with the Washington County Sheriff's Department?

If yes, may the Sheriff's Department sponsor the sheriff's son to attend the law enforcement training academy?

May the Sheriff's Department provide a uniform, weapon, and vehicle for the sheriff's son to use in the performance of his duties?

May the Sheriff's Department pay the cost of the bond for the sheriff's son as a volunteer or auxiliary deputy?

Brief Response

The sheriff's son may serve as an unpaid auxiliary deputy without violating the Nepotism Statute, Miss. Code Ann. Section 25-1-53.

As an auxiliary deputy, he may use county equipment such as a vehicle, uniform, and weapon, in the performance of his duties.

The Sheriff's Department would be in violation of Section 25-1-53 if it sponsored the sheriff's son to attend the law enforcement training academy or paid the cost of his bond, as both would constitute a monetary benefit obtained through public funds.

Applicable Law and Discussion

It is unlawful for an elected official to employ a relative within the third degree of kinship as a deputy who is to be paid out of the public funds. MS AG Op., Harper (June 28, 1995).

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.

The employment by the Sheriff of his son as a deputy would violate the Nepotism Statute if he were to be compensated in any way through public funds. See, MS AG Op., Holcomb (April 27, 2018)(our nepotism statute, prohibits a sheriff from hiring a relative by blood or marriage within the third degree according to the rule of civil law to one of five positions, i.e., officer, clerk, stenographer, deputy and assistant). Here, however, the Sheriff's son shall serve as an unpaid volunteer. It is, therefore, the opinion of this office that the hiring of the Sheriff's son as an unpaid volunteer to serve as an auxiliary deputy in the Washington County Sheriff's Department does not violate Section 25-1-53.

With that said, a violation of the nepotism statute may only be avoided by ensuring the Sheriff's son receives no monetary benefit from county funds related to or resulting from his service as an auxiliary deputy. Thus, it is the opinion of this office that the Washington County Sheriff's Department could not sponsor the sheriff's son to the law enforcement training academy, as such payment to a third party from public funds on behalf of the sheriff's son would violate the nepotism statute. See, MS AG Op., Ball (December 7, 2007)([t]he direct payment of registration fees and lodging expenses to a third party from public funds on behalf of the chairman of the municipal housing authority would violate the general nepotism statute prohibiting payment out of public funds).

For the same reason, it is likewise the opinion of this office that the payment of the bond for the benefit of the sheriff's son by the Washington County Sheriff's Department would constitute a violation of the nepotism statute.

The Sheriff's Department may permit the sheriff's use of uniforms, a weapon and vehicle in the performance of his duties as an auxiliary deputy.

An Auxiliary Deputy Sheriff's Department established and operated pursuant to the provisions of this section would be a part of the Sheriff's Office of the County and, of course, within statutory limitations, would be authorized under the direction of the sheriff to use such county equipment as might be made available.

MS AG Op., Ready (April 5, 1979)(emphasis added). It is the opinion of this office that the son's use of the county equipment in the performance of his duties would not constitute a violation of the nepotism statute.

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/ Emiko Hemleben
Emiko Hemleben
Special Assistant Attorney General