Can the Mississippi Board of Barber Examiners hire a board member's nephew or cousin as a barber inspector, or is that nepotism?
Plain-English summary
The Mississippi Board of Barber Examiners had a vacancy for a barber inspector. A board member's nephew or cousin had applied. The executive director asked whether hiring would violate the nepotism statute.
The AG said no.
The framework is Section 25-1-53. The statute prohibits hiring a person related within the third degree to a member of the appointing authority for five specific positions: officer, clerk, stenographer, deputy, or assistant. Both elements have to be met: the relationship plus the position.
A two-step analysis (cited from Youngman 2001):
- Is the position one of the five enumerated positions?
- If yes, only then check whether the person is related within the third degree to a member of the appointing authority.
The first step disposes of this case. A "barber inspector" is not officer, clerk, stenographer, deputy, or assistant. The role is inspecting barbershops for compliance with state regulations, which is a substantive regulatory function. It does not fit any of the five categories.
Because the position is outside Section 25-1-53, the relationship between the candidate and the board member does not matter for nepotism purposes. Hiring the nephew or cousin is permissible.
The AG referred the Board to the Ethics Commission for any potential conflict-of-interest analysis under the Ethics in Government Law. Conflict of interest is a separate analysis from nepotism. A board member may need to recuse from voting on the relative's hire even if the nepotism statute does not prohibit the hire.
What this means for you
For Mississippi state board executive directors
When considering whether a position is covered by the nepotism statute, look at the actual job. The five categories are narrow:
- Officer: a person holding an office (typically appointed or elected with formal authority)
- Clerk: typically clerical or administrative support
- Stenographer: a court reporter or similar role
- Deputy: a person in a deputy role to an officer
- Assistant: a person in an assistant role
Many state-board positions fall outside these. Inspectors, investigators, professional staff, technical specialists are typically not covered.
Even when the nepotism statute does not apply, conflict-of-interest analysis remains. The Mississippi Ethics in Government Law (Section 25-4) governs conflicts. Board members with relatives in the candidate pool should recuse from votes and disclose the relationship.
For human resources officers
Document the position classification when posting and hiring. The job duties matter for nepotism analysis. If a position is genuinely an "assistant" role or "clerk" role, the nepotism statute applies. If the position is a substantive professional role with its own title (inspector, investigator, analyst), the statute does not apply.
For board hires generally, run the standard checks:
- Does any board member or appointing authority have a relative among the candidates?
- If yes, is the position one of the five enumerated nepotism categories?
- If yes, the hire is prohibited.
- If no (relationship plus non-enumerated position), proceed to ethics analysis (recusal, disclosure).
For relatives of public officials
If you are interested in employment with a state board where your relative serves, check whether the position falls within the five enumerated categories. Inspectors, investigators, professional staff, and technical specialists are often outside.
Even if the position is outside, you may face questions about the relationship during the hiring process. Be transparent. The board's process should include a recusal of the related board member.
For candidates for state inspector positions
Inspector positions are typically not subject to the Mississippi nepotism rule. The statute is narrow. If you are a relative of a board member and have applied for an inspector role, the statutory bar does not apply. The board may still address the relationship through recusal and disclosure.
Common questions
Q: Why is "officer" so narrow if the term seems broad?
A: "Officer" in this context typically means a person holding an enumerated office (e.g., the executive director of the board, board members themselves). It does not encompass every role in the agency.
Q: What if a position has multiple titles or roles?
A: Look at the substance, not the title. A role labeled "inspector assistant" might be analyzed as an "assistant" position, depending on duties.
Q: Does the nepotism rule apply to contractors or consultants?
A: The statute applies to employment, not generally to contracts. Contracting with a board member's relative raises ethics issues, not nepotism issues.
Q: What is "third degree" by civil-law computation?
A: One degree per generation up to the common ancestor and one per generation down. Parents/children/siblings are within third degree. Aunts, uncles, nieces, nephews are second-third degree depending on counting. First cousins are 4th degree (so outside). Grandparents and grandchildren are 2nd degree.
Q: What about second cousins?
A: Second cousins are 6th degree (well outside).
Q: Can the board member vote on a relative's hire?
A: Even when the nepotism statute does not apply, ethics rules may require recusal. Consult the Ethics Commission for the specific conflict-of-interest analysis.
Q: What if the hire is for a temporary or contract position?
A: Temporary employees and contract workers are typically outside the nepotism statute, but ethics rules may still apply.
Q: Does the rule apply to volunteer positions?
A: The nepotism statute is about hiring "as an officer, clerk, stenographer, deputy, or assistant who is to be paid out of the public funds." Unpaid volunteer roles are typically outside.
Q: Are barber inspectors paid out of public funds?
A: Barber inspectors are typically state employees paid out of state funds. The fact that they are paid does not change the analysis; the position is still not one of the five enumerated.
Q: What about board service itself? Can a relative of a current board member be appointed to the board?
A: Board members are typically "officers" within the meaning of the statute. If the appointing authority for the new board member overlaps with the existing relative's appointing authority, the nepotism rule may apply. This is fact-specific.
Background and statutory framework
Mississippi's nepotism statute (Section 25-1-53) is a narrow prohibition. It applies to five specific employment categories and to relationships within the third degree.
The two-step analysis approach (position first, relationship second) avoids unnecessary inquiry into family relationships when the position is outside the statute. If the role is not one of the five, the analysis ends.
The five categories reflect the historical concern about clerical and administrative patronage. The legislature did not extend the prohibition to professional, technical, or regulatory staff, perhaps recognizing that those positions have substantive qualifications that constrain the appointing authority's discretion.
The 2022 Jones opinion is consistent with the pattern. Inspector positions, including barber inspectors, fall outside the five categories. Hiring is permitted absent ethics issues.
The Ethics Commission's separate conflict-of-interest jurisdiction handles the broader question of whether a board member should be involved in a relative's hire. Recusal, disclosure, and similar procedural protections may apply even when the substantive hire is permissible.
Citations and references
Statute:
- Miss. Code Ann. § 25-1-53, nepotism prohibition for five enumerated positions
Prior AG opinion cited:
- MS AG Op., Youngman (Feb. 23, 2001), two-step analysis: position first, then relationship
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/03/D.Jones-January-14-2022-Nepotism-and-Hiring-of-Board-Members-Relative-as-a-Barber-Inspector.pdf
Original opinion text
January 14, 2022
Ms. Debra Jones
Executive Director
Mississippi Board of Barber Examiners
510 George Street, Suite 400
Jackson, Mississippi 39202
Re: Nepotism and Hiring of Board Member's Relative as a Barber Inspector
Dear Ms. Jones:
The Office of the Attorney General has received your request for an official opinion.
Issue Presented
Would Mississippi's nepotism statute be violated by the Mississippi Board of Barber Examiners (the "Board") employing a Board member's nephew or cousin as a barber inspector?
Brief Response
No. There will be no violation of Mississippi's nepotism statute by the Board employing a Board member's nephew or cousin as a barber inspector because a barber inspector is not one of the five employment positions enumerated in Section 25-1-53.
Applicable Law and Discussion
Mississippi Code Annotated Section 25-1-53, Mississippi's nepotism statute, 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.
In describing the analysis required to determine whether a violation of Mississippi's nepotism statute has occurred, this office has opined in the following manner:
We have oft opined that this section of the code requires analysis of two separate issues. First, it must be determined whether the position for which the individual is being considered is one of the five listed positions. Only then is it necessary to move on to the question of whether the person is related within the third degree to a member of the appointing authority.
MS AG Op., Youngman at *1 (Feb. 23, 2001).
Section 25-1-53 prohibits a board of the state from hiring a person who is related by blood or marriage within the third degree to one of only five specific positions: officer, clerk, stenographer, deputy, or assistant. You state that a Board member's nephew or cousin has applied for a position vacancy with the Board. Because the position, a barber inspector, is not one of the five enunciated positions within Section 25-1-53, the answer to the first question set forth above is "no, it is not one of the five listed positions." Accordingly, there will be no violation of Mississippi's nepotism statute by the Board employing a Board member's nephew or cousin as a barber inspector.
Notably, we invite you to consult the Mississippi Ethics Commission regarding any potential conflicts of interest, governed by Mississippi's Ethics in Government Law.
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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General