MS 2023-11-S-Smith-November-3-2023-Nepotism-and-Conflicts-of-Interest November 3, 2023

Can a Mississippi school district hire a contractor whose brother is the district's business manager?

Short answer: Yes, but watch the conflict-of-interest rules. Mississippi's general nepotism statute (§ 25-1-53) is not violated because the contractor's position (concrete work) is not a 'prohibited position' under that statute. The school nepotism statute (§ 37-9-21) is not violated because the relative is not a school board member. But § 37-11-27 (school personnel conflicts of interest) and the Ethics in Government Laws (§§ 25-4-101 et seq.) may apply if the administrator has authority to negotiate school district contracts.

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 AG opinions are persuasive authority but not binding precedent.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.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The North Tippah School District superintendent reported that a school board member had contacted a district administrator (the district's business manager and purchasing agent) about hiring the administrator's brother for concrete work at a school. The superintendent worried about Mississippi's nepotism statutes.

The AG walked through the three relevant statutes:

§ 25-1-53 (general nepotism): Three-part test from a 1991 AG opinion (Harrington), reiterated in 2020 (Nowak):
1. Are the parties related within the third degree?
2. Is the relative who is a public official the "appointing authority"?
3. Is the job in the list of prohibited positions in § 25-1-53?

If any answer is "no," there is no violation. Brothers are within the third degree (yes), but concrete work is not on § 25-1-53's prohibited-positions list (no). So no violation.

§ 37-9-21 (school nepotism): Prohibits a school board member from voting for the appointment of a relative as superintendent, principal, or licensed employee. Doesn't apply here because (1) the administrator with the relative is not a school board member, and (2) the contractor isn't a superintendent, principal, or licensed employee.

§ 37-11-27 (school personnel conflicts of interest): This is the live issue. The statute says a school district administrator with authority to negotiate school district contracts cannot have any direct or indirect interest, individually or as agent or employee, in any contract for construction, repair, improvement, supplies, materials, public work, or transportation of children. Whether the brother's hiring creates a "direct or indirect interest" is a fact question for the school. A 1980 Waits opinion suggested a superintendent who "has absolutely nothing to do with" the contract for a relative may be safe; a 2019 Hill opinion said a person "generally has an interest" in a spouse's contract. Whether a brother creates an indirect interest is fact-specific.

Mississippi Ethics in Government Law (§§ 25-4-101 et seq.): May also apply. The AG recommended contacting the Mississippi Ethics Commission for analysis of any potential conflicts.

What this means for you

School superintendents and administrators

The opinion concludes there would be no nepotism violation in hiring the administrator's brother for concrete work: § 25-1-53 is not violated because concrete work is not one of its five listed prohibited positions, and § 37-9-21 is not violated because the administrator is not a school board member and the work is not a superintendent, principal, or licensed-employee position. The opinion flags § 37-11-27 as the live issue, and treats two questions as determinations of fact for the school district: whether the administrator is one "with authority to negotiate school district contracts," and whether the administrator has a direct or indirect interest in the contract.

School boards and school attorneys

The opinion runs a layered analysis across § 25-1-53, § 37-9-21, and § 37-11-27, and notes that the Ethics in Government Law (§§ 25-4-101 et seq.) may also apply. For potential ethics conflicts, the AG recommends contacting the Mississippi Ethics Commission.

Anyone weighing the conflict question

The opinion holds the nepotism statutes are not violated on these facts, but it does not clear the contract under § 37-11-27 or the ethics laws. It leaves the direct/indirect-interest and contracting-authority questions to the school district and refers ethics questions to the Ethics Commission.

Common questions

Q: What are the "prohibited positions" under § 25-1-53?
A: § 25-1-53 lists "officer, clerk, stenographer, deputy or assistant." Concrete work, plumbing, vendor services, and similar contractor work are typically not in this list.

Q: What is "third degree" relationship?
A: Computed by the rule of civil law, which counts steps to a common ancestor. Parents, siblings, and children are first or second degree. Aunts, uncles, nieces, nephews, and grandparents are third degree. § 25-1-53 reaches everyone within the third degree.

Q: Does § 37-11-27 require the administrator to be the one negotiating, or does any administrator with authority count?
A: The statute reaches "any . . . school district administrator with authority to negotiate school district contracts." If you have that authority generally, the section applies even if you don't personally negotiate this particular contract.

Q: What is "direct or indirect interest"?
A: The opinion notes the phrase "any direct or indirect interest" has "very broad implications." It cites the 2019 Hill opinion (a person generally has an interest in a contract of his or her spouse) and the 1980 Waits opinion (a superintendent who "has absolutely nothing to do with" a relative's contract would not violate § 37-11-27). The opinion does not define the term further; it leaves application to the school district's fact-finding.

Q: Does the opinion say a sibling is automatically an "indirect interest"?
A: No. The opinion states that whether the administrator has an actual or indirect interest in a listed contract is a determination of fact to be made by the school district.

Q: Should the school just contact the Ethics Commission?
A: Yes, that's the AG's explicit recommendation for ethics-specific concerns. The Ethics Commission has its own opinion-issuing process and can address ethics-law-specific questions.

Background and statutory framework

Mississippi has a layered nepotism and conflicts framework:

§ 25-1-53 (general nepotism): bars relatives within third degree from being appointed to a closed list of positions (officer, clerk, stenographer, deputy, assistant).
§ 37-9-21 (school nepotism): bars school board members from voting on relatives for superintendent, principal, or licensed employee.
§ 37-11-27 (school personnel conflicts): bars administrators with contract-negotiation authority from having direct or indirect interest in district contracts of various types.
§§ 25-4-101 et seq. (Ethics in Government): broader ethics restrictions administered by the Mississippi Ethics Commission.

The Smith opinion works through these statutes in order. Each has its own scope: some turn on mechanical criteria (the prohibited-positions list), some require fact-finding by the school district (direct or indirect interest, contracting authority), and some are referred to the Ethics Commission.

The opinion's bottom line is that the nepotism statutes are not violated on these facts, while § 37-11-27 and the ethics laws may still apply depending on the school district's factual determinations.

Citations and references

Statutes:
- Miss. Code Ann. § 25-1-53 (general nepotism statute; relatives within third degree barred from listed positions)
- Miss. Code Ann. §§ 25-4-101 et seq. (Mississippi Ethics in Government Law)
- Miss. Code Ann. § 37-9-21 (school nepotism statute; school board members not to vote on relatives for certain school positions)
- Miss. Code Ann. § 37-11-27 (school personnel conflicts of interest in district contracts)

Prior AG opinions referenced:
- MS AG Op., Harrington (May 30, 1991): three-part nepotism test under § 25-1-53.
- MS AG Op., Nowak (June 5, 2020): same three-part test.
- MS AG Op., Waits (Jan. 17, 1980): superintendent who has absolutely nothing to do with the contract for relatives may not violate § 37-11-27.
- MS AG Op., Hill (Apr. 5, 2019): a person generally has an interest in a contract of his or her spouse within § 37-11-27.

Source

Original opinion text

November 3, 2023

Scott Johnson Smith
Superintendent, North Tippah School District
20821 Highway 15
Falkner, Mississippi 38629

Re: Nepotism and Conflicts of Interest

Dear Superintendent Smith:

The Office of the Attorney General has received your request for an official opinion.

Background

Your request states that a school board member has contacted a North Tippah School District ("School District") administrator about allowing the administrator's brother to do concrete work for one of the schools within the School District. You explain that the subject administrator works as the School District's business manager and purchasing agent. You are concerned that hiring the family member of a school district administrator would violate Mississippi's nepotism statutes.

Question Presented

Would it be a violation of Mississippi's nepotism statutes for the School District to hire the brother of a School District administrator to do concrete work for the School District?

Brief Response

There would be no violation of Mississippi's nepotism statutes if the School District hired the brother of the School District administrator to perform concrete work for the School District. However, there could potentially be a conflict of interest prohibited by Mississippi Code Annotated Section 37-11-27 or a violation of Mississippi Ethics in Government Laws.

Applicable Law and Discussion

Section 25-1-53, Mississippi's general nepotism statute provides, in 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.

(emphasis added).

This office has consistently applied a three-part analysis to determine whether an employment relationship violates Section 25-1-53. "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., Nowak at *1 (June 5, 2020) (citing MS AG Op., Harrington (May 30, 1991)). In your scenario, there would be no violation of Mississippi's general nepotism statute because the position being considered, an employee performing concrete work, is not one of the five prohibited positions within Section 25-1-53.

Section 37-9-21, Mississippi's public school nepotism statute, prohibits school board members from voting "for any person as a superintendent, principal or licensed employee who is related to [them] within the third degree by blood or marriage or who is dependent upon him in a financial way." This statute is not applicable to your fact scenario because a school district administrator working as the School District's business manager and purchasing agent is not a member of the school board. Additionally, the prohibition concerns the hiring of a superintendent, principal, or licensed employee, none of which apply to an employee performing concrete work.

Notably, Section 37-11-27, which prohibits conflicts of interest by certain school personnel, is also relevant. That section provides, in pertinent part:

It shall be unlawful for any . . . school district administrator with authority to negotiate school district contracts, to have or own any direct or indirect interest individually or as agent or employee of any person, partnership, firm, or corporation in any contract made or let by the county board of education, the county superintendent of education or the board of trustees of the school district for the construction, repair, or improvement of any school facility, the furnishing of any supplies, materials, or other articles, the doing of any public work or the transportation of children or upon any subcontract arising therefrom or connected therewith in any manner.

This office has previously opined that the use of the terms "any direct or indirect interest" has "very broad implications." MS AG Op., Waits at 1 (Jan. 17, 1980) (opining "that if the Superintendent has absolutely nothing to do with, and takes no part in, the awarding of a contract for repairs to . . . his uncle and father" there would be no violation of Section 37-11-27); see also MS AG Op., Hill at 1 (Apr. 5, 2019) (opining that "a person generally has an interest in a contract of his or her spouse within the meaning of Section 37-11-27."). Whether the School District administrator mentioned in your request has an actual or indirect interest in a type of contract listed in Section 37-11-27 is a determination of fact to be made by the School District. Likewise, whether the School District administrator is one "with authority to negotiate school district contracts" involves issues of fact to be determined by the School District.

To the extent your question raises other possible ethics issues, we recommend you contact the Mississippi Ethics Commission regarding any potential conflicts of interest governed by Mississippi's Ethics in Government Law. Miss. Code Ann. §§ 25-4-101, et seq.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General