Can the wife of a Mississippi county hospital trustee be hired as a social worker for the hospital?

Plain-English summary

Arnold Clark serves as a trustee of the Jefferson County Nursing Home and Jefferson County Hospital. His wife wanted to apply for a social worker position at the same nursing home and hospital. The hiring is done by the nursing home director and hospital CEO, not by the board of trustees. Clark asked if his wife's potential hire would violate Mississippi's nepotism statute.

The AG said no, applying the standard three-part nepotism test. It resolved the question on the second and third prongs:

1. Is the relative who is a public official the appointing authority? No. Per the request, the board of trustees is not the appointing authority; the nursing home director and hospital CEO do the hiring.
2. Is the job included in the list of prohibited positions? No. The statute lists five positions (officer, clerk, stenographer, deputy, or assistant), and social worker is not among them.

Because the answer to those questions is no, the opinion holds the nepotism statute "is not violated if the nursing home director or hospital CEO hires the wife of a trustee to work as a social worker." The AG also recommended Clark contact the Mississippi Ethics Commission about any other potential conflicts under the Ethics in Government Laws (§§ 25-4-101 et seq.).

The opinion is a clean illustration of how the Mississippi general nepotism statute actually works. People often assume the statute prohibits any relative from being hired by a public entity where their family member serves. It doesn't. The statute is narrow: it prohibits the appointing authority from hiring a relative within the third degree into one of five enumerated positions.

What this means for you

If you serve on a Mississippi public board

The opinion applies a three-part test and holds that where "the board of trustees is not the appointing authority" and the position "is not one of the five listed prohibited positions," the nepotism statute "is not violated." Here the nursing home director and hospital CEO, not the board, do the hiring.

If you are a hospital director or CEO doing hiring

The opinion holds that, on the facts stated, "the nepotism statute is not violated if the nursing home director or hospital CEO hires the wife of a trustee to work as a social worker," because social worker is not a listed position and the board is not the appointing authority.

If you are a job applicant whose family member serves on a public board

The opinion shows the statute turns on two things in this situation: whether the official relative is the appointing authority, and whether the job is one of the five listed positions (officer, clerk, stenographer, deputy, or assistant).

If you have other conflict-of-interest concerns

The opinion does not resolve broader ethics questions. It states: "[t]o the extent that 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 Laws" (§§ 25-4-101 et seq.).

Common questions

Q: What is Mississippi's general nepotism statute?
A: Miss. Code Ann. § 25-1-53 prohibits any person elected, appointed, or selected to any state, county, district, or municipal office, or any board of trustees of a state institution, from appointing or employing as an officer, clerk, stenographer, deputy, or assistant any person related by blood or marriage within the third degree, computed by the rule of the civil law.

Q: What is the three-part test the opinion uses?
A: Quoting the Nowak opinion: "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."

Q: What are the "prohibited positions" the statute lists?
A: The statutory text the opinion quotes covers appointment or employment "as an officer, clerk, stenographer, deputy or assistant." The opinion holds "social worker is not one of the five listed prohibited positions."

Q: Why does it matter who the appointing authority is?
A: The opinion holds the statute is not violated in part because "the board of trustees is not the appointing authority for the nursing home and hospital." On the stated facts, the director and CEO do the hiring, so the trustee's relationship does not trigger the statute.

Q: Does the opinion address other ethics concerns?
A: No. It recommends contacting the Mississippi Ethics Commission "regarding any potential conflicts of interest governed by Mississippi's Ethics in Government Laws" (§§ 25-4-101 et seq.). It does not itself decide any such question.

Background and statutory framework

§ 25-1-53 is Mississippi's general nepotism statute. The relevant text:

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 three-part analysis (drawn from a long line of MS AG opinions, including Nowak, June 5, 2020) breaks down the statute's elements:

1. Relationship within the third degree. Required for the prohibition to apply.
2. Appointing authority status. The relative who is the public official must be the appointing authority for the position. If hiring is done by someone else (a delegated CEO or director), the public official's relationship doesn't trigger the statute.
3. Prohibited position. The job must be officer, clerk, stenographer, deputy, or assistant. Other positions (most professional, technical, and service jobs) are outside the statute.

If any one of these elements is missing, the statute is not violated.

§§ 25-4-101 et seq. is the Mississippi Ethics in Government Laws, administered by the Mississippi Ethics Commission. These laws are broader than the nepotism statute and reach situations where a public official uses their position for personal or family benefit. The Ethics Commission can issue advisory opinions for specific scenarios.

The AG's standard practice in nepotism opinions:

• Apply the three-part test.
• Refer broader ethics questions to the Ethics Commission.
• Decline to make factual determinations about specific employment scenarios where contested.

In Clark, the analysis is straightforward: hiring authority lies with the director and CEO, and "social worker" isn't a listed prohibited position. Two strikes, statute doesn't apply. The trustee can stay on the board, his wife can apply for the job, and the hire (if made by the director/CEO) doesn't violate § 25-1-53.

Citations and references

Statutes:

• Miss. Code Ann. § 25-1-53 (general nepotism statute)
• Miss. Code Ann. §§ 25-4-101 et seq. (Ethics in Government Laws)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/A.Clark-March-19-2024-Nepotism.pdf

Original opinion text

March 19, 2024

Arnold Clark
Trustee, Jefferson County Nursing Home and Jefferson County Hospital
Post Office Box 1089
Fayette, Mississippi 39069

Re: Nepotism

Dear Mr. Clark:

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

Background

According to your request, your wife is interested in applying for the position of social worker at the Jefferson County Nursing Home and Jefferson County Hospital. You state that the nursing home director and hospital CEO serve as the appointing authority, not the board of trustees.

Question Presented

Is it a violation of the nepotism statute for the wife of a member of the board of the nursing home and hospital to be hired as a social worker for the nursing home and hospital?

Brief Response

Because social worker is not one of the five positions listed in the nepotism statute and because the board of trustees is not the hiring authority for the nursing home or hospital, the nepotism statute is not violated if the wife of a trustee of the nursing home and hospital is hired as a social worker for the nursing home and hospital.

Applicable Law and Discussion

Mississippi's general nepotism statute provides, in relevant 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. . . .

Miss. Code Ann. § 25-1-53. We use 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., Nowak at *1 (June 5, 2020) (internal citations omitted).

According to your request, the board of trustees is not the appointing authority for the nursing home and hospital. Further, social worker is not one of the five listed prohibited positions. Accordingly, the nepotism statute is not violated if the nursing home director or hospital CEO hires the wife of a trustee to work as a social worker.

To the extent that 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 Laws. 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