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:
- Are the parties related within the third degree of consanguinity (blood) or affinity (marriage)? Yes. Spouses are related within the third degree.
- Is the relative who is a public official the appointing authority? No. The board of trustees is not the appointing authority. The nursing home director and hospital CEO do the hiring.
- Is the job included in the list of prohibited positions? No. The statute lists five positions: officer, clerk, stenographer, deputy, or assistant. Social worker is not among them.
Because the answer to two of the three questions is no, the nepotism statute is not violated. The AG also flagged that other ethics issues (under the Mississippi Ethics in Government Laws, §§ 25-4-101 et seq.) might apply and recommended Clark contact the Mississippi Ethics Commission for those questions.
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 (school board, hospital board, library board, etc.)
Run the three-part test before assuming a relative's potential hire is problematic. If you (or any member of your board with the same hiring authority) actually do the hiring, you're the appointing authority. If hiring is delegated to a director, CEO, or other manager, you generally are not. Confirm the practice with your counsel.
If you are a hospital director or CEO doing hiring
If you are the appointing authority and a board member's relative applies, the nepotism statute does not bar the hire as long as the position is not officer, clerk, stenographer, deputy, or assistant. But you should still document your independent decision-making and consider whether other ethics rules apply (e.g., if you in turn answer to the board, the Ethics Commission may see this differently).
If you are a job applicant whose family member serves on a public board
Don't assume you're disqualified. The nepotism statute is narrower than commonly understood. Talk to the hiring authority about how the hiring decision is made and whether your relative has any role in the hiring decision.
If you are a Mississippi public-entity attorney
Walk clients through the three-part test. The pivotal questions in most cases are (a) who is the appointing authority and (b) does the position fit one of the five enumerated categories. The Ethics Commission handles the broader conflict-of-interest analysis.
If you have concerns about a hire that fits the law's letter but seems improper
Mississippi has separate ethics rules under §§ 25-4-101 et seq. governing public officials' use of position for self or family benefit. The Mississippi Ethics Commission can issue advisory opinions and conduct investigations. The narrow nepotism statute is not the whole conflict-of-interest universe.
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's the third degree of relationship?
A: The civil-law rule counts each step (parent, child, sibling, grandparent, grandchild) as a degree. Within third degree includes parents, children, siblings, grandparents, grandchildren, aunts, uncles, nieces, nephews, and (by marriage) the spouse and the equivalents on the spouse's side. Specific cases require careful counting.
Q: What are the five "prohibited positions"?
A: Officer, clerk, stenographer, deputy, and assistant. The list is closed; positions outside the list (most professional positions, technicians, social workers, drivers, etc.) are not covered by § 25-1-53.
Q: What is the "appointing authority"?
A: The person or body that actually makes the hiring decision. If a board votes on hires, the board is the appointing authority. If the board has delegated hiring to a director or CEO, that director or CEO is the appointing authority for jobs they fill.
Q: What about indirect nepotism (e.g., the trustee influences the CEO who hires the relative)?
A: § 25-1-53 doesn't reach indirect influence cleanly. But the Mississippi Ethics Commission and Ethics in Government Laws (§§ 25-4-101 et seq.) can address situations where a public official uses position for personal or family benefit, even without violating the nepotism statute literally. Behavior that exploits the nepotism gap is still subject to ethics review.
Q: Could the trustee participate in deliberations affecting his wife's job?
A: That would likely raise ethics issues independent of the nepotism statute. The Mississippi Ethics in Government Laws prohibit public officials from using their official position for personal or family benefit. The trustee should recuse himself from any matter involving his wife's employment, salary, supervision, or termination.
Q: Is there a separate school nepotism statute?
A: Yes. § 37-9-21 has school-specific nepotism rules. § 25-1-53 is the general statute applicable to most public entities.
Q: What if the hospital is a private nonprofit, not a county hospital?
A: § 25-1-53 applies to public officials and public boards. A private nonprofit hospital might not be subject to the statute, but might have its own conflict-of-interest policies and bylaws. Jefferson County's nursing home and hospital are described in the request as county facilities, so § 25-1-53 applies.
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:
- Relationship within the third degree. Required for the prohibition to apply.
- 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.
- 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