Can a Mississippi mayor appoint his son to the school board if the son refuses any pay?

Plain-English summary

Bay St. Louis Councilman Gary Knoblock asked whether the city's mayor could appoint his son to the Bay-Waveland School District board if the son does not receive any compensation as a school board member.

The AG worked through the standard three-part nepotism test:

1. Are the parties related within the third degree? Yes. Father and son are within the first degree of consanguinity, far inside the third-degree limit.
2. Is the relative the appointing authority? Yes. The mayor is the appointing authority for the school board.
3. Is the position one of the prohibited positions? Yes. A school board member is an "officer" under § 25-1-53. (Prior MS AG Op., Hammack, Apr. 10, 2015, settled this.)

All three elements are satisfied, which would normally mean the appointment is barred by the nepotism statute.

But there's an established workaround. Under Hammack and prior opinions, a nepotism violation can be avoided when the relative-appointee waives all payments or reimbursements using public funds. The waiver must cover everything the appointee would otherwise receive: salary or per diem under § 37-6-13, and travel and expense reimbursements (for school board meetings, training sessions, and education conferences). With a complete and durable waiver, the statutory concern about public-funds compensation drops out, and the appointment is permitted.

So the answer is yes, conditional. The mayor can appoint his son to the school board if the son formally waives all compensation and reimbursements from public funds for the role. The waiver should be in writing and cover the full scope identified in Hammack. The AG also noted that other ethics issues might apply under §§ 25-4-101 et seq. and recommended contacting the Mississippi Ethics Commission for those.

What this means for you

If you are a mayor or other appointing authority considering appointing a relative

The opinion holds the appointment "would not be a nepotism violation" only "if the son waives all payments or reimbursements that come from public funds for his service as a school board member." Without that waiver, all three nepotism elements are met (relationship, appointing authority, prohibited position) and the appointment is barred.

If you are a public official offered an appointment by a relative

The opinion relies on the Hammack opinion: a nepotism violation "can be avoided if the appointee waives all payments or reimbursements using public funds." For a school board member, that waiver "must apply to payments under Section 37-6-13, including the salary or per diem, and payment in reimbursement for expenses and travel."

If you are a city or school district attorney

The opinion identifies the required scope of the waiver by quoting Hammack: payments under § 37-6-13 (salary or per diem) and reimbursement for expenses and travel "otherwise available to school board members for travel to school board meetings and any training sessions or regional or national education meetings."

If you have other conflict-of-interest concerns

The opinion does not resolve broader ethics questions; 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.).

Common questions

Q: Why does the waiver avoid the nepotism statute?
A: The opinion turns on the statutory phrase barring employment of a relative "who is to be paid out of the public funds." It applies the Hammack opinion that a nepotism violation "can be avoided if the appointee waives all payments or reimbursements using public funds."

Q: What does the waiver have to cover?
A: Per the Hammack language the opinion quotes, "the waiver must apply to payments under Section 37-6-13, including the salary or per diem, and payment in reimbursement for expenses and travel . . . otherwise available to school board members for travel to school board meetings and any training sessions or regional or national education meetings."

Q: Is reimbursement (not just salary) part of what must be waived?
A: Yes. The Hammack language the opinion quotes expressly includes "payment in reimbursement for expenses and travel," so reimbursements must be waived along with salary or per diem.

Q: Does the opinion fully clear the appointment of all concerns?
A: No. It addresses only the nepotism statute and recommends contacting the Mississippi Ethics Commission about "other possible ethics issues" under §§ 25-4-101 et seq.

Background and statutory framework

Mississippi's general nepotism statute, § 25-1-53, makes it unlawful for a public official to appoint or employ a relative within the third degree as an officer, clerk, stenographer, deputy, or assistant who is to be paid from public funds.

The statutory phrase that opens the waiver door is "who is to be paid out of the public funds." If the appointee is not paid from public funds, the statutory bar doesn't apply. AG opinions over many years have built up the waiver mechanism on this textual hook.

§ 37-6-13 establishes school board member compensation:

• Salary or per diem.
• Reimbursement for travel and expenses related to school board meetings.
• Reimbursement for training sessions.
• Reimbursement for regional or national education meetings.

A complete waiver under Hammack covers all of these.

§§ 25-4-101 et seq. is the Mississippi Ethics in Government Laws. Even when nepotism doesn't apply (or has been avoided through a waiver), the broader ethics rules can still reach situations where a public official uses position for family benefit. The Ethics Commission is the right body for those questions.

The three-part nepotism test (from Nowak, June 5, 2020):

1. Relationship within the third degree?
2. Public-official relative is the appointing authority?
3. Position is one of the five prohibited categories?

If all three are yes, the appointment is presumed barred unless the waiver applies. Knoblock is a textbook application: father (mayor) appoints son (school board), all three elements satisfied, but waiver of compensation rescues the appointment.

The opinion is also notable for not endorsing the workaround as a categorical rule. The AG recommends contacting the Ethics Commission for "other possible ethics issues," signaling that the waiver mechanism is a partial fix focused on the nepotism statute, not a comprehensive blessing of relative appointments.

Citations and references

Statutes:

• Miss. Code Ann. § 25-1-53 (general nepotism statute)
• Miss. Code Ann. § 37-6-13 (school board member compensation)
• 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/G.Knoblock-March-20-2024-Nepotism.pdf

Original opinion text

March 20, 2024

The Honorable Gary Knoblock
Councilman, City of Bay St. Louis
688 Highway 90
Bay St. Louis, Mississippi 39520

Re: Nepotism

Dear Mr. Knoblock:

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

Question Presented

Would it be a violation of the nepotism statute for the mayor of Bay St. Louis to appoint his son to the Bay-Waveland School District if the son does not receive any compensation as a school board member?

Brief Response

If the son waives all payments or reimbursements that come from public funds, it would not be a nepotism violation for the mayor to appoint his son to the local school board.

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 (emphasis added). 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).

In your factual scenario, the answer to all of these questions is yes. Father and son are related within the third degree, the father is the appointing authority, and a school board member is considered an officer under the nepotism statute. MS AG Op., Hammack at 1 (Apr. 10, 2015). However, you further state in your request that the son does not receive any payment or reimbursement using public funds for his service as a school board member. This office has previously opined that a nepotism violation can be avoided if the appointee waives all payments or reimbursements using public funds. Hammack at 1. "With regard to a school board member, the waiver must apply to payments under Section 37-6-13, including the salary or per diem, and payment in reimbursement for expenses and travel . . . otherwise available to school board members for travel to school board meetings and any training sessions or regional or national education meetings." Id. (internal citation omitted). Accordingly, it would not be a nepotism violation for the mayor to appoint his son to the local school board if the son waives all payments or reimbursements that come from public funds for his service as a school board member.

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