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:
- 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.
- Is the relative the appointing authority? Yes. The mayor is the appointing authority for the school board.
- 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
Don't assume nepotism is a hard no. If the position pays from public funds (salary, per diem, reimbursement), the relative can waive that compensation in writing and the appointment can proceed. Document the waiver formally. Note: the waiver workaround is a creature of AG opinion, not statute, so consult counsel about its limits.
If you are a public official considering accepting an appointment from a relative
Get the waiver in writing before accepting. Cover salary, per diem, and travel/expense reimbursements. Keep the documentation. Continue to behave as an unpaid volunteer; if you accept any payment later, the nepotism violation revives.
If you serve on a school board where one member is a relative of the appointing authority
Ask whether they signed a waiver. If they're receiving any compensation or reimbursement, the nepotism workaround doesn't apply, and the appointment may be invalid. The Mississippi Ethics Commission can advise.
If you are a city or school district attorney
Draft a clear, durable waiver form. It should cover § 37-6-13 salary or per diem, all travel and expense reimbursements (regular school board meetings, training, regional or national education meetings), and any other future compensation streams. Have the appointee sign it before the appointment is finalized.
If you are a Mississippi voter
The waiver mechanism is a quirky feature of Mississippi law. It allows public bodies to include relatives of officials so long as the relative serves without pay. Whether this is a feature or a workaround is for the Legislature and voters to weigh. The Ethics Commission and Auditor have ongoing review power.
Common questions
Q: Why does the waiver workaround exist?
A: § 25-1-53 is concerned with relatives being "paid out of the public funds." If there's no payment from public funds, the statutory concern is satisfied. AG opinions developed the waiver mechanism over time as a way to honor the statute's purpose without barring all family appointments.
Q: What does the waiver have to cover?
A: Per Hammack and successor opinions: all payments under § 37-6-13 (salary or per diem) and all reimbursements (travel to school board meetings, training sessions, regional or national education meetings). Anything otherwise available to a school board member must be waived.
Q: Does the waiver need to be in writing?
A: Yes, as a practical matter. Oral waivers are unenforceable for verification purposes; the State Auditor and Ethics Commission both work from documentary evidence.
Q: Can the appointee later revoke the waiver and start receiving payment?
A: That would create a nepotism violation as of the date payment begins. The appointee would need to resign first or remain unpaid for the duration of their term while the appointing relative remains in their role.
Q: What happens if compensation is paid despite a waiver?
A: The nepotism statute is violated as of that payment, and the State Auditor can pursue recovery. The appointment may also be voidable. Avoid paying the appointee anything from public funds.
Q: What if the appointee is just reimbursed for personal expenses (gas, mileage)?
A: That's a payment from public funds and triggers the nepotism statute. The waiver must include reimbursements as well as salary.
Q: Can private parties cover the appointee's expenses?
A: Possibly. If a private donor pays the appointee's mileage or registration fees, that's not a public-funds payment. But that arrangement may raise ethics issues under §§ 25-4-101 et seq. Consult the Ethics Commission before relying on private reimbursement.
Q: Does the waiver workaround apply to other family appointments (e.g., a brother appointed by a sister-mayor)?
A: Yes, the same logic applies. As long as the three nepotism elements are otherwise satisfied (relationship, appointing authority, prohibited position) and the appointee waives all public-funds compensation, the appointment can proceed.
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