Can a Mississippi sheriff rehire his brother as chief deputy after the brother retires and returns?

Plain-English summary

Sheriff Willie March of Holmes County had a brother who was already serving as chief deputy. The brother wanted to retire, wait 90 days, then come back. Sheriff March asked the AG three questions:

1. Can I rehire my brother as chief deputy? No. The nepotism statute bars it. The "employee already in the department" exception doesn't apply to rehires.
2. Can the board of supervisors hire my brother as a county patrol officer? The AG declined to answer. § 7-5-25 limits AG opinions to questions about the requesting officer's office. The AG can't opine on what the board of supervisors can do at the sheriff's request.
3. Can the board hire my brother and assign him to my department, then I make him chief deputy? No. Two reasons: (a) the AG can't opine on the board's authority for the same § 7-5-25 reason; and (b) sheriffs (not boards of supervisors) hire sheriff's department employees under § 19-25-19, so the board can't hire someone for the sheriff's department. The nepotism statute also has no recusal or step-aside provision (MS AG Op., Turnage, Oct. 28, 2021).

The full nepotism analysis on Question 1:

• Relationship? Brothers are within the third degree (MS AG Op., Ponthieux, Apr. 11, 2003). ✓
• Appointing authority? § 19-25-19 makes the sheriff the appointing authority for the sheriff's department. ✓
• Prohibited position? A sheriff's deputy is in the prohibited list (officer/deputy). MS AG Op., Carnathan (Aug. 13, 2010) and Chamberlin (Jan. 6, 2004). ✓

All three elements satisfied. Statute is violated.

The "pre-existing employee" exception in § 25-1-53 says the statute "shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution." That carves out brothers who were already deputies when the sheriff took office. But once the brother retires, he's no longer "in said department." Bringing him back is a new hire, and the exception doesn't reach new hires. So a 90-day-and-return scheme cannot bypass the nepotism statute.

The AG also reminded the sheriff that there is no "step-aside" or "recuse" provision in § 25-1-53. So a sheriff can't have someone else (like the board of supervisors) make the formal hire and then take operational control. The hiring authority is the sheriff's, period.

What this means for you

If you are a Mississippi sheriff with a brother (or other close relative) currently working as a deputy

The pre-existing employee exception protects them from the nepotism rule as long as they remain employed. If they leave (retire, resign, or are terminated) and want to come back, they cannot be rehired under the exception. A break in service ends their pre-existing-employee status.

If you are a deputy considering retirement and rehiring

If your sheriff is a relative within the third degree, you can't come back after retirement. You could potentially work for a different sheriff's department (in a different county where your relative is not the sheriff) or in a different role outside the prohibited positions, but you can't be rehired by the same department.

If you are a sheriff trying to keep an experienced relative in the department

You have a few legitimate options:
- The relative continues working without retiring (no break in service).
- The relative retires and works in a different county or department.
- The relative serves in a non-deputy role that isn't a "prohibited position" (most professional/technical roles are not on the list).

If you are on a board of supervisors approached by a sheriff with a workaround scheme

The sheriff may suggest the board hire the relative as a "county employee" assigned to the sheriff's department, with the sheriff designating a role afterward. Don't agree. § 19-25-19 makes the sheriff the hiring authority for the sheriff's department; the board doesn't have authority to hire sheriff's department employees, and the AG opinion confirms there is no step-aside path.

If you are a county attorney advising the sheriff

Walk through the three-part nepotism test. Then check the pre-existing exception. If the relative is leaving and wants to return, the exception is broken.

Common questions

Q: Why is the nepotism statute so strict?
A: § 25-1-53 reflects a legislative judgment that close family relationships in employment chains create real conflicts of interest, and the categorical rule is easier to enforce than case-by-case ethics review.

Q: What if the sheriff has been chief deputy first and then his brother is hired before the sheriff is elected?
A: That falls within the pre-existing exception. As long as the deputy was in the department before the sheriff (his relative) took office, the exception applies and the deputy can stay on.

Q: What if the relative is hired by a previous sheriff?
A: Same analysis. The relative was in the department before the current sheriff (the relative) took office. Pre-existing exception applies.

Q: Why doesn't a 90-day break work as a "fresh start"?
A: Because the exception is about being already in the department. A break in service ends that status. A 90-day-and-return is functionally a new hire, and new hires of relatives are barred.

Q: Can the sheriff's spouse work in the department?
A: Same analysis. Spouses are within the third degree by affinity. Without the pre-existing exception, hiring a spouse as a deputy would violate § 25-1-53.

Q: What about cousins?
A: First cousins are within the fourth degree under the civil law rule. So they are outside the third-degree limit, and the nepotism statute does not bar a sheriff from hiring a first cousin. Closer cousins (no such relationship typically counted at less than first cousin) would be within the third degree.

Q: What's a "prohibited position" under § 25-1-53?
A: Officer, clerk, stenographer, deputy, or assistant. The list is closed. Most professional positions (deputies, sheriffs are deputies, but chief deputy is also covered as deputy/officer; nurses, IT staff, accountants, etc. are typically not on the list).

Q: Why doesn't the board of supervisors have authority to hire for the sheriff's department?
A: § 19-25-19 makes the sheriff the appointing authority for deputies. The board sets the budget; the sheriff fills positions. This is constitutional separation between county-level executive authorities. Simmons (Aug. 8, 2005) confirmed.

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 full text includes a key carve-out:

This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution.

This pre-existing exception protects continuity. If a deputy was in the department before the sheriff took office, the deputy keeps their job. But once the employment ends and a new hire is needed, the exception no longer applies.

§ 19-25-19 establishes the sheriff's appointing authority:

Every sheriff shall have power to appoint one or more deputies to assist him in carrying out the duties of his office, every such appointment to be in writing, to remove them at pleasure, and to fix their compensation, subject to the budget for the sheriff's office approved by the county board of supervisors.

The sheriff hires; the board funds. The sheriff cannot delegate the hire to the board, and the board cannot encroach on the sheriff's hiring authority.

Prior AG opinions have settled the categorical questions:
- Brothers are within the third degree (Ponthieux, Apr. 11, 2003).
- A deputy is a prohibited position (Carnathan, Aug. 13, 2010; Chamberlin, Jan. 6, 2004).
- There is no recusal or step-aside provision (Turnage, Oct. 28, 2021).
- Boards of supervisors do not have authority to hire sheriff's department employees (Simmons, Aug. 8, 2005).

The March opinion combines these to address the specific rehire-after-retirement scenario. The pre-existing exception doesn't help; the alternative routing through the board doesn't help either. The sheriff's hands are tied: he cannot bring his brother back into the sheriff's department.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25 (AG opinion authority limited to questions about requesting officer's office)
- Miss. Code Ann. § 19-25-19 (sheriff's authority to appoint deputies; budget controlled by board)
- Miss. Code Ann. § 25-1-53 (general nepotism statute; pre-existing employee exception)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/W.March-March-14-2024-Hiring-Brother-as-Deputy-1.pdf

Original opinion text

March 14, 2024

The Honorable Willie March
Sheriff, Holmes County
Post Office Box 120
Lexington, Mississippi 39095

Re: Hiring Brother as Deputy

Dear Sheriff March:

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

Background

According to your request, your brother is the chief deputy sheriff and would like to retire and return to work after 90 days.

Questions Presented

1. May I rehire my brother as my chief deputy?

2. May the board of supervisors hire my brother back as a county patrol officer?

3. May the board of supervisors hire my brother and assign him to the sheriff's department and then I make him chief deputy?

Brief Response

1. The nepotism statute prohibits a sheriff from hiring his brother as a chief deputy sheriff.

2. Mississippi Code Annotated Section 7-5-25 authorizes the Attorney General to issue official opinions to various public officials "upon any question of law relating to their respective offices." Official opinions are not issued to advise one public officer about another public officer's authority and responsibilities. Thus, we cannot issue an opinion to you regarding the board of supervisors' authority to hire a county patrol officer.

3. See response 2. The sheriff has the authority to hire employees for the sheriff's department. There is no authority for you, as sheriff, to seek to have the board of supervisors hire your brother and assign him to the sheriff's department.

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. This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution . . . .

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) (citing MS AG Op., Harrington (May 30, 1991)).

With respect to the first part of the nepotism analysis, brothers are related within the third degree of kinship. MS AG Op., Ponthieux at 1 (Apr. 11, 2003). As to the second part, the sheriff is the hiring authority for the sheriff's department. Miss. Code Ann. § 19-25-19 ("Every sheriff shall have power to appoint one or more deputies to assist him in carrying out the duties of his office, every such appointment to be in writing, to remove them at pleasure, and to fix their compensation, subject to the budget for the sheriff's office approved by the county board of supervisors."). As to the third part, a sheriff's deputy is within one of the five prohibited positions listed in the nepotism statute. See MS AG Ops., Carnathan at 1 (Aug. 13, 2010) and Chamberlin at *1 (Jan. 6, 2004).

Thus, in response to your first question, the sheriff is prohibited by the nepotism statute from hiring his brother as a deputy sheriff. See MS AG Op., Griffin at *1 (May 13, 2020). Notably, the exception allowing an employee who was in the department prior to the relative becoming head of the department to remain employed would not apply to reemployment after retirement because this would require the rehiring of the employee and would, thus, be prohibited.

With respect to your third question, the sheriff is the hiring authority for the sheriff's department. Miss. Code Ann. § 19-25-19; see MS AG Op., Simmons at 1 (Aug. 8, 2005) (opining that the board of supervisors does not have the authority to hire or fire employees for the sheriff's department). There is no recusal or step-aside provision in the nepotism statute. MS AG Op., Turnage at 3 (Oct. 28, 2021). Thus, there is no authority for you, as sheriff, to have the board of supervisors hire your brother and assign him to the sheriff's department as suggested in your third question.

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