If a mayor would end up supervising his spouse who works for the town, does that violate nepotism or ethics rules?

Official title

Opinion addressing the applicability of a municipal nepotism policy.

Requester

Requested by Mr. Howard Garland, Town Administrator, Town of Jefferson.

Plain-English summary

The town administrator for the Town of Jefferson asked the Attorney General about the town's nepotism policy. The situation: the husband of the assistant town clerk was running for mayor, and the assistant clerk was in line to be promoted to town clerk once the current clerk retired. If the husband won, he would, as mayor, be his wife's direct supervisor. The town's nepotism policy bars members of the same immediate family from being employed where one directly or indirectly supervises the other or interacts with the other in handling money, and it defines immediate family to include a spouse.

The Attorney General gave two answers. First, on the town's own policy, the office said interpreting and enforcing it is within the Town Council's discretionary authority. Jefferson operates under the council form of government, where all legislative and administrative power is vested in the municipal council. The office also noted that under the South Carolina Tort Claims Act, a municipality cannot be held liable for a loss resulting from failure to enforce its own written policies, citing § 15-78-60(4) and Adkins v. Varn. So whether to apply the nepotism policy is the Council's call.

Second, and more important, the office flagged that this scenario could implicate the state Ethics Act, which is administered by the State Ethics Commission, not the Attorney General. The AG laid out the relevant Ethics Act provisions: § 8-13-750 bars a public official from causing the employment, promotion, or advancement of a family member to a position the official supervises, and from participating in disciplinary action involving a family member; and § 8-13-700 bars a public official from knowingly using his office to obtain an economic interest for a family member. A mayor is a "public official" under the Act, and "family member" includes a spouse. Because the mayor, as a voting council member, would likely participate in appointing the town clerk under § 5-7-220, and would supervise that clerk, both subsections of § 8-13-750 could be in play.

But the AG stressed that whether the Ethics Act actually applies to these facts is a factual question reserved to the Ethics Commission, which has exclusive jurisdiction over interpreting and enforcing the Act. So the office's bottom-line advice was to request an advisory opinion from the State Ethics Commission. (It also noted that the old general anti-nepotism statute, § 8-5-10, has been repealed.)

What this means for you

Town councils and administrators: Based on this opinion, enforcing your own nepotism policy is a matter of council discretion, and the Tort Claims Act shields the municipality from liability for not enforcing a written policy. But a spouse-supervises-spouse arrangement involving an elected official can raise separate Ethics Act issues that are not yours to resolve.

Public officials in similar situations: The opinion points to two Ethics Act concerns: causing or participating in the employment or advancement of a spouse you would supervise, and participating in that spouse's discipline. The AG did not decide whether the Act is violated here; it routed that question to the Ethics Commission.

Anyone facing a government nepotism or ethics question: The practical takeaway is procedural. The Attorney General will not decide Ethics Act applications; the State Ethics Commission has exclusive jurisdiction, so an ethics advisory opinion is the right vehicle.

Common questions

Who decides whether the town's nepotism policy applies?
The Town Council. The AG concluded that interpreting and enforcing the town's nepotism policy is within the council's discretionary authority.

Could a mayor supervising his spouse violate state law, not just town policy?
Possibly. The AG said the scenario could implicate the Ethics Act's bans on causing a family member's employment in a supervised position (§ 8-13-750(A)) and participating in a family member's discipline (§ 8-13-750(B)), but whether it actually does is for the Ethics Commission to decide.

Why didn't the Attorney General just answer the ethics question?
Because the State Ethics Commission has exclusive jurisdiction over interpreting and enforcing the State Ethics Act, and the application turns on facts the AG cannot adjudicate. The office advised requesting an ethics advisory opinion.

Is there still a general state nepotism statute?
No. The AG noted that the general statutory provision prohibiting nepotism, § 8-5-10, has been repealed. The live constraints here come from the town's policy and the Ethics Act.

Background and statutory framework

The Town of Jefferson uses the council form of government under §§ 5-11-10 to -40, where § 5-11-30 vests all legislative and administrative power in the municipal council, with each member including the mayor having one vote. Under § 5-7-220, the council appoints a municipal clerk. The South Carolina Tort Claims Act, including § 15-78-60(4), provides that a governmental entity is not liable for a loss from adopting or failing to enforce any law or written policy; Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993), held that provision is clear and not subject to judicial interpretation.

The Ethics, Government Accountability, and Campaign Reform Act of 1991 supplies the rules the AG flagged. Section 8-13-750 bars causing a family member's employment, promotion, or advancement in a supervised position and bars participating in a family member's discipline. Section 8-13-700 bars knowingly using one's office to obtain an economic interest for a family member. Section 8-13-100(27) defines "public official" to include an elected municipal official, and the Act defines "family member" and "immediate family" to include a spouse. The Ethics Commission has exclusive jurisdiction over the Act, which is why the AG declined to resolve the application and advised an ethics advisory opinion.

Citations

• S.C. Code Ann. § 8-13-750 (no causing a supervised family member's employment; no participating in family member's discipline)
• S.C. Code Ann. § 8-13-700 (no using office for a family member's economic interest)
• S.C. Code Ann. § 8-13-100(27) (definition of "public official")
• S.C. Code Ann. § 15-78-60(4) (Tort Claims Act immunity for failure to enforce written policies)
• S.C. Code Ann. § 5-11-30 (council form of government powers)
• S.C. Code Ann. § 5-7-220 (council appoints municipal clerk)
• Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-applicability-of-a-municipal-nepotism-policy/
• Original PDF: https://www.scag.gov/media/m1zj0cvk/03468013.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

December 21, 2023

Howard Garland

Town Administrator
Town of Jefferson
P.O. Box 306
Jefferson, SC 29718

Dear Mr. Garland:

We understand you are the town administrator for the Town of Jefferson (the Town) and wish to
request an Attorney General’s opinion on behalf of the Town. By way of background, you state:
The husband of our assistant town clerk is running for Mayor of the Town and with

the retirement of our current town clerk, the assistant town clerk is in line to be
promoted to the town clerk position. If elected mayor, the husband of our assistant
town clerk would be his wife’s direct supervisor if she were to assume the town
clerk position.

You have also provided the text of the Town’s nepotism policy:
People in the same immediate family may not be employed or continue to be
employed if one directly or indirectly supervises another or interacts with another
in the handling of money or compensation. Immediate family is defined as spouse,
parent, child, grandparent, brother or sister, parent-in-law, grandparent-in-law,
brother-in-law, and sister-in-law.

We understand you are requesting an opinion on whether the Town’s nepotism policy would be
implicated in the factual scenario outlined in your letter.
Law/Analysis

Initially, we believe it is within the Town Council’s authority to interpret and decide whether to
enforce the Town’s nepotism policy. It is our understanding that the Town operates under a
council form of government pursuant to sections 5-1 1-10 to -40 ofthe South Carolina Code (2004).
“Under the council form of government there shall be a municipal council composed of five, seven
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Howard Garland
Page 2

December 21, 2023

or nine members including the mayor.” S.C. Code Ann. § 5-11-20. “All legislative and
administrative powers of the municipality and the determination of all matters of policy shall be
vested in the municipal council. Each member of council, including the mayor, shall have one
vote.” S.C. Code Ann. § 5-11-30. We believe a court would determine that under the South

Carolina Tort Claims Act, 1 a municipality could not be held liable for a loss resulting from the
failure to enforce written policies. See S.C. Code Ann. § 15-78-60(4) (2005) (providing that under
the South Carolina Tort Claims Act, a governmental entity is not liable for a loss resulting from
the “adoption, enforcement, or compliance with any law or failure to adopt or enforce any law,
whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution,

rule, regulation, or written policies; . . .”); S.C. Code Ann. § 1 5-78-30(d) (2005) (“‘Governmental
entity’ means the State and its political subdivisions.”); S.C. Code Ann. § 15-78-30(h) (2005)
(providing “political subdivision” includes municipalities of the State); see Adkins v. Vam, 312
S.C. 188, 192, 439 S.E.2d 822, 824 (1993) (“The provisions of [s]ection 15-78-60(4) are clear and
unambiguous on their face, and are not subject to judicial interpretation.”). Accordingly, we
believe the interpretation and enforcement of the Town’s nepotism policy is within the Town
Council’s discretionary authority. Nevertheless, because we believe a scenario such as the one
described in your letter could implicate certain provisions of the Ethics, Government

Accountability, and Campaign Reform Act of 1991 (the Ethics Act),2 we advise that you seek an
opinion from the Ethics Commission on this matter.3 See Op, S.C. Atty. Gen.. 1 998 WL 62947
(January 6, 1998) (“State law does not authorize this Office to issue an opinion upon any matter
which is within the jurisdiction of the State Ethics Commission.”).
However, we provide the following law in the hope it may be helpful to you.
The Ethics Act provides,

(A) No public official, public member, or public employee may cause the
employment, appointment, promotion, transfer, or advancement of a family
member to a state or local office or position in which the public official, public
member, or public employee supervises or manages.
(B) A public official, public member, or public employee may not participate in an
action relating to the discipline of the public official's, public member's, or public

employee's family member.

S.C. Code Ann. § 8-13-750 (2019). As an elected official of a municipality, the Town’s mayor is
a public official under the provisions of the Ethics Act. S.C. Code Ann. § 8-13-100(27) (2019)
(‘“Public official’ means an elected or appointed official of the State, a county, a municipality, or

1 S.C. Code Ann. §§ 15-78-10, et seq. (2005 & Supp. 2023).
2 S.C. Code Ann. §§ 8-13-100, el seq. (2019 & Supp. 2023).
3 We note the State statutory provision generally prohibiting nepotism, section 8-5-10 of the South
Carolina Code, has been repealed.

Howard Garland
Page 3
December 21, 2023

a political subdivision thereof, including candidates for the office.”); S.C. Code Ann. § 5-1 1 -20(b)
(“The mayor and members of the council shall be elected in accordance with Chapter 15.”). The

Ethics Act defines “family member” to include a spouse.

S.C. Code Ann. § 8-13-100(1 5)(a)

(2019).

We believe both subsections of section 8-13-750 could be implicated in the scenario described in
your letter. Pursuant to section 5-7-220 of the South Carolina Code (2004), the Town Council
“shall appoint an officer of the municipality who shall have the title of municipal clerk.” As a

voting member of the Town Council, the mayor would likely participate in the appointment of the
town clerk. Therefore, we believe a spousal relationship between the Town’s mayor and the
appointed town clerk could be prohibited under subsection (A). Further, assuming the Town’s
mayor acts as the town clerk’s direct supervisor, any participation in disciplinary matters
concerning the town clerk could be prohibited under subsection (B) if a spousal relationship
existed between them.
Moreover, section 8-13-700 of the South Carolina Code (2019) prohibits a public official from
knowingly using their office to obtain an economic interest for themselves or an immediate family

member, such as a spouse. § 8-13-700 (“No public official, public member, or public employee
may knowingly use his official office, membership, or employment to obtain an economic interest
for himself, a family member, an individual with whom he is associated, or a business with which
he is associated.”); § 8-1 3-100(1 8)(b) (2019) (providing “immediate family” includes a public
official’s spouse).

The determination of whether sections 8-13-700 and -750 apply to the scenario described in your
letter is a factual question to be determined by the Ethics Commission. See Op. S.C. Att’v Gen.,
2013 WL 6924890 (S.C.A.G. December 23, 2013) (recognizing the Ethics Commission’s
“exclusive jurisdiction regarding any resolution of questions involving interpretation and
administrative enforcement of the State Ethics Act”); Op. S.C. Att’v Gen., 2006 WL 1207271
(S.C.A.G. April 4, 2006) (providing that “[b]ecause this Office does not have the authority of a
court or other fact-finding body, we are not able to adjudicate or investigate factual questions.”
(alteration in original) (quoting Op. S.C. Att'v Gen., 1989 WL 406130 (April 3, 1989))).
Accordingly, we advise you to request an ethics advisory opinion on this matter.

Howard Garland
Page 4
December 21, 2023

Conclusion

We believe the interpretation and enforcement of the Town’s nepotism policy is within the Town
Council’s discretionary authority. Nevertheless, because we believe the Ethics Act could be
implicated in a scenario such as the one described in your letter, we advise you to seek an opinion

from the Ethics Commission on this matter.
Sincerely,

Elizabeth McCann

Assistant Attorney General

REVIEWED AND APPROVED BY:

A
'Robert D. Cook
Solicitor General

,