If a sheriff was elected after his son was already working as a deputy in the office, and three layers of supervision separate them, does Wyoming's anti-nepotism statute force the sheriff to fire his son?

Plain-English summary

Steve Kozisek had been Sheriff of Johnson County since 2003. His son, Paul Kozisek, had been a deputy sheriff there since 2000, three years before his father was elected. Three layers of supervision (an undersheriff, a lieutenant, and a sergeant) sat between them. The Johnson County and Prosecuting Attorney, Kenneth DeCock, asked the AG whether the sheriff was violating Wyo. Stat. Ann. § 9-13-104, which prohibits nepotism by public officials.

AG Gregory Phillips concluded he was not. The statute imposes three distinct prohibitions: (1) a public official cannot advocate or cause the employment, appointment, promotion, or transfer of a family member; (2) a public official cannot supervise or manage a family member who is in an office or position of the state or county; and (3) a public official cannot participate in his official capacity in matters of employment or discipline of a family member. The opinion walked through each:

• The son's hiring as a deputy in 2000 happened three years before the father became sheriff, so the father did not advocate or cause it.
• The sheriff stated he did not supervise or manage his son in fact, and three layers of management separated them. Phillips treated that as the appropriate fact-based inquiry.
• No one alleged the sheriff had participated in any employment or disciplinary matter involving his son.

Phillips then took on the 2005 AG opinion (Formal Opinion 2005-001), which had said elected officials necessarily have "supervisory authority" over every employee in their office and used that to read § 9-13-104 as effectively requiring the firing of any family member already employed when an elected official took office. The 2011 opinion read that as conflating "supervisory authority" with actual "supervising" of a particular employee, and noted that the statute's text talks about a public official who supervises a family member "who is in an office or position" of the county. If § 9-13-104 had meant family members can never work in the official's office, the opinion reasoned, the statute would not need to regulate the official's conduct toward someone "who is in" the office.

Phillips also pointed to Wyo. Stat. Ann. § 18-3-611, enacted in 1989, which makes the sheriff "directly supervise" an executive staff in larger sheriff departments. Read together with § 9-13-104, that statute disallows a sheriff from putting his son on the executive staff but does allow the son to remain as a regular deputy under intermediate supervisors. For smaller sheriff departments, Wyoming statutes leave supervisory structure to the sheriff, and the nepotism statute restricts the sheriff's discretion only to the extent of barring direct supervision of a family-member deputy.

The 2011 opinion expressly said it superseded the 2005 opinion in any place the two were inconsistent.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law and check for later opinions before relying on any specific rule mentioned here.

Background and statutory framework

Wyoming's Ethics and Disclosure Act, Wyo. Stat. Ann. §§ 9-13-101 through 109, was enacted in 1998 to prohibit nepotism in state, county, municipal, and school-district offices and positions. Section 9-13-104 sets out three substantive bars on public officials, public members, and public employees:

(a) No public official, public member or public employee shall advocate or cause the employment, appointment, promotion, transfer or advancement of a family member to an office or position of the state, a county, municipality or a school district. A public official, public member or public employee shall not supervise or manage a family member who is in an office or position of the state, a county, municipality or school district.

(b) A public official, public member or public employee, acting in his official capacity, shall not participate in his official responsibility or capacity regarding a matter relating to the employment or discipline of a family member.

A "family member" includes a parent, child, sibling, spouse, or other close relative under the definition at § 9-13-102(a)(v). A "public official" under § 9-13-102(a)(xiv) includes any individual elected to a state or local office. A "local office" under § 9-13-102(a)(vii) includes a county sheriff. Penalties for violation include misdemeanor conviction, a fine, and loss of employment under § 9-13-109(a) and (b).

For sheriff departments with 20 or more full-time, non-probationary deputies, Wyo. Stat. Ann. § 18-3-611 requires the sheriff to "directly supervise" an executive staff. The executive staff is composed of deputies whose primary duties include managing the department or a subdivision and exercising discretionary employment-status powers. Subsection (d) lets a sheriff demote an executive staff member but bars termination without cause.

Two earlier AG opinions had already touched the issue:
- 1998-009 (Oct. 27, 1998) read § 9-13-104 narrowly and in the abstract, concluding that the statute did not always bar a family member from working in an elected official's office.
- 2005-001 (Aug. 5, 2005) read § 9-13-104 broadly and declared 1998-009 erroneously decided. It said elected officials have supervisory authority over every employee in their office, so § 9-13-104 effectively prohibited any family member from working there.

The 2011 opinion modified the 2005 reasoning and adopted parts of the 1998 approach.

Common questions

Q: What does Wyo. Stat. Ann. § 9-13-104 actually prohibit?
A: Three things. First, advocating or causing the employment, appointment, promotion, transfer, or advancement of a family member into a state, county, municipal, or school-district office or position. Second, supervising or managing a family member who is in such a position. Third, in an official capacity, participating in matters relating to the employment or discipline of a family member.

Q: Does this statute mean elected officials can never have a family member working anywhere in their office?
A: No, not under the 2011 reading. The 2005 opinion had said yes, on the theory that elected officials inevitably "supervise" everyone in their office. The 2011 opinion rejected that abstract notion of supervision and held that the statute's plain language refers to actual supervising and managing. Where layers of intermediate management separate the elected official from the family member, and where the official does not in fact supervise that family member, the statute is satisfied.

Q: What about supervising the supervisors?
A: The opinion did not explicitly draw a line. It recognized that for sheriff departments with 20-plus deputies, Wyo. Stat. Ann. § 18-3-611 puts the executive staff under the sheriff's direct supervision, and combined with § 9-13-104 that bars a family-member deputy from sitting on the executive staff. For smaller departments, the supervisory structure is the sheriff's call, and the nepotism statute is satisfied by avoiding direct supervision of the family-member deputy.

Q: Could the sheriff be required to fire his son just because he is elected?
A: No. The opinion expressly rejected reading § 9-13-104 as imposing a duty to fire. The Legislature could have written that, but it didn't. Instead, it imposed three more limited prohibitions, all of which can be satisfied by structuring supervision so that the family member is supervised by someone other than the elected official.

Q: How does this opinion fit with Wyoming AG Formal Opinion 2005-001?
A: It expressly supersedes 2005-001 to the extent the two are inconsistent. Specifically, the 2005 opinion's premise that elected officials always have "supervisory authority" over every employee in their office, which the 2005 opinion used to extend the statute to a categorical bar on family-member employment, is no longer the operative reading of § 9-13-104.

Q: Does the 2011 opinion change the result in the 2005 fact pattern?
A: No. The 2011 opinion specifically said that the underlying facts in 2005 (a board of county commissioners trying to hire the elected county attorney's father as a special prosecutor under their supervision) would still violate § 9-13-104 even under the narrower 2011 reading, because the proposed hiring was prospective and would have placed a parent into the same prosecutorial office where the elected daughter inevitably exercised supervisory authority over assistants.

Citations and references

Wyoming statutes:
- Wyo. Stat. Ann. §§ 9-13-101 through 109
- Wyo. Stat. Ann. § 9-13-102(a)(v), (vii), (xiv)
- Wyo. Stat. Ann. § 9-13-104
- Wyo. Stat. Ann. § 9-13-109(a), (b)
- Wyo. Stat. Ann. § 18-3-611(d)

Wyoming cases:
- Mountain Cement Co. v. South Laramie Water & Sewer Dist., 2011 WY 81, 255 P.3d 881
- Wyoming Bd. of Outfitters and Prof'l Guides v. Clark, 2001 WY 78, 30 P.3d 36
- BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, 112 P.3d 596
- Murphy v. State Canvassing Bd., 12 P.3d 677 (Wyo. 2000)

Prior AG opinions:
- Wyoming AG Formal Opinion 1998-009 (cited approvingly in part)
- Wyoming AG Formal Opinion 2005-001 (modified and superseded in part)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHTHJVcHFudFdoSTA/view?resourcekey=0-6YQkJe_HbffI8-1IskyZlQ

Original opinion text

Office of the Attorney General

Governor Matthew H. Mead
Attorney General Gregory A. Phillips
Chief Deputy Attorney General Peter K. Michael

Administration
123 State Capitol
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

June 28, 2011

FORMAL OPINION 2011-001

Mr. Kenneth DeCock
Johnson County & Prosecuting Attorney
98 South Main Street, Suite A
Buffalo, Wyoming 82834

Dear Mr. DeCock:

From your letter requesting an Attorney General's opinion on this subject, we learn that in 2003 Steve Kozisek was elected sheriff in Johnson County and that since 2000 his son, Paul Kozisek, has been a deputy sheriff there. You also inform us that Sheriff Kozisek has told you that three levels of supervision separate him from his son (undersheriff, lieutenant, and sergeant).

In 1998, the Legislature enacted the Wyoming Ethics and Disclosure Act, codified at Wyo. Stat. Ann. §§ 9-13-101 through 109. Among other things, the Act prohibited nepotism:

(a) No public official, public member or public employee shall advocate or cause the employment, appointment, promotion, transfer or advancement of a family member to an office or position of the state, a county, municipality or a school district. A public official, public member or public employee shall not supervise or manage a family member who is in an office or position of the state, a county, municipality or school district.

(b) A public official, public member or public employee, acting in his official capacity, shall not participate in his official responsibility or capacity regarding a matter relating to the employment or discipline of a family member.

Wyo. Stat. Ann. § 9-13-104.

As a county sheriff, Steve Kozisek is a "public official," holding a "local office." Wyo. Stat. Ann. § 9-13-102(a)(vii), (xiv). As the sheriff's son, deputy Paul Kozisek is a "family member." Wyo. Stat. Ann. § 9-13-102(a)(v). Given these facts, we must determine whether the sheriff violates the nepotism statute by continuing to employ his son as a deputy sheriff.

The primary consideration in interpreting statutes is determining legislative intent. Mountain Cement Co. v. South Laramie Water & Sewer Dist., 2011 WY 81, ¶ 13, _ P.3d _, 2011 WL 1817179 (Wyo. May 13, 2011). In doing so, courts look to the "ordinary and obvious meaning of the words employed according to their arrangement and connection." See Wyoming Bd. of Outfitters and Prof'l Guides v. Clark, 2001 WY 78, ¶ 12, 30 P.3d 36, 41 (Wyo. 2001) (citations omitted). Courts then consider and construe in harmony "all statutes relating to the same subject or having the same general purpose." Id. Courts "construe the statute as a whole, giving effect to every word, clause, and sentence," construing "all parts of the statute in pari materia." Id. Courts do not "enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions." BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005) (citations omitted).

When a statute's plain and ordinary words are sufficiently clear and unambiguous, courts do not apply the rules of statutory construction. Murphy v. State Canvassing Bd., 12 P.3d 677, 679 (Wyo. 2000). A statute is ambiguous if it is "vague or uncertain and subject to varying interpretations." See Mountain Cement, 2011 WY 81, ¶ 13, _ P.3d at _ (citations omitted).

Under the statute's plain language, the sheriff may continue to employ his son as a deputy. The statute prohibits nepotism in three ways. First, the statute bars a public official from causing or advocating the hiring of a family member. Here, Steve Kozisek, as sheriff, did not cause or advocate his son's hiring as a deputy: the sheriff was elected three years after his son was hired. Second, when a public official did not cause or advocate a family member's hiring, the statute allows the family member to continue employment if the public official does not supervise or manage the family member. Here, nothing contradicts the sheriff's statement that he does not do so. Third, the statute prohibits a public official from participating in a family member's employment or disciplinary matter. Here, no one contends that the sheriff has done so.

Yet we acknowledge that in 2005 this Office interpreted this statute differently. Formal Opinion No. 2005-001 (August 5, 2005). This opinion declared that an elected public official necessarily has "supervisory authority" over every employee in the office. Id. at 8. Plugging that premise into the nepotism statute, the 2005 opinion in effect found that the statute set forth a condition (no supervising or managing) that never can apply. Id. In doing so, it equated "supervisory authority" with the statute's "supervising."

If used in the present case, the 2005 opinion's reasoning would replace the statute's duty not to manage or supervise a family member with a duty to fire one. Although the Legislature could have done so, it did not.

The 2005 opinion does not address the meaning of the emphasized portion of this statutory sentence: "A public official shall not supervise or manage a family member who is in an office or position of the county." Wyo. Stat. Ann. § 9-13-104(a) (emphasis added). If a family member is always prohibited from working in a public official's office, as the 2005 opinion says, why does the statute regulate the public official's conduct toward a family member who "is in" the office? Why would the Legislature do so if it simply intended to require public officials to fire family members or commit nepotism?

The underlying facts in the 2005 opinion concerned a board of county commissioners' resolution to appoint the father of the Big Horn County Attorney as a special prosecutor to assist his daughter, the county attorney, in criminal and civil cases. The resolution purported to place him under the management and supervision of the board of county commissioners. The opinion addressed two issues: (1) whether the county commissioners could properly appoint the father to this position subject to the board's supervision and management; and (2) whether the proposed arrangement would violate the nepotism statute. The opinion found (1) that the prosecutorial duties are within the exclusive jurisdiction of the county attorney and cannot be assigned to county commissioners, meaning that the county attorney must supervise subordinate attorneys; and (2) that the proposed arrangement would violate the nepotism statute, Wyo. Stat. Ann. § 9-13-104. Under the reasoning and rule of this 2011 Attorney General's opinion, we would reach the same conclusion that the proposed hiring of the county attorney's father would violate the nepotism statute.

In addition, while rejecting the 1998 opinion's distinction between direct and indirect supervision, the 2005 opinion did not comment upon Wyo. Stat. Ann. § 18-3-611, enacted in 1989. For sheriff departments with at least 20 full-time, non-probationary deputies, the sheriff "directly supervise[s]" an "executive staff" — deputies "whose primary duties consist of the management of the department or a subdivision thereof, who regularly exercise[] discretionary powers as they relate to the employment status of employees." This statute, combined with the nepotism statute, disallows a sheriff from having his son serve as a member of the sheriff's executive board. Further, the statute permits a sheriff to reduce in rank a member of the executive board (who could be a family member who had that job before the sheriff was elected), but disallows the sheriff from terminating that deputy without cause. Wyo. Stat. Ann. § 18-3-611(d).

The same principles apply to sheriff's offices with fewer than 20 full-time, non-probationary deputies. In those offices, the Wyoming statutes do not compel any certain direct supervision structure, but leave it to the sheriff. The nepotism statute restricts the sheriff's discretion by insisting that he not supervise or manage any deputy who is a family member.

The 2005 opinion also fails to address adequately Wyo. Stat. Ann. § 9-13-104(b)'s effect on the statutory interpretation. We agree with the reasoning stated in an earlier opinion, Wyoming Attorney General's Opinion No. 98-009 (October 27, 1998). There, this Office concluded that if the statute indeed always barred the public official and family member from working in the same office, subsection (b) would serve no purpose: obviously a public official cannot participate in a family member's disciplinary proceeding unless a family member works in the office. Id. at 52.

Having defined nepotism, the Legislature criminalized it and set punishments. Public officials violating the statute are subject to a misdemeanor conviction, a fine, and a loss of employment. Wyo. Stat. Ann. § 9-13-109(a), (b). Neither the statute's plain language nor common sense suggests that the sheriff risks these dire results by being elected and not firing his son, a deputy sheriff. Instead, like all public officials who have not caused or advocated the employment of family members in their offices, the sheriff complies with the nepotism statute if he does not manage or supervise his son.

This opinion supersedes the 2005 opinion in each place the two opinions are inconsistent with each other.

Sincerely,

Gregory A. Phillips
Attorney General

Ryan T. Schelhaas
Senior Assistant Attorney General