DOCN 000013409
DOCK 98-0751
AUTH Patricia Aston
DATE 981223
RQNM Hunter Twiford, III
SUBJ Nepotism
SBCD: 151
TEXT

Re: Nepotism

Dear Mr. Twiford:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and response. Your letter states, in pertinent part:
 

Upon the expiration of the term of the Ward 3 appointee to the Public Utilities Commission, a question was raised as to whether the City Board could nominate the son of a duly elected, qualified and acting, and currently sitting City Commissioner to the Clarksdale Public Utilities Commission.

Your letter notes that you have also made a parallel inquiry of the Mississippi Ethics Commission.

Section 21-27-13, Mississippi Code 1972, with respect to the establishment of the public utility commission, provides in part:
 

The governing authorities of any municipality which now owns and operates, or hereafter shall own and operate, any system or systems shall have the power and authority to create a commission to control, manage and operate such systems, or any one or more of them, which said commission shall consist of not less than three (3) nor more than five (5) commissioners, to be elected by the governing authorities of such municipality. . . .

Miss. Code Ann.  25-1-53, our nepotism statute, prohibits a board from appointing a person related by blood or marriage within the third degree to a member of the board to one of five specific positions: officer, clerk, stenographer, deputy or assistant. That section states:
 

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 or member of said board of trustees; and this section shall not apply to any person seeking appointment as an election worker who has served as an election worker in the election immediately preceding the commencement of a term of office as an election commissioner by his kinsman within the third degree. The provision herein contained shall not apply in the instance of the employment of physicians, nurses or medical technicians by governing boards of charity hospitals or other public hospitals.

As your letter correctly notes, this office employs a three pronged analysis to determine whether a particular appointment would violate the prohibition against nepotism as set forth above in Section 25-1-53. First, are the parties related within the third degree? Second, is the relative who is a public official the appointing authority? Finally, is the position one of the five specific positions listed in the nepotism statute? If the answer to any of these questions is no, then the prospective employment or appointment is not prohibited.

It is clear that the proposed appointee is related within the third degree to his father, a member of the appointing authority. As to whether the position of Commissioner of the Clarksdale Public Utilities Commission is considered to be an "officer" within the nepotism statute, we have previously answered that question in the affirmative. In MS AG Op., Deramus (June 10, 1983 ), reference was made to Glover v. City of Columbus, 197 Miss. 467, 19 So.2d 756, 165 A.L.R. 1350 (1944), wherein the court stated at Page 757 concerning the definition of a public officer:
 

"...[1-3] A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Section 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be 'defined by rules prescribed by law' (Shelby v. Alcorn, 36 Miss. 273, 72 Am.Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259...."

Considering the provisions of Sections 21-27-13; 21-27-15; 21-27-17, and the text of Glover, we concluded that a commissioner appointed under the provisions of Section 21-27-13 is a municipal officer. See also MS AG Op., Wolfe (October 9, 1998). Thus, it is the opinion of this office that the appointment of the son of a member of the Board of Commissioners of the City of Clarksdale to the Clarksdale Public Utilities Commission would violate the provisions of our nepotism statute. You correctly note that whether the appointing relative votes or abstains from the appointment process in immaterial to the determination of whether the nepotism statute applies to a particular appointment.

Finally, you inquire "if the proposed nominee to the Public Utilities Commission were to agree to waive all compensation, as to whether the nepotism statute would thus become inapplicable, and the appointment could be lawfully made." In response, there is no violation of Section 25-1-53 where the family member appointed to a position is to receive no payment or compensation to be paid from public funds. See MS AG Op., Cochran (March 6, 1998).

If we may be of any further assistance, please let us know.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Patricia F. Aston
Special Assistant Attorney General

PFA:sm Enclosure