Is a niece-in-law a 'relative' under Arkansas's state-agency anti-nepotism statute?

Plain-English summary

Mark Myers, Director of the Arkansas Department of Information Systems, asked the AG to clarify a recurring confusion in state hiring. Ark. Code Ann. § 25-16-1002(b) bars state employees who are "relatives" from being in the same direct line of supervision in the same agency. The Office of Personnel Management's hiring form (F3/F4) requires applicants to disclose whether they are a "relative" of a state employee, and uses its own definition list.

The fact pattern: a job applicant disclosed on the form that she was a niece-in-law of a sitting state employee. The state employee was a Division Administrator several layers up the supervisory chain. The agency rejected the applicant because of the relationship.

The AG concluded the rejection was not legally required.

The statute (§ 25-16-1001(3)) defines "relative" as "a husband, wife, mother, father, stepmother, stepfather, mother-in-law, father-in-law, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, daughter, son, stepdaughter, stepson, daughter-in-law, son-in-law, uncle, aunt, first cousin, nephew, or niece." The list includes six in-law relationships but not niece-in-law (or nephew-in-law, aunt-in-law, uncle-in-law, or cousin-in-law).

Arkansas applies the canon expressio unius est exclusio alterius: the express designation of one thing is the exclusion of another (Chem-Ash, Inc. v. Arkansas Power & Light Co.; Venhaus v. Hale). The statute's use of the definitive verb "means" signals the list is exhaustive. The legislature went into great detail enumerating which in-law relationships qualify; its silence about niece-in-law is meaningful exclusion, not oversight.

The AG noted a wrinkle: the OPM form uses "Relative includes:" rather than "Relative means:". "Includes" is typically read as introducing a non-exhaustive list. That could lead applicants, acting with caution, to disclose more relationships than the statute requires. The AG flagged this as a drafting issue but emphasized that the statute controls. (OPM Policy 30.08 itself appears to limit "relative" to the statutory list, and OPM Form F-8 also tracks the statute, so the form's broader-looking language seems to be an outlier.)

For the underlying hiring decision, the answer was direct: § 25-16-1002(b) does not preclude a state agency from placing a niece-in-law in a position within the chain of command of a state-employee uncle-in-law or aunt-in-law. The familial relationship is outside the statutory bar.

Currency note

This opinion was issued in 2015. 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 before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas's state-agency anti-nepotism rule sits in title 25 (state government) and operates at the within-agency level: relatives cannot be in the same direct line of supervision. The statute does not bar state employment of relatives generally, only the supervisory-line problem.

The definition of "relative" in § 25-16-1001(3) is a closed list with the introductory verb "means." Arkansas Supreme Court doctrine treats "means" definitions as exhaustive. The legislature also used the expressio unius canon by going into deliberate detail on which in-law relationships count, so silence about other in-law relationships (niece-in-law, nephew-in-law, etc.) is a deliberate exclusion.

OPM's Form F3/F4 is the standard employee disclosure form. Ark. Code Ann. § 25-16-1006(a) gives OPM authority to design such forms. The form's language uses "includes," which traditionally indicates a non-exhaustive list, but the AG concluded that the statute's exhaustive definition controls regardless of form drafting.

OPM Policy 30.08 itself appears to read "relative" in line with the statute, and OPM Form F-8 also tracks the statute, which suggests the F3/F4's wording is a drafting inconsistency rather than a deliberate broader policy. The AG flagged this but did not recommend any specific corrective action.

Common questions

My niece-in-law applied for a job in the agency I supervise. Can I block her hire?

Not based on the nepotism statute alone. Niece-in-law is not on the statute's list of "relatives." Other policies (your agency's internal rules, conflict-of-interest disclosure, etc.) may still apply, but the supervisory-line bar does not.

Which in-law relationships count under the statute?

Six: mother-in-law, father-in-law, brother-in-law, sister-in-law, daughter-in-law, son-in-law. The statute does not extend to niece-in-law, nephew-in-law, aunt-in-law, uncle-in-law, or cousin-in-law.

Does this apply to political-subdivision hiring (cities, counties, school districts)?

No. Section 25-16-1002(b) is a state-agency provision. Cities, counties, and school districts have their own nepotism rules that may differ.

The form asks if I'm a "relative" and lists relationships. Should I disclose extended in-laws?

Erring on the side of disclosure is generally fine. But the legal consequence (potential hiring bar under § 25-16-1002(b)) only attaches to the statutory list. The form's "includes" language could be over-broad in scope.

Could the legislature expand the definition to cover niece-in-law and similar relationships?

Yes. The legislature could amend § 25-16-1001(3) to add additional relationships. Some states have broader nepotism definitions than Arkansas does. The AG's role here was to interpret the existing statute, not to recommend amendments.

Citations

• Ark. Code Ann. § 25-16-1001(3) (Repl. 2014) (definition of "relative")
• Ark. Code Ann. § 25-16-1002(b) (Repl. 2014) (supervisory-line bar)
• Ark. Code Ann. § 25-16-1006(a) (Repl. 2014) (OPM form authority)
• Chem-Ash, Inc. v. Arkansas Power & Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988) (expressio unius)
• Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1946) (expressio unius)
• OPM Policy 30.08 (definition aligned with statute)
• OPM Form F-8 (definition aligned with statute)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-082
August 28, 2015
Mark E. Myers, Director
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Department of Information Systems
One Capitol Mall
P. O. Box 3155
Little Rock, AR 72203
Dear Mr. Myers:

This is in response to your request for an opinion concerning the Employee Disclosure/Certification and Employment of Family Members Form, Form F3/F4 (Form). This Form was created by the Office of Personnel Management (OPM) of the Arkansas Department of Finance and Administration pursuant to its authority under Ark. Code Ann. § 25-16-1006. The Form seeks to ensure compliance with applicable state hiring laws and regulations. Your request letter relays the following fact scenario:

• Question 8 of the Form states in pertinent part: "Are you a relative of ... a state employee ... ?" If the applicant answers 'Yes,' then Question 8a requires the applicant to give the relative's name, position or office, and relationship. [If the applicant answers "yes" to Question 8, he or she is then asked in Questions 9 and 9a if the relative works in the agency in which the applicant is seeking employment, and if so, if the position the applicant seeks in the direct line of supervision of the relative.]

• The Form, in its definition section, states that "[r]elative includes: husband, wife, mother, father, stepmother, stepfather, mother-in-law, father-in-law, sister, brother, stepsister, stepbrother, half-sister, half-brother, sister-in-law, brother-in-law, daughter, son, stepdaughter, stepson, daughter-in-law, son-in-law, aunt, uncle, first cousin, niece or nephew."

• A prospective state employee disclosed on the Form that she was a niece-in-law to a current state employee.

• The current state employee is a Division Administrator who, although removed by several layers of supervision, would be in the prospective state employee's chain of command if she were hired for the relevant position. The prospective state employee's application was denied further consideration on the basis that she was a niece-in-law to this current state employee.

In light of the foregoing background information, you have asked the following questions:

1. Does the Form contemplate the disclosure of a person who is a niece-in-law of a state employee?

2. If not, then can the niece-in-law relationship to a state employee who would be in the prospective state employee's chain of command serve as the basis for non-consideration of an applicant's state employment application?

RESPONSE

As to your first question, the Form at issue here may well contemplate, or at least could result in, a state-job applicant disclosing that she is the niece-in-law of a state employee. This is because of the way the Form defines a "relative." But the Form's definition of "relative" differs from the statutory definition, which clearly does not include a niece-in-law as a "relative" for the purposes of state hiring restrictions. With regard to your second question, therefore, that familial and chain-of-command relationship you describe does not fall within the prohibitions found in Ark. Code Ann. § 25-16-1002(b), which bars relatives within a state agency from being in the direct supervisory line of each other.

Question 1: Does the Form contemplate the disclosure of a person who is a niece-in-law of a state employee?

State law prohibits employees within a state agency from being placed in the direct supervisory line of a relative:

Within each state agency, no employees who are related shall be placed within the same direct line of supervision whereby one (1) relative is a supervisory employee and responsible for supervising the job performance or work activities of another relative.

The Form is designed, in part, to aid state agency hiring officials in complying with that prohibition. The Form requires job applicants to disclose certain information, including whether the applicant is a relative of a state employee, whether that relative works at the agency with which the applicant is applying, and whether that relative would be in the applicant's direct line of supervision.

The issue you present arises because the Form's definition of "relative" suggests a broader and more inclusive definition than that found in state law. And this deviation could be crucial because of the Form's real-world application in evaluating prospective state employees based on the familial relationships they've disclosed. As will be discussed below, unless an applicant or agency hiring official knows what the Code states, and specifically how it defines "relative," what is printed on the Form may be the only expression of the law that either sees.

a. The Statute's Definition of "Relative"

State law specifically and exhaustively defines the term "relative" with respect to the state hiring prohibitions:

"Relative" means a husband, wife, mother, father, stepmother, stepfather, mother-in-law, father-in-law, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, daughter, son, stepdaughter, stepson, daughter-in-law, son-in-law, uncle, aunt, first cousin, nephew, or niece.

As we can see, this definition begins by stating that the term relative "means ...." By using the definitive verb "means," the legislature has clearly signaled its intent that this list be exhaustive. Applying a fundamental precept of statutory construction, expressio unius est exclusio alterius, the express designation of one thing may properly be construed to mean the exclusion of another, also assists us in understanding the legislature's intent with this definition.

The legislature went into great detail in enumerating the specific relationships, including some, but not all, in-law relationships, that are considered "relatives" for state employment prohibitions. This express, detailed list can properly be seen as excluding all other relatives not listed, including a niece-in-law.

b. The Form's Definition of "Relative"

As mentioned above, the Form deviates from the statute in a way that suggests its definition of "relative" is more expansive than the statute's definition. I note that the Form's list of "relatives" is identical to that found in Ark. Code Ann. § 25-16-1001(3). But while the statute uses the phrase "[r]elative means ..."-signifying that the list is exhaustive, the Form states that "[r]elative includes ...." This wording suggests that the term "relative" encompasses not only those relations enumerated, but also anyone else who could be considered a relative.

Why the Form uses "[r]elative includes ..." rather than "[r]elative means ..." is unclear to me. But in response to your first question, I believe the Form may well contemplate, or at least could result in, a state-job applicant disclosing that she is the niece-in-law of a state employee. One can easily envision state-job applicants, when making the required disclosures, acting with an over-abundance of caution and disclosing more information than is required. And unless applicants, when completing the Form, already know the statutorily limited definition of "relative," it is likely that they will refer to the only expression of the law they have in front of them, the seemingly more expansive definition found on the Form.

Question 2: If not, can the niece-in-law relationship to a state employee who would be in the prospective state employee's chain of command serve as the basis for non-consideration of an applicant's state employment application?

In my opinion, Ark. Code Ann. § 25-16-1002(b) does not preclude a state agency from placing a state employee's niece-in-law in a position with that agency where the niece-in-law would be within that employee's direct supervisory line. As we have seen, a niece-in-law is not considered a "relative" under state law for the purposes of the hiring prohibitions under that statute.

Sincerely,
LESLIE RUTLEDGE
Attorney General

LR:cyh