Does Mississippi's nepotism law block a public defender from hiring an assistant who is related to a circuit court judge?

Plain-English summary

Adams County's board attorney asked whether Mississippi's nepotism statute (§ 25-1-53) would be violated if the county public defender appointed a relative of the Senior Circuit Court Judge (specifically, the judge's sister or daughter) as an assistant public defender.

The AG applied a three-part test from a 1993 opinion (Gilfoy):

1. Are the parties related within the third degree?
2. Is the relative who is a public official the appointing authority?
3. Is the position one of the five enumerated positions in the statute?

If the answer to any one is "no," the statute does not apply. Here, the second prong was clearly "no": the appointing authority was the public defender, not the judge. The judge had a family relationship with the prospective hire, but the judge wasn't doing the hiring. So the nepotism statute did not bar the appointment.

The AG did not stop at the nepotism statute. It declined to say whether the assistant public defender's appearance before the relative judge would impose any obligations on the judge under the Code of Judicial Conduct, calling that "beyond the scope of this opinion" because the AG does not opine on the Rules of Professional Conduct or the Code of Judicial Conduct. It also recommended contacting the State Ethics Commission regarding any potential conflicts of interest, without itself analyzing that question.

Currency note

This opinion was issued in 2021. 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.

What the opinion said for each audience, at the time

For Mississippi public defenders making hiring decisions in 2021

Under the opinion's reading, § 25-1-53 reaches only the appointing authority's own family relationships within the third degree. Because the public defender (not the judge) was the appointing authority, the judge's relationship to the prospective hire did not bring the appointment within the statute.

For Mississippi circuit court judges

The opinion held the nepotism statute was not violated, since the judge was not the appointing authority. It expressly declined to say whether the assistant public defender's appearance before the relative judge would impose any obligations on the judge under the Code of Judicial Conduct, treating that as beyond the scope of an AG opinion.

For people considering jobs in courts where their relatives serve

The opinion concluded that the public defender's appointment of the judge's sister or daughter as an assistant public defender did not violate § 25-1-53. It did not address what the Code of Judicial Conduct might require of the judge if the relative later appeared before that judge; the AG left that question open.

For ethics counsel and county attorneys

The opinion gave a clear answer on the nepotism statute (the three-part Gilfoy test) and recommended contacting the State Ethics Commission for any potential conflict-of-interest question, which the AG did not itself analyze.

Common questions

Q: What is Mississippi's nepotism statute?
A: Section 25-1-53. It bars a person elected, appointed, or selected to a state, county, district, or municipal office (or to a board of trustees of a state institution) from hiring as an officer, clerk, stenographer, deputy, or assistant any person related by blood or marriage within the third degree, computed by the rule of civil law.

Q: What's the "third degree" of relationship?
A: Under civil law computation: parent (1st), grandparent (2nd), great-grandparent (3rd); sibling (2nd); aunt/uncle (3rd); niece/nephew (3rd); first cousin (4th, outside the statute). Spouses are usually treated as in the same degree as the related party. So a sibling, aunt, uncle, niece, nephew, or grandparent is within the statute's reach; a first cousin is not.

Q: Are there exceptions?
A: Yes. The statute lists exceptions for:

• Employees who were already in the department or institution before the relative became the appointing authority.
• Election workers who served in the previous election before their relative became election commissioner.
• Physicians, nurses, and medical technicians at charity or public hospitals.

Q: Why does the appointing-authority requirement matter?
A: Because of the second prong of the Gilfoy test the AG applied: the relative who is a public official must be the appointing authority for the statute to bar the hire. Here the appointing authority was the public defender, who was not related to the prospective hire, so the statute did not apply even though the judge was related to her.

Q: What about indirect influence (e.g., a powerful judge pressuring a public defender to hire a relative)?
A: That isn't covered by the statute itself, but could violate ethics rules. The opinion specifically pointed to the State Ethics Commission for that kind of analysis. The Ethics Commission could rule on whether the appointment, even if not statutorily barred, created an unacceptable conflict of interest.

Q: What about appearance in front of the relative's court?
A: The AG specifically declined to address that. The opinion said whether the assistant public defender's appearance before the relative judge "would impose any obligations on the judge under the Code of Judicial Conduct is beyond the scope of this opinion," noting the AG does not opine on the Rules of Professional Conduct or the Code of Judicial Conduct.

Background and statutory framework

Section 25-1-53 makes it unlawful for a person elected, appointed, or selected to a state, county, district, or municipal office (or for a board of trustees of a state institution) to appoint or employ as an "officer, clerk, stenographer, deputy or assistant" anyone related to the appointing authority by blood or marriage within the third degree, computed by the rule of the civil law. The statute then lists exceptions for prior employees, certain election workers, and physicians, nurses, or medical technicians at charity or public hospitals.

To apply the statute, the AG used the three-part test from the 1993 Gilfoy opinion: (1) are the parties related within the third degree; (2) is the relative who is a public official the appointing authority; and (3) is the position one of the five positions named in the statute. If the answer to any one question is "no," the statute does not prohibit the appointment. Here the answer to the second question was "no," so the appointment was not barred.

Beyond the statute, the opinion declined to reach two further questions. It said any obligation the Code of Judicial Conduct might impose on the judge was beyond the scope of an AG opinion, and it recommended contacting the State Ethics Commission about any potential conflict of interest rather than analyzing that question itself.

Citations and references

Statutes:

• Miss. Code Ann. § 25-1-53, Mississippi nepotism statute, prohibition on appointing or employing relatives within the third degree

Prior AG opinions cited:

• MS AG Op., Gilfoy (Aug. 26, 1993), three-part nepotism test
• MS AG Op., Shepard (Apr. 1, 2013), AG does not opine on Rules of Professional Conduct or Code of Judicial Conduct

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/04/S.Slover_April-12-2021-Nepotism-in-appointment-of-assistant-public-defender.pdf

Original opinion text

April 12, 2021

Scott F. Slover, Esq.
Attorney, Adams County Board of Supervisors
314 State Street
Natchez, Mississippi 39120

Re: Nepotism in appointment of assistant public defender

Dear Mr. Slover:

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

Question Presented

Would Mississippi's nepotism statute be violated by a public defender appointing, to the position of assistant public defender, the sister and/or daughter of the Senior Circuit Court Judge?

Brief Response

No. However, we suggest you contact the Mississippi State Ethics Commission regarding a potential conflict of interest.

Applicable Law and Discussion

Mississippi Code Annotated Section 25-1-53, Mississippi's nepotism statute, provides, in 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 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.

In describing the analysis required to determine whether a violation of Mississippi's nepotism statute has occurred, this office has opined in the following manner:

In determining whether the nepotism statute applies, it is necessary to apply a three-part analysis. One, are the parties related within the third degree? Two, is the relative who is a public official the appointing authority? Three, is the position one of the five enunciated positions in the statute? If the answer to any one of these questions is no, the nepotism statute does not prohibit the appointment or employment of the individual in question.

MS AG Op., Gilfoy at *1 (Aug. 26, 1993). As we stated in Gilfoy, if the answer to any of these questions is "no," "the nepotism statute does not prohibit the appointment or employment of the individual in question." Id.

Your request states that the public defender would appoint the assistant public defenders. Accordingly, under your facts, the public defender is the appointing authority. Since the Senior Judge, the relative of the prospective assistant public defender in question, is not the appointing authority, there is no violation of Mississippi's nepotism statute.

As an additional note, whether the appearance of the assistant public defender before the relative judge would impose any obligations on the judge under the Code of Judicial Conduct is beyond the scope of this opinion. MS AG Op., Shepard at *3 (Apr. 1, 2013) (stating the Attorney General, by official opinion, does not "analyze or offer opinions on issues raised by the Mississippi Rules of Professional Conduct or the Mississippi Code of Judicial Conduct"). Further, we recommend you contact the State Ethics Commission regarding any potential conflicts of interest.

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/ Phil Carter
Phil Carter
Special Assistant Attorney General