Can the Mississippi Board of Barber Examiners hire a board member's nephew or cousin as a barber inspector, or is that nepotism?

Plain-English summary

The Mississippi Board of Barber Examiners had a vacancy for a barber inspector. A board member's nephew or cousin had applied. The executive director asked whether hiring would violate the nepotism statute.

The AG said no.

The framework is Section 25-1-53. The statute prohibits hiring a person related within the third degree to a member of the appointing authority for five specific positions: officer, clerk, stenographer, deputy, or assistant. Both elements have to be met: the relationship plus the position.

A two-step analysis (cited from Youngman 2001):

1. Is the position one of the five enumerated positions?
2. If yes, only then check whether the person is related within the third degree to a member of the appointing authority.

The first step disposes of this case. The opinion concludes that "a barber inspector is not one of the five employment positions enumerated in Section 25-1-53," so the answer to the position question is no. Because the position is outside the statute, the opinion does not reach the relationship question, and hiring the nephew or cousin does not violate the nepotism statute.

The opinion adds one referral: it invites the Board "to consult the Mississippi Ethics Commission regarding any potential conflicts of interest, governed by Mississippi's Ethics in Government Law." It does not itself analyze any conflict of interest.

What this means for you

For the Board of Barber Examiners and other state boards

Under the opinion, Section 25-1-53 bars hiring a relative within the third degree only for "an officer, clerk, stenographer, deputy, or assistant." Because a barber inspector is not one of those five positions, the nepotism statute is not violated by hiring a board member's nephew or cousin into that role. The opinion applies the two-step analysis from the Youngman opinion: first ask whether the position is one of the five listed, and only if it is, ask about the family relationship.

On conflicts of interest

The opinion is limited to the nepotism statute. It refers any conflict-of-interest question to the Mississippi Ethics Commission under Mississippi's Ethics in Government Law, and does not opine on whether a board member should be involved in the hire.

Common questions

Q: Does Mississippi's nepotism statute bar a barber board from hiring a board member's nephew or cousin as an inspector?
A: No. The opinion concludes there is "no violation of Mississippi's nepotism statute," because a barber inspector "is not one of the five employment positions enumerated in Section 25-1-53."

Q: What positions does the nepotism statute actually cover?
A: Section 25-1-53, as quoted in the opinion, applies to appointing or employing "an officer, clerk, stenographer, deputy, or assistant who is to be paid out of the public funds" who is related within the third degree, computed by the rule of the civil law.

Q: How does the AG analyze a nepotism question?
A: The opinion uses the two-step test from the Youngman opinion (2001): "First, it must be determined whether the position for which the individual is being considered is one of the five listed positions. Only then is it necessary to move on to the question of whether the person is related within the third degree to a member of the appointing authority."

Q: Did the opinion address whether a board member can be involved in the hire?
A: No. It refers any conflict-of-interest question to the Mississippi Ethics Commission under the Ethics in Government Law.

Background and statutory framework

Section 25-1-53, Mississippi's nepotism statute, 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 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 appointing authority.

The opinion relies on the Youngman opinion (Feb. 23, 2001) for the established two-step reading of the statute: the position must first be one of the five listed before any inquiry into the family relationship is needed. Because a barber inspector is not among the five, the opinion stops at the first step and finds no violation, while pointing the Board to the Ethics Commission for any separate conflict-of-interest question.

Citations and references

Statute:

• Miss. Code Ann. § 25-1-53, nepotism prohibition for five enumerated positions

Prior AG opinion cited:

• MS AG Op., Youngman (Feb. 23, 2001), two-step analysis: position first, then relationship

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/03/D.Jones-January-14-2022-Nepotism-and-Hiring-of-Board-Members-Relative-as-a-Barber-Inspector.pdf

Original opinion text

January 14, 2022

Ms. Debra Jones
Executive Director
Mississippi Board of Barber Examiners
510 George Street, Suite 400
Jackson, Mississippi 39202

Re: Nepotism and Hiring of Board Member's Relative as a Barber Inspector

Dear Ms. Jones:

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

Issue Presented

Would Mississippi's nepotism statute be violated by the Mississippi Board of Barber Examiners (the "Board") employing a Board member's nephew or cousin as a barber inspector?

Brief Response

No. There will be no violation of Mississippi's nepotism statute by the Board employing a Board member's nephew or cousin as a barber inspector because a barber inspector is not one of the five employment positions enumerated in Section 25-1-53.

Applicable Law and Discussion

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

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:

We have oft opined that this section of the code requires analysis of two separate issues. First, it must be determined whether the position for which the individual is being considered is one of the five listed positions. Only then is it necessary to move on to the question of whether the person is related within the third degree to a member of the appointing authority.

MS AG Op., Youngman at *1 (Feb. 23, 2001).

Section 25-1-53 prohibits a board of the state from hiring a person who is related by blood or marriage within the third degree to one of only five specific positions: officer, clerk, stenographer, deputy, or assistant. You state that a Board member's nephew or cousin has applied for a position vacancy with the Board. Because the position, a barber inspector, is not one of the five enunciated positions within Section 25-1-53, the answer to the first question set forth above is "no, it is not one of the five listed positions." Accordingly, there will be no violation of Mississippi's nepotism statute by the Board employing a Board member's nephew or cousin as a barber inspector.

Notably, we invite you to consult the Mississippi Ethics Commission regarding any potential conflicts of interest, governed by Mississippi's Ethics in Government Law.

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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General