Can a Mississippi sheriff rehire his brother as chief deputy after the brother retires and returns?

Plain-English summary

Sheriff Willie March of Holmes County had a brother who was already serving as chief deputy. The brother wanted to retire, wait 90 days, then come back. Sheriff March asked the AG three questions:

1. Can I rehire my brother as chief deputy? No. The nepotism statute bars it. The "employee already in the department" exception doesn't apply to rehires.
2. Can the board of supervisors hire my brother as a county patrol officer? The AG declined to answer. § 7-5-25 limits AG opinions to questions about the requesting officer's office. The AG can't opine on what the board of supervisors can do at the sheriff's request.
3. Can the board hire my brother and assign him to my department, then I make him chief deputy? No. Two reasons: (a) the AG can't opine on the board's authority for the same § 7-5-25 reason; and (b) sheriffs (not boards of supervisors) hire sheriff's department employees under § 19-25-19, so the board can't hire someone for the sheriff's department. The nepotism statute also has no recusal or step-aside provision (MS AG Op., Turnage, Oct. 28, 2021).

The full nepotism analysis on Question 1:

• Relationship? Brothers are within the third degree (MS AG Op., Ponthieux, Apr. 11, 2003). ✓
• Appointing authority? § 19-25-19 makes the sheriff the appointing authority for the sheriff's department. ✓
• Prohibited position? A sheriff's deputy is in the prohibited list (officer/deputy). MS AG Op., Carnathan (Aug. 13, 2010) and Chamberlin (Jan. 6, 2004). ✓

All three elements satisfied. Statute is violated.

The "pre-existing employee" exception in § 25-1-53 says the statute "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." That carves out brothers who were already deputies when the sheriff took office. But once the brother retires, he's no longer "in said department." Bringing him back is a new hire, and the exception doesn't reach new hires. So a 90-day-and-return scheme cannot bypass the nepotism statute.

The AG also reminded the sheriff that there is no "step-aside" or "recuse" provision in § 25-1-53. So a sheriff can't have someone else (like the board of supervisors) make the formal hire and then take operational control. The hiring authority is the sheriff's, period.

What this means for you

If you are a Mississippi sheriff with a brother working as a deputy

The opinion holds the nepotism statute "prohibits a sheriff from hiring his brother as a chief deputy sheriff." It holds the pre-existing-employee exception "would not apply to reemployment after retirement because this would require the rehiring of the employee and would, thus, be prohibited."

If you are a deputy considering retirement and rehiring

The opinion holds that an employee who retires cannot be rehired under the pre-existing-employee exception, because rehiring is a new hire. It speaks only to rehire by the same sheriff (a brother within the third degree) and does not address other employers or roles.

If you are on a board of supervisors

The opinion holds the sheriff "has the authority to hire employees for the sheriff's department" under § 19-25-19, and that "the board of supervisors does not have the authority to hire or fire employees for the sheriff's department" (citing Simmons). It finds "no authority for [the sheriff] to seek to have the board of supervisors hire [his] brother and assign him to the sheriff's department."

If you are a county attorney advising the sheriff

The opinion applies the three-part nepotism test (related within the third degree; relative is the appointing authority; job is a prohibited position) and finds all three met for a sheriff hiring a brother as deputy. It also notes "[t]here is no recusal or step-aside provision in the nepotism statute" (citing Turnage).

Common questions

Q: What is the three-part nepotism test the opinion uses?
A: Quoting prior opinions, it asks: "First, are the parties related within the third degree? Second, is the relative who is a public official the 'appointing authority'? Third, is the job included in the list of prohibited positions? If the answer to any of these three questions is 'no', there is no violation of the statute."

Q: Why doesn't a 90-day break work as a "fresh start"?
A: The opinion holds the pre-existing-employee exception "would not apply to reemployment after retirement because this would require the rehiring of the employee," and a new hire of a relative is what the statute prohibits.

Q: What's a "prohibited position" under § 25-1-53?
A: The opinion refers to "the five prohibited positions listed in the nepotism statute," which the statutory text it quotes identifies as "officer, clerk, stenographer, deputy or assistant," and holds "a sheriff's deputy is within one of the five prohibited positions" (citing Carnathan and Chamberlin).

Q: Why doesn't the board of supervisors have authority to hire for the sheriff's department?
A: The opinion relies on § 19-25-19 (the sheriff's power to appoint deputies) and the Simmons opinion that "the board of supervisors does not have the authority to hire or fire employees for the sheriff's department."

Background and statutory framework

Mississippi's general nepotism statute, § 25-1-53, makes it unlawful for a public official to appoint or employ a relative within the third degree as an officer, clerk, stenographer, deputy, or assistant who is to be paid from public funds. The full text includes a key carve-out:

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.

This pre-existing exception protects continuity. If a deputy was in the department before the sheriff took office, the deputy keeps their job. But once the employment ends and a new hire is needed, the exception no longer applies.

§ 19-25-19 establishes the sheriff's appointing authority:

Every sheriff shall have power to appoint one or more deputies to assist him in carrying out the duties of his office, every such appointment to be in writing, to remove them at pleasure, and to fix their compensation, subject to the budget for the sheriff's office approved by the county board of supervisors.

The sheriff hires; the board funds. The sheriff cannot delegate the hire to the board, and the board cannot encroach on the sheriff's hiring authority.

Prior AG opinions have settled the categorical questions:

• Brothers are within the third degree (Ponthieux, Apr. 11, 2003).
• A deputy is a prohibited position (Carnathan, Aug. 13, 2010; Chamberlin, Jan. 6, 2004).
• There is no recusal or step-aside provision (Turnage, Oct. 28, 2021).
• Boards of supervisors do not have authority to hire sheriff's department employees (Simmons, Aug. 8, 2005).

The March opinion combines these to address the specific rehire-after-retirement scenario. The pre-existing exception doesn't help; the alternative routing through the board doesn't help either. The sheriff's hands are tied: he cannot bring his brother back into the sheriff's department.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25 (AG opinion authority limited to questions about requesting officer's office)
• Miss. Code Ann. § 19-25-19 (sheriff's authority to appoint deputies; budget controlled by board)
• Miss. Code Ann. § 25-1-53 (general nepotism statute; pre-existing employee exception)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/W.March-March-14-2024-Hiring-Brother-as-Deputy-1.pdf

Original opinion text

March 14, 2024

The Honorable Willie March
Sheriff, Holmes County
Post Office Box 120
Lexington, Mississippi 39095

Re: Hiring Brother as Deputy

Dear Sheriff March:

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

Background

According to your request, your brother is the chief deputy sheriff and would like to retire and return to work after 90 days.

Questions Presented

1. May I rehire my brother as my chief deputy?

2. May the board of supervisors hire my brother back as a county patrol officer?

3. May the board of supervisors hire my brother and assign him to the sheriff's department and then I make him chief deputy?

Brief Response

1. The nepotism statute prohibits a sheriff from hiring his brother as a chief deputy sheriff.

2. Mississippi Code Annotated Section 7-5-25 authorizes the Attorney General to issue official opinions to various public officials "upon any question of law relating to their respective offices." Official opinions are not issued to advise one public officer about another public officer's authority and responsibilities. Thus, we cannot issue an opinion to you regarding the board of supervisors' authority to hire a county patrol officer.

3. See response 2. The sheriff has the authority to hire employees for the sheriff's department. There is no authority for you, as sheriff, to seek to have the board of supervisors hire your brother and assign him to the sheriff's department.

Applicable Law and Discussion

Mississippi's general nepotism statute provides, in relevant 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 . . . .

Miss. Code Ann. § 25-1-53. We use a three-part analysis to determine whether an employment relationship violates the nepotism statute. "First, are the parties related within the third degree? Second, is the relative who is a public official the 'appointing authority'? Third, is the job included in the list of prohibited positions? If the answer to any of these three questions is 'no', there is no violation of the statute." MS AG Op., Nowak at *1 (June 5, 2020) (citing MS AG Op., Harrington (May 30, 1991)).

With respect to the first part of the nepotism analysis, brothers are related within the third degree of kinship. MS AG Op., Ponthieux at 1 (Apr. 11, 2003). As to the second part, the sheriff is the hiring authority for the sheriff's department. Miss. Code Ann. § 19-25-19 ("Every sheriff shall have power to appoint one or more deputies to assist him in carrying out the duties of his office, every such appointment to be in writing, to remove them at pleasure, and to fix their compensation, subject to the budget for the sheriff's office approved by the county board of supervisors."). As to the third part, a sheriff's deputy is within one of the five prohibited positions listed in the nepotism statute. See MS AG Ops., Carnathan at 1 (Aug. 13, 2010) and Chamberlin at *1 (Jan. 6, 2004).

Thus, in response to your first question, the sheriff is prohibited by the nepotism statute from hiring his brother as a deputy sheriff. See MS AG Op., Griffin at *1 (May 13, 2020). Notably, the exception allowing an employee who was in the department prior to the relative becoming head of the department to remain employed would not apply to reemployment after retirement because this would require the rehiring of the employee and would, thus, be prohibited.

With respect to your third question, the sheriff is the hiring authority for the sheriff's department. Miss. Code Ann. § 19-25-19; see MS AG Op., Simmons at 1 (Aug. 8, 2005) (opining that the board of supervisors does not have the authority to hire or fire employees for the sheriff's department). There is no recusal or step-aside provision in the nepotism statute. MS AG Op., Turnage at 3 (Oct. 28, 2021). Thus, there is no authority for you, as sheriff, to have the board of supervisors hire your brother and assign him to the sheriff's department as suggested in your third question.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General