Exemplary Student Paper: Nepotism – Spring 2004
I. Introduction
The Speaker of the House has requested research on the approach of the several states in regulating
nepotism, as well as a draft statute for use in North Carolina. Hence, the following memorandum analyzes the
approach of the several states, identifying major policy issues and possible rationales for the general rules,
exceptions, administrative schemes, and remedies explored herein. Finally, the paper briefly addresses
constitutional concerns with nepotism legislation. Per the Speaker’s request, a draft statute is affixed hereto in an
addendum.
II. Statutory Framework
A number of states1 do not have any specific prohibitions against nepotism. Rather, these states only
have general ethical restrictions that may apply.2 Because we have had a number of specific complaints
addressing specific situations,3 a more particularized statutory scheme that addresses these issues will probably be
more helpful. In addition, to the extent that the legislature is concerned about the effect of nepotism in
1
Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Maine,
Massachussetts, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New York, North Carolina,
Oregon, Rhode Island, South Dakota, Virginia, West Virginia, and Wisconsin.
2
See Ala. Code § 36-25 et seq.; Ark. Stat. Ann. § 21-8-101; Ca. Govt. Code § 8940, §8920, §8922.a; Colo.Rev.
Stat. §24-18; Conn. Gen. Stat. § 10-1-84 (f) & (I); Del. Code Ann. Tit. 29, § 5801; Ga. Code §21-5-4; Hawaii Rev.
Stat. §84; Idaho Code §59-702 et seq.; Ill. Rev. Stat. Ch 5 ILCS 420/3-107; Me. Rev. Stat. Ann. Tit. 1 §1014;
Mass. Gen. Laws Ann. Ch. 268A.6; Mich. Comp. Laws §15.342; Minn. Stat. §10A.07; Neb. Rev. Stat. §49-1401
through §49-1443; N.H. Rev. Stat. Ann. § 14B:4; N.J. Rev. Stat. §52:13D-23; N.Y. Public Officers Law §74;
Executive Order 127 (N.C.); General Assembly Employee Handbook, 2001, page 7 (N.C.); and NC Office of
State Personnel, Section 2, page 9; Or. Rev. Stat. §244.040; R.I. Gen. Laws §36-14-1; Rhode Island Constitution,
Article III, Sections 7 and 8; S.D. Codified Laws Ann. §2-12; Va. Code § 40.2; W.Va. Code §6B-1 et. seq.; Wis.
Stat. §19.41 et seq.
3
See Assigning Memo (noting, for example, issues with romantically involved couples requesting the same days
off).
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perpetuating discrimination, a more specific statue may be required, as Title VII of the federal Civil Rights Act of
1964 does not apply to cases of nepotism.4
A. Specific Nepotism Rule
The framing of a general rule specifically addressing nepotism will significantly impact the reach and
applicability of the statute. The statement of the general rule implicates a number of policy issues, including: 1.
the definition of “public officials” to whom the statute applies; 2. the definition of the prohibited activities; 3. the
definition of the relationship of the persons whose employment decisions the public official may not influence;
and 4. whether the activity must involve public funds. In considering each of these components, some
competing policies implicated by nepotism will be relevant. On the one hand, some maintain that it is not simply
the actual corruption, whereby public officials use their offices to inure benefits upon favored persons, but the
appearance of corruption that should be prevented.5 The integrity of government, the argument goes, depends on
the appearance that government is acting properly.6 On the other hand, nepotism restrictions may negatively
impact the efficiency of the marketplace, by complicating the hiring of persons who may be the most qualified7
and by adding administrative burdens and costs on public officials in the course of the public work.8 With these
policies in mind, we will now consider each of these four issues for framing the general rule in turn.
4
See generally 45A AM. JUR. 2D Job Discrimination §§ 457, 460; Seth Kupferberg, Civil Rights Law and Breaking
Down Patterns of Segregation: The Case of Nepotism, 16 Hofstra Lab. & Emp. L.J. 355 (1999).
5See
Christopher R. McFadden, Comment, Integrity, Accountability, and Efficiency: Using Disclosure to Fight The
Appearance of Nepotism in School Board Contracting, 94 Nw. U. L. Rev. 657 , 657, 669-72 (2000).
6
A counter argument is that the political process will eliminate corrupt public officials through the natural cycle
of elections and accountability. This argument, of course, assumes that the public will learn of public officials’
corrupt conduct. This assumption may be faulty, since the public official’s public interest would encourage them
to hide such conduct. See the Supervisory Cleansing section, below, for a disclosure response to this secrecy
problem.
7
“Most qualified” may mean by knowledge, experience, or personal fit in a particular working environment.
8
See Christopher R. McFadden, Comment, Integrity, Accountability, and Efficiency: Using Disclosure to Fight The
Appearance of Nepotism in School Board Contracting, 94 Nw. U. L. Rev. 657, 673 (2000).
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“Public Officer”
The first question is exactly which persons in government the statute will regulate. Some states apply
the statute to “executive, legislative, and judicial officers.”9 Other states only apply the rule to legislators or
legislative employees.10 Most states, however, have more inclusive applications, including a general application to
“public officials.”11 Utah, for example, under this broader approach, restricts the activities of a “public officer,”12
who is defined as “a person that is compensated by public funds.”13 From a policy perspective, it seems that, if
one were concerned with the appearance of fairness, no principled reason would exclude any member or employee
of government from restrictions on self-dealing and conflicts of interest in this context. However, the
administrative costs and burdens, as well as potential liabilities of officials, will be significant if the restrictions are
far reaching. This, unfortunately, could result either in the reduced effectiveness of government agencies, or, in
the worst instance, a reduced willingness of citizens to serve as officials in some capacities.14 In light, however,
of the significant problems that have called government ethics into question recently,15 significant reform is
9
See Ariz. Rev. Stat. §38-481(b); Ky. Rev. Stat. Ann. §6.754. See also Okla. Stat. Tit.21, §481 (applying to any
executive, legislative, ministerial or judicial officer”).
10
Alaska Stat. 24.60.090(a); Md. State Govt. Code Ann. §2-107(b)(1).
11
Fl. Stat. 112.3135(1)(c); Tex. Governmental Code Ann. §573.041. See also La. Rev. Stat. Ann. §1119(b)(1)
(applying to “member[s] of a governing authority or the chief executive of a governmental entity”); Miss. Code
Ann. §25-1-53 (applying to “any person elected, appointed, or selected in any manner whatsoever to any state,
county, district or municipal office”); Mo. Const., art. VII, §6 (applying to any officer or employee in this state);
N.M. Stat. Ann. §10-1-10 (applying to “any person elected or appointed to any public office or position under
the laws of this state or by virtue of any ordinance of any municipality thereof”); Wyo. Stat. §9-13-04(a), (b)(xiv)
(applying to “public officials” and defining them as “an individual elected to a state or local office, or an
individual who is appointed to fill a vacancy in a state or local office, whether or not the individual has yet assumed the
office) (emphasis added).
12
Utah Code Ann. §52-3-2(a).
13
Utah Code Ann. §52-3-1(c).
14
The concern of the willingness of the citizenry to participate could be alleviated, however, with appropriate
attention to the remedial provisions of the statute. This is discussed further in the Penalties and Administration
sections, below.
15
See Assigning Memo.
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probably prudent. Thus, a statute of broad applicability would demonstrate a commitment to government
integrity.
Prohibited Activities
The next question is what specific activities the statute will regulate. A familiar phrasing prohibits
“advocat[inig] or caus[ing] the employment, appointment, promotion, transfer or advancement” of a prohibited
person.16 In addition, some states also provide that officials cannot be in a supervisory relationship with a
prohibited person.17 Most states are less restrictive, however, limiting the regulation to “appointment” or
“employment.”18 Such a restrictive approach would not address the issue of employees who wish to have the
same schedule, based on their romantic affiliations.19 Moreover, a commitment to an appearance of fairness in
government, as previously discussed, would also urge restrictions during all phases of the employment
relationship, including promotions, transfers, and scheduling shifts.
Finally, to avoid a serious loophole that might otherwise be permissible under the statute, the statute
should explicitly forbid agreements between public officials to hire the relatives of the other public official.20
Such a provision would be consistent with the policy of preventing even the appearance of impropriety.
16
Kan. Stat. Ann. §46-2469(a); Ky. Rev. Stat. Ann. §6.754(2); Wyo. Stat. §9-13-104(a). See also Utah Code Ann.
§52-3-1(2)(a) (“No public officer may employ, appoint, or vote for or recommend the appointment of . . .”).
17
Ind. Code §4-15-7-1 (restricted to “direct” supervision); N.D. Cent. Code 44-04-09; S.C. Code Ann. §8-13-
750(A); Utah Code Ann. §52-3-1(2)(a) (limited to “direct” supervision); Wyo. Stat. §9-1-104(a). Similarly, some
statutes more broadly provide that the prohibited person cannot be placed in the same branch or agency as the
public official. See La. Rev. Stat. Ann. §1119(a) (“[n]o member of the immediate family of an agency head shall
be employed in his agency”); Okla. Stat. Tit.21, §481(A) (similarly limiting to the “department”).
18
See Alaska Stat. 24.60.090(a); Ind. Code §4-15-7-1(a); Ky. Rev. Stat. Ann. §6.754(1); La. Rev. Stat. Ann.
§1119(a),(b); Md. State Govt. Code Ann. §2-107(b)(1); Miss. Code Ann. §25-1-53; Mo. Const., art. VII, §6; Mont.
Code Ann. §2-2-301; N.M. Stat. Ann. §10-1-10; Okla. Stat. Tit.21, §481.
19
See Assigning Memo.
20
Mont. Code Ann. §2-3-303.
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“Relative”
Another important question is who constitutes prohibited persons, such that a public official may not
influence their employment or appointment decisions. Traditionally, the statutes have applied to relatives, by
blood or marriage.21 At least one state has a statute that is broad enough to cover intimate relationships22 that
are not a legal marriage.23 The statute includes a prohibition against favoring a “domestic partner living together
in a conjugal relationship not a legal marriage.”24 Such a provision would seem to address the specific problem
with employees who wish to have the same schedule. A benefit of this provision is its clarity. The provision
applies where two people are “living together,” and thus avoids the problem of defining intimate relationships,
not legal marriage, where the persons are not living together.
Unfortunately, this line-drawing problem also highlights the difficulty of addressing the “good friends”
issue noted in the assigning memorandum. However, more concrete definitions might include “business
21
Some statutes mechanically applied civil law degrees of “consanguinity” or “affinity” to determine prohibited
blood and extended family relationships. See, e.g., Okla. Stat. Tit.21, §481 (“any person related to him by affinity
or consanguinity within the third degree”); Mo. Const., art. VII, §6 (“any relative within the fourth degree”).
Other states have taken the more clear approach of explicitly listing prohibited relationships. See, e.g., Ind. Code
§4-15-7-1(a),(d) (specifically listing “father, mother, brother, sister, uncle, aunt, a husband or wife, son or
daughter, son-in-law or daughter-in-law, niece or nephew”); Md. State Govt. Code Ann. §2-107(a)(18)(specifically defining ‘relative’ as “a spouse, a parent or stepparent, a sibling or step sibling, a child, stepchild,
foster child, or ward, a mother-in-law or father-in-law, a son-in-law or daughter-in-law, a grandparent, or a
grandchild); S.C. Code Ann. §2-17-10; Utah Code Ann. §52-3-1(d).
22
Such relationships may be either heterosexual or homosexual relationships. Although some legislators may not
wish to codify any recognition of homosexual marriage, reasoning that such recognition may appear in other
areas of the law (e.g., a law permitting legal marriage for homosexuals), the policy of avoiding the appearance and
existence of corruption – favoring some persons over others – should apply equally when the person who stands
to benefit unfairly is a homosexual or a heterosexual. Cf. Christopher R. McFadden, Comment, Integrity,
Accountability, and Efficiency: Using Disclosure to Fight The Appearance of Nepotism in School Board Contracting, 94 Nw. U.
L. Rev. 657 , 666-67 (2000) (arguing that the policy against the appearance of impropriety urges a broad
application of nepotism restrictions to extended families and non spousal relationships).
23
See Ark. Stat. Ann. § 21-8-101(a).
24
Id.
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Exemplary Student Paper: Nepotism – Spring 2004
partners and other persons who hold the authority or potential to confer significant financial or pecuniary
benefits on the public official.” Although no state statute currently codifies such an approach, it strikes a balance
between the regulation of “friendships” which may appear improper and the countervailing public efficiency
policy that would permit the people who are the most qualified to serve are allowed the opportunity to do so and
would not preclude such persons simply because they are acquainted with a public official. Finally, regulation of
the “good friends” problem may also be handled by other ethics regulations that govern quid pro quo and similar
situations.25
Public Funds
Finally, most state statutes require the actual position be compensated by public funds before the
restrictions apply.26 At first, this seems contrary to the policy of avoiding the appearance of impropriety, but it is
probably true that there is less concern with impropriety where the government does not confer a tangible
benefit, for example, monetary compensation, on a citizen. In addition, restricting the application of the statute
to positions compensated from the public funds, the statute will not negatively impact volunteerism with
government entities.27
B. Exceptions
The statute might also include any of a number of exceptions based on policy or particular and special
circumstances. This section will explore some of the more remarkable exceptions in the statutes of other states.
Specifically, this section will consider exceptions for: small towns, temporary employees, school board and
25
See, e.g., Ind. Code §2-2.1-3-1.
26
See Alaska Stat. §24.60.090(a); Ariz. Rev. Stat. § 38-481; Md. State Govt. Code Ann. § 2-107(b)(1); Miss. Code
Ann. § 25-1-53; N.M. Stat. Ann. §10-1-10; Okla. Stat. Tit.21, §481; Texas Stat. §573.041; Utah Code Ann. § 52-31(2)(a).
27
Some states explicitly provide for exceptions to avoid penalizing volunteers. See Fl. Stat. §112.3135(2)(a)
(exempting “persons serving in a volunteer capacity who provide emergency medical, firefighting, or police
services.”); Utah Code Ann. §52-3-1(2)(a)(iv) (exempting volunteers generally).
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Exemplary Student Paper: Nepotism – Spring 2004
hospital employees, employees eligible due to civil service laws, appointments of low value, and instances where
only one person is qualified.
Localities
First, the statute might exempt local governments from its scope. A few states do exempt certain
localities.28 Such an exemption might be based on a desire to allow smaller local governments greater freedom to
determine if the efficiency policy warrants restrictions in a place where it would more difficult to find persons
who are qualified for certain jobs that are not related to each other. However, because of the interest in
preserving the integrity of government, the statute should narrowly tailor any exceptions. The Utah Statutes
provide a more precisely tailored approach. First, the Utah Statutes provide that “[i]n a town . . . this chapter
shall not apply to the employment of uncles, aunts, nephews, nieces, or cousins.”29 The specific listing of
prohibited persons is shorter than the general list,30 thus providing a cushion for officials of small towns to hire
persons who are not immediately related to them. Also, the Utah Statutes provide an exception for towns when
the following three conditions are met:
(a) fewer than 3,000 people live within 40 miles of the primary place of employment, measured over all
weather public roads;
(b) the job opening has had reasonable public notice; and
(c) the relative is the best-qualified candidate for the position.31
Such an approach speaks to the efficiency policy by allowing a relative to take a job in a sparsely populated.
However, it only allows the relative to do so only if the relative is the most qualified candidate and only after
public notice, thus eliminating the appearance of a conflict of interest.
28
See Fl. Stat. §112.3135(2)(a) (exempting municipalities with populations of less than 35,000); La. Rev. Stat.
Ann. §111(9) (providing and exception for municipalities with populations of less than 2,000 and which own a
gas or electrical system).
29
See Utah Code Ann. §52-3-4(1).
30
See Utah Code Ann. §52-3-1(d).
31
See Utah Code Ann. §52-3-4(2).
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Finally, if this approach is too restriction to meet the needs of municipalities, municipal leaders can
lobby for an exemption.
Public Interest Positions
Perhaps also based upon the efficiency policy, some states have exempted teachers and physicians from
these rules.32 Presumably, the legislatures were hoping to avoid excluding qualified candidates for the sake of the
public interest in public education and public health. If there is a need for more teachers and/or physicians in
this state, the legislature may wish to create similar exemptions. These states may also have noticed a significant
number of marriages between people in the public education and health fields.
Emergency officials have also been exempted in some states. The public interest speaks strongly to avoiding
excluding qualified candidates in this field as well, especially given recent concerns about terrorism.33 Again, in
the interest of narrowly tailoring the statute to avoid abuse, the emergency exception could be limited to a
“temporary work arrangement necessary to meet a critical and urgent agency need.”34
Threshold Exceptions
Some statutes also provide exemptions for appointments that cause small harms. For instance, the Utah
Statutes provide an exemption for appointments that would last less than 12 weeks.35 In addition, New Mexico
exempts employment where the compensation is less than $600.36 Such threshold exceptions seem appropriate,
as they limit the application of the statute to only those cases where significant harm occurs. Officials that
32La.
Rev. Stat. Ann. §1119(2)(a)(i) (exempting public education); id. at §1119(2)(b)(i) (exempting certain
physicians); Mont. Code Ann. §2-2-302(b) (exempting school teachers in certain instances); N.M. Stat. Ann. §101-10 (exempting public school teachers); Miss. Code Ann. §25-1-53 (exempting some employees of public
hospitals).
33
See Fl. Stat. §112.3135(2)(b)(3); N.D. Cent. Code §44-04-09.
34
N.D. Cent. Code §44-04-09. See also Utah Code Ann. §52-3-1(2)(a)(iii) (providing an exception for an
appointment of “12 weeks or less”).
35
Utah Code Ann. §52-3-1(2)(a)(iii).
36
N.M. Stat. Ann. §10-1-10.
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approve contracts of short duration or low compensation are probably not willfully attempting to provide
benefits to favored persons. In addition, these exceptions should ease concerns of potential public servants who
are worried about liability under the statute. On the other hand, the interest in preserving the appearance of an
ethical government might urge against these threshold exceptions. However, when the benefit is so small, it is
unlikely that the media will publicize such appointments, such that the image of integrity would not be at stake.
Grandfather Exceptions
At least a couple of states provide protection to employees that were employed before the effective date
of the statute regulating nepotism.37 In addition, a number of other states protect employees that were employed
for some period of time before their relative became employed, thus putting the two persons in a relationship
that would otherwise be impermissible under the statute.38 Some states require that an employee have been
employed for at least twelve months before this protection applies.39 This would seem to obstruct an attempt to
avoid the direct supervision provisions of the statute by arranging for a family member to be appointed first, and
then appointing another family member as agency head.
Civil Service Exception
Utah provides an exception for persons who are independently eligible under civil service laws, which
allow for promotions based solely on merit.40 Such an exemption is in accord with policy concerns. First, the
exception does not implicate the policy problem generally presented where favoritism prevents the government
from hiring the best-qualified applicants. In addition, when an objective system of promotion is used, there is
less of a possibility of an appearance of misconduct of government officials. Of course, if an objective system is
used, there is certainly less of a chance of actual misconduct.
37
See Kan. Stat. §46-246a(c); N.D. Cent. Code §44-04-09.
38
See Kan. Stat. §46-246a(c)(1); Miss. Code Ann. §25-1-53; N.D. Cent. Code §44-04-09.
39
Ind. Code §4-15-7-1(b); La. Rev. Stat. Ann. §1119(C)(2).
40
Utah Code Ann. §52-3-1(2)(a)(i).
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Supervisory Cleansing
Each of these exceptions would permit a situation where a relative might impermissibly supervise
another relative. To solve this problem, at least two states have required that the supervising relative recuse
himself from decisions he was ineligible to make under the statute in the first instance, including hiring,
evaluation, promotion, transfer, discipline and so forth.41 Another method to police the situations created by the
exceptions listed above is written disclosure.42 Under this scheme, the public would be given notice of the
relationship and would therefore be less likely to be surprised. In addition, other supervisory officials will also be
aware of the conflicts, and can take measures to internally manage the situation.43 Both of these results should
prevent a deterioration of the public’s image of government’s integrity. Furthermore, written disclosure does not
create a significant administrative cost.
An exception to these restrictions on supervision should probably apply to emergency situations. If
there are exigencies sufficient to override policy concerns to create the exception, it stands to reason that the
same exigencies should also alleviate the need to comply with the supervisory restrictions.
C. Penalties & Remedies
A significant issue is how the statute will be enforced. The states have adopted very different methods
to enforce the statutes. In Kentucky, a violation of the statute is “ethical misconduct.”44 In Louisiana, the
41
See La. Rev. Stat. Ann. §1119(B)(2)(a)(i) (requiring supervisors in the public school system to recuse
themselves); id. at § 1119(B)(2)(b)(i) (requiring supervising medical employees to recuse themselves); Utah Code
Ann. §52-3-1(2)(c)(ii); Wyo. Stat. §9-13-104(b).
42
See La. Rev. Stat. Ann. §1119(B)(2)(a)(i); id. at § 1119(B)(2)(b)(i); Utah Code Ann. §52-3-1(2)(c)(i).
43
Such disclosures, therefore, should occur promptly, and certainly before any matter implicated by the disclosure is
acted upon. See Christopher R. McFadden, Comment, Integrity, Accountability, and Efficiency: Using Disclosure to Fight
The Appearance of Nepotism in School Board Contracting, 94 Nw. U. L. Rev. 657 , 688 (2000) (noting that disclosure
should occur before matters are acted upon).
44
Ky. Rev. Stat. Ann. §6.754(5).
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statutes provide for a system of discipline and penalties for a willful violation of the statute.45 In Utah, each day
the violation continues constitutes a separate misdemeanor offense.46 Finally, in Missouri, the Constitution
requires the forfeiture of any officer or employee that uses his office to appoint a prohibited relative.47 Similarly,
the wording of some statutes suggest that, since an employee was “ineligible” for employment in the first
instance, an appointment by a prohibited relative does not legally create any employment contract.48 Thus, the
employed relative would lose any benefit conferred upon him.
Certainly, the latter two remedies are the most forceful and seem the most appropriate. The citizens will
have no doubt that government is committed to ethics if the public official loses his job for violating the public
trust. In addition, the public will have been made whole by re-opening the public position for another qualified
citizen to hold.
It might also be appropriate for the statute to authorize a private cause of action to enforce the
provisions thereof. Specifically, people that were rejected for a government position because a public official
appointed a prohibited person to the post could sue the public official for a breach of duty. While such an
approach is appealing insofar as it creates many private law enforcers to police the provisions of the statute, it
may also discourage officials from seeking to serve in public office if the potential for liability is too great. Thus,
this remedy should be reserved until it is determined that a greater level of enforcement is needed. It is probably
sufficient to rely on the forfeiture provisions for violations as described above.
D. Administration
Finally, the statutes could authorize an Ethics Commission that could assist public officials with
compliance with the statue. This would probably be welcome by officials given the consequences recommended
45
La. Rev. Stat. Ann. §1119(D).
46
Utah Code Ann. §52-3-2; id. at §52-3-3.
47
Mo. Const., art. VII, §6.
48
Ind. Code §4-15-7-1; Okla. Stat. Tit.21, §484.
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above. Other states have created similar bodies.49 Under such a scheme, a committee, either upon its own
initiative or upon the request of a public official, could issue an opinion, as to either real or hypothetical
situations, interpreting the Act.50 When the Commission issues an interpretation, it’s action and communications
to the Commission would be confidential.51 In addition, “good faith” compliance with the Commissions
opinion would preclude punishment under the statute unless a Court finds the Commission’s opinion
“manifestly wrong and without substantial support.” Thus, these confidentiality and shielding provisions should
encourage public officials to seek answers to their ethics questions under the statute.
Constitutional Analysis
The conclusions from each of the sections of this paper have been translated into a draft statute affixed
hereto. In reading this statute, caution should be given to potential constitutional concerns. Courts have
generally been receptive to nepotism legislation, even in the face of a number of constitutional challenges,
including First Amendment rights to freedom of association, Due Process rights, and Privileges and Immunities52
Because a constitutional analysis exceeds the scope of the assigning memo,53 the Speaker may wish to order a
more thorough constitutional analysis when a tentative draft has been agreed upon.
49
K.S.A. §46-253 et seq.; Miss. Code Ann. §25-4-18.
50
K.S.A. §46-254
51
Miss. Code Ann. §25-4-18.
52
See generally 63C AM. JUR. 2D Public Officers and Employees § 96 (collecting and analyzing cases challenging
nepotism statutes under federal and state constitutional prohibitions against infringement of free speech, due
process, or privileges and immunities; listing narrow exceptions where courts have struck down legislation that
deprived a person of current employment, where the law was held to be a bill of attainder, where the law went
“further than reasonably necessary to accomplish its goals,” and where the legislation was considered “special or
class legislation.”); Melanie L. Jump, Note, 28 U. Tol. L. Rev. 841, Wright v. Metrohealth Medical Center: AntiNepotism Policies Carve a Slice in the Fundamental Right to Marry – Is This the Wright or Wrong Decision? (considering the
impact of anti-nepotism policies on the right to marry); Randi Wolkenbreit, 31 Colum. J.L. & Soc. Probs. 119
(1997), In Order to Form A More Perfect Union: Applying No-Spouse Rules to Employees that Meet at Work (same).
53
See Assigning Memo (directing an analysis of national trends and statutory options).
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Addendum
§1.01 Definitions:
(A) a “public officer” is any person
a. whose salary, wages, pay or other compensation is paid, directly or indirectly, by public funds,
whether or not the individual has yet assumed the office,
i. including, but not limited to,
1. judicial, executive, legislative, and ministerial officers and employees; and
2. any member or employee of any agency, board, bureau, commission,
department, level, or political subdivision of this state
(B) a “relative” is
(1) a husband or wife;
(2) a parent or stepparent, whether by biology or by adoptation;
(3) a sibling or step sibling; whether by biology or by adoptation;
(4) a niece or nephew, whether by biology or by adoptation;
(4) a child, stepchild, foster child, or ward, whether by biology or by adoptation;
(5) a mother-in-law or father-in-law;
(6) a son-in-law or daughter-in-law;
(7) a grandparent, whether by biology or by adoptation;
(8) a grandchild, whether by biology or by adoptation;
(9) first or second cousins, whether by biology or by adoptation;
(10) domestic partner living together in a conjugal relationship not a legal marriage; or
(11) business partners and other persons who hold the authority or potential to confer
significant financial or pecuniary benefits on the public official.
§2.01 -- Nepotism
No public officer may advocate or cause the employment, appointment, promotion, transfer or advancement, or
vote or recommend the employment, appointment, promotion, transfer or advancement, or otherwise participate
in any matter relating to the employment of a relative in or to any position or employment, when the salary,
wages, pay, or compensation of the appointee or employee will be paid, directly or indirectly, from public funds,
except as allowed and under the terms of §4.01.
§3.01 -- Supervision
No public officer shall directly supervise a relative, nor may any appointee may accept or retain employment
when he is under the direct supervision of a relative, except as allowed and under the terms of §4.01.
§4.01 -- Exceptions
(A) Volunteers -(a) A public officer may employ a relative where the appointee is a volunteer as defined by the employing entity
and is not compensated, directly or indirectly, out of the public funds.
(B) Rural Localities –
A public officer may employ a relative
(a) where fewer than 3,000 people live within 40 miles of the primary place of employment, measured over all
public roads;
(b) the job opening has had reasonable public notice; and
(c) the relative is the best qualified candidate for the position.
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Exemplary Student Paper: Nepotism – Spring 2004
(C) School Teachers –
(i)Any local school board may employ any relative of any board member or of the superintendent as a classroom
teacher provided that such relative is certified to teach.
(ii) A school board member or superintendent whose relative is employed by the school board shall recuse
himself from any discussion involving the employment, appointment, promotion, transfer or advancement, or
vote or action regarding the employment, appointment, promotion, transfer or advancement, or otherwise
participate in any matter relating to the employment of a relative in or to any position or employment, when the
salary, wages, pay, or compensation of the appointee or employee will be paid, directly or indirectly, from public
funds.
(iii) In addition, by January 1st of each year, or before any matter materially connected to a disclosure is acted
upon, whichever comes first, any public officer whose relative is employed under this school teachers’ exception
shall file a written disclosure statement with the Ethics Commission stating the facts of such employment. Any
person who fails to timely file a disclosure statement under this Item may be assessed a late fee of fifty dollars
per day, not to exceed one thousand five hundred dollars.
(D) Medical Employees -(i) Any public hospital may employ a licensed physician or registered nurse who is a relative of any district board
or authority member or of the chief executive of the district or authority as a health care provider.
(ii) A public officer whose relative is employed by the hospital shall recuse himself from any discussion involving
the employment, appointment, promotion, transfer or advancement, or vote or action regarding the
employment, appointment, promotion, transfer or advancement, or otherwise participate in any matter relating
to the employment of a relative in or to any position or employment, when the salary, wages, pay, or
compensation of the appointee or employee will be paid, directly or indirectly, from public funds.
(iii) In addition, by January 1st of each year, or before any matter materially connected to a disclosure is acted
upon, whichever comes first, any public officer whose relative is employed under this medical employees
exception shall file a written disclosure statement with the Ethics Commission stating the facts of such
employment. Any person who fails to timely file a disclosure statement under this Item may be assessed a late fee
of fifty dollars per day, not to exceed one thousand five hundred dollars.
(E) Emergency Needs –
(i) A public officer may employ a relative in a temporary work arrangement, of no longer than
necessary, to meet a critical and urgent agency need.
(F) De Minimis Exception
(i) A public officer may employ a relative if
a. the total compensation amounts to less than five hundred dollars ($500.00); and
b. the total length of employment is 8 weeks or less.
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Exemplary Student Paper: Nepotism – Spring 2004
(G) Grandfather Exceptions
(i)
(ii)
Any person serving in public employment on the effective date of this Section, whose
employment is in violation of this Section, may continue in such employment and the
provisions of this Section shall not be construed to hinder, alter, or in any way affect
normal promotional advancements in public employment for such employee.
The provisions of this Section shall not prohibit the continued employment of any
public employee nor shall it be construed to hinder, alter, or in any way affect normal
promotional advancements for such public employee where a member of public
employees' relative becomes the agency head of such public employee's agency,
provided that such public employee has been employed in the agency for a period of at
least one year prior to the member of the public employee's relative becoming the
agency head.
(a) A public officer whose relative is employed under this grandfather exception shall
recuse himself from any discussion involving the employment, appointment,
promotion, transfer or advancement, or vote or action regarding the employment,
appointment, promotion, transfer or advancement, or otherwise participate in any
matter relating to the employment of a relative in or to any position or employment,
when the salary, wages, pay, or compensation of the appointee or employee will be
paid, directly or indirectly, from public funds.
(b) In addition, by January 1st of each year, or before any matter materially connected to
a disclosure is acted upon, whichever comes first, any public officer whose relative is
employed under this grandfather exception shall file a written disclosure statement with
the Ethics Commission stating the facts of such employment. Any person who fails to
timely file a disclosure statement under this Item may be assessed a late fee of fifty
dollars per day, not to exceed one thousand five hundred dollars.
(H) Civil Service Exception
(i) A public officer may employ a relative if the appointee is eligible or qualified to be employed by a
department or agency of the state or a political subdivision of the state as a result of his compliance
with civil service laws or regulations, or merit system laws or regulations.
(a) A public officer whose relative is employed under this civil service exception shall
recuse himself from any discussion involving the employment, appointment,
promotion, transfer or advancement, or vote or action regarding the employment,
appointment, promotion, transfer or advancement, or otherwise participate in any
matter relating to the employment of a relative in or to any position or employment,
when the salary, wages, pay, or compensation of the appointee or employee will be
paid, directly or indirectly, from public funds.
(b) In addition, by January 1st of each year, or before any matter materially connected to
a disclosure is acted upon, whichever comes first, any public officer whose relative is
employed under this civil service exception shall file a written disclosure statement with
the Ethics Commission stating the facts of such employment. Any person who fails to
timely file a disclosure statement under this Item may be assessed a late fee of fifty
dollars per day, not to exceed one thousand five hundred dollars.
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§5.01 – Agreements
It shall further be unlawful for any public officer to enter into any agreement or any promise with other
public officers to appoint to any public office any relative.
§6.01 – Penalties
(A) Public Officer
Any public officer or employee in this state who by virtue of his office or employment violates the provisions of
this act, except those pertaining to the timely filing of disclosures, shall thereby forfeit his office or employment.
(A) Relative
Any relative of a public officer shall hold any clerkship, office, position, employment or duty for which
compensation is received in the same agency as such elected member of the state government.
§7.01 – Commission
(a) The Ethics Commission shall consist of two representatives appointed by the Chief Justice, one from each
political party; two representatives appointed by the Speaker of the House of Representatives, one from each
party; two representatives appointed by the Speaker Pro Tem of the Senate, one from each party; and one
representative appointed by the Governor, of the party of his choice. Each representative shall serve a one year
term.
(b) The Ethics Commission, either upon its own initiative or upon the request of a public official, may issue an
opinion, as to either real or hypothetical situations, interpreting the Act.
(c) The actions and consideration of the Commission shall be confidential.
(d) When a request pursuant to subsection (b) of this section shall have stated all the facts to govern such
opinion and an opinion shall have been prepared and delivered with reference thereto, there shall be no liability,
civil or criminal, accruing to or against the member requesting the opinion who, in good faith, follows the
direction of the opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full
hearing, shall judicially declare that such opinion is manifestly wrong and without substantial support. No
opinion shall be given or considered if such opinion is requested after suit is filed or prosecution begun.
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