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> Office of Legal Counsel
What is Nepotism?
April 4, 2006
TO:
Dave Dooley
Provost
FROM: Leslie C. Taylor, Legal
Counsel
RE:
Nepotism
You asked me to summarize my research regarding nepotism. "Nepotism" is
defined by state statute as "the bestowal of political patronage by reason of
relationship rather than merit." Section 2-2-301, MCA. Under Montana law, it is
unlawful "for a person or any member of any board, bureau, or commission or
employee at the head of any department of this state or any political
subdivision of this state to appoint to any position of trust or emolument any
person related or connected by consanguinity within the fourth degree or by
affinity within the second degree." Section 2-2-302, MCA. It is also unlawful to
"enter into any agreement or any promise . . . to appoint [a relative] to any
position of trust or emolument." Section 2-2-303, MCA. Copies of the statutes
are attached as Attachment A.
The nepotism statutes, which date back to 1933, have been interpreted by a
series of Attorney General Opinions. The purpose of the statutes is to prevent
favoritism and conflicts of interest by public agencies in hiring and to make
hiring decisions based upon merit rather than relationship. 43 A.G. Op. 23
(1989). "Like any statute that speaks broadly and admits few exceptions, these
provisions may occasionally penalize a worthy applicant . . . ." 43 A.G. Op. 23
(1989.
Thus, the Attorney General ruled that the mayor's appointment of his
son-in-law to the position of Chief of Police violates the nepotism statutes,
even if the son-in-law was the most qualified candidate for the position. 37
A.G. Op. 49 (1977).
However, there was no violation of nepotism laws when the daughter of state
liquor store vendor was an employee in her father's liquor store. The nepotism
statute "prohibits a person from 'appointing' a relative within the prohibitory
degree, to any position of trust or emolument". 27 A.G. Op. 21 (1957). Since the
Liquor Control Board has the exclusive right to hire and fire employees of the
store, the Attorney General found that the employment of the vendor's daughter
in the same liquor store as her father was permissible under the nepotism
statutes.
The statutes prohibit the "appointment" of a relative to any position of
trust or emolument. "Emolument" is defined as "any perquisite, advantage,
profit, or gain arising from the possession of office. " Black's Law Dictionary,
Fifth Edition (1979). Therefore, it is my opinion that the nepotism statute is
violated if the related employee has the authority to hire, fire, or decide
issues of salary, promotion, leaves of absence or any other job-related benefits
for a relative within the prohibited degree of affinity.
MSU has a nepotism policy which states:
No employee of Montana State University may participate in
decisions which would involve a direct benefit or detriment
(appointment, hiring, retention, promotion, salary, leave of
absence) to a relative [as defined by the policy].
If a relative applies for a position which is
supervised by a relative, the immediate senior to such a supervisor
or other designated authority will be responsible for instituting
any special procedures required to assure consideration based solely
on merit.
See MSU Personnel Policy & Procedures, Section 430.
There may also be perceived conflicts of interest with hiring relatives using
federal grant funds. The concern arises both from a classic financial conflict
of interest concern and the potential concern for lack of objectivity in the
research outcomes. OMB Circular A-110 states in pertinent part:
No employee, officer, or agent shall participate in the
selection, award, or administration of a contract supported by
Federal funds if a real or apparent conflict of interest would be
involved. Such a conflict would arise when the employee, officer, or
agent, any member of his or her immediate family, his or her
partner, or an organization which employs or is about to employ any
of the parties indicated herein, has a financial or other interest
in the firm selected for an award. The officers, employees, and
agents of the recipient shall neither solicit nor accept gratuities,
favors, or anything of monetary value from contractors, or parties
to subagreements. However, recipients may set standards for
situations in which the financial interest is not substantial or the
gift is an unsolicited item of nominal value. The standards of
conduct shall provide for disciplinary actions to be applied for
violations of such standards by officers, employees, or agents of
the recipient.
NIH conflict of interest policy for grantees states:
Prudent stewardship of public funds that support research
programs requires that appropriate steps be taken to ensure high
quality results. Therefore, recipient organizations must establish
safeguards to prevent employees, consultants, or members of
governing bodies from using their positions for purposes that are,
or give the appearance of being, motivated by a desire for private
financial gain for themselves or others such as those with whom they
have family, business, or other ties. Therefore, each institution
receiving PHS funds must have written policy guidelines on conflict
of interest and avoidance thereof. These guidelines should reflect
state and local laws and must cover financial interests, gifts,
gratuities and favors, nepotism, and other areas such as political
participation and bribery. These rules must also indicate how
outside activities, relationships, and financial interests are
reviewed by the responsible and objective institution official(s)
One should also keep in mind that while MSU is bound by the existing nepotism
laws, a qualified applicant should not be denied an opportunity for a position
on campus merely because he or she is related to another employee on campus.
State anti-discrimination laws prohibit discrimination on the basis of marital
status. Federal Executive Order #11246, as amended, requires federal contractors
to ensure that their personnel policies and practices do not discriminate
against employees or applicants on the basis of race, color, religion, sex or
national origin. Among those practices identified which may have the effect of
discriminating against individuals on the basis of sex are anti-nepotism
policies.
For these reasons, it has been my opinion that if a person related to an
employee is hired under a competitive search by a hiring authority or committee
which is free from the influence of the relative who is currently an employee,
there is no violation of the nepotism laws. The object is to hire solely on the
basis of merit and a competitive search process should identify and document
that only the most qualified applicants were considered.
It is further my opinion that supervision of a relative would not be a
violation of the nepotism statutes, unless the supervising relative has
authority to hire, fire or otherwise grant benefits to the relative employee.
I hope this provides you with the necessary information to adequately address
this matter. Please feel free to contact me if you have any questions.
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