MRSC Inquiry 91-2950 - Nepotism
INQ. NO.: 91-2950 SULTAN
DATE: 7/15/91
REC/REF: PWM
TITLE: COUNCILMEMBER
RE: Request for information on anti-nepotism policies of cities.
July 15, 1991
Councilmember of Sultan
703 1st Street
Sultan, WA 98294
Dear Councilmember:
This letter is in response to our conversation concerning the legality of city officials hiring relatives to work for the city. Apparently there are a number of situations in your city in which this has been done. For example, the son of the police chief works as a reserve police officer. Apparently the daughter of the mayor and the daughter of the clerk also work for the city, at least in summer positions. Also, there are spouses who may both work for the city in the fire department.
It seems unlikely that any of these situations violate state law. I will provide a brief legal analysis in this letter.
First of all, there is no general state anti-nepotism law. Therefore, there is no prohibition in the state statutes or state administrative code which would prohibit relatives from working for the city. Some municipalities have enacted local anti-nepotism ordinances which limit the employment of relatives within the city. It would be possible for the town of Sultan to adopt such a policy if carefully drafted. I am enclosing two sample policies which may be utilized as models:
"Sample Personnel Policies for Washington Cities," Sec. C on Nepotism, prepared for the Local Government Personnel Institute, by the Employment Law Department of Davis, Wright, and Jones, dated February, 1987
"Personnel Policies for Small Cities," Sec. 3.5 on "Employment of Relatives (Nepotism), prepared for the Local Government Personnel Institute, by Gil Sparks and Scott Snyder, Ogden Murphy Wallace, dated April, 1991
Note that both of these samples provide an exception which deals with spouses. Washington State has an administrative regulation in WAC 162-16-150 which declares that discrimination in employment is an unfair practice. Denying employment to the spouse of a current employee in all circumstances would constitute an unfair practice as defined in this regulation. The regulation does not entirely prohibit such policies, and it does allow exceptions where legitimate business practices require them. This means there must a particular circumstance why a spouse should not be hired in a particular situation. For example, this would be the case if one spouse would have the authority or power to supervise, hire, remove or discipline the other or where one spouse would be responsible for financially auditing the work of another. The enclosed sample policies do provide language which complies with the administrative code regulation. I am also enclosing a copy of WAC 162-16-150 for your further-information.
The only other legal doctrine which might be involved in this situation is the conflict of interest provisions. There is a state statute, RCW 42.23.030, which prohibits a municipal officer from having a beneficial interest, directly or indirectly in any contract which is executed by, through, or under the supervision of the municipal officer. However, it is not likely that this statutory provision would apply to any of the situation described above. First of all, this chapter does not apply to the adult relatives of a city officer employed by a city except for the spouse of the officer. This is because a city officer does not usually have a financial interest in the earnings of adult children or other adult relatives, such as brothers, fathers, and so on. Therefore, there would be no violation of the conflict of interest statutes if the adult relative of a city officer were to become an employee of the city.
Washington is a community property state and therefore it is true that a spouse does have a financial interest in the employment contract of the other spouse. Therefore, the conflict of interest provisions could apply to situations involving married couples. However, there is important exception in the conflict of interest statutes which must be considered. There is a section which provides that a public officer may have a contract interest with the city that would otherwise be illegal as long as the total amount of the contract does not exceed $18,000 in any calendar year. This means that the spouse of a city official could be employed by the city until the salary or wage paid reaches $18,000 in a calendar year. This is not likely to be the case in your situation since these are not full-time permanent positions. Also, even if some of the children involved are dependent minor children, it does not appear likely that any will earn $18,000 in a calendar year and therefore the exception in the statute would also apply to that situation. (If a city has a population greater than 10,000, or a county has a population greater than 25,000, no public official may have any contract interest with the government entity, either directly or indirectly through a spouse or dependent minor child, unless the interest is otherwise permitted. See RCW 42.23.030.)
In summary, it does not appear that any of the above situations involving employment of relatives by city officials would violate any provision in the state statutes. This is because there is no state anti-nepotism law and it is doubtful that these situations constitute a violation of the state conflict of interest statutes. If the city wishes to limit the employment of relatives, it will be necessary to enact a local ordinance on the subject which would prohibit the employment of relatives within the city. Remember that the prohibition against employment of spouses must be drafted so as to comply with the Washington Administrative Code regulation protecting discrimination against spouses.
I hope this information is of assistance. Please do not hesitate to contact us again if we can be of further assistance.
Sincerely,
Patrick W. Mason
Legal Consultant