Mississippi Advisory Opinions September 05, 1997: AGO 97-0509 (September 05, 1997)

Advisory Opinion Text

Honorable Phil Carter

Assistant Secretary of State for Elections

P.O. Box 136

Jackson, Mississippi 39205-0136

Re: Rulemaking authority of Secretary of State to Enforce Lobbying Laws

Dear Mr. Carter:

Attorney General Mike Moore has received your letter of request for an official opinion of this office and has assigned them to me for a reply. In your letter you state:

Chapter 8, Title 5, Mississippi Code Annotated (Supp. 1996) is the ‘Lobbying Law Reform Act of 1994’ [the Act]. In accordance with the Act, each lobbyist and lobbyist's client is required to register and file reports with the Secretary of State.

Section 5-8-17(b) provides:

Beginning with the tenth calendar day after which any report shall be due, the Secretary of State shall assess the delinquent lobbyist and delinquent lobbyist's client a civil penalty of Fifty Dollars ($50.00) per day and part of any day until a valid report is delivered to the Secretary of State, up to a maximum of ten (10) days....

In accordance with the above quoted provisions, the Secretary of State assessed delinquent lobbyists and lobbyists' clients the appropriate penalties. Some lobbyists and lobbyists' clients have not paid their assessments.

In an effort to help insure the payment of these assessments, the Secretary of State is contemplating the adoption of regulations that would, in the case of a delinquent lobbyist's client, provide that no lobbyist registration certificate would be issued to any lobbyist purporting to represent the client until such time as all outstanding civil penalties assessed to the client are paid. The proposed regulations would further provide that a public record be made, listing all delinquent lobbyists' clients.

In the case of a delinquent lobbyist, the proposed regulation would provide that no annual registration certificate would be issued to a delinquent lobbyist until such time as all outstanding civil penalties assessed to the lobbyist are paid. The proposed regulations would further provide that a public record be made, listing all delinquent lobbyists.

Please advise by way of an official opinion, as to whether the Secretary of State has the authority to promulgate and enforce the above described regulations. If the Secretary of State has such authority, may such regulations, when implemented, be enforced against lobbyists and lobbyists' clients that are currently delinquent in paying assessments?

We point out that while Sections 5-8-9(4) and 5-8-11(4) both refer to rules and regulations of the Secretary of State in regard to the reporting of lobbying expenditure, we are not clear on how far that rule-making authority extends.

We further note that Section 25-43-5 found in the ‘Mississippi Administrative Procedures Law’ appears to give State Agencies some additional rule-making authority.

Section 25-43-1 et seq. , Miss. Code Ann. (Supp. 1997) sets forth the Mississippi Administrative Procedures Law. Section 25-43-3(a) defines “Agency” as:

each state board, commission, department or officer, other than the Legislature, the Governor and the courts, authorized by law to make rules or to determine contested cases.

“Contested case” is defined by Section 25-43-3(b) to be:

a proceeding, including but not restricted to rate-making, price-fixing and licensing in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing, other than disciplinary proceedings or agency action involving only employees of an agency.

Section 25-43-3(g) defines “Rule” to mean:

each agency statement of general applicability that implements, interprets or prescribes law or policy or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; or (ii) declaratory rulings issued pursuant to Section 25-43-17; or (iii) intra-agency memoranda.

In Fordice v. Thomas , 649 So.2d 835 (Miss. 1995), the Mississippi Supreme Court held that the governor was an “agency” within the meaning of the Administrative Procedures Law. This was later changed by legislative enactment to specifically exempt the governor from this definition. See Section 25-43-3(a), supra . However, no other executive officer was exempted.

Pursuant to The Lobbying Law Reform Act of 1994, Sections 5-8-1 et seq. , lobbyists and lobbyists' clients are required to file registration and expenditure reports with the Secretary of State. Section 5-8-19 sets forth specific duties of the Secretary of State in regards to the Lobbying Law. Section 5-8-17(1) states, in pertinent part:

In addition to any other penalty permitted by law, the Secretary of State shall require any person who fails to file a report as required under Sections 5-8-1 through 5-8-19 of this chapter, or who shall file a report which fails to comply with the material particulars of Sections 5-8-1 through 5-8-19 of this chapter or any rules, regulations or procedures implemented pursuant to Section 5-8-1 through 5-8-19 of this chapter , .... [emphasis added].

Section 5-8-17(2) provides that the Mississippi Ethics Commission shall conduct hearings upon the sworn application of a lobbyist or lobbyists' client against whom a civil penalty has been assessed. Pursuant to the Administrative Procedures Law, the Ethics Commission would be the body to hear all “contested cases.” See Section 25-43-2(b), supra .

In response to your specific questions, it is the opinion of this office that the Secretary of State is given specific authority to promulgate and enforce rules and regulations pursuant to both the Lobbying Law and the Administrative Procedures Law. This office, however, does not opine on specific rules or regulations of an agency.

Any rules and regulations promulgated by the Secretary of State would have to follow the procedures set forth in the Administrative Procedures Law. Therefore, any rules promulgated in this matter are only effective and enforceable after complying with the procedures set forth in the Administrative Procedures Law.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore Attorney General

Sandra M. Shelson Special Assistant Attorney General