Mississippi Advisory Opinions October 21, 2016: AGO 2016-00470 (October 21, 2016)

Advisory Opinion Text

AUTH: Ricky G. Luke

RQNM: Cecil Brown

SUBJ: Public Service Commission

SBCD: 167

TEXT: Cecil Brown

Commissioner

Mississippi Public Service Commission

P. O. Box 1174

Jackson, MS 39215-1174

Re: Acceptance of Campaign Contributions

Dear Commissioner Brown:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and reply.

Issues Presented

Your letter asks:

1. Is it lawful for a PSC Commissioner, candidate, or employee to accept a campaign contribution from an attorney working in a law firm which currently represents a regulated entity?

2. Is it lawful for a PSC Commissioner, candidate, or employee to accept a campaign contribution from an attorney working in a multi-state law firm in which an out-of-state office currently represents a regulated entity?

Your letter further notes that “[b]ecause seemingly contradictory advice has been given in prior AG opinions, I also request clarification from the AGO on the following two (2) questions:”

1. Is it lawful for a PSC candidate, commissioner, or employee to accept a contribution from an attorney who has, in the past, represented a regulated entity?

2. Is it lawful for a PSC candidate, commissioner, or employee to accept a contribution from the spouse of an attorney who has, in the past, represented a regulated entity?

Response, Analysis and Discussion

The operative statute is Mississippi Code Annotated Section 77-1-11(1) which states:

(1) It shall be unlawful for any public service commissioner, any candidate for public service commissioner, or any employee of the Public Service Commission or Public Utilities Staff to knowingly accept any gift, pass, money, campaign contribution or any emolument or other pecuniary benefit whatsoever, either directly or indirectly, from any person interested as owner, agent or representative, or from any person acting in any respect for such owner, agent or representative of any common or contract carrier by motor vehicle, telephone company, gas or electric utility company, or any other public utility that shall come under the jurisdiction or supervision of the Public Service Commission. Any person found guilty of violating the provisions of this subsection shall immediately forfeit his or her office or position and shall be fined not less than Five Thousand Dollars ($5,000.00), imprisoned in the State Penitentiary for not less than one (1) year, or both.

Condensed to its essence, the statute provides that a commissioner, candidate or an employee of the PSC cannot accept a contribution from an “owner, agent or representative” of a PSC regulated entity. You question whether a campaign contribution can be accepted from a lawyer under varying circumstances. A lawyer representing an entity regulated by the PSC on any matter would, as a matter of law, be at least a limited agent and/or a representative of the regulated entity. Thus, a lawyer actively representing such an entity would be within the prohibition of the statute. A lawyer that, in the past, had represented a regulated entity, but had terminated that relationship, would no longer come within the statutory prohibition by virtue of the past representation.

Your letter asks questions regarding whether an attorney that does not represent a regulated entity but who works in a firm in which other lawyers represent or have represented a regulated entity is within the statutory prohibition. These questions seem to implicate the imputed disqualification principles found with Rule 1.10 of the Mississippi Rules of Professional Conduct. That Rule prohibits an attorney from accepting legal representation when any other attorney in his firm would be prohibited under Rules 1.7, 1.8(c), 1.9 or 2.4. Rule 1.10 applies to conflicts of interest arising out of legal representation. The Legislature did not engraft these imputed disqualifications into Section 77-1-11(1), and we, likewise, do not read them into the statute.

The statute, for purposes of your inquiry, is focused on whether the individual lawyer, as opposed to one of his partners or associates, is an “owner, agent or representative” of a regulated entity or “acting in any respect for such owner, agent or representative” of a regulated entity. A lawyer representing a regulated entity would fall within this definition. A lawyer would not fall within this definition solely because another lawyer in his firm represents a regulated entity. A lawyer would not fall within this definition solely because he had once represented, but no longer represents, a regulated entity. Thus, the answers to your questions are as follows:

Question 1 . Is it lawful for a PSC Commissioner, candidate, or employee to accept a campaign contribution from an attorney working in a law firm which currently represents a regulated entity?

Yes, a contribution can be accepted so long as the attorney is not representing a regulated entity.

Question 2 . Is it lawful for a PSC Commissioner, candidate, or employee to accept a campaign contribution from an attorney working in a multi-state law firm in which an out-of-state office currently represents a regulated entity?

Yes, a contribution can be accepted so long as the attorney is not representing a regulated entity.

Question 1 . Is it lawful for a PSC candidate, commissioner, or employee to accept a contribution from an attorney who has, in the past, represented a regulated entity?

Yes, a contribution can be accepted so long as the attorney no longer represents a regulated entity.

Question 2 . Is it lawful for a PSC candidate, commissioner, or employee to accept a contribution from the spouse of an attorney who has, in the past, represented a regulated entity?

Yes, assuming that the wife does not otherwise fit within the prohibition of the statute. Her status as the wife of a former attorney to a regulated entity would not prohibit her from making a contribution.

This opinion is based solely on relationship between the attorneys and regulated entities being that of attorney-client. Obviously, we offer no opinion on any other facts which might bring the subject individuals within the purview of the statute. To the extent our prior opinion in MS AG Op., Brown (Dec. 30, 2014) concludes that a prior, terminated legal representation would prohibit that attorney from making a contribution, it is hereby modified.

If our office can be of further assistance, do not hesitate to contact us.

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

Ricky G. Luke, Assistant Attorney General.