Mississippi Advisory Opinions September 25, 1991: AGO 000005377 (September 25, 1991)

AGO 000005377.

Dear Mr. Wilkerson:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. A copy of the letter is attached.

In summary, your letter contends that the Public Utilities Staff is separate and independent of the Public Service Commission. Therefore, your letter suggests that the Public Utilities Staff is not subject to Mississippi Code Annotated Section 77-1-25 (Supp. 1990), which prohibits the "members of the staff of the commission" from being a candidate for political office.

In response to your inquiry, I agree that the Public utilities staff is not subject to Mississippi Code Annotated Section 77-1-25 (Supp. 1990). Although the Public Utilities Staff advises, makes recommendations, and reports directly to the Public Service Commission, the legislature, through its own words, has attempted to separate the Public Utilities Staff and the Public Service Commission into two distinct entities.

1. As you stated in your letter, Mississippi Code Annotated Section 77-2-5 (1990) defines "Public service commission staff" as "those persons employed by the Public Service Commission . . . ." The section also defines "Public utilities staff" separately as "those persons employed by the public utilities staff established in Section [sic] 77-2-1."

2. Furthermore, in the 1990 Supplement to the Mississippi Code Annotated, the legislature intentionally added the phrase "Public utilities staff" to the sections in Chapter one, the Public Service Commission chapter, that were to apply to the Public utilities staff. They are:

A. Section 77-1-6, as of September 1, 1990, allows the "Public Service Commission Regulation Fund" to be the sole fund of the commission and the public utilities staff.

B. Section 77-1-11 states that "[i]t 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 accept any gift, pass, money, campaign contribution . . ." and other benefits.

C. Section 77-1-27, as of September 1, 1990, states that "[a]ll employees provided for . . . and the reasonable and necessary expenses of the administration of the duties imposed on the commission by the Motor Carrier Regulatory Law of 1938, shall be paid out of the appropriations made to defray the expenses of the commission and the public utilities staff, upon requisitions and warrants in the same manner provided by law for the disbursements of appropriations for the commission or the public utilities staff. An itemized account shall be kept of all receipts and expenditures and shall be reported to the Legislature by the commission and the public utilities staff."

D. Section 77-1-29, as of September 1, 1990, states that "[a]ll disbursements made by said commission or public utilities staff from said regulation fund for any purposes, other than for salaries provided by law, shall be supported by a detailed and itemized statement approved by the commission for commission disbursements and the executive director for public utilities staff disbursements."

3. The legislature, however, in the Public Service Commission chapter, chapter one, did not add the phrase "public utilities staff" in Mississippi Code Annotated Section 77-1-25 (Supp. 1990). The statute states, in part, that:

"[n]o member of the staff of the commission shall, while in such position, be a candidate for any political office or take part in or contribute any money or other thing of value, directly or indirectly, to any political campaign or any candidate for public office. Anyone violating the provisions of the section shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided by law, and shall be dismissed from the staff of the commission."

4. The legislature has also added a separate chapter in the Mississippi Code Annotated (Supp. 1990), chapter two, that applies specifically to the Public Utilities Staff. In this chapter, as your letter states, the legislature states its intention of separating the public utilities staff from the public service commission. Section 77-2-1 states, in part, that:

"There is hereby established a public utilities staff, which shall be completely separate and independent from the Public Service Commission and the public service commission staff."

5. Furthermore, Mississippi Code Annotated Section 77-3-8 (Supp. 1990) creates the duties of the public utilities staff, but the statute directs the duties to the public service commission staff. However, Section 77-2-9 abolished these duties from the public service commission staff as of August 31, 1990, and specifically redirects these duties to the public utilities staff.

Due to the evidence presented in your letter as well as above, the legislature's intention was to keep the public utilities staff completely separate from the public service commission and its staff. If the legislature had intended for Mississippi Code Annotated Section 77-1-25 to apply to the public utilities staff, it would have included the phrase "and the public utilities staff" as it did in several sections in chapter one. Therefore, Mississippi Code Annotated Section 77-1-25 does not prohibit the public utilities staff from being candidates for public office.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Samuel W. Keyes Assistant Attorney General SWK,Jr/ra Enclosure