Mississippi Advisory Opinions January 26, 2007: No. 2006-00673 (January 26, 2007)

Mississippi Attorney General Opinions

2007.

No. 2006-00673.

Dear Commissioner Bentz:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

This letter is a request for an opinion from your office on the following matters associated with the official office of the Public Service Commissioner for the Southern District of Mississippi. It is sent in the spirit of desire to comply fully with the laws regarding campaigning.

We have reviewed the statute that the Mississippi Legislature passed specifically regarding the Commission and its employees and the prohibitions thereof. The relevant statute may be found in Miss. Code Ann. Section 77-1-11 (Revised 2000). My question surrounds whether there are any general prohibitions not addressed in the statute against the following:

(1) May a spouse of an employee give a campaign contribution? If not, how far in the familial line does the law apply?

(2) May a Commissioner accept campaign contributions from contract or common carriers since such carriers are no longer in the Commission's jurisdiction?

Miss. Code Ann. Section 77-1-11 (1972) reads as follows:

(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.

(2) It shall be unlawful for any person interested as owner, agent or representative, or 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, or any other public utility that shall come under the jurisdiction or supervision of the Public Service Commission to offer any gift, pass, money, campaign contribution or any emolument or other pecuniary benefit whatsoever to any Public Service Commissioner, any candidate for Public Service Commissioner or any employee of the Public Service Commission or Public Utilities Staff. Any party found guilty of violating the provisions of this subsection shall be fined not less than Five Thousand Dollars ($5,000.00), or imprisoned in the State Penitentiary for not less than one (1) year, or both.

(3) For purposes of this section the term "emolument" shall include salary, donations, contributions, loans, stock tips, vacations, trips, honorarium, directorships or consulting posts. Expenses associated with social occasions afforded public servants shall not be deemed a gift, emolument or other pecuniary benefit as defined in Section 25-4-103(k), Mississippi Code of 1972.

(4) For purposes of this section, a person who is a member of a water, gas, electric or other cooperative association regulated by the Public Service Commission shall not, by virtue of such membership, be deemed an owner, agent or representative of such association unless such person is acting in any respect for or as an owner, agent or representative of such association; nor shall a person who owns less than one-half of one percent ( 1/2 of 1%) in stock, the value thereof not to exceed Ten Thousand Dollars ($10,000.00), of any public utility that is regulated by the Public Service Commission, or of any holding company of such public utility, by virtue of such ownership, be deemed an owner, agent or representative of such public utility unless such person is acting in any respect for or as an owner, agent or representative of such public utility.

Miss. Code Ann. Section 77-7-7 (1972) define common carrier and contract carrier by motor vehicle as follows:

(e) The term "common carrier by motor vehicle" means any person who or which undertakes, whether directly or by a lease or any other arrangement, to transport passengers or household goods.

(f) The term "contract carrier by motor vehicle" means any person, not included under subsection (e) of this section, who or which, under special and individual contracts or agreements, and whether directly or by a lease or any other arrangement, transports passengers or household goods.

Miss. Code Ann. Section 77-7-13(1) (1972), last amended in 2004, provides in pertinent part:

(1) It shall be the duty of the commission and the commission shall have the power:

(a) To regulate common carriers by motor vehicle and contract carriers by motor vehicle not exempted in this chapter, doing business in this state...

In response to your first question, we understand the question to be whether the spouse of an employee of one of the business entities listed in Section 77-1-11(1) may make a contribution to a candidate for public service commissioner. Section 77-1-11

(1) makes it unlawful for a candidate for a public service commissioner to "knowingly accept any .. campaign contribution ... either directly or indirectly.." from the persons listed in the statute. Whether an unlawful contribution is accepted directly from a person listed in the statute, or indirectly via the spouse or other family member of an employee of a listed business entity, is a question of fact that can be determined only by a court. This office is authorized to render opinions only on matters of state law.

By way of contrast, the Legislature has established in the state ethics laws at Miss. Code Ann. Section 25-4-105(1) (1972) that "no public servant shall use his official position to obtain pecuniary benefit for himself other than the compensation provided for by law, or to obtain pecuniary benefit for any relative...". The ethics law specifically defines "relative" as a spouse, child or parent. See Miss. Code Ann. Section 25-4-101(q)(1972). The Legislature provides no comparable instruction with regard to campaign contributions to candidates for public service commissioner.

In response to your second question, federal law now prohibits state regulation over most categories of intrastate transportation. See 49 USCA 14501, as amended by Section 601 of the Federal Aviation Administration Authorization Act of 1994. In MS AG Op., Hebert (December 6, 1995), this office concluded that because interstate pipeline companies do not come within the jurisdiction or supervision of the Public Service Commission, those companies and their representatives could make campaign contributions to candidates for public service commissioner.

However, unlike interstate pipeline companies, common carriers and contract carriers are specifically enumerated as sources of prohibited contributions in 77-1-11 (1). The public policy reasons for the Legislature prohibiting contributions from regulated industries are self evident. It is our opinion, however, that even where a class of industry is largely removed from regulation by the Public Service Commission, it is the prerogative of the Legislature to declare which industries may contribute to candidates for public service commissioner, be they regulated or not. In this case, the Legislature expressly states in Section 77-1-11 that common carriers and contract carriers are specifically prohibited sources of contributions, and the language of the statute does not require that they be regulated industries.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD,

ATTORNEY GENERAL

By: Reese Partridge

Special Assistant Attorney General