Mississippi Advisory Opinions May 18, 1995: AGO 000009851 (May 18, 1995)

AGO 000009851.

Dear Sirs:

Attorney General Mike Moore is in receipt of your request for an official opinion of this office and assigned it to me for research and reply. In your letter you state:

Pursuant to Section 601 of the Federal Aviation Administration Authorization Act of 1994, state economic regulation of motor carriers (except household goods and passenger carriers) was preempted by the U.S. Congress, to become effective January 1, 1995. Motor carriers will not be defined as contract or common carriers, since the Mississippi Public Service Commission herein- after "MPSC") will no longer have rate jurisdiction. The jurisdiction that continues is only insurance information and safety inspections. This is the same jurisdiction the Mississippi Public Service Commission would have over interstate carriers.

Miss. Code Ann. Section 77-1-11 (Supp. 1994) prohibits any candidate for Public Service Commissioner from accepting a campaign contribution from an agent or representative of any common or contract carrier. The intent of the legislature was to prohibit a candidate for MPSC from accepting a campaign contribution from any utility of which they had rate jurisdiction. Since motor carriers are no longer defined as contract or common carriers and rate regulation is preempted by the federal government, may motor carriers now contribute to the campaigns of candidates for Public Service Commissioner?

Additionally, Miss. Code Ann. Section 77-1-11 (Supp. 1994) states that a candidate for Public Service Commissioner may not accept a campaign contribution from any person interested as owner, agent or representative or from any person acting in any respect for such owner, agent or representative. Can a vendor of a utility, who also services other business, and who is not acting as an agent or representative of a regulated utility company, legally contribute to a candidate for the MPSC?

And lastly, can an attorney, who performs services for a regulated utility, along with other clients, and who is not acting as an agent or representative of a regulated utility company, legally contribute to a candidate for the MPSC?

The prohibition against a candidate for Public Service Commission accepting a campaign contribution from a common carrier or contract carrier is found in Section 77-1-11. That Section states in pertinent part:

(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 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.

The definitions of "common carrier" and "contract carrier" for the purposes of the authority and powers of the Mississippi Public Service Commission are found in Section 77-7-7, Mississippi Code of 1972, annotated. That Section provides in pertinent part:

(e) The term "common carrier by motor vehicle" means any person who or which undertakes, whether directly by a lease or any other arrangement, to transport passengers or property for the general public by motor vehicle for compensation over regular routes, including such motor vehicle operation of carriers by rail or water, and of express or forwarding companies under this chapter.

(f) The term "restricted common carrier by motor vehicle means any person who or which undertakes, whether directly or by a lease or other arrangement, to transport passengers or property of any restricted class or classes for the general public by motor vehicle for compensation, whether over regular or irregular routes, or to transport passengers or property for the general public by motor vehicle for compensation over irregular routes.

(g) The term "contract carrier by motor vehicle" means any person, not included under subsections (e) and (f) 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 property by motor vehicle for compensation.

In regard to your first question, you are correct in stating that Section 601 of the Federal Aviation Administration Authorization Act of 1994 preempts state economic regulation of many motor carriers except for household goods and passenger carriers. However, this office is unable to state that the federal legislation preempts the enforcement of the criminal provisions of Section 77-1-11. The general rule of law is that federal statutes preempt state law only when there is a direct conflict with the state law or enforcement of the state law would frustrate the intent of the federal legislation. That is not the case in this situation, since there is no direct conflict between the statutes, nor does the state criminal statute frustrate the purposes of the federal legislation. In fact, as your letter notes, there still exists some residual oversight of common carriers and contract carriers under state law by the Public Service Commission. Additionally, the federal statute makes no attempt to preempt the state definition of "common carrier" and "contract carrier," and these two terms remain the same under state law.

In regard to your second question, this Office is of the opinion that a vendor of goods which sells to the public and also makes sales to a public utility, and which is not interested as an owner, agent or representative of a public utility or acting for an owner, agent or representative of a public utility, may legally contribute to a candidate for the MPSC.

In regard to your third question, it is our view that an attorney who performs services for a public utility, is a person "...interested as a ...representative..." of the public utility and consequently is an individual who is prohibited from making, either directly or indirectly, a contribution to a candidate for the MPSC whether or not that attorney has multiple clients.

If the Attorney General's Office may be of further assistance in this matter, please do not hesitate to contact us.

Sincerely,

Mike Moore Attorney General

By: _________________________ Larry E. Clark Deputy Attorney General

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