Can a Mississippi state legislator be appointed Executive Director of the Public Utilities Staff?

Plain-English summary

Senator Joel R. Carter, Jr. asked the AG two questions about the Executive Director of the Mississippi Public Utilities Staff: is the position a fixed-term appointment, and is a legislator eligible to be considered for the appointment? The position is high-profile in Mississippi utility regulation; the Public Utilities Staff is the consumer-side advocate on rate cases and policy proceedings before the Public Service Commission.

The AG answered both questions:

1. Fixed term: Yes. Section 77-2-7(1) creates a six-year term for the Executive Director, with appointment by the Governor from candidates the Public Service Commission selects, subject to Senate confirmation. The statute also says the Director "shall serve at the will and pleasure of the Governor," but the AG read that language together with the fixed-term language to give the Director a definite term subject to gubernatorial removal authority. Two prior Senate-confirmed appointments (Waites in 2008, Jones in 2014) were both made for six-year terms, supporting the fixed-term reading.

2. Legislator eligibility: Yes, in principle. A sitting legislator may be considered for the appointment if they meet the substantive qualifications in § 77-2-7(2). The AG noted that Senator Carter clarified by phone that any legislator considered for the position would resign his or her legislative seat before accepting the appointment, which sidesteps the separation-of-powers prohibition on simultaneous service.

3. Ethics-side questions: The AG referred the harder question to the Mississippi Ethics Commission. Section 109 of the Mississippi Constitution forbids legislators from being interested in any contract authorized during their term and for one year after, and § 25-4-105(2) implements similar conflict rules. Whether a former legislator could be appointed immediately or had to wait one year after resigning is for the Ethics Commission to decide.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi's Public Utilities Staff was created by amendment to the Public Utilities Act as an independent agency separate from the Public Service Commission. The PSC is the regulatory body that decides utility cases; the Public Utilities Staff is the consumer-protection-side participant in those proceedings. The two are deliberately separated to avoid the appearance that the Commission is its own staff's audience.

Section 77-2-7 creates the Executive Director position. Subsection (1) lays out the appointment process:

An executive director of the public utilities staff shall be appointed, on or before July 1, 1990, by the Governor, from recommended candidates to be selected by the Public Service Commission, with the advice and consent of the Senate, to serve for a term of six (6) years. ... The executive director shall serve at the will and pleasure of the Governor.

The two clauses sit in apparent tension: a fixed six-year term, and "at the will and pleasure" service. The AG resolved the tension by reading the term as defining the regular maximum length of service while reading the "will and pleasure" language as preserving the Governor's removal authority. The AG cited MS AG Op., Finch (October 24, 1985), holding that an appointee acquires a definite term either by specific statute or by § 25-1-1's general provisions; that term is subject only to applicable removal provisions. Section 77-2-7(1)'s "will and pleasure" language qualifies as a removal provision.

The result: the Director has a six-year term but can be removed before its expiration by the Governor. Both 2008 and 2014 Senate confirmations of Public Utilities Staff Directors specified six-year terms, supporting this reading.

The legislator-eligibility question is straightforward in principle. A legislator who meets the substantive job qualifications in § 77-2-7(2) is eligible to be considered for appointment. The hard wrinkle is timing: Mississippi has a constitutional and statutory framework that limits how quickly a legislator can transition into appointed positions.

Section 109 of the Mississippi Constitution prohibits legislators from being "interested in any contract" with the state during their term and for one year after. The principle is to prevent legislators from voting on, or influencing, deals that benefit them after they leave office. Whether the Public Utilities Staff Director appointment counts as a "contract" within Section 109's reach is a difficult interpretive question. Section 25-4-105(2) (part of the Mississippi Ethics in Government Law) implements similar conflict-of-interest rules and is administered by the Mississippi Ethics Commission.

The AG's referral to the Ethics Commission is procedurally standard. The AG decides questions of law on requests from authorized officials; the Ethics Commission decides ethics questions including § 25-4-105 conflicts and § 109 questions in many contexts. Anyone considering whether a sitting or former legislator could lawfully take the Public Utilities Staff Director position would need an Ethics Commission opinion in addition to the AG's analysis here.

The separation-of-powers question (whether a person can simultaneously be a legislator and the Director) is constitutionally clear and the AG flagged it in passing. Article 1, Sections 1 and 2 of the Mississippi Constitution prohibit one person from exercising powers belonging to two branches simultaneously. Holding both a Senate seat and an executive-branch position would violate that doctrine. Senator Carter's clarification that any legislator-appointee would resign before taking office took the simultaneous-service issue off the table.

Common questions

Q: Could the Senate decline to confirm a legislator-appointee?
A: Yes. Senate confirmation is a separate political and legal step. The Senate can decline confirmation for any reason, including a perception that the appointment is improper or that the candidate cannot lawfully serve.

Q: What does "at the will and pleasure of the Governor" mean if the term is fixed?
A: It means the Governor can remove the Director before the six-year term expires. The fixed term defines the maximum length of service but does not insulate the Director from removal. This is a hybrid model: term-bound but removable.

Q: Is the one-year ethics waiting period absolute?
A: That is for the Ethics Commission to decide. Some states allow immediate appointment to certain positions even within the waiting period; others apply a strict bar. Mississippi's framework is administered by the Ethics Commission.

Q: What if the legislator was never on a committee that voted on Public Utilities Staff matters?
A: The Section 109 analysis can turn on whether the legislator's term coincided with relevant legislative action. The Ethics Commission would assess that on the facts.

Q: Could a recently-resigned legislator be appointed and then face an ethics challenge later?
A: Yes, that is a real risk. The safer course is to obtain an Ethics Commission opinion before accepting the appointment, not after.

Citations and references

Statutes:
- Miss. Code Ann. § 77-2-7 (Public Utilities Staff Executive Director)
- Miss. Code Ann. § 77-2-7(1) (Six-year term, appointment, will and pleasure)
- Miss. Code Ann. § 77-2-7(2) (Substantive qualifications)
- Miss. Code Ann. § 25-1-1 (General term-of-office provisions)
- Miss. Code Ann. § 25-4-105(2) (Ethics conflict rules)

Constitution:
- Article 1, Sections 1 and 2, Mississippi Constitution of 1890 (Separation of powers)
- Article 4, Section 109, Mississippi Constitution of 1890 (Legislator one-year ethics waiting period)

Prior AG opinions:
- MS AG Op., Finch (October 24, 1985)
- MS AG Op., Walters (December 3, 1999)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/J.CarterJr._May-14-2020-Appointment-of-Executive-Director-of-the-Mississippi-Public-Utilities-Staff.pdf

Original opinion text

May 14, 2020

The Honorable Joel R. Carter, Jr.
Mississippi Senator, District 49
Post Office Box 1300
Gulfport, Mississippi 39502

Re: Appointment of Executive Director of the Mississippi Public Utilities Staff

Dear Senator Carter:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Questions Presented

Is the Executive Director of the Mississippi Public Utilities Staff a fixed-term position?

Is a Legislator eligible to be considered for appointment to the Executive Director of the Mississippi Public Utilities Staff?

Brief Response

The Executive Director of the Public Utilities Staff is a fixed, six-year term position pursuant to Miss. Code Ann. Section 77-2-7.

A Legislator may be considered for the appointment of the Executive Director of the Public Utilities Staff provided he/she satisfies the statutory requirements of the position as set forth by Miss. Code Ann. Section 77-2-7(2).

A separate advisory opinion should be requested of the Mississippi Ethics Commission in order to determine whether an appointment of a member of the Legislature would violate Section 109, Miss. Const. of 1890 or Mississippi ethics statutes, specifically Miss. Code Ann. Section 25-4-105(2).

Background Facts

By an amendment to the Public Utilities Act, the Legislature created the Mississippi Public Utilities Staff, an independent agency, entirely separate from the Public Service Commission. Section 77-2-7 created the position of the Executive Director of the public utilities staff, who, by this statute, is directed to "establish the organizational structure of the staff" and afforded "the authority to create units as deemed appropriate to carry out the responsibilities of the staff."

Pursuant to Section 77-2-7(1), the Executive Director of the Public Utilities Staff is appointed by the Governor, from recommended candidates selected by the Public Service Commission, with the advice and consent of the Senate, to serve for a term of six years. The statute further provides that "[t]he executive director shall serve at the will and pleasure of the Governor."

Based upon a factual clarification provided by a telephone conversation subsequent to our receipt of your request, it is our understanding that if a member of the Legislature was appointed to the position of Executive Director that person would resign his/her legislative seat so as to avoid a violation of the separation of power doctrine.

Legal Analysis

Miss. Code Ann. Section 77-2-7(1), which creates the position of the Executive Director of the Public Utilities Staff, states as follows:

An executive director of the public utilities staff shall be appointed, on or before July 1, 1990, by the Governor, from recommended candidates to be selected by the Public Service Commission, with the advice and consent of the Senate, to serve for a term of six (6) years. On or before May 15, 1990, the Public Service Commission shall submit to the Governor a list of not less than three (3) and no more than six (6) qualified candidates for the position of executive director. The Governor shall appoint the executive director from the list of qualified candidates nominated. Within sixty (60) days prior to the expiration of the term of the executive director, the Public Service Commission shall submit the names of candidates to the Governor in the manner provided herein. Whenever any vacancy shall occur in the position of executive director the Public Service Commission shall nominate and the Governor shall appoint an executive director, as provided herein, to fill the unexpired term. The executive director shall serve at the will and pleasure of the Governor.

This office has previously opined that,

[o]nce an appointment has been made to public office, then the appointee acquires a definite term of office either by operation of a specific statute or operation of the general provisions of Section 25-1-1, Mississippi Code of 1972. Absent statutory or constitutional provision for removal at the will and pleasure of the appointing authority, the appointed officer acquires a term subject only to the applicable statutory or constitutional provision of removal or impeachment, or otherwise created vacancy.

MS AG Op., Finch (October 24, 1985); MS AG Op., Walters (December 3, 1999) (once appointed, a member of the port authority serves for a term of four years and can only be removed pursuant to a specific statutory provision).

Section 77-2-7(1) clearly states that the Executive Director of the Public Utilities Staff shall serve for a term of six years. Previous appointments to the position of Executive Director have been confirmed by the Mississippi Senate for a definite term of six years. Thus, it is the opinion of this office that the appointed position of the Executive Director of the Public Utilities Staff is a fixed-term position pursuant to Miss. Code Ann. Section 77-2-7(1).

A sitting Legislator may be considered for appointment to the position of Executive Director of the Public Utilities Staff provided he/she satisfies the statutory requirements of the position as set forth by Section 77-2-7(2). As the fact pattern presented indicates that the Legislator would resign his/her seat prior to accepting an appointment to this position, we have no reason to opine on the question of whether the separation of powers doctrine is violated by the simultaneous holding of both a seat in the Legislature and the position of Executive Director.

Whether a former Legislator could be appointed to this position immediately or must wait one year after resigning his/her seat in the Legislature is a determination which must be made by the Mississippi Ethics Commission, as it is dependent upon an interpretation of Section 109, Miss. Const. of 1890 and Miss. Code Ann. Section 25-4-105(2).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim P. Turner
Kim P. Turner

Footnote: See 2014 Mississippi Senate Nomination Number 57, "Virden Cameron Jones, Madison, Mississippi, Executive Director of the Mississippi Public Utilities Staff, six year term beginning July 1, 2014 and ending June 30, 2020" and 2009 Mississippi Senate Nomination Number 40, "Robert Guinn (Bobby) Waites, Brandon, Mississippi, Executive Director of the Public Utilities Staff, six year term beginning July 1, 2008 and ending June 30, 2014."