Can a Mississippi Public Service Commissioner accept a campaign contribution from a lawyer or lobbyist whose firm represents a utility regulated by the PSC?
Subject
PSC Acceptance of Campaign Contributions Under Section 77-1-11
Recipient
The Honorable Joel R. Carter, Jr., Senator, District 49
Plain-English summary
Senator Carter, in his capacity as a state legislator, asked the AG seven questions about Section 77-1-11 of the Mississippi Code, which bars Public Service Commission commissioners, candidates, and employees from knowingly accepting campaign contributions, gifts, or other benefits from anyone interested as owner, agent, or representative of a telephone, gas, electric, or other public utility under PSC jurisdiction, or anyone acting for such an interested person.
The AG's answer to each scenario is structurally similar: the contribution is lawful unless the recipient knows the donor has the kind of regulated-entity connection the statute targets. The "knowingly" requirement is the operative limit. So:
- Contribution from an attorney at a law firm that represents a regulated entity: lawful unless the commissioner, candidate, or employee knows the attorney has the kind of interest the statute names.
- Contribution from an attorney at a multistate firm where the out-of-state office represents the regulated entity: same answer.
- Contribution from a lawyer who used to represent a regulated entity: lawful unless current interest is known.
- Contribution from a spouse of such a former lawyer: lawful unless current interest of the spouse is known.
- Contribution from a lobbyist with a regulated client among multiple clients: same "knowingly" standard.
- Contribution from a nonprofit intervenor before the PSC: same "knowingly" standard.
- Recommendation for legislative amendment to close any "loophole": outside the AG's opinion authority under Section 7-5-25.
The AG also flagged that whether a particular donor is in fact "interested as owner, agent or representative" is a fact question subject to judicial review. The Brown opinion (Oct. 26, 2016) and Posey opinion (Apr. 6, 2007) provide guidance on the type of inquiry a court might make.
What this means for you
PSC commissioners, candidates, and employees
Document what you know about each contributor. The "knowingly" element protects you only if your knowledge actually does not include the donor's regulated-entity interest. If you have reason to know a donor's law firm represents a regulated utility (and most utility-bar attorneys are widely known), the safest course is to refuse the contribution or return it before depositing.
Treasurers and campaign staff for PSC candidates
Build a screening process for incoming contributions. Cross-reference donor names against publicly available PSC docket and intervention records, regulated utility websites' attorney listings, and lobbyist registration. Flag anything that warrants escalation to the candidate.
Attorneys at law firms representing regulated utilities
Section 77-1-11 does not prohibit you from contributing if you do not personally have the listed interest. But practical caution counsels disclosure to the recipient and, where appropriate, refraining from contributing to PSC commissioners or candidates who could regulate your client.
Lobbyists with multiple PSC-related clients
Same issue. A lobbyist with one regulated-utility client may have a non-regulated client whose interests are unrelated, but the contribution to a PSC commissioner could still be problematic if the commissioner knows about the regulated client. Disclosure protects everyone.
Nonprofit intervenors before the PSC
A nonprofit intervenor that is not "owner, agent, or representative" of a regulated utility falls outside the bar by its plain language. But if the intervenor's mission is to advance utility interests, the recipient's "knowing" calculus could still pull the contribution in. Avoid ambiguity by structuring giving carefully.
State legislators considering reform
The AG declined to recommend statutory language. The "knowingly" standard is the legal hinge that current statute provides. A no-fault standard or expanded definitions of "interest" could be structural alternatives, but those are policy choices for the legislature.
Common questions
What is the actual scope of Section 77-1-11(1)?
It bars knowing acceptance of "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 a regulated utility under PSC jurisdiction.
What is the "knowingly" requirement?
The recipient must know about the donor's interest in or connection to the regulated entity. Without that knowledge, no violation of the statute occurs.
Does the statute bar contributions from utility company employees directly?
A utility company employee who is "owner, agent, or representative" or who is "acting in any respect" for the company would fall under the bar. The "knowingly" element still applies; if the recipient does not know, no violation.
Is the AG opinion a safe harbor?
AG opinions are persuasive but not binding. The opinion provides analytical structure for evaluating contributions, but ultimate determinations are fact questions subject to judicial review.
Can a violation of Section 77-1-11 be prosecuted?
Section 77-1-11 makes the conduct unlawful. The AG opinion does not address enforcement specifics. Consult counsel about the risk profile.
Why didn't the AG recommend statutory language?
Section 7-5-25 limits the AG's opinion authority to interpretations of state law. Recommending legislative amendments is a policy judgment, not a legal interpretation.
Background and statutory framework
Mississippi's Public Service Commission regulates utilities including telephone, gas, and electric companies. Section 77-1-11(1) was enacted to protect the impartiality of the PSC by barring commissioners, candidates, and employees from accepting things of value from regulated-entity-connected donors.
The statute reads in pertinent part: "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 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 . . . ."
The "knowingly" word is doing all the work. The AG opinion makes clear that without knowledge of the donor's regulated-entity connection, the recipient is not in violation, even if the donor turns out to have such a connection.
The AG referred to Brown (Oct. 26, 2016) and Posey (Apr. 6, 2007) for the kind of inquiries a court might make to determine whether a donor's relationship to a regulated entity falls within the statute's reach.
Citations
- Miss. Code Ann. § 7-5-25 (AG opinion authority limited to questions of state law)
- Miss. Code Ann. § 77-1-11 (PSC commissioner, candidate, and employee acceptance restrictions)
- Miss. Code Ann. § 77-1-11(1) (knowing-acceptance standard)
- MS AG Op., Brown (Oct. 26, 2016) (donor relationship inquiry guidance)
- MS AG Op., Posey (Apr. 6, 2007) (donor relationship inquiry guidance)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/08/J.Carter-Jr.-August-1-2023-Acceptance-of-Campaign-Contributions.pdf
Original opinion text
August 1, 2023
The Honorable Joel R. Carter, Jr.
Senator, District 49
Post Office Box 1300
Gulfport, Mississippi 39502
Re:
Acceptance of Campaign Contributions
Dear Senator Carter:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. Is it lawful for a Public Service Commission 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 Public Service Commission 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?
3. Is it lawful for a Public Service Commission Commissioner, candidate, or employee to
accept a campaign contribution from an attorney who has, in the past, represented a
regulated entity?
4. Is it lawful for a Public Service Commission Commissioner, candidate, or employee to
accept a campaign contribution from the spouse of an attorney who has, in the past,
represented a regulated entity?
5. Is it lawful for a Public Service Commission Commissioner, candidate, or employee to
accept a campaign contribution from a contract lobbyist with multiple clients if one of the
clients has issues that could be heard by the Commission?
6. Is it lawful for a Public Service Commission Commissioner, candidate, or employee to
accept a campaign contribution from a nonprofit intervenor that appears before the
Commission?
- If so, what language could be added to the statute to close this glaring loophole?
Brief Response - It is lawful for a Public Service Commission ("PSC") Commissioner, candidate, or
employee to accept a campaign contribution from an attorney working in a law firm that
currently represents a regulated entity unless the Commissioner, candidate, or employee
knows that the attorney has an interest as owner, agent, or representative of any telephone
company, gas or electric utility company, or any other public utility that shall come under
the jurisdiction or supervision of the PSC or knows that the attorney is acting in any respect
for such owner, agent, or representative. - It is 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 unless the Commissioner, candidate, or
employee knows that the attorney has an interest as owner, agent, or representative of any
telephone company, gas or electric utility company, or any other public utility that shall
come under the jurisdiction or supervision of the PSC or knows that the attorney is acting
in any respect for such owner, agent, or representative. - It is lawful for a PSC Commissioner, candidate, or employee to accept a campaign
contribution from an attorney who, in the past, represented a regulated entity unless the
Commissioner, candidate, or employee knows that the attorney has a current interest as
owner, agent, or representative of any telephone company, gas or electric utility company,
or any other public utility that shall come under the jurisdiction or supervision of the PSC
or knows that the attorney is acting in any respect for such owner, agent, or representative. - It is lawful for a PSC Commissioner, candidate, or employee to accept a campaign
contribution from the spouse of an attorney who, in the past, represented a regulated entity
unless the Commissioner, candidate, or employee knows that the spouse has a current
interest as owner, agent, or representative of any telephone company, gas or electric utility
company, or any other public utility that shall come under the jurisdiction or supervision
of the PSC or knows that the spouse is acting in any respect for such owner, agent, or
representative. - It is lawful for a PSC Commissioner, candidate, or employee to accept a campaign
contribution from a contract lobbyist with multiple clients where one of the other clients
has issues that could be heard by the PSC unless the Commissioner, candidate, or employee
knows that the contract lobbyist has an interest as owner, agent, or representative of any
telephone company, gas or electric utility company, or any other public utility that shall
come under the jurisdiction or supervision of the PSC or knows that the contract lobbyist
is acting in any respect for such owner, agent, or representative. - It is lawful for a PSC Commissioner, candidate, or employee to accept a campaign
contribution from a nonprofit intervenor that appears before the PSC unless the
Commissioner, candidate, or employee knows that the nonprofit intervenor has an interest
as owner, agent, or representative of any telephone company, gas or electric utility
company, or any other public utility that shall come under the jurisdiction or supervision
of the PSC or knows that the nonprofit intervenor is acting in any respect for such owner,
agent, or representative.
7. Opinions of this office are limited to interpretations of state law pursuant to Section 7-5-25. Recommending specific language for legislative amendments is outside the scope of
an official opinion.
Applicable Law and Discussion
As an initial matter, we understand that you are seeking this opinion in your capacity as a legislator
to determine whether to seek to amend Mississippi Code Annotated Section 77-1-11. Your request
suggests that in previous elections, contributions may have been made and accepted in violation
of Section 77-1-11. Pursuant to Section 7-5-25, this office may only opine on prospective questions
of law. An Attorney General's Opinion can neither validate nor invalidate past action. We offer
the following for prospective purposes only.
Section 77-1-11(1) provides, in relevant part:
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 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 . . . .
(emphasis added).
Notably, for a violation of Section 77-1-11(1) to occur, the PSC Commissioner, candidate, or
employee must have knowledge of the donor's interest in or relationship to the regulated entity.
All of the scenarios that you present in your request turn on the facts particular to that situation.
Whether a donor is "interested as an owner, agent or representative" of a regulated entity, or even
"acting in any respect for such owner, agent or representative" of a regulated entity, and whether
a PCS Commissioner, candidate, or employee has knowledge of such interest or relationship are
determinations of fact subject to judicial review and outside the scope of an official opinion. To
the extent that MS AG Op., Brown (Oct. 26, 2016) and MS AG Op., Posey (Apr. 6, 2007) provide
guidance as to inquiries a court may make to determine the relationship of the donor to the
regulated entity, they remain the opinion of this office.
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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General