C.Armstrong,III - January 5, 2021 - Reverse auctions exemptions

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 January 5, 2021 Mr. C. Jack Armstrong, III Chairman, Mississippi Auctioneer Commission Post Office Box 50 Morton, Mississippi 39117 Re: Reverse auctions exemptions Dear Mr. Armstrong: The Office of the Attorney General has received your request for an official opinion. Question Presented Does the exemption provided in Section 73-4-5(2)(b) to the licensure requirement for auctioneers apply to auctioneers providing services for reverse auctions as independent contractors? Brief Response No. Based on the plain language of Section 73-4-5(2)(b), the exemption only applies to the specified employees, not to independent contractors. Applicable Law & Discussion Pursuant to Mississippi Code Annotated Section 73-4-5, any person or entity that conducts an auction, provides an auction service, holds himself out as an auctioneer, or advertises his services as an auctioneer in the State of Mississippi must first obtain a license by the Mississippi Auctioneer Commission. For purposes of licensure, the Code defines an “auction” in the following manner: “Auction” means a sale transaction conducted by means of oral or written exchanges between an auctioneer and the members of his audience, which exchanges consist of a series of invitations for offers for the purchase of goods made by the auctioneer and offers to purchase made by members of his audience and culminate in the acceptance by the auctioneer of the highest or most favorable offer made by a member of the participating audience. Mr. C. Jack Armstrong, III January 5, 2021 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Miss. Code Ann. § 73-4-3(a). An “auctioneer” is “an individual who is engaged in, or who by advertising or otherwise holds himself out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods or real estate at an auction.” Id. at § 73-4-3(c).1 Section 73-4-5(2) contains several exceptions to the licensing requirement including, relevant to your request, an exception for “[a] sale conducted by an employee of the United States or the State of Mississippi or its political subdivisions in the course and scope of his employment.” Miss. Code Ann. § 73-4-5(2)(b). If a statute is plain and unambiguous, there is no need to engage in statutory interpretation. Dupree v. Carroll, 967 So. 2d 27, 30 (Miss. 2007). A plain reading of Section 73-4-5(2)(b) demonstrates that it applies only to a sale conducted by “an employee” of the United States, State of Mississippi, or a political subdivision thereof who is acting “in the course and scope of his employment.” This office is of the opinion that this language does not apply to an independent contractor. 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/ Phil Carter Phil Carter Special Assistant Attorney General 1 This opinion does not address whether a reverse auction meets the definition of an “auction,” provided in Section 73-4-3(a) or whether an individual conducting a reverse auction constitutes an “auctioneer” as defined in Section 73-4-3(c).