Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994

Page Finder Index
| Printed Page 1650, Feb. 10 | Printed Page 1670, Feb. 10 |
Printed Page 1660 . . . . . Thursday, February 10, 1994
They moved to transfer the case to Richland County. I granted the motion and so now it's in Richland County and it's on going. It's still continuing on. And let me point out one thing, one of the letters I wrote them -- this is it right here.
THE CHAIRMAN: Does everyone have a copy? All the members?
A. Yes, everybody has got a copy, I think, provided, but I did write her. She wrote a letter to the Editor in the paper and said I was in cahoots with DSS and all of these things in the newspaper, so I responded in that letter to her because I didn't even know her address prior to that time.

But I wrote her a letter and said apparently your lawyer in this case did not keep you very well informed. At one point in the case, I tried to persuade DSS to allow your parents, the Walshes, to have placement or custody of the children. DSS objected adamantly. Unfortunately I was not successful at the time and the children stayed in foster care. I was never very comfortable with the foster care situation concerning your children and expressed that opinion to the attorneys in Chambers. I also told the attorneys on both sides that I wanted all efforts made toward returning the children to you -- to them.

I tried. The problem was that they wouldn't obey any of the orders that I had issued. They kept interfering with placement of the children. They would go and see them at inopportune times and interfere with the routines of the children and so forth, so they ruled them in on a rule to show cause. I held them in contempt and locked them up overnight, one night.

Also I want to point out to you that I wrote this letter in response to the allegations in the paper about the foster care home and the conditions of the foster care home, and in the second paragraph, I said the purpose of this letter is to inquire as to what experts you are talking about concerning -- consenting to fire traps being allowed in the foster care facility. Naturally, I would be concerned about that and if you have any complaint to make, I would be more than happy to hear about it and we'll try to rectify the situation. If DSS is not doing their job in any way, I want to know about it, so that I can get an explanation and corrective measures can be taken immediately. Please write down your concerns and I will look into them and get an explanation.

I've tried everything I can do to talk to these people. I've tried to -- I wrote them this letter out of my own initiative to try to explain to them that I was on their side more so than probably anybody else in the courtroom.

It's always been my position in custody cases where DSS is removing them, that I'm the last bastion or I'm the last person that stands between

Printed Page 1661 . . . . . Thursday, February 10, 1994
children or between DSS and the parents of these children and so I always try to give the benefit of the doubt to the parents.

I try to work with them. I try to rehabilitate. I try to get them to cooperate with the programs to get these children to come back into the home, even require DSS to supervise the visitation and to supervise periodically by visiting the houses and do all of these things and check on these children. I'm very much concerned about the welfare of the children in the Sixth Circuit and in the State of South Carolina and I want to know what's happening, but I cannot be charged with the responsibility of knowing every foster care -- every foster home they put these children in as not safe or whatever they might allege. But I've tried everything to convince these people that I was on their side in the case in the beginning, the entire time it was with me and I had every intention of trying to reunite these children with them at some point in the process. And if the case was still in my court, they may have these children back today, but I didn't remove the case. They removed it to Richland County on their own initiative.
THE CHAIRMAN: Thank you, Judge. Questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Just a couple real quick. Judge, would it be a fair statement then that the case before you, you had to pass on whether or not the children were at risk and what was in the best interest of the children first?
A. That's right. They'd bring you an ex parte order and it's signed. Sometimes they bring it in the middle of the night and the judge is always available to handle those matters. They'd come in and they'd tell you what the danger is to these children and so forth.

I don't know if this was brought in the middle of the night, but it was brought to me and said that the children were in danger and asked that they be removed. And I don't know what the affidavit covered and said or what at this point, but I was convinced by that agent, whoever it was, that it was necessary to remove those three children at that time and I did it. And then subsequently the hearings occurred after that.
Q. And secondly from your comments I pick out, your philosophy is that where possible or where the objectives can be achieved that you try to put the families back together in that setting?
A. I make DSS go out of their way. I make them provide homebound service. I make them go and counsel with the people and try to reunite these children with their people and unfortunately these people would not cooperate long enough for me to get those children back to them.

They kept interfering with the order and disobeying the orders and it became necessary for me to try to shock them into some reality and lock

Printed Page 1662 . . . . . Thursday, February 10, 1994
them up and so I held them in contempt for interfering with the order and locked them up and then -- you know, ever since -- this thing has been going three years.

I've lived with these people for three years. I've had the Sheriff's Department patrolling my house for almost three years. It worries me that they are so adamant and so fixed on me as apparently the head ringmaster of the circle of friends, so to speak, in Fairfield County. The School Board has been attacked by them. The Department of Social Services has been attacked by them. The teachers at the school. The courtroom is full of people because all of these people have been accused of something and they were all in that courtroom.

Every time we had a hearing, the whole courtroom was full of people from the school house and from DSS and everywhere else and they were all afraid and it comes down to me that I'm the last -- the buck stops here, so to speak and here I am and I'm the ultimate decision maker and I made the decisions I thought were in the best interest of those children and I'd do it again today.
Q. Lastly, the question to you is there was no financial gain for you or benefit at all by making a decision on these children, was there?
A. No. No. No. I wish we could sell that property. We've been trying to sell it for ten years.
Q. Thank you, sir.
THE CHAIRMAN: Thank you. Further questions? Thank you, Judge Barrineau.
A. Thank you very much.
THE CHAIRMAN: Mr. Rockwell, let me -- our normal course of action is not to allow witnesses to reply. We allow a reply by the original -- the candidate. What I'll tell you, though, is the record is kept open. If there is further information that you want our staff counsel to consider, you're welcome to forward that to them and we are allowed to further investigate prior to issuing -- we just take information under advisement today, but, you know, we can go back and forth all day.
MR. ROCKWELL: I'm not allowed one reply?
THE CHAIRMAN: No, sir. I prefer you -- if you want to send something in writing to us, we'd be glad to do that or further information. You mentioned a transcript, we'd be glad to take a look at it.
MS. ROCKWELL: Then may we leave it today because I was just slandered while he was under oath.
THE CHAIRMAN: You may leave anything you want to with staff today.
MS. ROCKWELL: Okay.

Printed Page 1663 . . . . . Thursday, February 10, 1994
THE CHAIRMAN: For the Committee purposes, we start administrative law judge hearings in 15 minutes.
REPRESENTATIVE ALEXANDER: Where is that hour lunch we were going to take?
THE CHAIRMAN: We're not going to do that, are we? How long of a break do ya'll want to take? You want to take an hour break to -- or you want to break until 3:00 o'clock? Let's break until 3:00 o'clock.
MS. ROCKWELL: I do have one question that is not going to be in any way derogatory. Can I get a copy of this transcript?
MS. SATTERWHITE: I'll send you a copy of the journal once it's printed in the House and Senate. It's no charge and I'll automatically send it to you.
MS. ROCKWELL: Thank you very much.
THE CHAIRMAN: 3:00 o'clock, we will reconvene.

(A lunch break was taken)
THE CHAIRMAN: We'll begin the afternoon session and the first group that we will review will be the Administrative Law Judge candidates for Seat 1 and I believe we have taken them in alphabetical order, have we not? The first candidate is Herbert Clay Carruth, Jr. Mr. Carruth, can you step forward, please. Raise your right hand.
HERBERT CLAY CARRUTH, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Thank you. If you would be seated, please.
MR. CARRUTH: Yes, sir.
THE CHAIRMAN: I'm going to review a few questions with you and then have counsel ask you further questions as well. Have you had a chance to review the Personal Data Questionnaire summary provided?
MR. CARRUTH: Yes, sir, I have.
THE CHAIRMAN: Is that accurate?
MR. CARRUTH: It is with the exception that on the CLE listed there is 22 hours from the Buckley School of Public Speaking which is not on there, but is something that the Bar has a record of and I've just filed my CLE report. It was amended from that list.
THE CHAIRMAN: All right, I think we can supplement your record to show that.
MR. CARRUTH: Thank you.
THE CHAIRMAN: You can forward us that information, if you choose. Are there any other clarifications that need to be made in your record?
MR. CARRUTH: Not that occur to me at this time.
THE CHAIRMAN: Do you have any objection to us making the summary a part of record?

Printed Page 1664 . . . . . Thursday, February 10, 1994
MR. CARRUTH: No, sir. Not at all.
THE CHAIRMAN: It will be so ordered.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Herbert Clay Carruth, Jr.
Home Address: Business Address:
1603 Lyttleton Street 305 Gressette Building
Camden, SC 29020 Columbia, SC 29202

2. He was born in Athens, Georgia on August 15, 1948. He is presently 45 years old.

4. He was married to Anne West on December 16, 1978. He has three children: Herbert Clay, III, age 8; George West, age 5; and Carl West "Cotton," age 2.

5. Military Service: 2/28/69 - 2/22/71; U. S. Army; Sp/4; RA12816944; Honorable Discharge; Present status - civilian

6. He attended the University of South Carolina and Presbyterian College, 1966-1968, courses in Business Administration and Arts and Sciences; service in the U.S. Army, 1969-1971; the University of South Carolina, 1971-1973, B.A. in Philosophy, Art History Cognate; the University of South Carolina Graduate School, 1973-1976, Comparative Literature (Ph.D. Candidate, by-passed M.A.); the University of Tennessee School of Law, 1977-1979, transferred to the University of South Carolina School of Law in June of 1979; and the University of South Carolina School of Law, 1979-1980, J.D. in December of 1980.

8. Legal/Judicial education during the past five years:

8/27/93 S. C. Bar "6th Annual Hospital and Health Law Seminar" (6.5 hours)
8/6/93 S. C. Bar "Restructured State Government and The State of Administrative Law" (6.0 hours)
4/16/93 S. C. Bar "Winning Trial Techniques" (6.0 hours)
1/8/93 S. C. Bar "42 U.S.C. Section 1983, The S. C. Tort Claims Act and Government Liability" (6.0 hours)

Printed Page 1665 . . . . . Thursday, February 10, 1994
9/11/92 S. C. Bar "5th Annual Hospital and Health Law Seminar" (6.5 hours)
8/14/92 S. C. Bar "Important Developments in Environmental Law" (6.0 hours)
12/20/91 S. C. Bar "This was the Year That Was" (6.5 hours)
12/6/91 S. C. Bar "Legal Ethics and Professional Responsibility" (6.0 hours)
10/19/90 S. C. Bar "Criminal Practice in South Carolina" (6.0 hours)
5/11/90 S. C. Bar "Appellate Practice in South Carolina" (6.5 hours)
3/9/90 S.C.C.J.A. "Mock DUI Trial" (6.0 hours)
2/21/90 S.C.C.J.A. "Update on the Law" (6.0 hours)
12/8/89 S. C. Bar "General Practice Update and Hugo-Related Insurance Issues" (6.0 hours)
12/1/89 S.C. Bar "Bankruptcy: Recent Developments on Important Issues for 1990 and Beyond" (6.0 hours)

9. Taught or Lectured:
He has delivered lectures on recently passed legislation and currently pending bills and regulations which concern health care to the following groups on the dates indicated:

8/29/92 Rock Hill, SC Chapter of American Association of Retired Persons
11/17/92 Legislative Monitoring Task Force, SC Allied Health Alliance
1/21/93 SC State Legislative Committee of the American Association of Retired Persons
2/17/93 USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services: Planning and Delivery")
7/12/93 USC College of Nursing, NURS 403 Class ("Policies and Politics")
9/16/93 SC Anesthesiology Office Managers
9/30/93 USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services")
10/8/93 SC Association of Rehabilitation Facilities 1st Annual Conference

Printed Page 1666 . . . . . Thursday, February 10, 1994
12. Legal experience since graduation from law school:

12/90-Present DIRECTOR OF RESEARCH AND ATTORNEY TO THE S. C. SENATE AFFAIRS COMMITTEE. Responsibilities include constituent assistance for Committee members and other members of the General Assembly; research on bills, regulations, statewide appointments, and other matters referred to the Committee, as well as coordinating the scheduling of Committee and subcommittee meetings and the setting of agendas for same.
5/85-12/90 STAFF COUNSEL - PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA. Responsibilities included working with accountants, economists, and other staff members to prepare Commission Staff's cases in rate and other application proceedings. Utility rate cases involved application to per book figures of accounting and pro forma adjustments to determine rate base, as well as application of different models and methodologies (primarily DCF and CAPM) to determine cost of debt and equity capital; also, use of regulatory legal principles to determine reasonable rates of return overall and on various components.
Transportation cases involved use of motor carriers' operating ratios and various other factors to determine reasonable rates, determination of public convenience and necessity, as well as fitness and ability to perform motor carrier services for hire, and construction and application of the Commission's Statutes and Regulations regarding its economic and safety jurisdiction, prosecuting cases as warranted; also, railroad abandonments and bus route and schedule changes.
General legal duties included composition and preparation of Commission Orders, Briefs and Memoranda, rendering of advice to the Commission and Commission Staff; and representation of the Commission and Staff in agency proceedings and in appellate practice before the State's Circuit Courts, Court of Appeals and Supreme Court.

Printed Page 1667 . . . . . Thursday, February 10, 1994
6/84-4/85 ASSISTANT ATTORNEY GENERAL, CHILD SUPPORT ENFORCEMENT DIVISION, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Responsibilities included representation of South Carolina Department of Social Services in paternity, support and contempt hearings in the Family Courts of South Carolina, as well as drafting all necessary pleadings and orders.
4/82-6/84 STAFF ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Attorney for the State's Division of General Services, assigned to the South Carolina Insurance Reserve Fund. Responsibilities included general contract negotiation and approval of lease/purchase agreements, personal service contracts, leases of property and easements, requests for proposals, bid solicitations, specifications preparation and other procurement procedures under the State's Consolidated Procurement Code; advice to State agencies and political subdivisions relative to liability of the State, its agencies and political subdivisions as well as officers, employees and volunteers to suit in tort in State and Federal Courts, as well as advice as to availability of comprehensive general liability, fire and extended coverage insurance, drafting of policies and endorsements, negotiation and settlement of claims, legislative research, interpretation of statutes and regulations, and drafting of proposed legislation. Also served as Hearing Examiner for the South Carolina Manufactured Housing Board and the Pyrotechnic Safety Board.

13. Rating in Martindale-Hubbell:He is listed in Martindale-Hubbell as a Staff Counsel for the Public Service Commission. He is not rated as his experience has been in state government service.

14. Frequency of appearances in court:
Federal - None
State - Since he became Research Director and Attorney to the Senate Medical Affairs Committee in January of 1991, his duties have not involved court appearances.

Printed Page 1668 . . . . . Thursday, February 10, 1994
From 1985 through 1990, as Staff Counsel to the Public Service Commission, he occasionally appeared in Magistrate's Court, Circuit Court, the Court of Appeals and the Supreme Court. Most of his practice at the Public Service Commission involved administrative law and participation in agency contested case hearings as described below.

Other - From 1985 through 1990, he appeared before the Public Service Commission in agency contested case hearings approximately twice a week. These administrative law cases and hearings concerned applications for certificates of public convenience and necessity, regulation promulgation, rate cases, rules to show cause involving utilities and motor carriers for violations of statutory and regulatory standards, and generic proceedings.

15. Percentage of litigation:
Civil - 98%
Criminal - 2%
Domestic - None

16. Percentage of cases in trial courts:
Jury - 2%
Non-Jury - 98%

Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Application of Williston Telephone Company, Inc. for Authority to Change Certain of its Intrastate Rates and Charges and for Changes in Depreciation Rates. Public Service Commission Docket No. 85-182-C (SCPSC Order No. 85-1108).
This case represents a fairly typical example of the application of rate-making principles to a small to medium-sized telephone utility in South Carolina. The process involves the application of accounting and pro forma adjustments to test year financial and operating figures which

Printed Page 1669 . . . . . Thursday, February 10, 1994
have been normalized, as appropriate. An appropriate rate base is figured based on the net value of utility's tangible and intangible property and capital devoted to provision of telephone service. Rate of return on rate base is the general methodology for determining reasonable and fair rates and charges to enable the utility to realize sufficient revenue to achieve a certain permitted overall rate of return, given the utility's capital structure.
(b) Application of United Cities Gas Company for an Increase in its Rates and Charges. Public Service Commission Docket No. 86-199-G (SCPSC Order No. 86-1114).
This case represents the application of rate-making principles to a gas utility in South Carolina. Determination is made of a fair and reasonable overall rate of return on rate base and the required additional revenue to enable the utility to achieve this overall rate of return. The revenue is allocated. The capital structure of the utility is determined, based on the amount and ratio of debt and equity. Cost of equity capital is figured using Capital Asset Pricing Model and Discounted Cash Flow Methodology. The Public Service Commission determined, among other things, that the utility's proposed rates and charges would generate an excessive amount of revenue, indicating an unreasonable return on common equity. Therefore, the Commission declined to approve the proposed schedule of rates and charges filed by the utility and made its own determination of fair and reasonable rates based on its finding of a fair and reasonable return on common equity.
This case illustrates the importance of return on common equity in the ratemaking scheme, since the other components of the overall rate of return, such as the cost of debt and the dividends on preferred stock, are fixed.
(c) Petition of the Commission Staff for a Rule to Show Cause Against Howard Lisk, Inc. ... Concerning Failure to Comply with the Statutes and Regulations Pertaining to Motor Carriers Enforced and Administered by this Commission. Public Service Commission Docket No. 88-694-T (SCPSC Orders No. 89-206 and No. 90-973).
This cases involves the intervention of a competing motor carrier in a Rule to Show Cause (RTSC) proceeding against a motor carrier for undercharges and operations exceeding the

| Printed Page 1650, Feb. 10 | Printed Page 1670, Feb. 10 |
Page Finder Index