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

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| Printed Page 2500, Feb. 24 | Printed Page 2520, Feb. 24 |
Printed Page 2510 . . . . . Thursday, February 24, 1994
Q. So you don't think that your training as a consumer advocate would in anyway effect your objectivity in hearings before this commission --
A. Not at all.
Q. -- for the good of the whole state sometimes in the areas of industrial development?
A. I think it's for the good that I have a very varied background. I grew up on a farm. As you see, I'm still a one-fifth owner of our family farm and I go down there on the weekends.

So from that background, growing up in a rural area of South Carolina, I know the problems of the poor people of the state. I have worked in the business area. I know what the business environment is like. I've worked with consumers from poor consumers to the wealthiest consumers in South Carolina.

We represent all spectrums and I think I have a good handle as to what the people of South Carolina want and I think I have that to bring a balance to the commission having worked -- having a varied background.
Q. A long those same lines, in your service in state government, have you noticed as I have noticed a polarization of urban versus rural within this state and within this General Assembly possibly? And if so, what would your position on the commission be in matters that would effect this relationship?
A. Well, the -- I think the key issue in utility regulation, one area you have most of our residents -- most of your rate payers with big utility companies live in urban areas. Let's say, your electric companies, you've got a number of individuals in a rural area.

Years ago I think there was a commitment on the federal level and the state level, and I will give one example, the telephone industry that every household in America would have a telephone. That meant those individuals in urban areas and those in rural areas.

I don't think -- I think whatever services that folks in the urban areas are getting to as much as possible I think those in the rural areas should be offered it also. And that I think it goes --
Q. At comparable cost?
A. Excuse me?
Q. At a comparable cost?
A. At a -- well, at a comparable cost, when the commission regulates rates, we look at the -- they look at the total body of rate payers and they apportion the rates currently industrial customers and residential customers. I don't think we need to get in a situation where we have residential urban customers and residential rural customers. Right now,

Printed Page 2511 . . . . . Thursday, February 24, 1994
I think the commission is on the right path and that proper balance is there and everyone is treated fairly.
Q. Thank you.
SENATOR COURTNEY: Mr. Chairman?
THE CHAIRMAN: Senator Courtney.
EXAMINATION BY SENATOR COURTNEY:
Q. Mr. McIntosh, that's -- I would like to say that your appearance here, even at this late hour, has made an impression and I'm strongly impressed with your responses to the questions you've had?
A. Thank you.
Q. Would you just tell me in your opinion, if you feel comfortable doing that, how you feel the Public Service Commission has been as far as its flavor in the last few years? It is pro utility? Is it mutual pro consumer?
A. When I first started working for the Department of Consumer Affairs, I was shocked at how pro utility the commission seemed to be, but I think over the years there have been some changes in the membership of the commissioners.

We've moved more towards the center. And I think there has got to be a happy balance between setting rates, terms and conditions of service to keep the utilities operating in a reasonable mode, in a mode that is profitable or a reasonable profit, but at the same time providing that service to customers in a way that you don't overburden them because this is not a wealthy state.
Q. If I had any concern at all, not that it's any real concern, it would be expressed by Representative Wilkes about your ability to be for the utility, would that be a problem for you as you view those people coming before you?
A. It would not. I mean the commission has to operate on the facts and evidence that's presented to the commission and as a decision maker, you make your decision based on the facts as they -- that's my concept of being a decision maker. And whatever is presented, you weigh the facts and you make a decision based on the facts.

You don't go outside the record in front of you. And I think that has been a problem in what I've seen in my practice before the commission. Some of the orders -- if you look at the orders that have been reversed on appeal, the Supreme Court has said that that's --
Q. Thank you.
THE CHAIRMAN: Senator Jackson.
EXAMINATION BY SENATOR JACKSON:
Q. Mr. McIntosh, I also want to thank you for being here today, waiting all day for this. Let me ask you a question similar to what Representative

Printed Page 2512 . . . . . Thursday, February 24, 1994
Wilkes asked and what Senator Courtney just asked. In your opinion, how do you view the relationship between the Office of Consumer Affairs and the Public Service Commission? Try to be as objective as you possibly can.
A. Well, I'll -- and I'll restrict that to my role as an employee of the Department of Consumer Affairs and how I approach what cases that I've argued before the department, my responsibility and I think the Department's responsibility has been to listen to the customer, find out what his or her aspirations are, or what is in his or her best interest and present that to the commission, but at the same time realize that there is a utility company there that's providing the service to that individual and that utility company has to have enough revenues to provide that service.

We hire experts in various fields to testify before the commission. They understand that and they advise us as to what is a reasonable level of rate to insure that the customers are able to pay and as well to ensure that the utility is able to continue to function as an ongoing concern. I think that has happened. I can't think of any cases that we've argued or that I've argued before the commission has the company has claimed that I've been unreasonable. The commission has claimed that I've been unreasonable and the rates that they're currently operating under have allowed them to continue. I don't think there is any utility in my memory, but since I have been at the Department of Consumer Affairs that was --
Q. Let me ask you briefly on this, if you can just respond quickly to me. How do you think -- what is your opinion of the Public Service Commission's opinion of the Consumer Advocates office? How do they view you guys?
A. I think some of them appreciate us being over there, but I mean that's just from the orders that I've read and the language in the orders some -- in many instances, they accept the positions that we put in front of them. So I will interpret that to say that they appreciate what we put before them, since they accepted our position on a number of items.

But as any attorney when you lose an issue -- lose a point, you may think sometimes that they may be biased against you. But as long as the commission uses the evidence in front of it and makes a decision based on what's presented to it, I have no problem with the decision maker and no -- no opposition to the decision maker.
Q. So they would not be nervous to hear that someone of your qualifications or background could possibly be on his way to the commission?
A. I don't think so. And as I said, we -- there is some new members on the commission and that I've been very comfortable with from the

Printed Page 2513 . . . . . Thursday, February 24, 1994
decisions or the types of questions that they asked during the proceedings makes me believe that they have a more balanced approach to utility regulation instead of being in favor of utility.
THE CHAIRMAN: Any other questions? Mr. Baker (sic), tell us, in your employment with the Consumer Affairs, do you do any other work with that agency other than appear before the Public Service Commission?
A. I've appeared before --
THE CHAIRMAN: Do you do any other type of work for any other consumer complaints?
A. I handle consumer complaints. I get one -- we're flooded --
THE CHAIRMAN: Mobile homes and those kind of things?
A. Excuse me?
THE CHAIRMAN: Complaints against mobile home dealers and those kinds of things?
A. I don't handle that area.
THE CHAIRMAN: I'm going to send some people to you, I believe.
A. I'll point them to the right division.
THE CHAIRMAN: I feel comfortable sending them to you.
REPRESENTATIVE WILKES: I think so.
EXAMINATION BY DOCTOR HATTON:
Q. You know, my colleagues have been so impressed with your extraordinary knowledge of this area, they haven't asked their typical questions. All day they've been asking questions of these candidates that I'm enjoying hearing and one of the them has been the temperament question, which has not been asked of you because we are all so very, I think, pleased to see you handle these questions so well and you really have been very extraordinary.
THE CHAIRMAN: We don't have to feel sorry for you.
Q. No, indeed not. But the temperament question is one that comes up because of what you do.
A. Right.
Q. You're an adversary, you're a lawyer and I have to ask the question of how you think your live is going to change if you move from the role you have now to the commissioner's role? How would you change the way in which you judge effectiveness? It's part of the question that's been asked around the edges of.

How would you change the notion of what it means to be effective in your new role and what kind of temperament style changes would you have to try to effect and how comfortable are you with the need to do that?

Printed Page 2514 . . . . . Thursday, February 24, 1994
A. I understand your concern. A part of my role -- I don't think I placed it in my application. I think I may have overlooked it. As an employee with the Department of Consumer Affairs as an attorney, I've also served as a hearing officer, but not in the utility area.

Our agency also regulates pawn brokers and several other industries that are nonutility regulators, so sometimes attorneys in my division have to sit as hearing officers. Steve Hamm is the administrator and a hearing officer generally, but if he's not available, one of the attorneys is assigned.

So I've been in that situation where I have had to be the impartial regulator and make a decision based on what has been put in front of me. I've been in a situation where the advocate has been a fellow attorney in the office that I deal -- in another division, but that I know personally and the company has been represented by attorney from the outside. And it's -- I won't say a peculiar situation, a unique circumstance when you're put in that role and you've got to listen to both sides.

You've got to put all your prejudices behind you and make a decision based on the facts in front of you and not bring anything that's not brought in -- into the proceeding. I think I'm able to do that. I've been in situations where I have had to do that. But it -- it's
-- in some ways it can be difficult because we all bring personal backgrounds and individual prejudices to any environment or any type of situation that we're in when we're trying to weigh the facts when we have two adversarial parties.

My father was a school principal and I can remember growing up many times, you'd have one child saying one thing, the other child says another thing and you just have to step back and just find some type of inner strength to leave those biases somewhere else and just concentrate on the facts in front of you and I think it's a difficult question, but I go back to just my varied background that I've had experiences in numerous areas. And I think with that I'm able to divorce myself from my role as an advocate and become the impartial hearing officer, impartial judge.
Q. Right. I think it's less like being a judge because you're not a solitary decision maker. You're working with a body and that's the area --
A. The one --
Q. -- in which the change would be required much more so as a collaborator and a colleague. And I hear you grappling with the question and this is I think --
A. Well, I would bring a -- something unique to the table, but each of the seven commissioners will bring something unique.

Printed Page 2515 . . . . . Thursday, February 24, 1994
Q. Right.
A. And they all will have to be mindful of being unbiased, but at the same time you're an individual and you bring certain individual qualities to the table. But I think in that collaborative process, the give and take among the seven individuals, a consensus, I think, can be made and built. As you see in my background, I know how the commission works.
Q. You do.
A. I've worked with the staff members over there. I've worked with all of the current commissioners. And I think we have a very friendly relationship. They know generally what our position is on various issues. The witnesses before the commission are generally the same. You don't find too much change in the witness -- the experts that appear. There are not that many utility experts nationwide, so they're generally the same individuals. And everybody is -- it's pretty much a family type environment because everyone knows each other.

I think I can -- again, I come from a different background, but in any type of decision making -- a situation like that, I understand that I've got to leave those biases at home and just make a decision based on the facts in front of me.
Q. Thank you.
MR. COUICK: One short question from staff, if I could, Mr. McIntosh.
RE-EXAMINATION BY MR. COUICK:
Q. Have you ever made a motion for recusal of any member of the PSC?
A. I never have.
Q. Would you see that if there was a member that had formally worked for SCE&G, would you make a motion for that person to recuse himself or --
A. It depends on what type of work they've done.
Q. If they were an attorney for SCE&G or perhaps a CEO for SCE&G, would you ask them to recuse themselves for a rate making case involving SCE&G?
A. If it's a case that they have some type of direct involvement or had some direct involvement, I would have to strongly consider that, but I'd have to see the facts of the situation.
Q. We've debated this issue of whether PSC commissioners are judges or not. I ask the question of the Canons for Ethics for judges, they are called upon to recuse themselves any time a former partner or associate in their law firm appear before them even if that's a public agency.

In fact, Judge Goolsby recused himself from a whole lot of cases involving the State for about five or six years there. Would you have to

Printed Page 2516 . . . . . Thursday, February 24, 1994
recuse yourself every time the Consumer Advocate appeared before the PSC?
A. What I would do would be to ask the Attorney General's office for an opinion.
Q. Probably get two.
A. Excuse me.
Q. You probably could get two.
A. But I mean that's how I would handle --
Q. What's your opinion, though?
A. I've not -- never thought about that until right now.
THE CHAIRMAN: Don't think about it.
A. I would seek help from someone who has greater knowledge about this issue than I do before making the decision, but on its face, I would be very skeptical of having someone who has worked very closely on this issue actually making a decision on it.
Q. Thank you.
SENATOR JACKSON: Wait until '95, the Attorney General will have to recuse himself on everything.
Q. Mr. Chairman, that's all for this witness we have.
THE CHAIRMAN: Thank you so much, Mr. McIntosh.
A. Thank you.
THE CHAIRMAN: I hope they haven't dealt too severely with you. Next.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Carl F. McIntosh

Home Address: Business Address:

862 Stebondale Road S.C. Dept. of Consumer Affairs

Columbia, SC 29203 2801 Devine Street

Columbia, SC 29250

2. He was born In Fairfax, South Carolina on June 29, 1959.

Social Security Number: ***-**-****.

3. S.C. Driver's License Number: *********.

S.C. Voter Registration Number: 6 566 083.

4. He is single.

Printed Page 2517 . . . . . Thursday, February 24, 1994
6. He graduated from Allendale-Fairfax High School in 1977; attended S.C. Governor's School at the College of Charleston in Summer 1976; completed 2 undergraduate courses as a student in the summer pre-college program at Hampton Institute (Hampton, Virginia) in 1977; completed 9 undergraduate credit hours of economics at Yale (New Haven, CT) as part of the American Economics Summer Program in 1980; completed 3 undergraduate Arts and Sciences courses at Fisk University (Nashville, TN) in Spring 1981; attended Vanderbilt University (Nashville, TN) from Fall 1977 to Spring 1981 and received a B.A. with a double major in economics and political science; attended Georgetown Law School (Washington, D.C.) from Fall 1981 to Spring 1982 and Fall 1983 to Spring 1985. He received a Juris Doctorate in Fall 1985.

9. He was a substitute teacher for Allendale County Schools in May 1978 and May 1979. He assumed all responsibilities of teaching grades 3-12. He was an Assistant Debate Coach for Allendale County Schools from Fall 1980 to Spring 1981. He performed as a judge during debate tournaments and assisted students in preparing debate cases and evidence.
He was an intern for The Honorable Strom Thurmond in Summer 1979 (Washington, D.C.). He assisted staff members in various office activities.
He was a Teaching Assistant for an introductory economics course in the Department of Economics at Vanderbilt University (Nashville, TN) from Fall 1980 to Spring 1981.
He was a clerk at S.C. Occupational Information System, Columbia, SC in Summer 1981; an intern with The Honorable Ernest F. Hollings, U.S. Senate, in Summer 1982; and a professor at Howard University in Washington, D.C., where he taught an undergraduate speech and communications course in Spring 1987.
He was Legislative Aide and Special Projects Director for The Honorable Butler Derrick, U.S. House of Representatives, from September 1982 to September 1987. He coordinated research and the preparation of correspondence and advised Representative Derrick on potential orders and rules promulgated by all federal agencies. He also advised Representative Derrick on issues pending before the House Judiciary Committee and the Committee on Transportation and Public Works.
He was an Assistant Solicitor for the Second Circuit from October 1987 to March 1988 and has been a Senior Attorney with the S.C.

Printed Page 2518 . . . . . Thursday, February 24, 1994
Department of Consumer Affairs since April 1988. He litigates telecommunications, natural gas, electric power, water, sewerage, and transportation retail rate cases before the S.C. Public Service Commission and S.C. Appellate Courts. He also litigates electric power wholesale rate cases before the Federal Energy Regulatory Commission and represents the Department in proceedings before Congress, the S.C. General Assembly, the S.C. Insurance Commission, and the Federal Communications Commission.

10. He is a 1/5 owner of the family farm located in Allendale County.

19. Please see answer to Question 9 for this information. The following served as Mr. McIntosh's supervisors:
S.C. Department of Consumer Affairs: Nancy Vaughn-Coombs

Second Circuit Solicitor's Office: Robert Harte

Office of The Honorable Butler Derrick:Leo Coco
Howard University: Mary Myers-Montgomery

Office of The Honorable Ernest F. Hollings:Ralph Everette
S.C. Occupational System: Carol Kososki
Vanderbilt University: Professor Burkhouser
Allendale County Schools: Joseph Siren and Charles Harney

22. In seeking the office of Public Service Commissioner, he has spent $31.50 for clippings from The State, $3.10 for Kinko's fax service, $5.00 for Downtown Printers' fax service, and $248.33 for Kinko's typesetting and printing.

26. Professional organizations: S.C. Bar Association and the Columbia Lawyers Association.

27. Civic, charitable, etc. organizations:He serves as a trustee for St. Paul Baptist Church in Winnsboro, South Carolina.

28. He has practiced before the S.C. Public Service Commission for the past 5 and 1/2 years as a Senior Attorney with the S.C. Department of Consumer Affairs. During that period, he has successfully argued cases that resulted in saving South Carolina rate payers millions of dollars. He has also attended numerous seminars sponsored by the National Association of State Utility Consumer Advocates and the National Association of Regulatory Utility Commissioners. These courses have kept him apprised of all national trends in the field of

Printed Page 2519 . . . . . Thursday, February 24, 1994
utility regulation. He is currently a member of the National Association of State Utility Consumer Advocates' Natural Gas and Water Committees. In 1987, the Anderson County Industrial Development Board named a street in his honor for his assistance in achieving its industrial development goals.

29. Five letters of reference:

(a) The Honorable Ernest F. Hollings

126 Russell Senate Office Building

Washington, D.C. 20510-6121

(b) The Honorable Butler C. Derrick, Jr.

221 Cannon House Office Building

Washington, D.C. 20515-4003

(c) The Honorable Steven W. Hamm

Administrator, S.C. Department of Consumer Affairs

2801 Devine Street

Columbia, SC 29250-5757

(d) Susan Berkowitz, Esquire

Co-Director, South Carolina Legal Services

P.O. Box 7187

Columbia, SC 29202

(e) Patricia S. Sanders

Vice-President, S.C. State Credit Union

800 Huger Street

Columbia, SC 29202

30. He is seeking the position of Public Service Commissioner for the Second District.

MR. COUICK: Sir, go ahead and take our your driver's license and --
MR. MOSELEY: I made a copy of all that for you. Is that okay?
THE CHAIRMAN: That'd be fine.
MR. COUICK: Mr. Moseley, if you would please raise your right hand.
C. ROBERT MOSELEY, having been duly sworn, testified as follows:
MR. MOSELEY - EXAMINATION BY MR. COUICK:
Q. Mr. Chairman, in reviewing Mr. Moseley's driver's license, it indicates that he lives at 137 Jefferson Place, Columbia, South Carolina, 29212. His voter registration card indicates the same place of residence. I believe that is a Columbia address, but a Lexington County residency; is that true?
A. Yes. Irmo area.

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