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 6930, May 17 | Printed Page 6950, May 17 |
Printed Page 6940 . . . . . Tuesday, May 17, 1994
I have reviewed CLE materials on administrative law and I have reviewed and briefed case law covering the last five years on both administrative law and the Canons of Judicial Ethics. I have great confidence that the committee will find my experience and background compelling as to the fact that I possess the qualities and attributes necessary to hold the office and exercise the duties and responsibilities of an administrative law judge.

I have previously submitted a statement, which I think is part of my Personal Data Questionnaire, and I would invite the committee to review it as well. Thank you.
THE CHAIRMAN: Thank you, Mr. Geathers. Mr. Elliott, questions?
MR. ELLIOTT: Yes, sir. Thank you.
MR. GEATHERS- EXAMINATION BY MR. ELLIOTT:
Q. On your Personal Data Questionnaire, it shows that you were an attorney for the Department of Labor, and I guess that was the South Carolina Department of Labor, when you first got out of law school?
A. That's correct.
Q. For a brief period of time?
A. That's correct.
Q. I guess I was interested in it because it mentioned that you resolved cases, and that was the term you used, resolved, involving businesses in violation of occupational, safety and health standards. What did resolve mean?
A. Basically, it was our position to try to settle cases prior to hearings, and that's what I meant by resolve. I was there such a short period of time, I did not get to actually participate in any hearings. But I did write a brief for one particular hearing that Chief Counsel Sharon Dantzler had been lead counsel on, had been working on, but she was out on sick leave at that particular time, so I did have to fill in the gap in that regard.
Q. You've done a lot of study, but it appears that you have not been involved in any litigation; is that correct?
A. That's correct.

Printed Page 6941 . . . . . Tuesday, May 17, 1994
Q. Do you think that poses a problem for you, being dropped into an ALJ position on March 1st and immediately having to hear cases, contested cases?
A. Not at all. If I felt as though my lack of trial experience would serve as a detriment to performing the functions of an administrative law judge, out of respect for myself and for the committee and for the General Assembly, I would not have offered for the position.
Q. What do you tell the chief judge is the best way to make immediate use of you?
A. I'm not sure I understand the question, but I would imagine the same way that he would any other ALJ.
Q. Are you prepared to immediately go, be ready to go and hear cases?
A. I'm sorry?
Q. I'm sorry. Are you prepared to immediately go and hear cases?
A. Yes, I believe I am.
Q. Tell me about the activity you've been engaged in, in outlining the administrative law, Professor Shipley's book and so on. Have you completed that task?
A. Yes, I have. As you know, this is not Professor Shipley's treatise but it's about this thick, and it's heavily supplemented with case citations and various citations of articles and other treatises. I have read that over the last several months and I can say that I entirely outlined the entire document. And I have also supplemented that outline by doing my own research, as I've said, by reviewing case law over the last five years on administrative law in South Carolina and reading various CLE articles on administrative law and supplemented this material as well with that.
Q. Do you find any areas of special concern? All this is probably pretty fresh on your mind, having gone through that. Any areas of special concern meshing administrative law with the Administrative Law Division provisions that were passed in the Restructuring Act?
A. No, I don't.
Q. Do you share your outline?
A. Certainly.
Q. You've worked for the Senate for seven years and you mentioned it's with Senate Research. During that time you've come to know both senators and house members. What do you do if any of these officials seek your support in a political campaign or in advancing some issue in the political arena?
A. As you know, Canon Seven expressly prohibits any political activity on the part of a judge, and so I would not participate in any manner.
Printed Page 6942 . . . . . Tuesday, May 17, 1994
Whether it be contributions or endorsing a candidate at all, you don't -- once you have refrained from any political participation.
Q. As an ALJ you'll be presiding over hearings of contested cases. What are the considerations that underlie your determination whether you have a contested case before you?
A. Well, I think you have to look at the definition of a contested case and basically that would be prescribed by regulation, and, of course, a contested case being one in which a party has a right to present their testimony or have their rights determined after an opportunity for a hearing. So in order to make that determination one would have to look to the rights of the particular agency in question. And also there are due process considerations that would be considered if such a hearing is not expressly prescribed by the regulation.
Q. Required by law, that portion of the definition of contested case, do you think that includes due process, when a hearing is required by due process?
A. I'm sorry, I didn't hear the first part of your question.
Q. Excuse me. In the definition of contested case in the APA where it says required by law, a hearing is required by law, how do you take required by law? Would that include when a hearing is required by procedural due process?
A. That includes case law as well as statutory law, of course, if that's what you're asking me.
Q. What have you done to avoid conflicts between your public duties working for the Senate and your efforts to seek the position of an ALJ?
A. I have taken annual leave during any times that I've made contact with specific members.
Q. Years and years from now, if you serve as an administrative law judge for a lengthy period of time, how do you want people to look back and describe your judicial temperament?
A. To be -- to look back and see that I was fair, that I was courteous, that I was patient, and also that I was deliberate and firm in my rulings and decisions but, at the same time, not arrogant; that I executed the functions and duties of an administrative law judge while maintaining humility.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, sir.
Q. Have you ever been the subject of any disciplinary action arising out of your employment?
A. No.
Printed Page 6943 . . . . . Tuesday, May 17, 1994
THE CHAIRMAN: Further questions? Thank you, Mr. Geathers.
MR. GEATHERS: Thank you.

END OF PRIOR TESTIMONY OF MR. GEATHERS.

REPRESENTATIVE ALEXANDER: John Fantry, please. If you'd raise your right hand, sir.
JOHN JOSEPH FANTRY, JR., having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. FANTRY: Yes, I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. FANTRY: It is correct to my knowledge. The only change that I would make would be my expenditures in this campaign since filing in March. At this particular time, I've spent $800 on this campaign.
REPRESENTATIVE ALEXANDER: Would you submit a list of that to us?
MR. FANTRY: It has already been submitted --
REPRESENTATIVE ALEXANDER: It's already been submitted.
MR. FANTRY: -- to the committees.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MR. FANTRY: I have no objection.
REPRESENTATIVE ALEXANDER: It shall be done.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. John Joseph Fantry, Jr.
Home Address: Business Address:
102 Marion Avenue 1310 Lady Street, #600
Winnsboro, SC 29180 Columbia, SC 29201

2. He was born in New York, New York on August 28, 1949. He is presently 44 years old.

4. He was married to Catherine H. Fantry on December 26, 1970. He has one child: Regan Christine, age 13.

5. Military Service: N/A

Printed Page 6944 . . . . . Tuesday, May 17, 1994
6. He attended Mount St. Mary's College, 1967-1971, B.S. in History; and the University of South Carolina School of Law, 1971-1974, J.D.

8. Legal/Judicial education during the past five years:
In the past five years he has attended in excess of 12 hours per year of CLE courses as well as non-certified courses. These have covered such topics as legal ethics, personnel and employment law, rules of court, jury trials, environmental law, utility law, and economic development and municipal government.

9. Taught or Lectured: He has taught courses in Trustee Liability and Directors' and Officers' Liability under the Business Corporation Act.

12. Legal experience since graduation from law school:
After graduation in 1974, he served as staff attorney to the SC Electric Cooperatives Association until 1979, when he became General Counsel, working primarily on matters relating to state and federal regulatory law and analysis, and drafting and interpretation of legislation. In 1985, he went into private practice and in 1986, he joined the law firm with which he is now associated. His practice primarily deals with civil and administrative and regulatory law.

13. Rating in Martindale-Hubbell:He is not rated, but he is listed as of 1992 in that the law firm he is associated with chose not to list until 1992.

14. Frequency of appearances in court:
Federal - None
State - Approximately every 60-90 days
Other - Appearance on an as-needed basis before the SC Tax Commission, DHEC, PSC, WCC, Labor Department, Coastal Council, and Ethics Commission

15. Percentage of litigation:
Civil - 90%
Criminal - 10%
Domestic - 0%

Printed Page 6945 . . . . . Tuesday, May 17, 1994
16. Percentage of cases in trial court:
Jury - 20%
Non-jury - 80%
Associate Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Duke Power Co. v. PSC, Bd. of Public Works of the City of Gaffney, and Broad River Electric Coop., 387 S.E.2d 241 (1989), clarified the principles of the requirement of a Certificate of Necessity and Convenience under SC Code Section 58-27-1230.
(b) Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, established the right of the PSC to order the removal of lines built by a municipality without a Certificate of Necessity and Convenience. This case was the first time the PSC was not able to certify electric lines after construction and the municipality was ordered to disassemble the lines.
(c) Miles v. Town of Ridgeway, 92-CP-20-90, pending Supreme Court, challenged the statutory at-will employment powers of a mayor under SC Code Section 5-9-30.
(d) Hamilton v. Oswego Water Co., 92-CP-43-349, was the first South Carolina case testing the 1988 Business Corporation Act's inclusion of a non-profit corporation, or more specifically, the interpretation of SC Code Section 33-20-103 (1988).
(e) Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., 434 S.E.2d 279 (1993), tested the applicability of the SC Procurement Code to a county which failed to adopt a code within the prescribed statutory period, and its effect on contracts negotiated without such a code.

18. Five (5) civil appeals:
(a) Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, appealed to Supreme Court, appeal dropped, presently in Circuit Court for contempt.

Printed Page 6946 . . . . . Tuesday, May 17, 1994
(b) Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., Supreme Court, 7/12/93, 434 S.E.2d 279 (1993).
(c) Miles v. Town of Ridgeway, Supreme Court, pending.

20. Judicial Office: He was appointed a hearing officer for the SC Department of Revenue and Taxation Alcoholic Beverage Licensing Division to serve in the interim period from 7/1/93 to 2/28/94.

21. Significant Orders or Opinions:
In light of the short time which he has served and the limited scope of authority, he does not feel any of his rulings warrant elaboration.

20. Public Office:
Gubernatorial appointment to SC Rural Water & Sewer Grants Advisory Commission, 1980-1986
Presidential appointment, board member, District 50 Selective Service System, 1986-present; elected Board Chairman 1988-present
Lexington County Council appointment, board member, Richland/Lexington Council on Aging, 1979-1983
Lexington County Council appointment, Chairman, Lexington County Economic Advisory Council, 1977-1983

28. Financial Arrangements or Business Relationships (Conflict of Interest):
With the exception of his ownership interest in Lewis, Rogers & Lark, P.A., he is not aware of any financial arrangement or business relationship which in any way would constitute or create a possible conflict of interest in the position he seeks. This would be corrected by the sale of his interest in the firm. He has represented certain electric cooperatives, municipalities, and water companies before DHEC, PSC, Tax Commission, and the Labor Department. For one year, he would recuse himself from cases involving a former client; thereafter, he would recuse himself from any matter he had worked on involving a former client.

35. Lobbyist or Lobbyist Principal:
He was registered as a lobbyist for the Electric Cooperatives of South Carolina, Inc. from 1975 through 1984.

Printed Page 6947 . . . . . Tuesday, May 17, 1994
36. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal
The law firm with which he is associated presently performs legal services for the Electric Cooperatives of South Carolina, Inc., a lobbyist's principal, for which they bill on an hourly basis. He has not received anything from any lobbyist or lobbyist's principal.

39. Expenditures Relating to Candidacy:
3/3/94 Three long distance calls to references; $ 3.60
3/4/94 Printing letters and envelopes announcing candidacy to legislators; $158.00
3/8/94 Postage, folding, stuffing and labeling letters; $ 84.30

TOTAL: $245.90

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; Richland County Bar Association; Fairfield County Bar Association

45. Civic, charitable, educational, social and fraternal organizations:
Toastmasters International - Area Governor for SC; Fairfield Country Club - Board of Directors, 1987-1989; Fairfield County Education Foundation - Vice President, 1989-1990

47. Five (5) letters of recommendation:
(a) Lisa M. Shoemaker, Branch Manager
Columbia Teacher's Federal Credit Union
2320 Washington Street, Columbia, SC 29201
252-5700
(b) Honorable Marion C. Smith
Magistrate - District 2
Fairfield County Summary Court
P. O. Box 423, Winnsboro, SC 29180
635-4525
(c) C. Pinckney Roberts, Esquire
P. O. Box 694, Columbia, SC 29202
779-4975

Printed Page 6948 . . . . . Tuesday, May 17, 1994
(d) Charles L. Compton, Esquire
Vice President of Corp. Relations and General Counsel
Saluda River Electric Cooperative, Inc.
P. O. Box 929, Laurens, SC 29360
682-3169
(e) John Jacques
667 Ferry Street, Mt. Pleasant, SC 29464
884-9556

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against. The records of the applicable law enforcement agencies: Fairfield County Sheriff's Office are negative; Winnsboro City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Fairfield County are negative. Federal court records are negative. No complaints or statements were received and no witnesses are present to testified. Would you like to make a statement before we proceed?
MR. FANTRY: At this particular time, I would choose not to make a statement and rely on my previous statement. Thank you.
REPRESENTATIVE ALEXANDER: Thank you, sir. Go, ahead, Steve.
MR. FANTRY - EXAMINATION BY MR. ELLIOTT:
Q. We're going to incorporate the testimony, so we haven't really thought about it, but is it your intent that we incorporate your statement from the previous time?
A. That's quite all right. No, it is. Not to --
Q. If you're elected as an Administrative Law Judge, what will be your policy about taking something of value from an attorney?
A. In taking something of value, you have to take a look at the ethics procedure itself and it says anything of value, no matter how de minimis, if there is an inference that it might be given for the purposes of influence in some nature. And, therefore, the first, as people have used before me, bright line test would be as to my perceived intent of the giver.

There are some other distinctions as to things of value which might be calendars, of business items, things that you may receive through contacts with individuals of a de minimis value. I believe $10 is what they're talking about that depending on the circumstances and the appearance as long as it's not judicial in nature that I might receive. There, again, it would depend upon my perception of the reason for the gift and the fact that the item -- any item was less than $10 in value.

Printed Page 6949 . . . . . Tuesday, May 17, 1994
Of course, gifts from daughter or family members would be for love and affection and they probably wouldn't reach $10 anyhow, so I'd accept those.
Q. And let me be clear about it, I mean is your test that if it's an attorney who is appearing before you, they can give you something with less than a $10 value? I apologize if I misunderstood that, but straighten me out if that's --
A. No, not in a judicial sense at all, but maybe -- you may be at a social event or you may be doing a speaking appearance on a nonjudicial matter in which there are calendars given out. They have a diminimus value. They really are not there for influence. I might accept something like that as a memento of -- or award of that nature.
Q. And just to be clear, what about the attorney who might be appearing before you or have a case pending before you?
A. No. I would not accept any gift from anyone who practices before me.
Q. You had a letter of reference in your packet. It's a very flattering letter of reference. It was from the magistrate in Winnsboro. But he said there were things like that you were real helpful in helping him find a statute and clearing him up on what the law was in some situations; and if for some reason, if it wasn't exactly like you thought it was, you went back and did the research, you would call him up and clarify or correct whatever you had told him before. In what context does that happen?
A. I think that has often happened when the process -- when I was handling a case against a nonlawyer in which there may be an item that came up to where it was procedural in nature. In that respect, I would advise the Court as I would advise that opponent at this particular time as to the statute that we were involved in and perhaps the standard that had been applied, so that we would be able to be more equally balanced on the facts of the case.

In magistrate matters, so many times it is the application of the law rather than the constitutional interpretation of it. And for that particular reason, I have felt very comfortable in working with the citizens and magistrate to lay the best foundation should either side decide to appeal that decision.
Q. Well, I ask it mostly in the context of the ex parte communication situation, and I wasn't clear from your answer. Then, for example, when you call back to say I think I told you incorrectly about this and you're talking to the judge. How do you view that?
A. Oh, in that particular context, the communication, the statute that I used, a copy of that was provided to the counsel on the other side along

Printed Page 6950 . . . . . Tuesday, May 17, 1994
with the contact to the judge to advise that there had been an error, so there had not been an ex parte communication with the judge. There had been contact with the other side as to what took place.

| Printed Page 6930, May 17 | Printed Page 6950, May 17 |
Page Finder Index