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TRANSCRIPT OF TESTIMONY OF MR. FANTRY AT PUBLIC HEARING OF JANUARY 12, 1994:

STATEMENT BY MR. FANTRY:

It is for health, safety and the public welfare that South Carolina requires the licensing of lawyers, cosmetologists, water system operators and a host other professionals. It is for health, safety and general welfare that South Carolina assigns electric, gas, telephone services. It permits water and waste water facilities. It protects navigable and scenic rivers. It oversees the opening and closing of landfills and establishes sediment control standards for construction.

It is for health, safety and general welfare that South Carolina issues permits for beer and wine sales, licenses underground gas tanks and promotes economic development and when the men and the women of the General Assembly have completed their task of prescribing the duties and responsibilities of the individual and the governor has signed that into law, it is the job of the state agency to implement and enforce those duties with a reasonable and equal hand.

To enhance the equity in application and the public perception of that equity, the roles of the fact finder and the regulator have been separated through the creation of the Administrative Law Judge Division. These judges are persons not assigned to any one agency who with knowledge of the Rules of Evidence and existing South Carolina case law serve as the preliminary tester of agency actions.
Whether that test be in the role of a hearing officer when public hearings are requested for development of new regulations, hearing officer for appeal an agency decision and when that agency has no Board of Commission or hearing officer for an appeal from a Board of Commission which is denied professional certificate, it is the responsibility of the Administrative Law judge to see that the actions of the agency and the individuals appearing before them are appropriately documented with findings of facts and conclusions of law which will protect the party's right for judicial review.

It's my understanding and belief that the role of the administrative law judge is to assist the departments of government to which they are assigned to carry out the activities and directive of the law by seeing that the departments follow their own regulations, to assist the citizens by bringing clarity and uniformity to the proceedings in which the citizens so infrequently participate and to ease the burden of the judiciary by providing a record suitable for review.

In November of this year I will celebrate my 20th year as having the privilege of representing individuals before courts and tribunals in South

My involvement with services such as electricity, water, telephone, fire and, yes, even police protection has educated me in the process of reading and applying administrative regulations including the permitting, licensing and enforcement proceedings. It has also provided me the opportunity for petitioning the General Assembly to create or modify laws that better define the duties, rights and public obligations of those responsibilities and the people that are providing those services.

The restructuring of the South Carolina government last year created the opportunity to be a part of bringing to life the vision of the General Assembly through development of the first set of regulations for the Administrative Law Judge Division and the testing of that plan through service as a judge.

This is an intellectual challenge. A challenge that a student such as myself of law and government couldn't pass up and that's why I sit before you today.

MR. FANTRY - EXAMINATION BY MR. ELLIOTT:
Q. You have pretty extensive administrative law experience or it appears to be so from your statement -- in your PDQ, but it looks like most of that is in the area of utilities and the Public Service Commission; is that corrects?
A. No. I have appeared before the South Carolina Tax Commission --
Q. Well --
A. -- doing -- dealing with abandoned property.
Q. I was going to say, if you would, if you would develop that. I was going to mention that --
A. I'll be glad to do that.
Q. -- but if you'd develop that a little bit for us.
A. In 19, approximately, seventy -- 70 attached to the Appropriations Bill, there was an abandoned property tax law that was introduced in the South Carolina. In this area, the South Carolina Tax Commission would identify properties and accounts that were left in banks or interest in property, it would be reported and collected by the South Carolina Tax Commission after being held for seven years.

In representing the South Carolina Electric Cooperative Association, there came to be an interest in equity called Capital Credit in which it's accrued over a number of years and because of their rotating cycles, at that time it was 12 to 15 years, you would find that some individuals had moved out of the area and couldn't be located.

We appeared before hearings before the Tax Commission as to, first of all the constitutionality of the act, where it was attached to the Appropriation Bill and we felt at that particular time that the law had been implemented in violation of the South Carolina Constitution as far as not being in the title correctly.
South Carolina Supreme Court ruled --
Q. I think you -- if you want, don't develop it on a case by case basis, but if you'd give some overview. I mean I know your serving as an interim -- as an ABC hearing officer --
A. I will be glad to do that.
Q. -- and how many have you -- hearing cases have you had, that sort of thing. Not a case by case basis. Thank you?
A. And I appreciate that because it's a long and arduous trip we were about to take.
THE CHAIRMAN: We don't want to take quite that long a trip.
A. I have represented individuals before the Residential Homebuilders Commission. I have represented the water companies in applying for environmental permits such as the 208 plan. I have worked with volunteer fire departments in, first of all, obtaining federal and state funding and also the permitting process and training process that deal with it and general counsel for the Electric Cooperative Association.

I was involved in developing that legal department which handled training for job safety and treatment -- safety instructors and worked with the Labor Department as far as safety rules and regulation and implementation to business.

I am a City attorney for the town of Ridgeway and have dealt with interchange at the police department in personnel, employment problems, ethical applications and from time to time have worked with members of the Legislatures in responding to specific questions as to new laws and regulations and applications to companies that I have represented.
Q. Thank you. It looks like you have some litigation experience, but it's not extensive and I believe you indicated that you appear in court four to six times a year and apparently it's usually, it's as associate counsel; is that correct?

My responsibility was to develop the case and hire the law firm that would try the case and be -- participate with them in the development of the pleadings.

Since going into private practice in 1986, I have been working with -- or my particular law firm, again, in that area of a regulation and constitutional challenges. Generally, there are five to six attorneys dealing with the case.

My responsibility has been involved in interpreting the law, especially research, regarding the constitutional application and writing memorandum and briefs for -- in support of the trial counsel's presentation.
Q. Sitting as an ABC hearing officer, have you found that it would have been any different if you had had any more litigation experience or would it matter if you had any at all?
A. I think it's been very help to me sitting as an ABC hearing officer this year to get a feel for what the law judges are going to experience because you sit in both capacities. One, you're hearing as an initial fact finder for a license -- a beer and wine license in which you are trying to establish the record, so that the agency can appeal.

In the law enforcement area, you are actually I would consider it the tribunal looking for whether or not there is any rational basis in fact for the application of the citing and understanding that you are not actually making the initial decision, but supporting the application of the agency. So it gives you both sides of what I think the ALJ will be doing with all of the agencies which they have been assigned to.
Q. If you're elected as an ALJ, what do you understand to be your ethical considerations about extrajudicial activities?
A. Extrajudicial activities will -- it will be an interesting application because there are two codes of ethics that apply as I understand it. There will be the South Carolina Ethics Acts, which deals with the State employees and other departments, and since the ALJs will not be attached to the judiciary per se, but under the Governor's office that I think those will very applicable to review. The other will be the judicial standards to apply as far as conflicts are concerned, public participation in elections, anything that would draw attention or notoriety to you outside of the area of law.

I had to review that town's -- I had to review how they administer their procurement. I had to determine and review how the council had acted historically and I think it required the idea to be able to translate, apply regulations and then balance the equities of the situation. It's a very interesting case.

I lost that case on laches which is very surprising, but it's still out there and you have to -- you need to know and advise your clients about that at all times.
THE CHAIRMAN: That's the landfill case; is that right?
A. That is the landfill case.
Q. You mentioned legislative intent. As an ALJ, what would be your deference to the interpretation of a statute by an agency?
A. I think you have to give large -- in fact, the case law says that you give deference to the interpretation of the statute by the -- an agency when there is reasonable application. You apply that statute and the agency's interpretation.

It will not be the ALJ's position to make law. That will be for the judiciary and ultimately for the Supreme Court and the Legislature to change any principles and precedents. That's something I think an ALJ will have to resist sometimes to do something you really like to in your heart and understand that you are administering the regulations and that's the process that we're dealing with.
Q. You mention in your PDQ recusal regarding former clients and that you would do so. What would be your understanding of other situations where you would need to disqualify yourself?

I believe that if you worked on that matter specifically or you have access to information through your previous contacts that would or even give the appearance that there would -- could be some information coming out other than through the hearing process, those things I would waive.

It is my belief that that is a decision that the hearing officer and the judge should make. This is the Circuit Court judge makes and that would be reviewed by other bodies if they felt that the process was improper.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, I have not.
Q. That's all the questions I have.
THE CHAIRMAN: Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Your hearing has just concluded. The attorneys that appeared before you ask you to go to lunch, what would you do?
A. I would -- depending on what the case load are, I would probably accept an invitation to lunch from fellow attorneys. One of the things that would be in there the fact, that we may have lunch together is I don't think a bad view.

If they offer to buy me a lunch, I believe that can be done, but it would be reported on my economic interest statement declared as something that I've received. There is question in my mind if the attorney happened to be a registered lobbyist how would I treat them because that's -- they have a very different procedure and they would not be able if I was a House Member or Senator to buy me lunch, but I think the Judiciary is exempt in that area and I'd have to double check it, so I'd apply the standards of the South Carolina Code and the rulings of the South Carolina Commission as I know them to those situations.
THE CHAIRMAN: Further questions? If not, thank you, Mr. Fantry.
A. Thank you.

END OF PRIOR TESTIMONY OF MR. FANTRY.

REPRESENTATIVE ALEXANDER: Yes, sir.
SENATOR RUSSELL: Mr. Chairman, where are we? I'm sorry.
REPRESENTATIVE ALEXANDER: That was Mr. Fantry.

1. William Kenneth Moore
Home Address: Business Address:
54 Doe Drive S. C. Attorney General
Little Mountain, SC 29075 P. O. Box 11549
Columbia, SC 29211

2. He was born in Augusta, Georgia on October 5, 1949. He is presently 44 years old.

4. He was married to Patricia Deleon on October 23, 1971. He has three children: Jessica Lauren, age 10; Alexzandra Jordan, age 8; and Eric Mitchell, age 5.

5. Military Service: November, 1971 - September, 1973; U.S. Army; Specialist 4th Class; ***-**-****; Honorable Discharge

6. He attended Augusta College in Augusta, Georgia, September, 1967 - August, 1971, B.A. Degree; the University of Alaska in Anchorage, Alaska, September, 1973 - May, 1974 (left to attend law school); and the University of South Carolina School of Law, June, 1974 - December, 1976, J.D.

8. Legal/Judicial education during the past five years:
He has attended at least 12 hours of continuing legal education approved by the Commission on Continuing Lawyer Competence during the last five years. The general courses of study have included professional responsibility, criminal law, civil law updates and others.

9. Taught or Lectured: He has taught the subject of Code of Judicial Conduct at orientation courses for new magistrates and municipal judges. He has lectured at the Bridge the Gap program on the subject of Professional Responsibility.

12. Legal experience since graduation from law school:
In May, 1977, he began employment at the Attorney General's office. He was assigned to the post conviction section in the Criminal Division. In 1979, he became chief of the section. His primary duties included post conviction cases and prosecution of

13. Rating in Martindale-Hubbell:He has not been listed in Martindale-Hubbell since he has not been engaged in private practice.

14. Frequency of appearances in court:
Federal - rarely
State - often (includes Question 17(c) below
Other - He has prosecuted a number of judicial standards and attorney grievance matters before hearing panels during that time.

15. Percentage of litigation:
Civil - 75%
Criminal - 25%
Domestic - 0%

16. Percentage of cases in trial courts:
Jury - 5%
Non-jury - 95%
Sole Counsel or Associate Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Matter of Johnson, 302 S.C. 532. A judicial standards case in which the S. C. Supreme Court held that funds collected by a probate judge for having conducted hearings for the DMH should have been turned over to the county treasurer.
(b) Matter of Bowers, 400 S.E.2d 483. An attorney grievance matter in which the S. C. Supreme Court held that compulsive gambling was no defense to conduct which otherwise warranted disbarment.
(c) Shaw v. State of S.C., 276 S.C. 190. A post conviction case by which Shaw unsuccessfully challenged his death sentence. Shaw and a co-defendant had been the first persons sentenced

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