Cindi Ross Scoppe

A 15-year fight over this SC DOT commissioner is now in Gov McMaster’s hands

SC Department of Transportation Commissioner John Hardee attends a meeting in 2015.
SC Department of Transportation Commissioner John Hardee attends a meeting in 2015. gmelendez@thestate.com

SUPPORTERS HAVE been working since 2002 to keep Hugh Leatherman’s son-in-law on the horse-trading commission that decides which state roads get repaved, repaired and built. Last year, it looked like they finally lost.

But in the latest bizarre twist in this uniquely South Carolina tale, they appear to have outmaneuvered their foes again — unless Gov. Henry McMaster bucks the state’s most powerful legislator.

I don’t know anything awful about John Hardee, although I was offended that he kept serving for years in defiance of state law — at one point while taxpayers paid to fight a lawsuit to keep him in office. Of course, I’m more offended by the legislators who defied state law.

But to libertarians and tea partiers, the mere fact that he is the son-in-law of Sen. Leatherman means he must be evil, or corrupt, or both. After all, in their eyes, Mr. Leatherman is evil and corrupt and — worse — liberal. (“Not ultra-conservative” is a more accurate description, but that’s quibbling.)

If you recognize Mr. Hardee’s name, it’s likely because you’ve driven on the John Hardee Expressway, named to honor his work to get funding for the connector from Platt Springs Road past the Columbia Metropolitan Airport to I-26. The project is still $88 million and a mile short of being finished, so for now it’s just an over-named entrance to the airport.

Mr. Hardee started working on it when he was appointed to the Transportation Commission in 1998 and continued after he was reappointed in 2002, and again in 2006.

Midlands legislators kept re-appointing Mr. Hardee to the Second Congressional District seat even though state law required seats to be rotated among counties every four years, since road-building decisions have a lot to do with who’s on the commission.

The effort to let Mr. Hardee serve more than four years at a time first began as his first term ended in 2002. Billboard opponents objected because he was governmental affairs director for the billboard company Lamar Advertising. So did lawmakers who wanted their counties to get a resident commissioner. And of course there were the critics of Mr. Leatherman, who wasn’t yet president pro tem but did chair the Senate Finance Committee. Mr. Leatherman, you’ll recall, fought harder and longer than anyone to stymie reforms to the unaccountable, horse-trading commission. He also got a lot of road decisions he wanted, from five-laning a traffic-deficient highway in his hometown to unrelenting efforts to build a new Interstate 73 to Myrtle Beach, when we can’t maintain the roads we have.

When a bill to let Mr. Hardee serve two consecutive terms failed, lawmakers just ignored the law and appointed him to a second term. And then a third term. And then Greenville businessman Ed Sloan filed suit, and the unanimous Supreme Court said the law actually meant what it said. So after 10 years on the commission, Mr. Hardee had to step down in 2007.

Read the 2007 court order

By the time he was reappointed in 2014, the law had been changed to allow two consecutive terms, so he was expected to remain through 2022.

Then last year the law was changed again, this time to say commissioners “may not serve more than twelve years, regardless of when the term was served.” Which seemed, finally, to mean the end of Commissioner Hardee.

Except ….

This summer, the attorney general’s office issued a heavily caveated opinion saying that although the language was ambiguous, the Legislature’s intention to make the 12-year limit retroactive was not “expressed or clearly implied,” so it appeared at first blush that the law should be read as prospective. That is, Mr. Hardee can serve another 12 years.

I’m not going to argue with Solicitor General Bob Cook’s legal analysis, but I can tell you that politically, everyone who supported a 12-year-lifetime limit (and that was a lot of people) thought they had one in that language.

Transportation Commission Chairman Woody Willard told The Greenville News that legislators he talked to intended the limit to be retroactive, and noted that Mr. Cook “might be one of the only ones who see it” differently. The House’s point-man on DOT reform, Republican Leader Gary Simrill, pointed to the words “regardless of when the term was served” and told me: “If the language didn’t mean retroactive, then it serves no purpose.”

Of course, it does begin to look less than crystal-clear when you hear, third-hand, that House members may have taken great care to choose words that would not alert Sen. Leatherman to their effort. That is, that they inadvertently sabotaged their own efforts.

Mr. Hardee, who said he would be happy to continue serving, told me last month that had the law been read as retroactive, it would have applied to three people besides him. And there are three other people still alive who have served 12 years on the commission. But none of them is currently serving; only one, Moot Truluck, served in violation of the old one-term-at-a-time law, and he only once.

Fortunately, the story doesn’t end here.

The 2016 law very clearly gave governors the power to appoint commissioners, so it’s no longer up to Midlands legislators to decide whether Mr. Hardee remains.

Mr. McMaster’s spokesman told me it was too early to make a decision, which is understandable.

The governor wasn’t supposed to have to unseat Mr. Leatherman’s son-in law, but a lawsuit to test the attorney general’s opinion would be premature unless Mr. Hardee is reappointed. So the only way to be sure his never-ending service ends is for Mr. McMaster to end it.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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