South Carolina DHEC accused of breaking open records law

Mark Elam is chairman of the S.C. Department of Health and Environmental Control board. He is pictured at the agency’s Dec. 22, 2020 board meeting.
Mark Elam is chairman of the S.C. Department of Health and Environmental Control board. He is pictured at the agency’s Dec. 22, 2020 board meeting.

When the state health and environment board picked a new director Dec. 22, it ended months of speculation about who would take charge of an agency heavily criticized for its response to the coronavirus pandemic in 2020.

But the board’s effort, conducted largely in private and sometimes without voting publicly, has open government advocates upset about secrecy they say has again shaken public confidence in the S.C. Department of Health and Environmental Control, an agency historically criticized over transparency issues.

The DHEC board skirted the state’s open records law by failing to publicize the list of final candidates for the job until the morning it chose Navy doctor Edward Simmer to guide the agency, say open government advocates.

The board also never voted publicly to narrow the list of more than 80 applicants to the three finalists, which critics say is a possible violation of the Freedom of Information Act.

DHEC disputes that it violated the law, but four state legislators and officials with the S.C. Press Association say they’re not happy with the process used to pick Simmer. While nobody has questioned Simmer’s credentials, critics say the process set a bad precedent and undermines support for the agency.

“The citizens of South Carolina are being treated like they’re children, and kept from knowing how and why things happen,’’ state Sen. Dick Harpootlian told The State. “This is an insult to every taxpayer.’’

Harpootlian, D-Richland, called on Republican Gov. Henry McMaster to crack down on the Department of Health and Environmental Control because he said the agency did not follow the state’s sunshine law.

Sen. Tom Davis, R-Beaufort, and Republican Reps. Kirkman Finlay of Columbia and Bill Taylor of Aiken expressed concern over DHEC’s compliance with the law during the director search. And representatives of the S.C. Press Association ripped DHEC’s methods.

Taylor said he’s concerned the board didn’t release the names of its final choices for director until the same morning it chose Simmer to lead the department.

“It does seem that they are in violation of the spirit, if not the letter, of’’ the state’s sunshine law, Taylor said.

Hiring top-level officials to run state agencies can be a difficult and tedious process that some state officials say requires a certain level of confidentiality. In this case, hiring a director during a pandemic was more challenging because other states also were seeking top flight health officials to deal with the health crisis. Without assurances applicants’ names would be kept secret, many qualified people would not apply for state jobs because they have other jobs, some officials contend.

Still, DHEC could have done more to be open with the public, Harpootlian and Taylor said.

State law requires the names of at least three final candidates be made available upon request when boards search for agency directors. While it doesn’t specify when those names have to be released, the point of publicizing final candidates’ names is to give the public time to weigh the choices, critics say.

People then could flag state officials if they know of any blemishes on the final candidates’ records, the law’s supporters say. Releasing the names the same morning that a director is chosen defeats the purpose of the requirement, critics say.

“It would have been in everyone’s best interest to have the finalists be made public so that citizens and people with expertise in DHEC affairs could offer some advice, opinions and reactions,’’ Taylor said. “It’s never good for government not to be transparent.’’

Finlay said the state’s Freedom of Information Act may come under scrutiny when the Legislature returns this month to make sure agencies aren’t using it to keep information from the public — instead of providing information.

“The point of FOIA was to provide transparency; we seem at times to be doing exactly the opposite,’’ Finlay said.

Taylor has pre-filed a bill that would allow disputes about the Freedom of Information Act to be settled by a special review court, rather than forcing citizens and media outlets to file expensive lawsuits against agencies. The new FOIA review court could be persuaded, for instance, to require an agency to release candidates’ names well in advance of making a final selection for a director’s job, he said.

Jay Bender, an attorney for the state Press Association, said it’s hard to understand why DHEC’s board did not vote publicly to narrow the list of candidates. State law allows public agencies to conduct private discussions, under certain circumstances, but votes must be cast in public.

Bill Rogers, director of the S.C. Press Association, said DHEC’s handling of its director search isn’t unique. While some government agencies follow the law, citizens too often encounter other agencies doing business behind closed doors in violation of the law, Rogers said.

But DHEC, which regulates public health and oversees environmental protection, is larger than most state or local governments departments in South Carolina. The agency has more than 3,500 employees and touches the lives of virtually every resident in some way. The director’s job is considered one of the most challenging in state government.

Among DHEC’s responsibilities are issuing birth certificates, determining whether hospitals can expand and overseeing public health, which has been a major task with the coronavirus pandemic. The agency also issues permits for industries to release pollution, oversees toxic waste dumps, enforces pollution laws and monitors the quality of the state’s air and water.

Issues about the agency’s openness have surfaced at the same time lawmakers are blasting DHEC for failing to move faster in providing coronavirus vaccines to the public. Many said this past week that the agency is sitting on vaccines, despite agency assurances it is not. In early 2020, the department caught heat for initially refusing to release data about nursing home outbreaks and clusters of the virus in certain communities.

Historically, the agency has had its share of dust-ups over a lack of transparency in releasing records and hiring directors.

“They’ve got a spotty record, at best, and unfortunately, that hurts the credibility of the agency,’’ the press association’s Rogers said of DHEC’s history of transparency.

Since 2012, DHEC has had plenty of issues hiring directors. The position has, for a variety of reasons, had relatively high turnover after years of being run by only a few long-serving directors. The board has chosen five director candidates in the past nine years, and in almost every case, has drawn fire for the way it has conducted searches.

Six years ago, the board picked an inexperienced friend of then-Gov. Nikki Haley to run the agency without conducting a national search for other candidates.. That decision blew up on the board, with lawmakers lambasting the selection and the process. The candidate, Eleanor Kitzman, withdrew her name amid the furor..

Even when the agency has conducted national searches, the efforts have drawn criticism.

In 2018, the department refused to release sign-in sheets from the department’s front desk that could have identified candidates for the job. It released a list of finalists but not before choosing fellow board member Rick Toomey to run the agency.

At least one applicant criticized the hiring process, saying it appeared to favor Toomey. Toomey quit less than two yea
rs later, in the middle of the coronavirus pandemic, one of the biggest health crises in state history. Toomey, a retired hospital executive when he took the job, cited non-coronavirus related health issues and a desire to spend time with his family as the reasons for leaving.

Simmer, whose salary is expected to be $195,000, comes with what DHEC board members and McMaster say are an impressive list of credentials. He is a long-serving Navy officer with years of experience in health care. He’s testified before Congress on health care issues and has offered testimony in military court cases.

Board members say Simmer, who owns property in Beaufort, is well suited to lead the agency through the coronavirus pandemic, but the agency has not made him available for comment..

Harpootlian, Bender and others say they’re not disputing Simmer’s experience or qualifications. But DHEC’s action in hiring Simmer is typical of South Carolina’s long-standing culture of doing public business behind closed doors, they said.

Harpootlian, a lawyer, said McMaster hasn’t pushed DHEC or other agencies to be more open, and that needs to change. McMaster appoints the DHEC board members.

The senator’s comments follow a lawsuit Harpootlian brought against the state Department of Commerce in 2019, seeking the release of information. A court agreed with him, but it shouldn’t have taken a court case to require the release of public information, he said.

“There’s a common theme here,’’ Harpootlian said.

McMaster’s office said the governor is comfortable with DHEC’s efforts and backs Simmer, who needs confirmation from the state Senate before becoming director.

“The governor thinks the DHEC board ultimately made a great choice and hopes the Senate will confirm Dr. Simmer as quickly as possible based on his remarkable qualifications and experience,’’ spokesman Brian Symmes said in an email Thursday.

Meanwhile, DHEC defended the board’s efforts in picking Simmer.

“The board didn’t violate the state Freedom of Information law or the spirit of the law during its agency director selection process,’’ according to a statement released this past week..

The agency said the board is not required to vote to narrow the list of candidates. The final list was picked by board chairman Mark Elam after the panel and a board search committee interviewed candidates, a spokeswoman said.

The board or its search committee met at least seven times from October to December to discuss hiring a new director. It retained a search firm, Find Great People, to help with the process.

Elam “selected his final three applicants and submitted them for the board’s consideration’’ during the Dec. 22 meeting, DHEC spokeswoman Cristi Moore said in an email to The State.

After briefly closing the meeting, the board returned to public session and voted for Simmer over the two other finalists, Greenville lawyer Keith Munson and former congressional staffer Matthew Van Patton, a one-time Nebraska Medicaid director.

“Prior to the Dec. 22 board meeting, the final three applicants had not been officially selected,’’ Moore’s email said. “DHEC can only provide the names of the final three applicants once they are selected. The final three applicants became public on Dec. 22 as soon as the chairman submitted them to the board for consideration.’’

Bender, an expert on the state’s Freedom of Information law, said DHEC’s arguments don’t hold weight with him. Bender has represented the S.C. Press Association for years, as well as numerous news organizations, including The State.

“Any decision by the board to delegate to the chairman the sole authority to determine which candidates would be in the group from which the final selection would be made required a public vote by the board in a lawfully convened public meeting,’’ Bender said.

“Contrary to DHEC’s claim, the South Carolina open meetings law was violated, seemingly at every step prior to the vote to select the mystery candidate,’’ he said. “The taxpayers of South Carolina deserve better.’’

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Sammy Fretwell has covered the environment beat for The State since 1995. He writes about an array of issues, including wildlife, climate change, energy, state environmental policy, nuclear waste and coastal development. He has won numerous awards, including Journalist of the Year by the S.C. Press Association in 2017. Fretwell is a University of South Carolina graduate who grew up in Anderson County. Reach him at 803 771 8537.
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