The culture of arrogance and secrecy at DHEC

Published Jan. 2019

SCPA Attorney Jay Bender
By SCPA Attorney Jay Bender

The board of directors of the state’s largest, and perhaps most vital regulatory agency, the Department of Health and Environmental Control (DHEC) announced it had selected a fellow board member to be the agency’s new director.

The selection board member of Richard “Rick” Toomey came on the heels of a search lasting 13 months in which the search firm, Find Great People, was unable to identify a candidate satisfactory to the board.  Notwithstanding that failed search, and the insider hiring of Toomey, the search firm will be paid 20 percent of Toomey’s $178,126 salary for its work.

A review of DHEC meeting agendas and minutes reveals that the decision to hire Toomey was conducted in violation of South Carolina law, and disregarded entirely the public interest in commenting on the candidates under consideration in advance of the hiring decision.

State law required DHEC to provide copies of all materials collected during the search regarding persons in the group of applicants from which the selection was made.  A request was made by The State newspaper for such documents in early October.  DHEC denied the request for records without stating a reason for the denial, and has yet to make the material collected regarding the individuals under final consideration available to the public.  In both instances DHEC is violating a law the General Assembly determined to be “vital in a democratic society.”

A review of board meeting agendas and minutes during the period the board was winnowing the field of candidates indicates that no agenda item stated that the board was considering applicants for the position, and no minute entry revealed a public vote to narrow the field of candidates—both steps required by law.

In fact, the board minutes reveal a pattern of inadequate statements of the purposes of meetings closed to the public.  The minutes reflect board meetings closed to the public to discuss “personnel” matters notwithstanding that word does not appear in the applicable law, and  Attorneys General have advised public officials for more than 30 years that an executive session described as being for a “personnel matter” is in violation of the law.

From its agendas and minutes, it appears that DHEC has institutionalized its disregard for the law.  Consistent with this culture of a disregard for the law and the citizens of South Carolina, Mark Elam, chairman of the board, responding to criticism of the illegal process followed by DHEC said the public would have an opportunity to examine Toomey’s qualifications for the position during the State Senate confirmation process.  Any rational process utilized to identify the director of the state’s largest regulatory agency would disclose the names and qualifications of the candidates under final consideration far enough in advance of the decision to enable citizens to communicate with board members in support of or opposition to candidates.

Chairman Elam’s remarks, in the context of the unlawful process followed by DHEC, smacks of an elitism characteristic of South Carolina governance from colonial days.  The people in charge, from plantation owners to mill owners to public officials, have said, “Trust us.  We’ll make the right decision and let you know what the decision is.”  Elam said once the confirmation process is complete, “everyone will be quite happy and satisfied with our selection.”

The obvious question, what if we’re not happy and satisfied with the selection of an insider when we haven’t had a chance to know the qualifications of the other applicants?  In a democracy, citizens should have a meaningful opportunity to participate in the decision-making process prior to the decision being made.  To conduct public business otherwise is arrogant, elitist, and in this instance, illegal.     

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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