Cindi Ross Scoppe

The board that didn’t want to be recorded — and shouldn’t exist

ONE OF THE very few benefits of putting part-time commissioners in charge of state agencies is that we get to watch the decision-making process — and participate in it, even.

Or that’s supposed to be one of the benefits. Unfortunately, as the part-time commissioners in charge of the Department of Disabilities and Special Needs have been demonstrating, there can be a significant gulf between what’s supposed to happen and what does happen.

This summer, the board voted to prohibit board members and staff from recording its meetings. Not executive sessions — which seem more often than not in our state to be illegal to start with — but public meetings. The meetings that you and I and anyone else can attend … and record.

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SC AG: Court would not uphold DDSN tape-recording ban

Read the commission’s ‘courtesy’ rules

Read the attorney general’s opinion

Read state law, at 30-4-90(c)

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We’ve seen boards try to pull this sort of stunt before, usually local school boards. But this time Sen. John Scott asked the attorney general’s office for an official opinion on the policy. As in: Can this possibly be legal when we have a state law that says “All or any part of a meeting of a public body may be recorded by any person in attendance …, provided that in so recording there is no active interference with the conduct of the meeting”?

The attorney general’s office very kindly did not reply by saying, “Duh.” Instead, it dutifully detailed all sorts of caveats, as it is wont to do, and concluded that a court would likely strike down the rule because “we believe a court will interpret Section 30-4-90(c) of the South Carolina Freedom of Information Act to allow ‘any person in attendance’ to record meetings open to the public.” To which anyone with even the vaguest knowledge of the state’s open meetings law would be bound to say: “Duh.”

Now, you might think the disabilities board’s attempt to deter recordings of what commissioners say and do had something to do with all the controversy over deaths and allegations of abuse and neglect of vulnerable adults living in group homes that South Carolina Mentor operates under contract for the agency. Or with the history of problems with that company, including admissions freezes that former commissioners said they were never informed of. Or perhaps with the agency’s recently discovered policy of not informing the public when group homes are sanctioned. Or the agency’s continued contractual relationship with S.C. Mentor.

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SC agency for disabled adults must address abuse, report says

DDSN’s critical incidents, abuse and neglect allegations increase

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But commissioners say the no-recording rule was simply an attempt to foster courtesy. No, that doesn’t make a bit of sense, but in their defense, that rule was adopted along with quite reasonable rules to prohibit commissioners from texting or having simultaneous discussions during meetings and to require them to change seats for each meeting. Of course, another rule in that package suggests that commissioners speed up meetings by saying “ELMO,” short for “enough, let’s move on,” which hardly strikes me as a courteous thing to say.

Commissioners also note that the rule doesn’t apply to the public and in fact is nothing more than a guideline, with no punishment for violations. But even with those caveats, and even with the attorney general’s office making it pretty clear that the rule violates state law, the commissioner whose recordings apparently prompted the prohibition said she had no intention of resuming her recordings. “I don’t think I’m going to break a rule that all the commission decided on,” Vicki Thompson told The Greenville News’ Tim Smith, adding that she would try to convince her fellow board members to lift the ban.

Then-Gov. Mark Sanford used to refer to this reluctance of part-time commissioners to challenge the group-think that infests state agency boards as “going native,” and it was one of the reasons he argued that we shouldn’t have so many part-time boards in charge of our state agencies. It was a good point then, and it’s a good point now, because this sort of passivity, at least when it comes to efforts to shut the public out of the public’s business, is all too common, on both appointed and elected boards.

A few days before the attorney general’s office issued the opinion he had requested, Sen. Scott said he planned to introduce legislation this coming session to let the governor rather than the commission hire and fire the agency director. He told Mr. Smith he had concluded things would never get better under the current governance of the agency, which has ignored several recommendations from 2008 and 2014 state audits for improving the care and safety of people with intellectual and developmental disabilities.

That’s extraordinary because Sen. Scott, like most Senate Democrats, has fought efforts to give governors more control over state agencies.

Perhaps it reflects this realization: The governor already has the authority to hire and fire most of the commissioners who hire and fire state agency directors. So maintaining those commissions doesn’t deprive governors of power. It simply makes it more cumbersome for them to exercise that power — and easier for them to deflect responsibility when they choose not to exercise 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 @CindiScoppe.

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