DHEC committee met secretly about COVID-19 vaccines. Attorney says it violated law

A South Carolina advisory committee that helped finalize the state’s distribution plan for coronavirus vaccines met 12 times last year without public notice and failed to record official meeting minutes, leaving residents in the dark about decisions the group was making and violating state law, according to a leading expert on the S.C. Freedom of Information Act.

Jay Bender, an attorney for the S.C. Press Association, said the Department of Health and Environmental Control’s Vaccine Advisory Committee, or VAC, “consistently” violated FOIA provisions over a three-month span in 2020 as it neglected to post public meeting notices, convene in public and record official meeting minutes. Those failures to provide basic information occurred as the committee’s volunteer members offered feedback to DHEC on which South Carolinians should be prioritized for shots, according to unofficial notes from the committee’s then-weekly meetings that DHEC provided to The Island Packet and Beaufort Gazette.

“Like everything else done in secret, it undermines the credibility of the organization,” Bender said.

The committee, chaired by Dr. Linda Bell, the state’s chief epidemiologist, was also briefed on early vaccine rollout plans, according to the meeting notes, which omitted many details. The group first met on Sept. 30.

Bell on Wednesday announced that the committee would no longer hold regular meetings. DHEC plans to launch regional vaccine advisory panels instead. She noted that Gov. Henry McMaster in late February signed a bill requiring DHEC to allocate doses to the state’s four public health regions based on population levels and other factors. The new advisory panels will eventually play a role in those efforts.

Laura Renwick, an agency spokeswoman, wrote in a statement that DHEC formed the VAC after the Centers for Disease Control and Prevention encouraged states to organize “stakeholder groups” to help craft state-specific recommendations for coronavirus vaccine planning.

DHEC, she wrote, thought the committee would meet for only six to eight weeks.

“Because the VAC was initially formed as a short-lived informal stakeholder group, formal meeting procedures weren’t adopted,” Renwick wrote.

DHEC in late 2020 “determined the VAC could be a public body subject to the public notice requirements,” Renwick wrote.

As the vaccine rollout began, and the public grew interested in the VAC, “it became apparent the group should follow more formalized procedures and should include a way for the public to hear the VAC’s virtual discussions,” she wrote.

The agency started to post online notices for the VAC’s 2021 meetings, stream its meetings, publish its agendas and document its minutes.

The Palmetto State’s open records law explicitly lists government “advisory committees” as public bodies that are subject to state FOIA requirements.

“It’s clear that DHEC’s committee,” Bender said, “has only recently become aware that it has to comply with the law.

“The law requires committees to give notice, just like the DHEC board has to give notice of its meetings. It has to convene in public. ... it has to keep minutes.”

The Island Packet and Beaufort Gazette found other examples of the VAC’s unusual and at times dysfunctional structure in 2021:

• DHEC as of Wednesday hadn’t published the committee’s Feb. 3 and Feb. 17 meeting minutes on its VAC web page. The agency fixed that issue after the newspapers asked about it.

• During a Jan. 6 meeting, Bell said VAC members “haven’t held formal votes because ... there’s no official quorum for this body.” Many members were forced to “sign on and sign off” as their schedules allowed, Bell said. A quorum is a simple majority of members. “That’s a doctor practicing law. Lawyers shouldn’t practice medicine and doctors shouldn’t practice law. She was wrong,” Bender said of the epidemiologist. Renwick, the agency spokeswoman, wrote in a statement that “DHEC’s legal counsel doesn’t always attend stakeholder meetings. Dr. Bell always had access to DHEC’s Office of General Counsel.”

• DHEC failed to publish the names of VAC members for months, according to internet archives. Bell on Jan. 6 told members that “your identity” may be “posted for the public.” A list of the committee’s members was made available on DHEC’s website in late January. (There are 42 members currently, with one added on Feb. 3, Renwick wrote.) DHEC staff and representatives from different organizations, including the Medical University of South Carolina and the S.C. Hospital Association, are on the committee. DHEC also recently provided the newspapers with unofficial notes that named VAC attendees at eight of the 12 meetings held in 2020. At least 21 current members were at five of those eight meetings, according to the notes.

• The VAC issued its recommendations based on “consensus,” Bell said on Jan. 6. For example, during a Jan. 13 meeting, Dr. Jane Kelly, assistant state epidemiologist and a member of the committee, showed the group several requests from S.C. residents and businesses who wanted to be added into earlier vaccine phases, then asked her fellow VAC members if they agreed with her choices of “yes” or “no.” Kelly also asked the group to weigh in on some requests she was unsure about. She explained her decision-making, then waited only a few seconds for members’ input, in some cases. The VAC spent an hour working through her “unsure” category.

The committee’s Jan. 13 meeting was a prime example of the VAC’s confounding design.

Kelly at one point noted that Molly Spearman, state superintendent of education, had filed a request with DHEC to sub-prioritize tens of thousands of K-12 teachers and support staff within Phase 1b (which is set to begin Monday), so educators would get vaccinated right away during South Carolina’s second stage of distribution. Phase 1b includes roughly 2.7 million people, according to state estimates.

Ryan Brown, chief communications officer for the education department, and a VAC member, spoke in favor of the request.

After a brief discussion, Bell asked the committee for an opinion, telling those who supported the idea to raise their virtual “hands” on the Microsoft Teams platform.

Ten people raised their hands. Then the meeting abruptly ground to a halt.

“I feel like we’re sometimes kinda rushing into these decisions,” said Teresa Arnold, state director for AARP South Carolina and a VAC member.

Dr. Jeff Cashman, a VAC member who represents the South Carolina Medical Association, said he was opposed to vaccine sub-prioritization in general. He asked if the group could vote on that broader topic instead.

“I think some people,” Cashman said, “were trying to understand what we were truly voting on.”

Brown, the education spokesman, urged the committee to finish its teacher-specific vote. But Bell opted to “suspend” that vote. She also noted that the committee had no parliamentarian and no legal counsel present.

Another VAC member then told Bell that a “real vote” would include a motion and a second.

“We’re in a gray area now, because calling for a vote is something that we have not previously done,” the epidemiologist said. “By parliamentary procedures, I think technically we should ask if there is a quorum present ... there’s no official definition of a quorum for this group to establish a majority for a vote.”

No one spoke up, though, to clarify that issue. Bell immediately called for a vote based on Cashman’s proposal.

After a motion and a second, 20 people voted against sub-prioritizing anyone within South Carolina’s vaccination phases. Three people voted to allow it.

It’s unknown who voted for what. The Jan. 13 video recording doesn’t show a tally. And the VAC meeting minutes don’t include voting breakdowns by name.

But at least DHEC compiled and released those minutes.

“They’ve acknowledged that — somehow — the light bulb came on,” Bender said. “They were subject to the Freedom of Information Act.”