By Ashley Barker
Published May 5, 2014
The process of selecting the next president of the Medical University of South Carolina violated the state’s open meeting laws and could put President-elect Dr. David Cole’s position in jeopardy, according to S.C. Press Association Attorney Jay Bender.
The research institution’s board of trustees chose Cole during a conference call on April 17 in which board members were privately called by internal auditors who tallied their votes.
MUSC attorney Annette Drachman said the board followed a 1995 South Carolina opinion from then-Senior Assistant Attorney General Patricia Petway that says secret ballots may be used for voting purposes.
“If votes taken by secret ballot should be recorded by name, then such votes would become a matter of public record subject to disclosure, after the votes are submitted and tabulated,” the opinion said.
Drachman said the ballots are not available to the public because there were no ballots submitted.
“There’s a difference between what you record in terms of who voted for who versus the numbers of the tally,” Drachman said.
Instead of submitting ballots, which are typically signed by the voting trustee, internal auditors only made a list of tallies, since none of the board members requested anything different, according to Drachman.
“No member of the board asked for a specific identification of who voted for who. Nobody requested that,” Drachman said. “If a member of the board asks for an identification of who voted for whom then you’d have to follow that.”
An MUSC spokeswoman said 10 votes were tallied for Cole, and seven votes were tallied for Dr. Joanne Conroy, chief health care officer for the Association of American Medical Colleges.
Bender said that way of voting is no different than voting in executive session, which is a violation of the S.C. Freedom of Information Act.
“It’s astonishing to me that there’s no paper trail,” Bender said. “The attorney general opinion says you can have a secret ballot. So where’s their ballot?”
Trustee William Bingham, who voted for Cole, was the only board member to make his vote known to the public.
“All of them could have voted publically if they wanted to. I’m no lawyer, but I wanted to not violate any laws of the state of South Carolina,” Bingham said. “It says in the rules that we’re supposed to be open. I have no reason to hide my vote.”
Bender called Bingham the only courageous MUSC trustee and said politically elite citizens making decisions in secret is unacceptable.
“The definition of openness used by the medical university is unsupported by an English dictionary,” Bender said.
According to an attorney general opinion, a board member can request that the votes be recorded and released to the public. The opinion does not specify when the request has to be made.
Bender said a board member can still request for the vote to be recorded in the meeting’s minutes, which would require the board to recreate the vote.
MUSC’s board revised its bylaws on April 10 to allow voting for a new president by “secret ballot in person, a confidential conference call or other electronic confidential means.” Chairman Tom Stephenson said the change was made to save money by allowing board members to join a conference call instead of having to drive to Charleston to pick a new president.
Stephenson maintained after the vote that Cole’s selection was done without violating any laws, and said former presidents Dr. Jim Edwards and Dr. Ray Greenberg were elected by paper ballots.
Those paper ballots would have been required to be public record immediately following the vote.
“Ever since I’ve been on this board, we’ve voted by secret ballot,” Stephenson said. “Some boards vote publicly, but there are plenty of boards that vote by secret ballot.”
A lawsuit could be filed that would conceivably set aside Cole’s presidential selection, according to Bender. He said the only way to reconcile the situation would be to include who each member of the board voted for in the minutes.
“Why would they want a new president to start under a cloud of illegality? It’s not even a close call,” Bender said. “These people have advanced degrees, right? Apparently reading (the law) is not part of it.”
Reach staff writer Ashley Barker at 843-849-3144 or @AshleyNBarker on Twitter.
MUSC surgeon prepares for presidency