NINETY SIX – The District 52 Board of Trustees held a public forum to answer questions about the tuberculosis outbreak at Ninety Six Primary School. The public forum, however, was not announced through the agenda sent out on Wednesday nor the amended agenda sent out at about 10:30 a.m. Thursday morning.
Neither of the two agendas distributed to the media were followed Thursday night. Lindsay Anne Thompson, of Duff, White and Turner in Columbia and the general counsel to the district, said the amended agenda was allowable under state law because the TB issue was an “emergency situation.”
The South Carolina Court of Appeals filed an opinion on June 13, 2012, in the case of Dennis N. Lambries v. Saluda County Council stating that agendas could not be amended within 24 hours of the meeting since the South Carolina Freedom of Information Act requires a 24 hour notice for meetings of any public body. The opinion states, in part, that allowing “an amendment of the agenda regarding substantive public matters undercuts the purpose of the notice requirement.”
The Court of Appeals opinion later references a South Carolina Attorney General opinion, issued Oct. 11, 1989, according to the court opinion, which “eloquently describes the ideal conduct for meeting the obligations set forth under FOIA.”
The portion of the Attorney General opinion quoted in the courts opinion reads:
“Public bodies are encouraged to take all steps necessary to comply with both the letter and the spirit of the Act, to carry out the express purpose of keeping the public informed about the performance of their public officials and the conduct of public business. If any doubt exists as to action to be taken, the doubt should be resolved in a manner designed to promote openness and greater notice to the public.”
District 52 Superintendent Mark Petersen opened the meeting by reading a public statement. In that statement, Petersen acknowledges receiving a phone call from DHEC on March 27 informing him that there was a possible contagious disease at Ninety Six Primary School. DHEC officials toured the school the following day and informed Petersen that they planned to contact certain individuals regarding a possible exposure to TB, according to the statement.
In the statement, Petersen says that he contacted DHEC on April 8 and was told that several individuals had been tested for TB and that none of those results were positive. Petersen met with school staff on April 17 to notify them that he had no new information regarding the TB investigation that was underway, according to the statement. Petersen says the meeting was held in response to rumors circulating throughout the community.
The statement says that the first notification the district received of a confirmed case of TB at Ninety Six Primary School was on May 27. However, in an interview with GwdToday on May 28, Petersen said that he had been in contact with DHEC about the case on both May 25 and May 26. Petersen says that DHEC informed him on several occasions that all students and staff at the school would be tested, but DHEC officials announced at an informational meeting held on May 29 that K-4 students and staff would not be tested. Petersen told the crowd gathered that he would find the resources necessary to make sure that everyone at the school was tested. On May 30, DHEC announced that all students and staff at the school would be tested. DHEC also announced that several employees were terminated and several others disciplined in connection with the incident at the school.
During the question and answer period, which lasted for over an hour, Petersen was asked if DHEC had ever told him that he could not contact parents. Petersen responded, “No.” However, Petersen and two school board members, Michael Bryant and Paul Cobb, have repeatedly stated that DHEC told the district that they would handle any necessary notifications. Both Cobb and Bryant have acknowledged that the board was not unanimous in its decision to not inform parents of the potential TB exposure.
GwdToday sent out three questions to all five school board members. Only Cobb and Bryant opted to respond to those questions. The questions were sent before there was any pending litigation. Board member Deborah Bolton said she chose not to respond to the questions. Board chairman Sam Corley said that he had not seen the questions, saying that he does not check his school district email on a regular basis. The responses by Bryant and Cobb can be viewed by clicking on the link at the bottom of the page.
A lawsuit was filed on Tuesday against both DHEC and the school district by Greenwood attorney Billy Garrett citing negligence and gross negligence on the part of both DHEC and the school district in connection with the TB outbreak. A second lawsuit was filed Thursday against DHEC by McCravy, Newlon and Sturkie, an Upstate law firm based in Greenwood. In a statement released Thursday after the suit was filed, a spokesperson for the firm said they did not name the school district at this time because the district may have also been victims of DHEC’s poor advice.
The new lawsuit specifically says that DHEC was notified of a TB case by a doctor within 24 hours as required by law, but the agency waited weeks to take any action at all. DHEC has said that they were first made aware of a confirmed case of active, infectious TB on May 1. It did not notify the school district or the public for at least 24 days following that confirmed case. The complaint also says that DHEC did not follow CDC guidelines for the prompt investigation and response to this type of incident.
“We have decided to prosecute the S.C. Department of Health and Environmental Control for damages sustained by students and parents as a result of their slow and inadequate response to tuberculosis cases in Ninety Six Primary School, which we believe contributed to the current tuberculosis outbreak,” said John McCravy, a founding partner of the law firm. “Part of the action requests injunctive relief requiring DHEC to fulfill their legally mandated responsibilities. Anyone with information about this case can contact us at 864-388-9100.”
The latest numbers released by DHEC on Thursday night show that 536 people were tested using TB skin tests. Of those 536, 62 individuals showed a positive result and were sent for chest x-rays. A total of 10 abnormal chest x-rays have been identified. A second staff member has also been diagnosed with a case of active, infectious TB. That person is under the care of a physician and has begun treatment for the disease. DHEC is requiring that the person remain confined to their home until they are no longer infectious. DHEC announced on Thursday afternoon that the first staff member to test positive for TB has been detained and transported to a secure medical facility because they failed to comply with a Public Health Order. DHEC said that, specifically, the individual has provided false, conflicting and vague information about the people with whom they may have come in contact and has continued leaving their home without the permission of health officials.
A second contact investigation into the second confirmed case of active, infectious TB is underway, according to health officials.