This isn't about Clemson; it isn't about styles of governance; it isn't about any personality.
It's about defending the state Constitution.
In 1888, Thomas G. Clemson died, and his will was probated providing for the creation of Clemson College. It provided for it a governing body, the Board of Trustees, naming seven persons to be trustees, to be collectively self-perpetuating. If the state accepted the gift, the General Assembly could appoint six additional trustees.
Mr. Clemson had a hostile attitude toward South Carolina's elected officials. He provided that those seven would always be a majority. The General Assembly was to be influential without control.
In 1889, the state enacted an Act of Acceptance, ratified by the Chief Justice, of the terms and conditions of Clemson's will, including:
Section 3, " ... board of trustees, composed of the seven members nominated by said will and their successors ..."
By not providing specific terms of office, one Act permitted life terms of office for those seven trustees.
This established that the seven people named by the will and their collective successors were to be trustees, perhaps with life tenure. They became known as life trustees.
In 1895, the state adopted a Constitution that included, Art. VI, § 1 and Art. XVII § 1B, "... No person shall be ... appointed to office in this State for life. ..." Those sections prohibited life terms for the seven trustees named in the will and their successors, established as law.
Art. XVII, § 11, "... Laws inconsistent with Constitution. ... The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption. ..."
This prohibited the possibility after 1895 of the Act of Acceptance providing those seven trustees or their successors being appointed for life.
Consequently, every life trustee serving after 1895, if appointed for life, served and are serving in violation of the Constitution.
For several years there have been rumbles about a brewing lawsuit to defend the Constitution in this matter. For 119 years, Clemson University has been suppressing this festering problem. If such a suit is brought and is successful, South Carolinians will give Clemson a black eye for having ignored the problem.
If such a suit is brought and fails, South Carolinians will realize that Clemson politics has persuaded the judiciary to conclude that defending the Constitution is unimportant. That would give Clemson a larger black eye.
Clemson can forestall this lawsuit and minimize an inevitable black eye by fixing the problem prior to institution of a lawsuit.
Clemson now has no bylaws. I suggest that the seven current Life Trustees can best serve Clemson, the state and themselves if the board adopts bylaws including:
The Trustee successors to the Trustees named by Clemson's will, when appointing a replacement of their number, shall not appoint a Trustee for a term exceeding six years.
This is to satisfy the prohibitions of the Constitution Art. VI, § 1 and Art. XVII, § IB.
If this happens, it will be an important defense of the Constitution, of which Clemson should be proud.
If this happens, the General Assembly can amend the Act of Acceptance to include enabling the Board of Trustees to adopt and amend bylaws.
E.D. Sloan Jr. is president of the South Carolina Public Interest Foundation, a nonprofit organization founded to ensure that public bodies in the state act in compliance with the Constitution and statutory law. It has brought at least 75 lawsuits on those issues since its founding in 2005.
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