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Indefinite terms for Clemson trustees raise policy, legal questions

A Boss Without a Boss
February 21, 2012

David H. Wilkins has held several positions with relative autonomy throughout his career. He’s been a partner in a law firm, the speaker of the South Carolina House of Representatives, and the U.S. ambassador to Canada.

But in his current role as chairman of Clemson University’s Board of Trustees, he essentially answers to nobody.

Wilkins is one of seven members of Clemson’s board who – like only a handful of other trustees across the country – hold seats that do not have any kind of term limit and are answerable to no one but the other board members. And unlike most public university trustees, Clemson’s “lifetime” board members are not appointed by any branch of state government, but rather by the other trustees holding lifetime seats, removing them from direct state supervision.

The presence of self-perpetuating trustees and lifetime appointments – found at other colleges independently, but rarely together – can insulate an institution’s governing board from political pressure, ensure some consistency over time, and give individuals who might not have the time to lobby lawmakers for a position the opportunity to serve an institution.

But the Clemson board raises the question about whether having an isolated governance structure is good public policy. Clemson University receives more than $100 million in taxpayer money every year and serves as the state’s largest land-grant institution. The isolation of the board’s majority might keep it from responding to public demands or make it too deferential to the administrators it put in place, critics say. Having a self-perpetuating group continually appoint new members might also result in a particular demographic being over- or underrepresented – a precarious proposition for a university that is supposed to serve all corners of the state.

“Having a small community of business people – which is basically what the seven life appointees are – in charge of the institution is very detrimental to the health of the university, and potentially detrimental on a totally different level than we’re used to seeing,” said John Bednar, a retired French professor and vocal critic of the board. Bednar’s fear is that the board is overemphasizing technical training at the expense of a well-rounded education. “The institution is moving dramatically away from the liberal arts, and getting students jobs is now the most important goal of the institution,” he said.

A Historical Legacy

Clemson’s unique structure comes courtesy of its founder, Thomas Green Clemson, who in 1888 left his estate – once belonging to 19th-century South Carolina political icon John C. Calhoun – to South Carolina to create a university. Clemson’s will laid out several provisions that the state would have to accept if it agreed to accept his estate, including the unique structure of the board. Clemson even named the seven individuals who would hold the first “permanent” seats – all prominent (white, male) South Carolinians. If the state did not accept Clemson’s will, his executor was to create a private university along the same lines.

Clemson’s decision to structure the board in the way he did is tied up in post-Civil War southern politics, historians say, and was designed to prevent newly freed blacks and "carpetbaggers" from gaining influence over the institution.

The S.C. legislature passed the Act of Acceptance in 1889, agreeing to the terms of the will, along with the governance restrictions. In addition to the seven seats created by Clemson’s will, the state was given authority to appoint up to six additional board members, for a total of 13 trustees, preventing political appointments from ever outnumbering the “permanent” trustees. The six “non-permanent” members are appointed by the legislature to four-year terms.

That structure has persevered to the day, relatively unchanged, though institution has evolved from a small agricultural and mechanical college to a major research university with five colleges and more than 19,000 students. Of the 13 current board members, 10 are white males, two are white women, and one is a black man. Most have held executive positions at large corporations, though Wilkins is a former state lawmaker and lawyer. They do hail from different parts of the state, and no region is overrepresented.

Wilkins said there is no difference between how the lifetime and elected members act. There has never been a 7-6 vote that was split between “permanent” members and legislatively appointed members, he said, nor could he see an issue where such a vote would come up. “There is no difference,” he said. “If I brought you to a board meeting for a whole day and you didn’t go ask somebody who was a life trustee or who was elected, and you sat there the whole day and didn’t ask somebody, you would never be able to tell who was a life trustee and who was elected.”

Wilkins holds a lifetime appointment, and most of the board’s past chairmen have as well, though the current vice chairman, Robert L. Peeler, was appointed by the legislature.

A Unique Structure

Lifetime appointments to governing boards are rare in higher education, and the few cases that exist are found mostly at private institutions.

Cornell University reserves a permanent seat for the oldest living descendent of the university’s founder, though that is only one seat out of 64, so that person wields considerably less authority than the “life” members who sit on the Clemson board. The University of Mobile, a private institution in Alabama, lets trustees who have served at least 20 years request a permanent seat. President Mark Foley said that, over his 14-year tenure, the university has had fewer than 10 lifetime trustees.

Foley said he appreciates the presence of the lifetime members. It helps keep trustees, who are often major donors to the small university, engaged in what’s happening on campus. It also helped him when he first got into the job, since the lifetime trustees had a wealth of institutional knowledge. “When I was facing issues for the first time, these trustees were a tremendous source of counsel,” he said.

The typical term for a member of an independent college or university’s board of trustees is four years, according to a survey by the Association of Governing Boards of Colleges and Universities, and 64 percent of private universities have a policy limiting the number of consecutive terms a member can serve.

The typical term length on a public board was six years, according to a similar survey, and fewer than half of the institutions surveyed had policies that limited the number of consecutive terms members could serve. But members still had to go through a reappointment process at the end of every term.

Most private university boards are given the authority to appoint new members to their ranks, but the practice is much less common among public university boards. According to the AGB survey, 77 percent of public university trustees are appointed by a governor, either with or without legislative approval. Some, such as the University of Michigan’s, are elected in statewide elections. Few pick their own members in the way that private university boards do.

The University of Vermont is one exception. Nine of the board’s 25 members are part of a self-perpetuating group that dates back to 1791, when the university was established as a private institution. But those members are not appointed for life, instead serving six-year terms. The rest of the board is composed of political appointments, students, the state’s governor, and the university president.

How Much Independence?

Like Bednar, several people have taken issue with Clemson’s board structure, saying that it detaches the board from public opinion. To date, the Clemson board has generally been in step with state politicians’ goals, and there have not been substantial clashes between the two groups.

But the lack of political clashes doesn’t necessarily mean that the policy hasn’t produced problems, and there are other areas of governance where having an independent board might not be the best institutional policy. A report released in December by Public Agenda found that boards are highly deferential to administrators, particularly those they select. Without significant turnover on the board, there is a chance that poor management could go unrecognized. Other critics contend that board turnover helps bring fresh ideas to the table.

AGB also suggests that trustees regularly undergo some sort of regular review process to assess their performance. For most institutions, this time comes when those individuals’ terms are up, but that never happens for Clemson’s seven “permanent” seats. Wilkins said the board has no formal review process for the lifetime members, but that all members are engaged and good trustees.

Wilkins said the “lifetime” board members have an agreement to voluntarily step down from their service once they reach 75. At that point they become trustees emeritus, who can attend and speak at meetings but don’t have a vote.

There could be certain benefits to Clemson’s approach. For one, it protects the university against whims of political figures. Merrill Schwartz, AGB’s director of research, said trustees should act similarly regardless of how they get on the board. They are not there to represent different constituencies, but instead have fiduciary responsibility for the university. “Trustees are appointed to serve the long-term interests of the institution,” she said. “One shouldn’t be conflicted between being committed to serving the long-term interests of the institution and short-term political expediency.” But as history shows, politics can complicate that practice.

In Texas, where Gov. Rick Perry, over his 11 years in office, has appointed every member of the state’s six higher-education governing boards, boards have clashed with university faculty members and institutional leaders about what is best for the institution.

But too far at the other end of the spectrum is a board that is not responsive to public demands, which would be problematic at an institution that receives significant state funding. A board that is not willing to help the state meet enrollment, completion, or other goals, could see clashes.

Schwartz said Clemson’s hybrid structure, in which some members are isolated from public pressure, can help prevent too much influence while still giving the state some voice in how the institution is governed.

Wilkins said the structure of the board – with six legislatively appointed members – helps keep the state represented on the board. But critics said the presence of lifetime members can complicate the actions of the legislatively appointed members. Those members, instead of working to represent the state or institution’s interests on the board, could seek acceptance by the lifetime members in hopes of obtaining a lifetime appointment when the next lifetime seat comes open.

Because of the unique nature of the university’s founding, Wilkins said he’s not even sure if the state would be able to change the structure of the board if it wanted to. “The state accepted the grant, and the land, monies, and properties that came along with that, and that acceptance was conditioned on the trustees being established this way,” he said. “The state is bound to do it that way. The selection terms of trustees was part of the act of acceptance, which the Chief justice ratified. I think most people take the position that it can’t be changed.”

Constitutional Questions

Critics of the university – including Bednar and Joel Collins, who represented Eugene Troutman, the former executive secretary to the Board of Trustees who sued the university in 2008 after he was fired by the board – have argued publicly that the board’s structure violates the current iteration of the state’s constitution, which dates back to 1895 – seven years after the state adopted Clemson’s will. That constitution, a version of which persists to today, prohibits lifetime appointments to state agencies.

The question of the board’s status came up when Troutman sued the university in 2008, alleging that he was fired from his position after speaking out against management decisions by the board and the university’s president. The university argued that it was a state agency, which under South Carolina law cannot be sued, to get the case thrown out. A federal judge sided with the university in 2010. Troutman declined to appeal the case. Collins noted that if the university is a state agency, then its board members cannot serve lifetime appointments.

Administrators agree that Clemson is undoubtedly a state agency. Its employees are state employees. The state’s treasurer signed an affidavit that the university is a state agency. But Erin Swann, the university’s interim general counsel, said the board’s structure is not subject to the lifetime employee prohibition because, “Mr. Clemson's will neither uses the term ‘life’ trustee nor appointed trustees for unfettered lifetime terms,” Swann wrote in an e-mail. “Rather, his will appointed seven trustees who were responsible for appointing their successors, and it allowed the S.C. legislature to select ‘the other six trustees.’ The label ‘life’ trustee is an informal — and confusing — term used to distinguish between the successors of the trustees appointed by Mr. Clemson's will and those elected by the S.C. Legislature.  While the ‘elected’ trustees serve four-year terms, the ‘life’ trustees serve for a term of office determined by the other successor trustees. In recent years, we have had three ‘life" trustees rotate off the board — while alive and well — by operation of the terms of office set by the other successor trustees. There is simply no conflict between Clemson's trustee structure and the S.C. Constitution.”

Swann said the board has established a policy -- that board members will step down at age 75 -- and have followed that policy consistently, ensuring that trustees do not serve a "lifetime" appointment.

The university has repeatedly dismissed claims made by Bednar, Troutman, and Collins.

The board’s legitimacy has never been the subject of a direct challenged in court, and some question whether a serious lawsuit getting at the constitutional authority of the lifetime members could strip the board of its legitimacy, potentially undermining more than a century of decisions. They note, however, that bringing such a suit would likely involve all aspects of state politics.

“Think about it,” Bednar said. “If you have some multimillion-dollar contract that’s under-bidding, and the board awards it to one company when there was a lower bid by some other reputable company. That company could sue and say that the board that was making this decision was unconstitutional, because the majority of them are illegally seated on board, which would therefore render this decision null and void. Good grief!”

 

 

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