Senator McConnell,
Chairman
The Hunley
Commission
Senate Judiciary Committee
Dear Senator McConnell:
Since I have
complained repeatedly to you about the unconstitutionality of
the Hunley Commission for years and since you have done
nothing to correct it, I must assume you are part of the
problem, not the solution.
Hopefully, the articles
already printed in The
State combined with the following letter will help undo the
damage you have already caused.
I am sending a
copy of this letter and attachment to you as Chairman of both
the Hunley Commission and the Senate Judiciary
Committee so both will have copies for their official files and
with hopes you will respond to the attachment. This letter and
attachment has been updated for clarification purposes.
Sincerely,
Dr. E. Lee Spence
Attachment:
To Whom It May Concern:
Recent articles on Senator
McConnell and the Hunley Commission, although
excellent, have missed several important and salient facts.
Article 1,
Section 8 of South Carolina’s constitution states: In the
government of this State, the legislative, executive, and
judicial powers of the government shall be forever separate and
distinct from each other, and no person or persons exercising
the functions of one of said departments shall assume or
discharge the duties of any other.
Article 1, Section 23:
Provisions of Constitution mandatory. The
provisions of the Constitution shall be taken, deemed, and
construed to be mandatory and prohibitory, and not merely
directory, except where expressly made directory or permissory
by its own terms.
However, neither
of these sections have been followed in the case of the
Hunley Commission. The Hunley Commission has taken
over major duties that are clearly part of offices of the
Executive Department. These are serious violations of the South
Carolina Constitution.
Interestingly,
the Hunley Commission is a commission in name only. By
law, all State commissions report annually to the Secretary of
State, giving the names of the members, changes in membership,
dates appointed, etc. The Hunley Commission never has
complied with this law because it is not truly a commission.
Attorney General
McMaster looked at this in one of the first acts of his
administration, when he personally explained in an official
opinion sent to Senator Bill Mescher that the Hunley
Commission was not part of the Executive Branch but rather a
committee of the General Assembly. McMaster even quoted the code
creating the commission, which repeatedly calls it a committee.
He further explained that with the committee's mandatory makeup
of one-third of its membership appointed from the House and
one-third from the Senate, the “Hunley Commission” is
clearly meant to be controlled by the General Assembly (i.e. the
Legislative Department) not the Executive Department. He opined
that structure protected Senator McConnell and others from
violating the dual office holding provisions of the South
Carolina Constitution. Somehow McMaster missed the other
obvious conclusion. If the Hunley Commission is indeed a
committee of the General Assembly then it is unconstitutional
due to its take over and assumption of duties belonging to one
or more offices of the Executive Department. I actually count
five and possibly six separate Executive Offices, whose official
duties have been taken over to some extent by the Hunley
Commission.
Section 54-7-100 of the
South Carolina Code, in violation of Article 1, Section 8 of the
Constitution, states that with respect to the Hunley, all
applicable duties and responsibilities contained
in Article 5, Chapter 7 of this title shall be vested in the
Hunley Commission. Those are the
duties and responsibilities of the State Archaeologist and the
Institute of Archaeology & Anthropology, (two different offices
of the Executive Department, so that’s takeovers #1 and #2) as
listed under Article 5, Chapter 7, of Title 54. Those duties are
quite extensive and extremely important, yet no marine
scientist, underwater archaeologist, or specialists in the
applicable forensics has ever been appointed to the
"Commission." It is the takeover of their duties that makes it
unconstitutional. The lack of qualified staff is just the result
of politics and the way the Commission was set up. It also
provided that
The committee is
authorized to negotiate with appropriate representatives of the
United States
government concerning the recovery, curation, siting, and
exhibition of the H.L. Hunley.
But exactly
which offices were unconstitutionally stripped of their powers
to accomplish this isn’t clear but it would most certainly have
involved offices of both the Judicial and the Executive
Departments. (takeovers #3 and #4)
Section 54-7-100
provided further, that with respect to the Hunley project that
the Hunley Commission shall be exempt from compliance with the
provisions of Chapter 35 of Title 11. Title 11 is better
known as the "South Carolina Procurement Code." That exemption
has given the "Commission" virtually a blank check to raid the
coffers of the South Carolina Budget & Control Board, which
incidentally is another office of the Executive Department. By
giving this exemption, the General Assembly effectively allowed
the Hunley Commission to unconstitutionally take over the
duties of part of that office and grab moneys that might not
have been granted in a proper review (takeover #5).
For instance
the Hunley's project director was making about $95,000 a year and
McConnell was routinely authorizing a 30% annual bonus.
He actually did it during a time period that the Governor was
cutting back staff, hours, etc. in an effort to cut South
Carolina's spending. I seriously doubt that such extravagant
bonuses would have been allowed if fully and properly reviewed
under the Executive Department. My wife, Sherry Shealy
Martschink Spence, then a Worker's Compensation Commissioner and
a former House and Senate member, actually worked days without
pay in order to get her job done and still comply with the
Governor's budget cutting requests.
McConnell paid lip service
to the Governor's budget cutting but showed his real feelings here. Furthermore,
McConnell effectively passed on some of the benefits of his
committee’s exemption from the South Carolina Procurement Code
to the Friends of the Hunley, Inc. (which McConnell
founded), even though by state law they should have fallen under the
Procurement Code due
of their use of such public funds to make major improvements in a
public building. My understanding is the improvements alone were in the
millions of dollars.
There is some
language in Section 57-7-100 of the South Carolina Code
authorizing the Hunley Commission to direct the
Attorney General on behalf of South Carolina to take appropriate
steps to enforce and protect the rights of the State of South
Carolina to the salvage of the Hunley and to defend the State
against claims regarding this vessel. That language may be a
6th takeover, but this is not a clear as it more directive in
nature. It would depend on if the Commission made the decisions and
had him support them.
As stated above, Article 1,
Section 23 of the South Carolina Constitution makes each section
of the Constitution mandatory, not arbitrary. It therefore
prevents anyone, from falsely or "conveniently" claiming that
the “Commission's” violation of Section 8 is minor, or
unimportant, or merely technical and/or somehow justified.
Therefore it should be
clear to the Governor and the State's judiciary, that the
Hunley Commission exists and operates in direct violation of
Article 1, Sections 8 and 23 of our Constitution, and is
therefore unconstitutional. The measure of their credibility
will be what they do about it.
Signed:
Dr. E. Lee Spence, President
Sea Research Society (founded
1972)
843-821-0001 or 843-832-0962
