Sunday, December 14, 2008

Upcoming AACPS budget hearings

Regarding the upcoming budget hearings (see AACPS press release below), will both the January 13 and January 15 hearings be televised on the Board of Education’s new $400,000 TV system? (Not to mention the millions of dollars spent on the complete AACPS telecommunications network.) In most school systems, budget hearings are the most popular regularly scheduled hearing of the year to watch on TV.

A related question is whether the Glen Burnie hearing will be televised. Past experience with the AACPS public relations personnel leads me to believe the answer will be “no.” Contrary to AACPS excuses, however, this really has little to do with technology. In Burlington, Vermont (where I once served as a school board member), we televised the Board of Education budget hearings wherever they were located.

Even if a school district cannot cover a hearing in real time, if it is already paying for TV staff (and AACPS has a princely TV operation), then it costs minimal money to set up a TV camera and televise the hearing. In rural towns in Vermont (with populations as small as a fiftieth the size of Anne Arundel County), it’s often community volunteers, including high school students and civic associations such as the League of Women Voters, who televise the public meetings and candidate debates—regardless of location. With the County’s $1 million public access TV studio in Glen Burnie, surely a volunteer could be found to televise the budget hearing at Glen Burnie High School.

Note that Anne Arundel County taxpayers have spent millions of dollars connecting the public schools to an ultra high speed broadband network (the backbone runs at 20 gigabytes per second and each high school and middle school gets at least 2.5 gigabit per second access; this is about a thousand times the broadband speeds most Anne Arundel County residents get at home from their local cable or telco provider). Moreover, this network can be connected into the cable system. Thus, even when the budget hearings are held at Glen Burnie High School, they should be accessible in real time to the entire community.

It would be a good contribution to local democracy, too, if a local civic organization would take responsibility for televising the upcoming public meetings of the School Board Nominating Commission (SBNC). The members of the SBNC would be unlikely to shower that civic association with praise. But do local civic associations exist to flatter the powerful or provide a voice to the people?

Important News - FY2010 Budget Proposal delivered Wed, 12/17


Board schedules budget hearings, workshop

The next meeting of the Anne Arundel County Board of Education will be
held on Wednesday, December 17, 2008, in the Board Room at the Parham
Building, 2644 Riva Road, Annapolis.

During the meeting, schools Superintendent Dr. Kevin M. Maxwell will
deliver his recommended Fiscal Year 2010 operating and capital budgets
to the Board of Education.

The Board will meet at 5:30 p.m. to vote to go into Executive Session,
during which time it will discuss confidential matters including, but
not limited to, legal advice, personnel, and negotiations. Executive
Session is closed to the public.

The general session of the meeting, which is open to the public, will
begin at 7:00 p.m.

A complete agenda will be posted on December 11, 2008, on the AACPS Web
site,, in the Board Docs section under the Board of
Education tab.


The Board of Education has scheduled two public hearings and a public
workshop on Dr. Maxwell's budget recommendation. Public hearings
will be held on Tuesday, January 13, 2009, at Glen Burnie High School,
and Thursday, January 15, 2009, in the Board Room at the Parham Building
in Annapolis. Both hearings begin at 7:00 p.m. Those wishing to testify
can sign up beginning at 6:00 p.m. Testimony will be limited to three
minutes per person.

A public workshop on Dr. Maxwell's budget recommendation will be
held at 6:00 p.m. on Tuesday, January 27, 2009, in the Board Room at the
Parham Building. No public testimony will be taken at the workshop.

Sunday, November 23, 2008

Electoral Authoritarianism

[My letter-to-the-editor published in the Capital on November 19, 2008]

In its November 6, 2008 editorial interpreting the school board election results, the Capital concluded: “The results will inevitably be read as a thumbs-up for both the school board and the new method for picking its members.” Sure, school board boosters will argue that. But their democratic logic will be deeply flawed. All over the world today we see countries that fraudulently call themselves “democracies” because they have elections. Take Russia and Venezuela. Both have elections and both have elected leaders who won by huge margins. But are they democratic? Are they as popular as the Capital’s logic would suggest?

In addition to self-serving electoral systems, all these regimes have at least one other attribute in common with AACPS: weak civil societies. The only strong civic organization in AACPS politics today is the teachers’ union. The PTA barely even pretends to be anything more than a support organization for AACPS staff. The CACs, which were originally conceived of as a remedy for the PTAs civic shortcomings, have unfortunately become an arm of the AACPS PR apparatus. Is there a way out of this civic nightmare? One small but helpful step would be to dismantle at least part of the AACPS PR apparatus, including the subtle but effective staff gag rules and parental intimidation that now pervade AACPS.

AACPS faces an immense structural deficit. For the last five years it has been rolling in dough, with operating expenditures up 43.3% while student enrollments held steady. It is addicted to huge infusions of new cash, but instead of acknowledging its addiction all we’re getting out of Riva Road is a steady flow of Orwellian Doublespeak. Interpreting the recent school board elections as public satisfaction with the school board is the type of self-serving analysis we should expect out of Riva Road, not the Capital.

Friday, October 31, 2008

What's this about "lower costs for school construction"?

In its editorial yesterday, “Ballot offers voters chance for input on school board,” the Capital repeats Tricia Johnson’s claim that she “lowered costs for school construction.” I’d love to know specifically what Tricia Johnson is referring to when she makes this claim. Ms. Johnson also featured this claim in her testimony before the SBNC on April 14, 2008, but there were no details provided to back up the claim. I hope she isn’t referring to the high profile Blue Ribbon Commission on School Construction costs. That document was a joke. I have an MBA from the Harvard Business School and worked as a senior research assistant writing cases for Harvard Business School and other business students. I cannot imagine giving a student even a “C” for the quality of the analysis represented in that report.

The report authors blamed the architects for the high cost of Anne Arundel County’s schools. The architects?!?! How politically convenient! Did anyone from the Capital ever read that report? Why did the county and school system never publicly release it? Were they embarrassed by the highly politicized questions the report authors asked and the infantile analysis that inevitably followed? Perhaps not, given the number of times Board of Education members have claimed credit for following the report’s recommendations.

What we now have in Anne Arundel County is incredibly high priced schools that look only a cut above prisons and will have outsized maintenance costs far into the future. Why is it okay for the Anne Arundel County Government and Community College to design good looking buildings while the schools have to look like prisons and use poor construction materials so the County taxpayers will think the Board of Education is fiscally prudent? Ditto for private K12 schools in Anne Arundel County, who still manage to build much better designed school buildings at lower cost. The best public school districts, in my experience, build school buildings that the community can be proud of.

Can anyone recall an oversight hearing that this school board has held on AACPS construction or maintenance costs? I cannot. But isn’t that one of the major functions of legislative bodies—to conduct oversight hearings on issues of overriding importance to the community? If Tricia Johnson or Teresa Birge want to address the County’s construction and maintenance problems, they can begin by conducting some oversight hearings and asking some tough questions (preferably televised with the Board of Education’s—get this—$400,000 boardroom TV studio). Do they have the intelligence to do so? Sure. Do they have the political will to do so? There is nothing in their track record that says “yes.”

--Jim Snider

P.S. I’m considering making a video clip and placing it on YouTube of Tricia Johnson’s claim before the SBNC that lowering construction costs was one of her prime achievements while serving on the Board of Education. But the really interesting part of her interchange with the SBNC was not her boast but the SBNC’s reply. None of the SBNC commissioners followed up with a question about how she accomplished this wondrous feat and what it indicates about her vision for the future of the physical spaces where our kids spend their days and our communities congregate. Clearly, for all the candidates’ talk about the importance of school construction and maintenance (both Ms. Johnson and Ms. Birge said that school construction would be one of their top three priorities as board members), it was not an issue the SBNC commissioners genuinely understood or cared about. And what about all the school board rhetoric during the last five years about the importance of construction and maintenance? During that period the school budget increased by more than 40% (with no increase in student enrollment) while maintenance expenditures (“maintenance of plant”) actually shrunk.

What would have been the most revealing question the SBNC commissioners could have asked to reveal the candidates’ true priorities as Board of Education members? Here is a go: “Ms. Johnson and Ms. Birge: Both of you in your testimony and applications have stated that one of your highest priorities is school construction costs. Last year Maryland State refused to give the Board of Education an extra $10 million for school construction because the Board of Education would not allocate an additional $40 million in matching funds. If you were faced with this decision again, would you spend the $40 million to get the $10 million? If so, what would you cut to raise the $40 million? It’s unlikely the candidates would have answered the question. But at least the question would have signaled that the SBNC was doing its job.

Wednesday, October 29, 2008

interesting article on televising school board meetings

The Society of Professional Journalists published an excellent article on televising school board meetings. The article, It’s time for school boards to televise their meetings — and skip the lame excuses, helps explain why Anne Arundel County collects $1.6 million in PEG taxes every year, still doesn’t televise school board meetings, and will waste a lot of money on school-board-flattering-doodads when it eventually does get around to televising its meetings.

Tuesday, October 21, 2008

Is the SBNC illegal?

[Note: On October 21, 2008, this post was emailed to all elected officials representing Anne Arundel County in the Maryland legislature and in the Anne Arundel County Council]

Dear Anne Arundel County Elected Official:

It has come to my attention that Anne Arundel County’s School Board Nominating Commission (SBNC), created during the Maryland General Assembly’s 2007 legislative session (see House Bill 1114), may violate the law of democracy as interpreted by the courts. This may help explain why the SBNC’s method of selecting school board members is unique and unprecedented among the more than 14,000 school board electoral systems in the U.S.

Three court cases, two by the U.S. Supreme Court and one by the Illinois Supreme Court, have held that the democratic law of one person, one vote must apply to school board elections. Does this law apply to the Anne Arundel County School Board Nominating Commission (SBNC), which does not follow one person, one vote because it delegates binding electoral authority to private interest groups? If so, the SBNC would violate the U.S. Constitution.

Clearly, if the SBNC only had advisory powers (like Maryland’s judicial nominating commissions), it would not violate the law. Nor would it violate the law if elected officials or duly appointed administrative officials directly appointed all its members. But neither of these two standard checks on the delegation of authority to an independent public body was included in the law creating the SBNC. (Note that I have been told the Maryland Attorney General classifies the SBNC as an “advisory” body. If so, I don’t know how that squares with the binding authority it is granted under statute. Perhaps the word “advisory” has multiple legal definitions.)

You might specifically want to investigate the legality of delegating four of the eleven votes on the SBNC to four membership-based private interest groups. As an analogy, consider the legal and public reaction if Congress allocated 40% of the presidential electors to member-elected representatives of business and union trade associations. Alternately, consider the reaction if Congress attempted to create a public body with binding veto authority over government appropriations—and then appointed the largest incumbent government contractors to serve on it. As for the other seven SBNC members, I don’t see a problem with the delegation of electoral authority to the six members appointed by elected officials and the one member appointed by the Anne Arundel Community College (an administrative agency). Note also that the SBNC adopted a supermajority rule giving the private interest groups veto power over the SBNC’s decisions.

It is possible that there are other provisions in the law creating the SBNC that may exempt it from the law upholding one person, one vote. For example, the fact that it is a nominating body rather than a general election body could provide it some legal protection. But it is an extraordinarily powerful nominating body: through strategic voting (nominating two individuals to the Governor, one of whom it knows the Governor will not select), it can exercise de facto, if not de jure, general election powers. Thus, it is a binding nominating body with general election like powers.

Historically, courts have been hesitant to rule on election law. But when the core principles of representative democracy have been at stake, the courts have made an exception.

With the first set of SBNC nominated and Governor approved school board members on the ballot for an up or down vote on November 4, 2008, now is an opportune time to ascertain the legality of the electoral powers delegated to the SBNC. Note that the school board members have been serving in office since July 1, 2008; if the November election had come before the school board members took office, the principle of one person, one vote would not have been violated.

Attached is a summary of the three court cases taken from Professor Richard Briffaultt’s law review article, “Who Rules at Home?: One Person/One Vote and Local Governments,” published in the University of Chicago Law Review, Vol. 60, N. 2, Spring 1993. . Another source you might want to check is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press, 2002 (see Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208).

The fundamental premise of federal voting rights law is that democratic government means government by consent of the governed. As the Supreme Court observed in Wesberry v Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."

Avery v Midland County
Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply arms of the states. Avery and its progeny, therefore, imposed new restrictions on state provisions for the organization of local governments.

Kramer v Union Free School District No. 15
In Kramer v Union Free School District No. 15, the Supreme Court again presumed that a local government's action has a community-wide impact. Kramer involved a New York law that limited the right to vote in school board elections to the owners or renters of taxable property in the school district and to the parents of children enrolled in the district's schools. The plaintiff was an otherwise eligible voter who had no children, lived with his parents, and neither owned nor leased taxable property.

Fumarolo v Chicago Board of Education
In Fumarolo v Chicago Board of Education, the Illinois Supreme Court… found that Kramer and Hadley continued to apply… when it invalidated the franchise and representation provisions of the Chicago School Reform Act. The Act provided for the creation of local school councils with a variety of powers for each of the grammar and high schools in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils' role in local education … mandated the application of strict scrutiny.

In defending the restricted franchise, the Chicago Board of Education contended that the local school councils were advisory rather than governing bodies. The Court determined that, although the district councils lacked the power to levy taxes or set basic educational policy for local schools, their functions were more than advisory, and the councils had considerable authority over local school operation.

The underlying reason the SBNC may violate the law of democracy is that it violates the core democratic principle of political equality (e.g., see Yale Professor Robert Dahl’s On Political Equality). However, the law of democracy only covers a small subset of good democratic practice; there are many undemocratic practices that are not illegal. Until the 1960s and the emergence of the civil rights movement, for example, the courts did not apply the Constitutional principle of one person, one vote to local government elections. Case law since the 1960s, however, indicates a very different court mindset. If elected officials pass laws violating the democratic principle of one person, one vote, the courts will not necessarily uphold those laws.

--Jim Snider, M.B.A., Ph.D.

P.S. Please ask the School Board Nominating Commission to stop violating both the spirit and the letter of Maryland’s Open Meetings Act. In May 2008, Maryland’s Open Meetings Compliance Board ruled that the SBNC violated the Open Meetings Act. The SBNC has nevertheless continued to violate the law and its own bylaws with impunity. If the Maryland General Assembly is not to convey the impression that it considers the Open Meetings Act a cruel joke inflicted on the public—a set of democratic values to be espoused in public but in practice ignored whenever they prove inconvenient—then it must investigate this pattern of abuse and take steps to ensure that the Open Meetings Act has credible penalties.

“All tyranny needs to gain a foothold is for people of good conscience to remain
-- Thomas Jefferson.

Addendum Posted October 22, 2008
An additional legal argument has come to my attention since writing the above email. It turns out that the way the statute creating the SBNC was written, the SBNC has been granted veto power over the wishes of the electorate. That is, the SBNC has the power to ignore the results of a retention vote by simply indefinitely postponing its selection of a replacement. Here is the relevant statutory language.


What this means in practice is that the five SBNC members appointed by private interest groups can veto the wishes of the electorate. In other words, not only has the SBNC been granted binding, general election like nominating powers, but it has also been granted veto power over the wishes of an electorate that embodies the democratic principle of one person, one vote.

A delegate to the Maryland General Assembly has forwarded a copy of the above e-mail to Maryland's Attorney General and requested a legal opinion.

Monday, October 6, 2008

Re: Capital article, "School board's TV debut delayed"

In relation to the Capital’s article last week on TV coverage of Board of Education meetings, I’ve been asked “how is it possible that the budget for AACPS Board of Education meetings increased from $100,000 to $400,000 without any public discussion or vote?” Here is my attempt at an answer.

It’s my sense that the school system, much like the rest of County government, has decided to use PEG/iNet funds as a slush fund for non-PEG/iNet related expenditures. This is strictly against the law (and even the County’s PEG/iNet ordinance). But as far as I know, the Federal Communications Commission, which is supposed to administer and enforce the PEG/iNet laws, has no mechanism to do so . As long as AACPS provides a figleaf excuse for diverting PEG/iNet funds, it will face no penalty for doing so. If somebody else’s budget will pay for AACPS upgrading of electrical systems and the purchase of all sorts of neat toys, why not take advantage of it? Think of yourself as one of AACPS’s TV guys working under Don Cramer: the more high-tech toys you have, the more respected you will be within AACPS and the more competitive you will be when you look for other, non-AACPS TV work.

Do we really need BOE meeting coverage in high definition TV? Does AACPS really need an additional $400,000 TV studio at Riva Road in addition to the $250,000 studio they built a few years ago in the same building? And what about the $1 million dollar public access TV studio built in Glen Burnie a few years ago and linked via the iNet to Riva Road? With three state-of-the-art and grossly underutilized TV studios in the County, why are we building a fourth? With today’s robotic cameras, both editing equipment and camera operators could work remotely (a practice utilized by the best and most efficient government access TV operations).

In Vermont, the average town has less than 10,000 people, and the towns would cover public meetings in the early 1990s just fine with consumer grade video cameras. Someone would simply plug the video camera into the reverse feed cable socket, turn on the camera, and hit the on button. Sure, AACPS can afford to do it much more professionally—like a commercial TV studio. But $400,000+ for an anachronistic, citizen unfriendly, glitzy commercial broadcast TV style setup? Give me a break.

I televised one of the School Board Nominating Commission meetings with my simple Dell laptop (cost: $1,000), Microsoft OneNote program (cost: $44) and clip-on high resolution video camera (cost: $60). I sat in the front row of the meeting and simply pointed my lap, laptop, and camera at each speaker. Using Microsoft OneNote (a tool widely used by college students to record lectures), I was also able to index all the video, so I could immediately find any segment that was of interest to me. If the Commission had allowed me to plug the audio feed from the meeting into my laptop, I could have had crystal clear audio.

From my perspective, even video at a tiny fraction of my OneNote recording quality would have been more than adequate for purposes of our YouTube generation video users. What’s so terrible with YouTube quality video for talking heads? Did you find it so awful watching on YouTube the video of Katie Couric interviewing VP candidate Sarah Palin? If I have a choice between commercial broadcast HD quality and YouTube quality video, all other things being equal, I’d of course prefer HD quality. But what if that comes at the cost of conveniently posting video clips to the Countywide and local CACs? If it comes at the cost of much restricted video coverage, as the school board says it can only cover a fraction of its public meetings and none that don’t take place in the Riva Road boardroom? And what if it means that there is no money to integrate the written agendas with the video and provide other types of citizen friendly accessibility? And why do we have professional/broadcast quality images but not professional/broadcast quality access to those image? I cannot imagine a commercial TV studio today that doesn’t electronically index its video so producers cannot instantly call up and insert relevant video clips from prior programs into new programs; indeed, some TV shows now have more online than broadcast TV viewers. What are all those multipurpose servers in the County doing that they cannot use a small fraction of their capacity to empower the citizens?

Yeah, I like HD quality coverage with world class lighting and every vanity amenity (so those being filmed always know how they look on screen and can make adjustments to look the best possible). But AACPS is asking us to pay too high a price in lost accessibility (and democratic accountability) for those features.

I posted my critique of the Capital’s BOE TV coverage article on

--Jim Snider

Saturday, September 27, 2008

Re: Update on BOE TV Coverage Update


Thank you for seeking clarification of my comments concerning coverage of County Council proceedings. First, I want to applaud the County Council for televising its meetings. And yes, the newspapers and website contain the schedule of the County Council meetings. My point was a different one. I am told that more than 50% of Americans now have some type of a Digital Video Recorder. In my case, I use a DVR from Tivo. But most Americans use a DVR provided by their cable, telco, or satellite TV provider. These DVRs are able to pick up programming information and not only display the information on their TV set but also use the information for convenient recording. As I understand it, the County Council does not provide this type of electronic information integrated with its broadcasts.

If the County Council made its proceedings available online—as do many towns and school districts one tenth the size of Anne Arundel County—such convenience would be less important because the information would be available on-demand. But the County Council doesn’t provide such assess to its proceedings, so convenient DVR recording is a second best alternative. If you want to look at a nearby jurisdiction with greatly superior coverage of its town council, I’d suggest checking out Takoma Park, MD. There the video, minutes, and agendas are integrated and available online.

Having noted how the County Council provides better meeting coverage than the school board, I would now, in the interest of fairness, like to note a way in which it does not. By the standards of the Google generation, the school board may provide awful online access to its meeting minutes, but at least the minutes are available online (via the AACPS BoardDocs system in pdf format). The last I checked, the same cannot be said of the County Council. If I want to find the minutes of the County Council, I must pay 25 cents a page to copy them and be the subject of gossip among the County Council administrators who do the copying and are naturally intensely curious why anyone would want such information. In other words, to find the complete record of how my County Councilor voted over a four year term, I must pay the County Council approximately $400 (this is an estimate I made several years ago based on the 25 cents a page photocopying cost). That might have been an acceptable system to access county council votes a generation ago. But for the generation in which we currently live (and for a County Council with a $16 million ten year PEG/iNET budget and every tech gadget under the sun), it’s inexcusable.

Again, thank you for the opportunity to raise these issues.

--Jim Snider

P.S. Cathy, please try out if you haven’t already done so.

Re: Update on BOE TV Coverage Update

Posted by: "CMVitale-County Council"

Fri Sep 26, 2008 11:58 am (PDT)


The County Council meets the same day and the same time each month. The same channel as well. The website has that information, as does the newspapers. If you want to record us onto a dvd from your home, no problem. I do it every week, I don't know what the issue is that you said the county council has a bad practice of. Please clarify.

Cathleen M. Vitale

Friday, September 26, 2008

Update on TV Coverage of Board of Education public meetings

At a Board of Education (BOE) meeting in October 2007, the BOE unveiled a proposal to spend more than $400,000 of taxpayer money on equipment to makeover the BOE meeting room for TV coverage. The BOE told the public there was no time to propose modifications to the plan for BOE TV coverage because an immediate vote was necessary on the plan if BOE TV coverage was to commence at the start of the coming school year in late August 2008. When the August 2008 deadline came and went without a pipsqueak from the BOE, an October deadline for BOE TV coverage was put forth. Now the word is that BOE TV coverage will not be instituted until after the BOE elections on November 4. The hope is to begin installing TV equipment in the BOE meeting room the week of Thanksgiving, with possible completion not until January 2009.

At the October 2007 meeting of the BOE, I suggested online access to BOE meeting TV coverage, including webcasting. I also asked for the integration of meeting agendas with the TV coverage (critical for online access to meeting coverage but less important for traditional TV coverage). The BOE replied it had no plans for such coverage.

Now I would like to suggest two very minor modifications to the current plan for BOE TV coverage. By “minor” I mean inexpensive and easy to implement. The first is for the BOE to provide programming information along with its broadcasts so that the broadcasts can be easily recorded by DVR. All non-local cable stations provide such programming data. Locally, the Anne Arundel Community College channel also provides such data. The County Council does not. This is a bad practice the School Board should not copy. The ability to easily record BOE TV coverage by DVR should be considered an essential function.

Second, the school board should switch to electronic voting with a real time feed displayed on the TV screen. Such voting systems are now ubiquitous and inexpensive. My kids in college regularly use this type of technology when the professors are seeking feedback from the students in class. And when I attend conferences in Washington, DC, I increasingly see this type of technology being used to solicit audience feedback.

--Jim Snider

P.S. Thanks to all those who volunteered to help at the Countywide CAC meeting last evening (September 25).

Friday, September 12, 2008

SBNC May Violate the Law of Democracy

The School Board Nominating Commission (SBNC) has widely been recognized as a travesty of democratic practice because it violates basic democratic norms of political equality, including one person, one vote. But until this summer it never dawned on me that it might also violate the U.S. Constitution and the series of Supreme Court cases beginning in the 1960s applying the democratic principle of one person, one vote to local elections, including school board elections.

What follows are excerpts from Professor Richard Briffaultt's law review article, "Who Rules at Home?: One Person/One Vote and Local Governments," published in the University of Chicago Law Review, Vol. 60, N. 2, Spring 1993. Professor Briffaultt describes three key cases, two decided by the U.S. Supreme Court and one decided by the Illinois Supreme Court, that apply the law of one person, one vote to municipal and school board elections.

The fundamental premise of federal voting rights law is that democratic government means government by consent of the governed. As the Supreme Court observed in Wesberry v Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."

Avery v Midland County
Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply arms of the states. Avery and its progeny, therefore, imposed new restrictions on state provisions for the organization of local governments.

Kramer v Union Free School District No. 15
In Kramer v Union Free School District No. 15, the Supreme Court again presumed that a local government's action has a community-wide impact. Kramer involved a New York law that limited the right to vote in school board elections to the owners or renters of taxable property in the school district and to the parents of children enrolled in the district's schools. The plaintiff was an otherwise eligible voter who had no children, lived with his parents, and neither owned nor leased taxable property.

Fumarolo v Chicago Board of Education
In Fumarolo v Chicago Board of Education, the Illinois Supreme Court… found that Kramer and Hadley continued to apply… when it invalidated the franchise and representation provisions of the Chicago School Reform Act. The Act provided for the creation of local school councils with a variety of powers for each of the grammar and high schools in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils' role in local education … mandated the application of strict scrutiny.

In defending the restricted franchise, the Chicago Board of Education contended that the local school councils were advisory rather than governing bodies. The Court determined that, although the district councils lacked the power to levy taxes or set basic educational policy for local schools, their functions were more than advisory, and the councils had considerable authority over local school operation.

Note that these cases do not hinge on whether an elected body approved a particular local electoral system. It would not matter, for example, whether the Maryland legislature unanimously approved a system of election that violated one person, one vote. For the courts, one person, one vote is a constitutional right that supersedes the right of legislatures to make laws.

Note also that these cases only indirectly apply to the structure of the SBNC. For example, the SBNC only has nominating powers, not general election powers. However, the SBNC is a very powerful nominating body because its recommendations are mandatory rather than advisory and because it only nominates two individuals to the Governor. If the SBNC acts strategically and nominates one individual who it knows the Governor will not appoint, then it has de facto general election powers.

Another question is whether the SBNC is an electoral body or an appointed/administrative body. As I read the case law above, it would be defined as an elected body with a restricted franchise, even though the SBNC is characterized in popular discourse as an appointed/administrative body (if all the members were appointed by elected officials, I would agree it was an appointed/administrative body, but by delegating membership in SBNC to the votes of special constituencies, it functions as an elected body).

Assuming that the SBNC does indeed violate the law, a simple solution would be to make its recommendations advisory rather than mandatory. But this would undercut the primary public rationale for the SBNC, which is that in the old School Board Nominating Convention process the Governor could override the preferences of the nominating body. Note that the recommendations of the judicial nominating commissions, a much cited precedent for the SBNC, are advisory only.

I am not a lawyer and have quite possibly overlooked some important considerations. This case may be especially tricky because, to the best of my knowledge, the school board electoral system in Anne Arundel County is unique and unprecedented in the United States (there are more than 14,000 school boards in the U.S., so this is saying a lot). Perhaps there is a legal reason why this is so. My hope is that there is at least one sharp legal mind out there who can shed some light on the applicability of this case law to the SBNC.

Note that even if the SBNC is violating the law, that doesn't necessarily mean much in the real world. For example, even after Maryland's Open Meetings Compliance Board found in May 2008 that the SBNC violated the Maryland's Open Meetings Act, there were no negative consequences. The press decided the story wasn't newsworthy (as a Baltimore Sun reporter told me, "this happens all the time, so it's not newsworthy"). When the Capital's Eric Hartley wrote about the SBNC's propensity to secrecy and the Capital's editorial board editorialized against it, neither even mentioned the SBNC's repeated violations of the law even though they were well aware of it. The general public also appears all but indifferent to Open Meeting violations.

Moreover, assuming that the SBNC does indeed violate the law of democracy (again, an assertion that is still speculative at this point), it's not clear to me who would have sufficient incentive to take the necessary steps to enforce the law. In the Fumarolo case above, for example, it was the school principals who brought the case because they were directly harmed by the law. What similar highly motivated constituency would do the same here? Not any existing parental organization that I know off. On the other hand, I can readily imagine some politicians or a political party getting a few good sound bites out of this. But concerted, effective action or a court challenge seems much less likely to me.

Additional Resources
An authoritative textbook on the law of democracy is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press. I have the 2001 edition. See Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208.

Monday, September 8, 2008 Launched

Today marks the official launch of offers a one stop source of education news about Anne Arundel County. It provides the following four services:

1) Get RSS feeds of articles on AACPS.

2) Search for articles by source, date, reader ranking, and unstructured text.

3) Comment on an article.

4) On a 1 to 5 start scale, recommend an article or comment to others to read.

Its primary intended audience is opinion leaders among AACPS parents. It is not intended for parents with only a casual interest in AACPS policies, practices, and politics.

I designed the website with the advice of the Advisory Board, including Paul Rudolph (Former Member and President, Anne Arundel County Board of Education), Tom Frank (Education Chair, Greater Crofton Council), Sam Georgiou (Former Chair, Countywide Citizens Advisory Committee), Steve Johnson (Former Chair, Annapolis Cluster Citizens Advisory Committee), and Pallas Snider (Former Member, Anne Arundel County Board of Education). Perhaps the closest precedent for is the national article rating service, was created with volunteer effort and will need to be maintained by volunteer effort. Over the coming months, I’ll be looking for volunteers to take on a number of responsibilities, including posting links to articles to in a timely way (it takes about 30 seconds to post each article link to and moderating comments for SPAM.

Currently, only includes major local newspaper coverage of AACPS (e.g., Capital, Baltimore Sun, and Washington Post). Eventually, I would also like it to include blog coverage of AACPS. This would allow AACPS bloggers to develop a reputation and build an audience. However, this enhancement of would depend on a number of factors, including the emergence of AACPS bloggers and volunteer commitment to maintain such an enhanced information service.

Please take a look at, subscribe to its RSS feed, read some articles and comments, post some of your own comments, and use the star rating system to recommend articles and comments to others. New information technology is creating all sorts of new opportunities to enhance democracy in general and empower Anne Arundel County parents in particular. I hope that helps to realize some of that promise.

--Jim Snider

P.S. I am on the agenda to introduce to the countywide CAC at the CAC’s Thursday, September 25 meeting. I hope those interested in volunteering to help maintain and enhance will attend that meeting and speak to me privately afterwards.

Thursday, August 21, 2008

BOE TV Coverage Postponed until at least October; SBNC seeks to restrict video use for democratic accountability

Board of Education TV coverage has been postponed until at least October 2008, with a possibility that there will be no coverage at all this year because no contract for the job has yet been awarded.

Last October, AACPS held a last-minute hearing on an AACPS plan for Board TV coverage. When I suggested modifications to the plan at that hearing, the AACPS TV manager and Public Information Office chief told the Board it had to make an immediate decision on the AACPS Board TV plan if Board TV coverage was to begin when the school year started in August 2008.

After many months of delay (the original request for bid proposals was promised for November 2007 but didn’t come out until spring 2008, a delay AACPS blamed on the Leopold administration), bidding was finally scheduled for June 2008. Unfortunately, no company made a bid by the bidding deadline, although four companies attended the pre-bidding session. I am told that the reason that no company made a bid is that at the last moment AACPS decided to change the bidding specifications by adding some ill-defined electrical requirements. Given the uncertainty over the job requirements, the companies that attended the pre-bidding session decided not to bid. After that fiasco, the project was put out to bid again in July—this time with the last minute changes dropped. For reasons I don’t know, only one of the four companies decided to bid in this second round. Having only one bidder created a red flag for the County, the result of which is that it has not yet signed a contract with the bidder and may choose not to do so. An additional complication is that the original plan was to do the installation during the summer months when the Board meeting room was accessible. The contractor has now refused to commit to a project completion date for the job because AACPS won’t commit to a schedule when the Board meeting room will be available to do the necessary work.

In May 2008 I sent the following letter-to-the-editor to the Capital and Baltimore Sun. The Capital printed it in late June 2008. The letter deals with the larger problem of how AACPS has been budgeting its millions of dollars of PEG funds.

Seeking accountability for the millions of dollars spent on AACPS TV

Over the last five years, millions of tax dollars have gone to funding the school system’s TV operations, most visibly its cable educational access TV channel, including a state-of-the-art broadcast studio and extensive, high priced staff support. What have we gotten for all that money? It is time that there was a general accounting for these expenditures. Some of them have been funded out of a special information technology and PR slush fund generated from the PEG access TV fee (98 cents/month for every household subscribing to cable or FIOS TV; about $16 million over the life of the franchise agreement). The rest comes out of AACPS’s budget.

Consider the rushed, overpriced, and poorly conceived plan to provide school board meeting cable TV coverage starting in late August 2008. Such coverage was decades overdue (many school systems a small fraction of the size of AACPS have had such coverage since the 1970s), but rectifying that deficiency is not an excuse for AACPS’s gold-plated broadcast TV design while undelivering on inexpensive but essential democracy enhancing features such as webcasting, integrated agendas with video, and online access to the resulting records. In the age of YouTube, the school system should have done much better. If small school districts in Vermont one-twentieth the size of Anne Arundel County can afford to do this, why cannot Anne Arundel County? The PR oriented culture of the AACPS TV staff strikingly conflicts with the democracy enhancing goals behind the congressional and county council laws enabling PEG TV funding.

Unfortunately, the school system’s printed budget is essentially useless for gathering information about its TV and PR operations. (Perhaps those who design the budget format are embarrassed that this year the school system spent more on central administration PR than, say, student field trips). Gathering such information would require an oversight hearing with thoughtful, tough questions. That’s the type of hearing we’ve learned not to expect from our school board, but it still would be a pleasant surprise to see.

Lastly, I want to call your attention to a video usage policy announced by the School Board Nominating Commission (SBNC). As you many know, SBNC televised its school board candidate hearings on Anne Arundel County public television. Subsequently, I asked to get a copy of the resulting video records, which I was entitled to do under Maryland’s Public Records Act. SBNC did not send me the copies within the 30 days required under the Public Records Act. But for public bodies in Maryland, such a delay is par for the course and thus hardly noteworthy. What is noteworthy is the notice that was sent to me prior and subsequent to the release of the copies. Here is the note:

These DVDs are provided to you as a courtesy and are intended for your personal use only. The School Board Nominating Commission does not authorize distribution or broadcast in any manner.

For any legal minds who might be reading this, I would be curious about your interpretation of this passage. I know of no passage in the Open Meetings Act or Public Records Act that would support the legality of such a clause. Indeed, I believe that such a clause is a clear violation of the intent of those two acts. Could such a clause be legally binding in any way?

Politically, the intent of this passage is much clearer. Public officials throughout the United States have sought to maintain as much control over public meeting video as they possibly can. AACPS is doing this with its planned board TV coverage, for example, by not making its video footage available over the Internet and requiring that all requests for video go through the school board’s office. This makes it much more costly for the public to access video records of public meetings and can be a very effective way to intimidate members of the public who are fearful of the repercussions of asking for potentially controversial information and won’t do so unless they can do so anonymously. I would be curious what members of this listserv think of such restrictions on public usage of public meeting video records. Do you think this is good or bad for AACPS’ democratic accountability?

--Jim Snider

Wednesday, June 18, 2008

School Board Nominating Commission: What does it take to win?

Yesterday the Governor announced the appointment of Tricia Johnson and Teresa Birge to serve on the School Board. It has been about a month since I’ve posted anything on the School Board Nominating Commission. What have we learned in that time about the SBNC process?

Here are some facts that I think are interesting:
21 people originally applied to compete for the two open slots on the Board; by
the time the SBNC voted, only 13 were still in contention.

On May 5, 2008, the SBNC voted to require a supermajority for nomination to the school board. When they voted on the candidates on May 12, 2008, two candidates received a majority of votes but without receiving the two-thirds necessary for nomination. Rules do make a difference.

The SBNC said it would follow the precedent of the Judicial Nominating Commission (which appoints judges in Maryland) and only seek to vet the qualifications of school board candidates. Its behavior suggests otherwise. How else can one explain that Paul Rudolph was not vetted as qualified by the SBNC? After all, Paul was twice selected by the School Board Nominating Convention, was twice selected by the Governor to serve on the School Board, and was selected by his fellow school board members to serve as president of the School Board. The SBNC’s rejection of Tom Frank raises a similar question, as Tom was previously one of two candidates nominated by the School Board Nominating Convention.

It is hard to assess how much strategic voting there was among SBNC members (strategic voting occurs when someone doesn’t vote their sincere preferences). Strategic voting for a candidate would be least expected when the preliminary vote was 7-3 because with a two-thirds majority requirement the eighth vote becomes the swing vote and an insincere vote becomes costly. My overall impression is that
there was surprisingly little strategic voting, although in at least one case it was clearly evident.

The press and public demonstrated to the SBNC that it could willfully violate both the spirit and letter of the Open Meetings Act without paying a price.

The candidates who won had nothing critical to say of AACPS. Future candidates: take heed.

Based on these observations, here are some predictions for the future:

There will be continuing pressure within SBNC to drop the pretense of vetting
candidates and move to nominating just two candidates for each open position. In this way, the SBNC can maximize its power.

There will be continuing pressure within SBNC to drop its candidate-by-candidate voting and select a slate in the backroom, which it would then vote up-or-down in public. In this way, SBNC members can avoid public scrutiny and accountability for their actions.

Fewer serious candidates will apply for open seats. In the extreme case, when an
incumbent running for re-election has not alienated any powerful interest groups, no serious contenders will emerge.

Successful candidates will play the inside rather than outside game. Electoral politics generally encourages politicians to play the outside game; members of Congress, for example, routinely run for Congress by running against Congress; presidential candidates typically run for office by running against business-as-usual in Washington. This is not going to be a successful strategy for candidates running for the school board. No mavericks need apply.

The SBNC will ignore its own bylaws and the Open Meetings Act when it deems them to be a nuissance, and there will be no public penalty for doing so, as long as a violation is done reasonably discreetly and with due consideration to create conditions for plausible deniability. The SBNC will continue to publicly pronounce its fervent devotion to the norms of openness and accountability--while conducting as much business as it reasonably can through private email correspondence, which is exempt from the openness requirements of the Open Meetings Act.

To the extent that backroom politics dominate the school board selection process, this will remain unreported.

Tuesday, May 20, 2008

Capital Editorial on SBNC Process

There are parts of this editorial I agree with, but I disagree with its skewed priorities. The part I agree with is that every SBNC member should be expected to explain why they voted for the winning candidates that they did. An important part of lawmaking is not just voting but explaining those votes for the public.

The part of the editorial I find objectionable is the argument that the SBNC should discuss the candidates' qualifications in public. This is not a requirement either in the letter or the spirit of the current Open Meetings Act. In some fantasy world, maybe this would be desirable. But it's unrealistic to expect, and I'm not sure it's desirable. What is more practical and useful for democratic accountability is to ensure that SBNC members explain their votes for the winning candidates. When SBNC members publicly state a set of candidate selection principles--e.g., that their goal is to merely vet candidates--and then act otherwise, that is the type of information the Capital should call out.

In terms of priorities, the Capital should have focused on the SBNC's violations of the Open Meetings Act and its own bylaws. Instead, the Capital made it clear that it doesn't really take these laws seriously, if only because their violation is so widespread that it would be unfair to pick on any public body for violating them. But if the Capital doesn't take the law seriously, why should the SBNC?

Even the best open meeting laws are not an adequate substitute for some genuine investigative reporting, which requires real work and putting the little guy's interests first. The real failure here was not with the SBNC but with the Capital for failing to do its journalistic job.

Publication: Capital
Date: May 20, 2008
Type: Editorial

The School Board Nominating Commission - the first to convene under a new law - has forwarded six names to the governor for his consideration for two school board slots.
Although the public knows who was chosen, it is been kept in the dark about why they were chosen. That's a troubling sign for a new public body.

The board decided to meet privately to discuss the candidates, then cast its votes in a public session. At least one commissioner, representing the teachers' union, also wanted the voting behind closed doors. Arguing against that, Commissioner Matthew Tedesco said the panel should be "as translucent as possible." Yet the panel decided to keep its discussions behind closed doors to avoid giving the nominees any discomfort.

Public bodies should be transparent. That's what the commissioners promised the public at their very first meeting. And isn't a robust discussion about future school board members the public's business?

A private meeting to discuss these nominations - on the ground that this is a personnel decision - may be within the letter of the law, but has nothing to do with the law's spirit.

If you apply for an influential public office, enduring a public discussion of your qualifications - and perhaps your temperament - isn't too much to ask. Would we want a county executive or County Council member chosen behind closed doors? Why should it be any different for a school board member who will have a major voice on our children's education?

A full and open discussion keeps the public informed and assures people that a public body isn't mired in cronyism or conflicts of interest.

Openness is not always convenient or easy, but it keeps public officials honest. We doubt legislators intended to drop a cloak of secrecy around this process when they created it last year.

Monday, May 12, 2008

Maryland Attorney General's Office Rules That School Board Nominating Commission Violated The Law

Maryland’s Open Meetings Compliance Board, a division of the Maryland Attorney General’s Office, ruled that the School Board Nominating Commission violated the Open Meetings Act when it met in secret to choose its bylaws. Since there are no legal penalties for violating this law, the significance of the ruling is negligible. In theory, there could still be penalties in the court of public opinion for violating the Open Meetings Act, but since the School Board Nominating Commission is unelected and half isn’t even appointed, even this penalty is largely non-existent.

The School Board Nominating Commission’s strategy hasn’t been to deny that it violated the law but to throw up a smoke screen for the press, arguing that the Commission’s Chair was ignorant of the law. My analysis, however, is exactly the opposite: the Commission violated the law precisely because its members knew the law all-too-well. They knew that the likelihood of reporting a violation is rare, that even if found in violation the legal penalties are non-existent, that the political class doesn’t take violations seriously (like driving 65 mph in a 55 mph speed zone), and that even if the press reported on the subject, it would have no interest in getting at the truth and would report without challenge the Commission’s arguments asserting that there were valid extenuating circumstances. Weighing the downside risk of violating the Open Meetings Act with the great inconvenience, time delays, loss of power, and greater risk of controversy associated with discussing the bylaws/procedures in public, the decision was easy to make.

On another matter, on May 5 the School Board Nominating Commission made a major change to its procedural rules. It ruled that a supermajority, eight votes, would be needed to send a vote to the Governor. Previously, only a majority, six votes, was required to do this. In general, political scientists consider supermajority requirements to be highly undemocratic. But in the case of the School Board Nominating Commission, this is especially so because five of the eleven members are appointed by interest groups, not an elected official. It effectively gives private interest groups a veto on the Commission’s nominations. There was a reason that six of the eleven members of the Commission were appointed by elected officials: the politicians knew it would be too embarrassing to give majority control to private organizations. This rule now makes a mockery of even that minimal level of democratic control.

The stated purpose of the change was to reduce the power of the five delegates to the Commission appointed by the Governor. A closely related goal was to increase the power of the Commission in relation to the Governor, a position advocated in previous Commission meetings by the teachers (Tim Mennuti) and administrators (Bob Ferguson).

Also interesting is that this item wasn’t on the publicized agenda for the May 5 meeting. It’s yet another example of rushing through major policy decisions without time for thoughtful deliberation. The Founders of our country created a democratic process based on checks & balances. This served to slow down the legislative process and force the legislature to consider more points of view than it would otherwise have done. At the time, the Founders wanted to avoid the type of rushed, ill-considered legislation that helped lead to the defeat of Ancient Athens, the historical example of democracy that they knew best. This rushed, ill-considered legislation—which will surely someday be overturned once the public fully appreciates its stench—is a modern day illustration of what our Founders were so wary of. The system of notice and comment, the bedrock of the open meeting system, is supposed to provide a check on this type of behavior. In this case, that check failed.

Sunday, April 13, 2008

Reflections on key developments concerning the School Board Nominating Commission since its March 25 public meeting

The following comments concerning the School Board Nominating Commission (SBNC) commence with its March 25 meeting and end with its April 10 press release. These comments include actions taken by the SBNC and actions taken by the School Board and General Assembly with regard to the SBNC.

On Monday April 14 at 7:00 p.m., the SBNC will hold its first public hearing broadcast live on Anne Arundel County Government Television.

This may be my last report and analysis of the SBNC—at least for 2008. With the coming SBNC hearings being heavily promoted and televised, I feel I can now comfortably fade out of the picture. One exception is if a major and unpublicized procedural issue arises. Another exception is my series of complaints and the SBNC's responses to those complaints filed with the Maryland Open Meetings Act Compliance Board. I may be one of the few people who consider such procedural issues a big deal; my hope is that those appointed to interpret and enforce the Open Meetings Act will take their responsibilities seriously.

March 19—Public notice of March 25 SBNC public meeting

On March 20 the SBNC sent out a press release announcing its next public meeting, scheduled for March 25. The website lists the date of the press release as March 19. Since SBNC’s bylaws state that public notice is to be sent out ten days before a public meeting, SBNC’s notice violated its own bylaws

Shortly before its March 25 meeting and in response to my complaint filed with Maryland’s Open Meetings Compliance Board, the SBNC posted the minutes of its two meetings held on January 23 and January 30. Both meetings were held in secret and in violation of Maryland’s Open Meetings Act. Prior to this posting, I was unaware that in fact two meetings were held illegally. The only Open Meetings Act violation I had known about was the January 23rd meeting. The website with the posted minutes makes no mention that the two meetings were held illegally.

March 25—SBNC public Meeting

On March 25, the SBNC held a public meeting to receive public testimony from three invited panelists on the proper role and desirable skills of school board members.

Other than a reporter from the Capital, I was the only audience member from Anne Arundel County present. In addition, there were three individuals from another County who were curious about the SBNC method of nominating school board candidates. Senator Simonaire’s aide also attended.

The panelists were Kitty Blumsack with the Maryland Association of Boards of Education; Penny Cantwell with CommerceFirst Bank of Annapolis; and Dr. Pamela Brown, Executive Director of Leadership Anne Arundel. The latter two were clearly chosen to serve, in part, as ambassadors from the business community. In a press release after the meeting, the SBNC summarized the testimony as follows: “Four overarching points were constants in all the testimony given to the Commission regarding what to look for when attracting, reviewing, and selecting potential Board members for appointment: a commitment to serve; an ability to listen to all sides; strong interpersonal and analytical skills; and a recognition that the proper role of Board members is to focus on policy making and strategic planning not school system operations.” Then it added a fifth point: “Another important recommendation from the panel related to remaining cognizant of the role that the business community can play in the strengthening of not only the Board of Education, but the school system itself.”

I don’t disagree that all the points in the summary were made by the witnesses. But there is one major theme that doesn’t appear in the summary. That theme is that the SBNC wants to appoint someone with business credentials who can credibly talk the talk of efficiency and accountability. The panelists emphatically stated--if abstractly and without relation to anything in particular--that the public wants board members who will use public resources efficiently. Members of the SBNC strongly echoed this theme—again abstractly--during the question and answer time.

My guess is that the SBNC will go out of its way to appoint one or more nominees who can be presented to the public as having business skills. This makes political sense. The school board is facing a huge structural deficit. The insiders know that a tsunami of pain is heading in the direction of parents. They also know that to get a tax increase passed to address the expected pain, it will be necessary to create the impression that the school board runs a tight ship. By the time budget reality finally begins to kick in with the public during May and June (after the County Council refuses to fully fund the school system’s structural deficit), picking someone with business credentials should be politically popular with just about everybody.

Do business people make better school board members? It’s hard to really answer this question because very few accomplished business people run for school board seats. And those who do run, win, and attempt to apply their business acumen often quit after one term, disillusioned with the difficulty of making any meaningful changes in the system. This doesn’t mean that a lot of business people don’t run and win, often on a platform including vague language of accountability and efficient use of taxpayer resources. But how do they actually perform once in office? Does all their rhetoric translate into meaningful action?

In my experience, having observed business people on school boards in many different communities, the answer is surprisingly “no.” People with business credentials who run for the school board are usually smart enough to recognize that the only political payoff is to talk like a business person, not act like one. If not, it usually doesn’t take them long to learn better.

So if business people rarely choose to use the skills for which they are lauded, does that make them bad school board members? The question, then, largely becomes one of motives. My guess is that business people are no more likely than other board members—and perhaps less so--to deep down in their bones really care about education. Many are on the board primarily to create visibility for themselves, either because it helps their business or political careers. For example, the last thing a community bank wants is to have one of its executives stir up controversy. If that executive is visible in the community in an uncontroversial authoritative way, then great, it’s good for business; the business person cum school board member becomes a rainmaker. Similarly, a business person using the school board to launch a political career will have no interest in stirring up any hornet nests. If a school maintenance department is incompetent, if public school construction costs twice as much as in the private sector (and results in ugly, factorylike buildings that endure for decades), and if making commitments creating a long-term structural deficit won’t create a political backlash during their term of office, their political philosophy is most likely to be “let sleeping dogs lie.” Why follow their business principles if the only result will be to stir up trouble that cannot help them achieve their true ambitions?

In America, we have created school boards constituted by lay people. The American public deeply mistrusts experts as democratic representatives because it understands that all the expertise in the world is of no use if the expert has no incentive to use his expertise to represent the public interest. That’s why a passionate, committed mom often makes a better school board member than a business person.

King Solomon, renowned for his wisdom, once faced a dispute between two women who each claimed the same baby as her own. To resolve the dispute, King Solomon ruled that he would cut the baby in half and give half to each woman. One of the women then immediately cried that she would give up the child. King Solomon knew that that was the person who truly cared about the child and therefore must be the true mother. School board members are like the moms; they all profess from morning to night that concern for the kids is all that drives them. In my experience, the school board business person is much more likely to be the fake mom.

Along these lines, I thought it was humorous when the head of the administrators’ union asked the three panelists: if business skills are important in a school board member, then shouldn’t we get rid of the student member of the board? This was funny because, when someone is a school board member negotiating with the administrators’ union, one doesn’t think of the administrators’ union, to put it mildly, as representing business values. I will be curious to see if the administrators’ union, during the SBNC’s public hearings, asks any hard nosed business questions of the school board candidates. If they did, I would be frankly shocked.

Quite surprisingly, the union leader’s question turned the tide of the discussion on business skills. All three panelists jumped to the defense of student members of the board, arguing that a good board is made up of people with a diverse set of skills and interests and that, in their experience, student members of the board made valuable contributions to school boards and often more so than their adult counterparts. More generally, the panelists reiterated that diverse skills, not just business skills, should be valued in a board.

Near the end of the meeting, SBNC’s Chair asked if there were any questions from the audience. I raised my hand and observed that the SBNC had violated its own bylaws when it sent out its notice for this meeting less than the 10 days required in its bylaws. I then asked how the SBNC would respond to this violation and if there was any penalty when the Chair violated the SBNC’s bylaws? The Chair responded that he simply does the best he can and there is no penalty when the bylaws are violated. I thought that, under the circumstances, this was a good answer. But it was alarming that not a single member of the SBNC said they were in any way upset by the violation and would try to make sure that it wouldn’t happen again.

My overall assessment, admittedly a cynical one, is that what the members of the SBNC got from this meeting is a set of vocabulary to describe how they should frame their final selection criteria. The words used at this hearing will be the types of words they will use to justify their final decisions to the public. But these words will mostly be make-believe; they will have little or no relationship to the negotiation of interests that will go on in the backrooms.

Corresponding to the make-believe aspect of the meeting, the elephant in the room during the discussion was the importance of political skills in a school board member. Nobody mentioned the importance of such skills. It never came up. But from my observations and from having read quite a bit about school board politics, political skills are essential in a school board member. There is an incredible amount of make-believe that goes along with being a successful school board member. Indeed, sometimes I think that, like the famous tale of the emperor’s clothes, the most important skill in a school board member is to regress to first grade math skills so as to avoid having to acknowledge the budget math self-evident even to simpletons. Perhaps in this deeper sense the political values reflected in this meeting, though never openly stated, reflected the true skills that go into becoming a successful school board member.

April 2—School Board Vote on HB1607 and Senate hearing on HB1607

On the morning of April 2, the school board voted unanimously (8-0) that the student member should be paid the same as the other members of the School Board. School Board member Mike Leahy then went to the same day Senate hearing on HB1607 and reported the result of the School Board’s vote. This apparently caused Anne Arundel County Delegation Chair Maryann Love and House Speaker Mike Busch to be furious. They were caught totally unprepared by both the School Board’s vote and Mike Leahy’s testimony reporting it. In the end, however, the School Board vote made no difference. On April 5, late in the night and only minutes before the end of the General Assembly’s session for 2008, the bill sailed through the Senate without amendments and ready for the Governor’s signature.

Why the hectic rush near the end of the session? One classic reason to rush last minute business is to make sure that opponents don’t have time to mobilize. In this case, however, there was an additional reason. The legislation setting up the SBNC had flaws that needed to be fixed. The SBNC needed official staff support, and the original version of the bill failed to provide that. Incumbent school board members also wanted to be paid as much as the school board members appointed under the new system. Thus, if the only practical choice was the bill as it existed or the status quo, the choice was easy. The bill was an improvement over the status quo with or without the provision to turn the student member of the board into a second class member of the Board. By waiting until the last possible moment, the option set was restricted to just two choices, and that rendered the School Board’s vote politically irrelevant. All this is Procedural Politics 101. But for those who don’t understand how the game is played, it can be useful to point out.

April 2 –Press release announcing 21 applicants for open seats

On April 2, the SBNC announced that 21 applicants had applied for the two contested seats open this year. Why the huge number? I think the key was the Capital article published a few days previously announcing that no one other than Tricia Johnson, a current board member, had either applied or publicly announced their candidacy for the two positions. Consider this comment by one of the 21 applicants, Roberta L . (Kitty) St. Romain, in response to the question why she was interested in serving on the School Board: “I am interested in serving on the Board because I was horrified to learn that there were no applicants for positions that have the potential to positively influence the community.”

In politics, potential candidates are very sensitive to who else is or might run for the same office. Candidates then decide whether they have a chance of winning and act accordingly. In the great majority of elections, promising candidates announce early and scare off potential rivals who decide they have no chance of winning. In this case, a very unusual political dynamic was set up where all those who were considering running decided it wasn’t in their self-interest to publicly announce their candidacy.

On the question of the electoral rights of incumbent school board members, there was a lot of confusion (including by me) about what procedures incumbent school board members would have to follow in seeking reappointment to the Board. The statute wasn’t clearly drafted and so the SBNC didn’t know how to interpret it. Thus, it solicited the opinion of Maryland’s Attorney General. The consensus now appears to be that incumbent school board members will have to go through the SBNC process just like any other candidate. This corresponds to the process used by the previous School Board Nominating Convention and has been revealed to be the intent of those who drafted the statute. This issue now appears to be finally resolved.

April 7—Press release with updated count of applicants

In this press release, the SBNC announced that the number of applicants it previously announced had been “misreported.” No explanation was given for how the number could have been misreported. The new total number was 19. Subsequently, the number has dropped to 18. If the SBNC follows a vetting voting procedure, I think there is a good chance that the number of applicants will stay high. Otherwise, I expect it to drop considerably before the final vote is taken. Candidates who know that it is very unlikely that they will win won’t want to embarrass themselves unnecessarily.

April 6—Letter to Open Meetings Compliance Board explaining SBNC’s violation of the Open Meetings Act

In a letter dated April 6, the SBNC’s Chair responded to my March 6 complaint about its violation of the Open Meetings Act at its January 23rd meeting. According to the law, the SBNC had 30 days to respond (the SBNC took 31). In practice, the Open Meetings Compliance Board uses 30 days plus the time a particular correspondence is in the mail. The SBNC letter acknowledged that it violated the January 23rd meeting but didn’t mention either the existence of a January 30th meeting or that it also violated the law by holding that meeting in secret. When I filed my original complaint in mid-February, I did not know about the existence of the January 30 meeting.

The gist of the SBNC Chair’s excuse for violating the law was that he was ignorant of it at the time of the violation and lacked staff support. My guess is that all these excuses are primarily for PR purposes. According to my understanding, ignorance of the Open Meetings Act—even if it were true--is not a valid excuse for public officials who violate it. The Open Meetings Compliance Board has no enforcement powers, just the power to rule whether the law was, in fact, violated, which means that the only true enforcement power is the court of public opinion. Thus, SBNC doesn’t really care about what the Open Meetings Compliance Board rules; what it cares about is how that ruling might be framed in the press.

April 10— Press release with changes to public hearing format

In a press release dated April 10, the SBNC announced it would drop television coverage of the second phase of its public hearings. Faced with the choice of dropping the broadcast of embarrassing testimonials to the entire County or changing its pre-announced format for its second phase of public hearings, the SBNC has decided to do the former rather than the latter. I am frankly torn by this decision. On the one hand, I thought the format for the second phase of public hearings was subject to abuse (see my last post before the March 25 public meeting), with the greatest potential harm done if it was televised. On the other hand, television is one of the few meaningful ways to make the Commission democratically accountable. Televised debate formats that allow for audience give-and-take are very popular and informative (think of the CNN presidential debate with the Youtube questions and talking snowman).

My overall philosophy about the SBNC is that whether it is a poorly designed democratic institution or not doesn’t matter that much if it is exposed to enough sunlight. Sunlight will disinfect the SBNC’s undemocratic propensities. And I believe that TV coverage and accessible records could provide a good measure of that disinfectant. Thus, when TV coverage and record keeping is made impractical, the SBNC is weakened as a democratic institution.

The SBNC might argue publicly that cost was the reason for dropping TV coverage of the second phase of the public hearings. But I don't buy that because the TV infrastructure is already available in the County Council chamber, and coverage of public candidate debates is one of the highest and best uses of this infrastructure. In Vermont, where I originally came from, volunteers would televise such debates in political districts one fiftieth the size of Anne Arundel County. The broadcasts would then be preserved and become part of the public record.

The SBNC could yet change its mind. It could come out and say it was able to find the resources to cover the second phase of its hearings. But it’s my educated guess that this is not how it’s going to play out.


Despite all my criticisms—and perhaps in part because of them—the SBNC is off to a pretty good start. I believe it is struggling with its natural undemocratic tendencies and discovering that to preserve its good name it will not only have to spout democratic rhetoric but actually take steps to live up to it. I am frankly quite curious to find out whether this will, in fact, be the case.

Thursday, April 3, 2008

School board wants equal pay for student

Publication: Capital
Title: School board wants equal pay for student;Unanimous vote supports $6,000 paycheck for teen member
By: Elisabeth Hulette
Date: April 3, 2008

The county Board of Education agrees its one student member is equal to her adult counterparts and should be treated and paid equally. The members even voted yesterday - unanimously, 8-0 - to say so.

The vote was spurred by discussion of a state bill that gives adult board members their expected raise earlier than planned. But the bill also would keep the student member working for a lower salary than the adult board members.... (click title for full article)

Thursday, March 27, 2008

Two school board openings, no candidates

Publication: The Capital
Title: Two school board openings, no candidates; Tuesday deadline approaching
By: Erin Cox
Date: March 27, 2008

Wanted: school board members.

Must have ample free time, business acumen, public relations skills, no special-interest agenda and work well with others. Apply immediately. To repeat: immediately.

Less than a week remains before the application deadline for two spots on the county's Board of Education. Zero applications have been submitted.... (click on the title for the rest of the article)

Tuesday, March 25, 2008

Reflections on key developments concerning the School Board Nominating Commission since February 20, 2008

The following are my reflections on key developments concerning the School Board Nominating Commission (SBNC) that have occurred since February 20, 2008. These include the second meeting of the SBNC, the SBNC’s publicly released application for school board candidates, the Maryland Attorney General’s opinion clarifying ambiguities in the enabling legislation that created the SBNC, and the legislation from Maryland’s General Assembly amending the legislation passed last year.

February 20, 2008--Second Public Meeting and Release of Bylaws

On February 20, 2008 the School Board Nominating Commission met for the second time in public. The notice for the meeting said that public comments would not be allowed at the meeting. This time only one member of the public, other than the Capital reporter, was present. I was unable to attend this meeting, so my information comes from Tom Frank (the member of the public present), the Capital’s report on the meeting, and the bylaws that came out of the meeting.

The two main purposes of the meeting were to pass the bylaws and to discuss additional procedures that would guide the operations of the School Board Nominating Commission. The bylaws were developed in secret, and at no time prior to their passage was the public given a draft of them either to review or provide comments upon. The standard practice in American democracy is for the rules of public bodies to be posted publicly before they are voted upon. I am not aware of any democratic theorist who has ever argued for doing otherwise.

The bylaws mostly come across as unobjectionable boilerplate for this type of entity. The existence of grammatical mistakes suggests at least some divergence from canned bylaws. Some of the bylaws noteworthy features are discussed below.

The bylaws state that the public will be given at least ten (10) days notice of the Commission’s public meetings. This is not as much notice as the School Board Nominating Commission gave, but it’s a significant improvement over the much briefer notice the SBNC gave for its first two public meetings.

Unfortunately, this clause hasn’t gotten off to an auspicious start, as I received notice of the Commission’s third meeting, set for March 25, on March 20 (only five days before the announced meeting). On the Commission’s website, the press release giving notice of the March 25 meeting is dated March 19.

These facts raise two questions. Why do the press releases seem to be sent out after the dates posted on them? And what happens when the SBNC violates its own bylaws? Clearly, the SBNC doesn’t take its own bylaws very seriously. If the SBNC can so easily disregard its own bylaws, it raises the question of whether the public should take them any more seriously.

Other than the ten day notice clause, the general tenor of the bylaws is that the SBNC will do the minimum necessary to comply with the Open Meetings Law and Public Information Law. This is touched on in the complaint I filed on March 18, 2008 with Maryland’s Open Meetings Compliance Board. The gag clause seems especially onerous because its presumption is that the burden of justification should be placed on openness rather than secrecy. The gag clause reads as follows:

Except as may be required by law, all information received by the Commission, including, but not limited to, applications, communications, correspondence, and notes received in a written, oral, or electronic manner shall be held in the strictest of confidence and shall only be discussed or disseminated among Commissioners to be used in the performance of their tasks and undertakings as provided for in these Bylaws. Any requests for the disclosure of Commission information and materials shall be reported to the Chairperson as soon as practicable. (Article VIII, page 6)

Will the SBNC really enforce this rule with respect to the interest group and other political patrons of the SBNC’s commissioners? I doubt it very much. The practical import of a gag clause like this is just to keep the public in the dark.

Overall, I would say that the bylaws are most interesting for the procedural issues they don’t cover rather than those they do. For example, a key question not addressed in the bylaws is how the SBNC will vote on candidates and how the public hearings will be conducted. The SBNC addressed these issues but hasn’t yet come to agreement on how to handle them.

The Maryland legislation creating the Commission requires that it hold two public hearings. The SBNC has decided to televise those two hearings on the County’s government access channel. I applaud that step, but I also believe it runs far short of what is needed. I had pushed for webcasting and archiving the hearings. The SBNC has apparently decided not to do this.

There is an economic conflict of interest involved in this decision because the SBNC includes representatives from Comcast and Verizon, companies which provide TV service in Anne Arundel County. The conflict arises because only about 60% of Americans subscribe to either cable or telco provided TV. The rest get their TV via satellite or over-the-air broadcasting. Giving the telcos and cable companies an exclusive right to televise local candidate coverage gives them a competitive advantage.

There is also, perhaps more importantly, a political conflict of interest. Comcast has a de facto policy of not archiving and making accessible its candidate TV coverage (e.g., Comcast airs local candidate interviews on CNN Headline News just before elections). Comcast does this, in part, because it knows that politicians hate to have these types of records lying around. Since a major reason Comcast provides this TV service is to cultivate goodwill among politicians, it would make no sense to distribute candidate videos in a way that might alienate those politicians. However, what is good for politicians and Comcast is not necessarily good for democracy. In the age of YouTube, there is simply no good excuse not to webcast as well as cablecast the public hearings, and then archive those hearings as an important historical record. Moreover, as a result of more than $10 million of public, educational, and government access TV funds—funds that were generated as a result of a congressional statute seeking to enhance citizen access to information about their communities and government--the County has an immense array of fancy internet equipment (far more than most YouTube users could even dream of) that can and should be used to for this purpose.

The SBNC has also apparently decided to use the first hearing to allow the candidates to present their case and provide time for SBNC’s commissioners to ask questions of the candidates. The proposed use of the second hearing is to allow members of the public to comment on the candidates.

I like the proposed format for the first but not the second hearing. Part of me does like the radical, highly unusual format of the second hearing because it suggests a desire for openness. On the other hand, I cannot imagine a single elected official in our County who would allow himself to be subject to such a public format because it is a blazing invitation to abuse. Who would speak up at such a meeting? Would they be representative of the public? Or would they be stacked by special interest groups—what every politician would expect and fear? Generally, when politicians are willing to open themselves to public comment it is not in a high stakes, televised, and recorded environment where they aren’t given control over who and on what terms their critics are allowed to speak.

The format of the second hearing also reflects a conceptual misunderstanding. SBNC seems to think that the purpose of the public hearings is to hold the candidates accountable. I would agree that that is one purpose of the public hearings. But I believe the far more important purpose is to hold the SBNC’s commissioners accountable. The public needs to hear the questions they ask of the candidates and how the commissioners respond to the candidates’ answers. The public then needs to be able to compare the commissioners’ votes on the candidates with the information revealed at the public hearings. This will give the public a better sense of whether the public hearings are a mock exercise in democratic deliberation. The commissioners need to provide a public display of democratic legitimacy. But they also have a powerful incentive to engage in closed door, power politics negotiation. The public hearings should provide the public with a way to gauge whether the decisions actually made by the commissioners correspond to their public rhetoric.

An alternative format for the second hearing would be to do what the School Board Nominating Convention did: allow citizens to ask questions of the candidates. However, the Nominating Convention provided three nights rather than one for asking such questions. In addition, the questioners, to become members of the School Board Nominating Convention, had to be vetted by their local communities. These are major differences, and they make the citizen question format less desirable.

More generally, the democratic theory behind the SBNC is that it is representative of the public; otherwise, its powers make no sense. With minimal time for a public hearing, the first priority for the public should be to assess how well those representatives actually represent them. The design of the public hearings seems to take that representation for granted.

Perhaps the most important issue discussed at the February 20 meeting was whether the commissioners would simply vet the candidates’ qualifications for serving on the school board or pick only their top two choices. The first system, advocated by the Chair of SBNC (and favored by me), would suggest an up or down vote on each candidate (called “approval voting”). The second system, advocated by some other commissioners, would aggregate all preferences so that only the top two with the most votes would be nominated for selection by the governor.

In practice, I’m pretty confident that the two voting mechanisms would result in the same outcome: just two candidates being sent on to the governor. The reason I say this is that the commissioners, in the long run, will naturally tend to want to maximize their own power, and they can best do this by nominating only two candidates. Indeed, I would go further and say that SBNC’s interest group representatives have a fiduciary duty to the organizations that appointed them to seek to maximize their own power and thus, by extension, SBNC’s power. Their comments, as reported in the Capital, would bear out this analysis of their self interest.

What I like about the approval system is that it would make the commissioners more accountable to the public because it would reveal a lot more information about their true preferences.

As I understand it, no final decision has been made about whether the individual votes of the commissioners will be made by public or secret ballot. In general, the theory of representative democracy is that the public should be able to know how their representatives voted. In practice, however, representatives hate to give up control over this information and are very clever at designing systems to prevent its revelation (I am currently writing a major national report on just this issue). I don’t expect that SBNC’s commissioners will be able to pull off a secret ballot; it would offend the public too much. But on the more subtle question of on-the-record up-and-down votes, I’m confident that they will eventually get their way, even if it isn’t during the first year of SBNC’s operation.

An important fact in assessing the desirability of the type of candidate-by-candidate voting I recommend is that, regardless of the voting system selected (individual vs. aggregate and public vs. secret ballot), insiders will know this type of voting information. That is, by the end of the nominating process it’s likely that the commissioners will know each other’s preferences. It’s also likely that it will be in their self-interest to reveal their own and their fellow commissioners’ preferences to their political backers. Thus, it doesn’t matter whether bylaws or any other procedure says otherwise: the insiders will have all the information necessary to hold the commissioners accountable. Only the public will be left out of the political calculus--a voting design that harms democracy.

March 6, 2008--Application for Appointment to the Anne Arundel County Board of Education posted on SBNC’s website

Like the School Board Nominating Convention, candidates are asked to fill out a long application concerning their qualifications and public policy agenda. The application, released on March 6, doesn’t say whether the answers will or will not be made public. However, the intermixing of private contact information with the rest of the questionnaire suggests that the answers will only be available to the SBNC’s commissioners and their political allies. I suggest that the practice adopted by the School Board Nominating Convention, which was to make such applications public, should be adopted. This is especially so if the SBNC plans to hold a public hearing with public questions.

In terms of the content of the application, I would recommend dropping the question concerning the three most critical questions facing Anne Arundel County. That’s a reasonable question for the public hearing, but in the context of the SBNC, it’s not a good question for the candidate questionnaire. Like the Judicial Nominating Commission application, it should focus on a candidate’s past accomplishments. I would be a bit more sympathetic to asking this written question if I knew the answer would be posted publicly on the SBNC’s website. Since that doesn’t appear to be the intention, such questions should be reserved for the public forum.

I would also recommend eliminating the fifteen year clause attached to each of the biographical narratives. Despite its innocuous wording, it is simply unnecessary and will tend to cause younger but qualified people not to apply.

Lastly, all prospective SBNC commissioners should be required to fill out an identical questionnaire and post this information on the SBNC website as a condition for their appointment to the SBNC.

March 10, 2008—Maryland’s Attorney General provides a written opinion to the SBNC concerning its role in nominating incumbent school board members.

The Chair of the SBNC sought to resolve ambiguities in the legislation creating the SBNC by asking for various opinions from Maryland’s Attorney General. The questions to the Attorney General were not posted on the SBNC’s website. The Attorney General’s answers were, but without repeating the questions. The Chair’s confusions resolved around the re-election rights of incumbent school board members appointed under the previous nominating system, and the necessity and timing of retention elections for those already appointed to the school board.

Even with the Attorney General’s letter, I am still confused about the exact set of rights that incumbent school board members have. It appears that the nominating system will no longer vet incumbent school board members seeking a second term. Under the previous nominating system, incumbent school board members were vetted by the School Board Nominating Convention. The Attorney General ruled that currently sitting incumbents would be able to bypass the SBNC and automatically be nominated to serve on the School Board for a second term. This would be striking because legislative and newspaper editorial advocates for establishing the SBNC repeatedly told the public that the SBNC would correct a major defect in the School Board Nominating Convention system of nominating candidates: that the governor could bypass the Nominating Convention’s nominees. Now it appears that under the new law the SBNC has no control over the nominations of incumbent school board members.

March 16, 2008—The Capital’s Eric Hartley writes an opinion piece raising concerns about the SBNC

After a series of news articles and editorials during the past 16 months endorsing the SBNC procedure, the Capital published an opinion piece by Eric Hartley suggesting that the SBNC might actually have some institutional downsides. Hartley seems to have actually read and thought about the legislation, rather than merely regurgitated information off a press release. Bravo to him and the Capital!

I don’t want to give too much praise to the Hartley article because I don’t buy into his theory that the SBNC is a Democratic plot against the Republicans. But I do very much like his conclusion: “American history is full of hedges against unfettered democracy…. But if that is really what’s behind this convoluted school board process—if our lawmakers think we cannot be trusted—just tell us.”

March 21—Maryland’s House Passes Bill HB1607 to amend certain flaws in the legislation setting up the SBNC

Without any public hearing or discussion, the Maryland House passed legislation (132-6) to fix certain problems with the original SBNC legislation that had become evident. The legislation is a bit jarring because last year we heard our County leaders saying that, after a decade of debate and numerous public hearings leading up to passage of the legislation creating the SBNC, they expected not to have to revisit this issue for thirty years. Now we are seeing several amendments to the original legislation rushed through the legislature at the end of the session.

There are two major changes to the legislation. First, it provides staff support for the SBNC. The School Board Nominating Convention relied on volunteer help, but, as an official government entity, the SBNC needs professional staff. The Department of Legislative Services has been given this role. It seems to me that this amendment is good for the SBNC. I’m not sure, however, if it’s good for the Department of Legislative Services, which has over the years studiously tried to stay out of partisan and special interest politics. The responsibilities of the Department of Legislative Services are left ambiguous. But if they eventually come to include candidate relations and even possibly recruitment, as I expect they will, then a danger zone will have been entered.

Why was the Department of Legislative Services given this role? It’s interesting to note that no money was allocated in the legislation to pay for their services. Nor did the accompanying fiscal and policy note, mandated by Maryland law, estimate their cost. If this was Congress, this would be a clear violation of the law. My guess—and I could be wrong on this—is that it’s also a violation of Maryland law for the legislature to mandate new expenditures and not disclose their cost. Admittedly, the amendment is written so vaguely it’s hard to put a cost on the assigned tasks to be provided by the Department of Legislative Services. But it’s certainly not zero, and given the high cost of state employees (including benefits and overhead), I doubt it can be less than $40,000/year, especially given that SBNC meets at the busiest time of the year for legislative services, which is when the General Assembly is in session. Remember that the SBNC has been complaining to the legislature that this is a very time consuming job, what with dealing with 11 commissioners, candidate applications, public relations, and a website that needs to be regularly updated. I believe that this has also been their excuse for violating the law (Maryland’s Open Meetings Act).

My guess is that putting in a $40,000+ figure to maintain the SBNC would have been perceived as embarrassing. Moreover, by allocating the cost to an ongoing organization, it was perceived to be easy to hide. From this I infer that one of the chief attractions of writing such a vague job description, violating rules concerning disclosure of expenditures, and assigning an inappropriate job to the Department of Legislative Services, was to avoid public disclosure of this cost.

The second amendment involved pay for incumbent school board members. The previous legislation only paid compensation to new school board members appointed under the new electoral system. As a result, the incumbent school board members complained to the legislature that they were being treated unfairly: for equal work there should be equal pay. A competing theory is that people who have agreed to a contract for one price should not be able to renegotiate that contract before it expires (this is why politicians usually get newly approved pay increases only after the next election). The incumbent school board members, however, didn’t want to wait for reappointment to get their equal compensation.

If this compensation increase was so important to the sitting school board members, why didn’t they just include it in the school system’s budget rather than having our County’s delegation to the state legislature include it in legislation? Did the sitting school board members know that voting on a salary increase for themselves would be controversial and that by having the legislature do the deed quickly and quietly this potential controversy could be avoided?

A striking feature of the equal pay for equal work argument is that it ignores the student member of the school board. Does that mean the incumbent school board members making this case are simply assuming that the student member does not do equal work and is therefore undeserving of equal pay? That would appear to be the only way to make sense of their argument to the legislature.

Until last year, the student member of the school board was treated equally with the other board members. Then, just a few days before the legislation creating the SBNC was passed in the House--and without any public hearing--an amendment was slipped in to exclude the student member from the compensation to be paid the other school board members. This was presented as an innocuous amendment, but it actually represented a radical change. Henceforth, the student member would be a second class member of the school board and would become dependent on other board members for reimbursement of expenses.

So why does the principle of equal pay for equal work not also apply to the student member? The Chair of the Anne Arundel County House delegation now says it’s because the student member doesn’t need the money as much and gets a greater reward than the other board members in terms of resume padding. But can these claims withstand scrutiny? Students arguably have higher expenses than the other board members because the other board members already have cars whereas a student often has to purchase a car and auto insurance to serve on the school board. The practical effect of not giving the student compensation is that students who don’t come from well off families won’t be able to serve on the board. In terms of resume padding, many school board members use their office as a stepping stone to higher office, a better lobbying job, a better school system job, more offers to serve on prestigious boards, and other types of career and social advancement. Why is this so different from a student who, too, has benefited from serving on a school board? (Disclosure: my daughter is currently the student member of the school board. But I should note that she would not personally benefit from any pay increase because the pay increases for the additional school board members would not take effect until July 1, 2008, after her term expires.)

If I had my druthers, the single most important amendment the legislature should introduce would be to increase the number of individuals from two to three that the SBNC has to nominate for each open school board position. The current system makes it far too easy to rig the system so that the SBNC takes on both the roles of nominating and appointing candidates. Consider the following scenarios. Let’s say the SBNC knows the governor wants to select a Democrat to serve on the School Board. Then all it has to do is nominate a Republican and Democrat to have de facto appointment power. Similarly, let’s say that during a particular year the governor wants a woman (or man), black (or white), North County resident (or South County resident), businessman (or parental activist)—you fill in the blank. All the SBNC has to do then, is pair up someone with an undesired trait with someone with the desired trait. The result is that the governor has no option but the one the SBNC wants. Meanwhile, the SBNC looks good to the public for sending a “balanced” slate of candidates to the governor.

If the SBNC were constituted as a representative body (rather than as an advisory body) this wouldn’t be a big deal. But to give self-selected interest group representatives the power to administer $1 billion in tax revenue is a gross abuse of democracy. I believe that requiring the SBNC to nominate a minimum of three individuals would greatly reduce its ability to engage in this type of strategic behavior.

If anyone is aware of a similar unelected body in the United States with so much power to select representatives to spend taxpayer money on behalf of the public, please let me know. I am also unaware of a public purchasing committee anywhere in the United States (e.g., at the U.S. Defense Department) where a significant proportion of the committee members represent independent organizations who have a direct financial stake in the committee’s purchasing decisions.

When it comes to advisory committees, the standards are very different. There the possession of expert knowledge relevant to a decision trumps other considerations. But the SBNC is currently structured to be far more than an advisory body; it has huge powers to act on behalf of the public.

Please note that the Judicial Nominating Commissions, which are cited as a precedent for the School Board Nominating Commission, has thirteen members, nine appointed by the governor, including the chair, and four chosen by the presidents of the local bar associations. For the Governor’s last appointment on February 25, 2008, the Judicial Nominating Commissions chose from an applicant pool of twenty-five names and sent eleven names to the Governor (including those vetted during the past two years) for an open seat.

My guess is that over the next few years we’ll see a lot of legislation introduced to fix the flaws in the current SBNC system. If the past is any guide, that legislation will be introduced at the last minute, without public debate, in the dead of night.

I’ve dwelt on the dangers of allowing the SBNC to publicly endorse one set of values and privately pursue another. One of the dangers of allowing this type of discrepancy has not been mentioned. It is that it will tend to discourage qualified candidates from applying to become school board members. If candidates sense that all the talk about openness and reasoned deliberation is mostly for show and that the recruitment and choice of candidates will in reality be an inside job, then fewer qualified candidates will seek to apply to become school board members. The SBNC has stated that its primary goal is to recruit and nominate as many highly qualified candidates as possible. If this is indeed its true desire, then it should devote its utmost effort to preserving the integrity of its process.