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.

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