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.

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.