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