The School Board Nominating Commission was appointed by the Governor on November 6, 2007. It has eleven members, five appointed by interest groups (publicly described as "stakeholders", a term popular with politicians but not political scientists) and six appointed by elected representatives. I shall call the former group the "Interest Group Commissioners" and the latter the "Political Commissioners."
The Interest Group Commissioners were appointed by the five interest groups: business community (Anne Arundel County Chamber of Commerce) teachers union (Teachers Association of Anne Arundel County), administrators union (Association of Education Leaders), parents (Anne Arundel County Council of PTAs), and higher ed (Anne Arundel County Community College Board of Trustees). Five of the Political Commissioners were appointed by the Governor; the sixth was appointed by the County Executive.
The bill creating the Commission was incredibly sketchy, a slapdash piece of legislation that delegates huge legislative powers to the Commission. Some of the mess was cleaned up in the midnight rush before the bill passed (when an amendment was introduced to increase the size of the school board from 8 to 9 members to fix an unanticipated inconsentency caused by the change in school board districts). Maryland's Attorney General is being called upon in unspecified ways to clarify other ambiguities (such as the degree to which the Commission must follow laws created for other appointed bodies). Still, there are vital issues and apparently unanticipated scenarios the Commission must sort through before it can get down to business. (Alan Lang provided an outstanding, if incomplete, summary of these unresolved issues in an email to individual legislators on March 22, 2007, which I highly recommend reading.) Such problems aren't unusual for new laws coming out of America's legislatures; they are nevertheless worthy of note, not only because of the carelessness they reveal, but also because the result is to delegate very significant and unspecified powers to unelected bodies.
So what kind of political body is the Nominating Commission? The answer to this question is by no means self-evident. The part that is most explicit is that this is an appointed political body granted substantial powers. The most important power is the power to limit the Governor's choice of school board members to one of two candidates for each available position. If the Nominating Commission chose to act strategically—by selecting one candidate it knew the Governor would not choose—it would actually have essentially both nominating and appointive powers. Given that the school board administers approximately $1 billion of taxpayer funds (about half of local taxes and a large fraction of state taxes), this is a truly remarkable set of powers for a body that has no elected members and, of its appointed members, only approximately half appointed by elected representatives. An added wrinkle on the lack of direct representation is that more than 80% of those appointed by elected representatives are appointed by the Governor, a very distant representative who represents 23 other counties in addition to Anne Arundel. Imagine if the president of the U.S. was given the responsibility of appointing school board members in every school district in the U.S. Obviously, the Governor is not so remote a figure, but this thought experiment helps clarify the political logic of the situation.
Still, the above analysis of the Nominating Commission's democratic accountability is very superficial because it relies on the explicit text of the bill. There are many other ingredients that go into determining whether a political body is democratically accountable. Upon close inspection, we will see that the Nominating Commission embodies an inconsistent set of democratic accountability principles. Sorting through the extent to which the resulting system is a muddled mess or a brilliant creative synthesis will largely depend on the Commission's currently unwritten rules of procedure.
Before we can move ahead with our analysis of the Nominating Commission's democratic characteristics, we need a little more conceptual background on what makes an appointed body democratic. An appointed political body with democratic powers may attain democratic legitimacy (which I define as the perception of democratic accountability) by being accountable to elected representatives or by being intrinsically representative of the public.
A body that is representative of the public need not be under the thumb of elected officials in order to be democratic. A jury, for example, is democratic despite not being appointed by elected officials. It is intrinsically representative due to random nature by which its members are selected. Such a body can be completely independent of elected representatives yet democratic.
Since democratic representation is defined in terms of interests (i.e., to what extent does the body represent a microcosm of the public's interests?), it is possible that a body that appears to be intrinsically representative by obvious descriptive characteristics (e.g., gender, race, and geography) may in fact be anything but representative in a democratic sense.
The most common type of appointed political body created by elected officials is granted no democratic powers; it is purely advisory. As such, it needs to makes relatively minimal claims on democratic legitimacy. The federal government has more than 900 such advisory bodies. I am not aware of a single federal body with formal democratic powers whose members are appointed by interest groups.
The hallmark of an advisory committee is that it is made up of experts—often, as is the case with the Nominating Commission, experts representing politically important stakeholders. This stakeholder diversity of expert opinion is often confused with democratic representation. But it is no such thing, as demonstrated by the fact that if such bodies had democratic legitimacy, they would be granted formal legislative powers. But legislators rarely grant such committees such powers because they recognize that an advisory committee of experts intrinsically lacks democratic legitimacy.
All poltical bodies that seek democratic legitimacy must also be transparent in their actions so that the public can hold their members and those who appoint them to account.
So with this conceptual scaffolding, let us now ask three questions that should be asked of any appointed body when assessing its democratic accountability: 1) how independent is it? 2) how democratically representative is it? And 3) how transparent is it?
Independence. The five interest group representatives on the Nominating Commission are clearly highly independent of our elected representatives. They are appointed by the interest groups, and elected officials have no statutory power to veto their selection or recall them.
A less easily answered question is the degree to which the interest group commissioners are independent of the interest groups that appoint them. Here there is already some controversy. It is clear that the political commissioners are appointed for four year terms and that there is no provision for them to be recalled by the elected official who appointed them. However, the ability of an interest group to recall its representative is less clear. For example, the representative of the Community College is expected to leave the Community College in July. Will he continue on the Nominating Commission for his four year term or be replaced by his interest group in July? Presumably, the interest group can change its representative on the Nominating Commission whenever it so desires. The significance of this is that the public should assume that the interest group representatives will be tightly controlled by those who appoint them.
The independence of the political commissioners from those who appoint them would appear to be greater because they have four year terms (except for the first set of commissioners, whose terms end in January 2009) and cannot be recalled during that term. Their jobs would also appear to give them more independence because they are not directly linked to their performance on the Nominating Commission. The representative appointed by the County Executive works for the County Executive and thus has an obvious financial interest in maintaining the goodwill of the County Executive. However, none of the Governor's appointees directly works for him. On the other hand, it is hard to imagine why it would be in their self interest, especially for the two professional lobbyists, including the chair of the Nominating Commission, to do anything that might anger the Governor (or their local legislative sponsors). As one of the lawyer-lobbyists complained during the organizing session of the Nominating Commission, he is doing this pro bono and his partners want to know why he is leaving the office at 5:30 pm without his time clock running. The obvious answer is that lobbyists are in the business of cultivating goodwill among the powerful—and the governor (and their legislative sponsors) are powerful people. The struggle to create goodwill, for example, is why the Chair of the Commission presumably gave some $20,000 to politicians during the last election cycle (this is just his personal contribution, his firm gave many, many times more).
All in all, then, we should assume the political appointees are highly dependent on the person who appointed them. This is not necessarily bad. Indeed, it might be considered the key democratic characteristic of this political body. But it is very important to keep in mind when assessing responsibility for the success or failure of this democratic body. (It is also important to keep in mind that the key district legislators the governor relied upon in choosing a particular nominee may never be publicly known because this information need not be disclosed.)
As is evident to everyone who observes politics closely, politicians have strong incentives to blame others for bad outcomes and take credit for good outcomes. The problem with political bodies that are ambiguously independent is that politicians may be able to play the blame game to the detriment of democratic accountability. All bad outcomes will be attributed to the independence of the political body whereas all good things will be attributed to themselves. The result is that the public is effectively disenfranchised. I would recommend that the public assume that, despite all appearances to the contrary, the political appointees have minimal practical independence.
Thus, the Nominating Commission has a confusing mix. The six political commissioners have minimal practical independence but the five interest group commissioners are in the opposite camp. This will make it very hard for the public to assess political accountability.
Another important observation regarding independence is that all five political commissioners appointed by the Governor are loyal Democrats. Unlike the public, most political scientists like partisan politics because choice of party is the prime characteristic the public uses for judging elected representatives in low profile offices such as state representative. Party labels are the branding system that makes the public politically relevant. By giving the Nominating Commission a clear partisan bias, Democrats will be in a position to claim credit for its successes and Republicans for its failures.
However, the public tends to disagree with political scientists' assessment that partisan politics is good for democracy. This is especially true for school politics, where the word "partisan" is as bad as a four letter word. So how did this happen? When the Commission was being set up, no one debated whether such partisan accountability would be desirable. I don't recall a single politician saying he wanted to shift Anne Arundel school board politics from a non-partisan to partisan system; indeed, it was one of the major arguments used against having elections for school board members.
Another twist is that partisan bodies usually have members of both parties. For example, the SEC, FTC, FEC, and FCC seek partisan balance among commissioners. Similarly, legislative committees include members of both parties. In this case, presumably, the interest group representatives will take on the role traditionally assumed by the minority party.
Another effect of the Commission's level of independence is whether it is fundamentally a negotiating or deliberative body. We can take it for granted that all commissioners will describe their views as deliberative in nature; as disinterested discussions motivated by a desire to find the common good. But to the extent commissioners are not in fact independent, their fundamental mode of operation will be bargaining on behalf of their external backers. Such bargaining will be kept out of sight because the commissioners know it is embarrassing. Still, the public can use the Commission's level of independence as a cue to likely hidden bargaining behavior.
Perhaps the key characteristic the public should look for is whether the governor appointed chair of the Commission acts according to majoritarian or consensus norms. In local education politics, as opposed to traditional party politics, there is strong pressure to act according to consensus norms. In traditional party politics, legislatures merely strive to get a majority to pass legislation. In consensus politics, a premium is placed on no overt public conflict and unanimous or near unanimous votes. As a practical matter (rarely publicly acknowledged), consensus results are usually achieved by giving minority interests veto power over the final recommendation. It may be presumed, then, that if the political appointees act as a block and the Commission strives hard to reach consensus, then one or a few interest group commissioners hold de facto veto power over the recommendations of the Nominating Commission.
I'm not saying that consensus politics is necessarily bad. Many European governments operate on such principles to avert civil war. (In contrast, most U.S. politicians go out of their way to hide evidence of non-majoritarian politics because they sense such politics is not popular; i.e., majoritarian.) What I am saying is that this is a very important attribute of the Nominating Commission that the public should be aware of. My guess is that future governors will largely evaluate the work of the Nominating Commission's chair by whether he can achieve consensus (because this is not an area where governors can be expected to welcome controversy). When the public is told that the Commission reached consensus based on the merits of an issue or candidate, it should react with a healthy skepticism: the result may have been obtained through antimajoritarian means.
Representation. There is no question that the Governor and other elected leaders went out of their way to make the Nominating Commission look representative of the public. According to what political scientists call "descriptive representation," this body is highly representative of the public by gender, race, and geography. Of the eleven members of the Commission, four are women and two are black. Each of the Governor's five political appointees must reside in one of the five legislative districts (although it should be noted that one of the five districts is only partly located in Anne Arundel County, and these district boundaries are subject to change with each census, taken every ten years). Overall, the Commission members appear to hail from representatives geographic areas within the County.
Similarly, the Nominating Commission features stakeholder representation, with designated represenatives from the parent, business, teacher, administrator, and community college communities. The Community College is an important stakholder because a large fraction of its students come from the County's K12 public school system.
Neither descriptive representation nor stakeholder representation assures democratic representation. They may be indicators of it but, at best, they are highly imperfect indicators.
It may be instructive here to contrast the representation of the new Nominating Commission with the old Nominatnig Convention. The vast majority of the members of the Nominating Commission were citizens with kids currently enrolled in the Anne Arundel County public school system. Much of the balance had been attending the Nominating Convention for years and continued to attend even after their kids graduated. Most members of the Nominating Convention had participated in local citizen advisory committees or otherwise had established reputations in their communities as parental representatives.
I am only aware of a single member of the Nominating Commission who has kids currently enrolled in the Anne Arundel County Public School system. In the member introductions at the iniital organizing event, a number of mumbers highlighted that they formerly had kids in the school system or expected to in the future, but only one said she currently does (and she is not known as a parental activist).
This marks a radical departure from the type of parental representation traditionally found in the school board nominating convention. The Chair of the Nominating Commission proudly noted that he had three kids--ages 5, 2, and 9 months--and that his wife thought this would be a good opportunity for him to learn about and shape the school system.
On the other hand, the Commission members excel in educational experience within the Anne Arundel County school system. In addition to the experience represented by the teacher and administrator interest groups, two members claimed a combined total of 68 years teaching within Anne Arundel County school system. Adding the close relatives of other Commission members, the total experience level would probably rise to over 150 years.
This is an extraordinary amount of direct experience in Anne Arundel County public schools for a body of this size. It clearly suggests a huge level of expertise. But that expertise is not a substitute for direct parental experience. It therefore marks a great departure from the tradition of the Nominating Convention, where those without any direct or indirect work experience in the county schools overwhelmingly predominated.
Transparency. In the modern, developed world, all leaders, whether they are in generally recognized democracies or autocracies, make some effort to claim the mantle of democratic legitimacy. All the other major modes of claiming government legitimacy have been discredited. In practice, our leaders often find democratic procedures very inconvenient and unwelcome, but these reservations are rarely publicly stated.
A key democratic norm is transparency. If the public lacks the information to hold its representatives to account, then democracy becomes meaningless. The legislation creating the School Board Nominating Commission is almost wholly silent on issues of due process in general and transparency in particular. The legislation stipulates that the Commission will hold two public hearings, but that is about it. It doesn't stipulate what it has to discuss at those hearings or what it cannot discuss in private. Apparently, as a public body appointed by the legislature, the School Board Nominating Commission is subject to Maryland's open meeting, records, and ethics laws. But these laws represent minimal standards of openness (moreover, since they are rarely enforced and incur minimal penalties when enforced, public bodies routinely ignore them when it is convenient for them to do so).
For example, the School Board Nominating Convention publicized the date of its key hearings months before they took place. This included a significant information outreach program to the community. The Convention also established that the interactions between its members and the candidates would be public. Deliberations about changing the bylaws were also public. In contrast, the School Board Nominating Commission publicized its first meeting one day before the meeting (a small blurb in the Capital was deemed to be adequate notice to satisfy the Open Meeting Law) and ruled that its discussions about how to operate (and to what extent it would copy the public deliberative features of the Nominating Convention) would be discussed in secret ("executive session") on the evening of January 23.
During the organizing meeting, all the Commission members who spoke up about the openness issue claimed that it was of great importance to them and they would seek to do everything important in open and comply with all the relevant laws. These pronouncements are surely to be applauded. But given the track record of at least some of the Commission members, the public should keep its attention narrowly focused on verifiable commitments manifested in actions taken.
Even during this specific meeting, there was a discrepancy between the stated general commitment to openness and the specific actions taken. For example, the Chair did not hand out an agenda to members of the public and set no time aside for public comments. He did accept unsoliciated questions from the public near the end of the meeting. But he did so with a noticeable frown and pointedly reminded the audience that the first meeting of the Commission was merely organizational in nature. But if the Commission members could ask procedural issues, why couldn't the public, too? And why would an organizational meeting necessarily preclude asking questions about the actual procedures of the Commission and the means by which the Commision would create those procedures?
As the meeting appeared near its end, I raised my hand and asked a few questions about the proposed bylaws, to which I got no answers. Would the Commission make the candidate interviews public? Would it include the candidate interviews in the two public hearings? Would it use the County's multi-million dollar government access TV network to televise the proceedings? The commissioners then arranged to discuss these issues in executive session at an undisclosed location.
When I told the Commission how difficult it was for me to find out about their first meeting and asked to be put on an email list for future meetings, I got blank stares and one comment that the folks on the Commission were working pro bono and this would be an unreasonable burden placed on the Commission. In mid-December, four weeks after the Governor set up the Commission, I had called the Governor's appointments secretary to ask when the first meeting would be held. She said she didn't know and would contact the Commission Chair and get back to me in a week. Not having heard back from her, in early January I called her again. She said she had had no response but would try the Chair again and hopefully one of them would get back to me within a week. She also asked me out of curiousity if I intended to run for one of the open school board seats (to which I answered "no"). Then, almost two weeks later, without having received any response from the Governor's aide or the Commission's Chair, my wife pointed out to me a blurb in the Capital for a meeting the following day. Unfortunately, the day of the meeting was also the day of the big snow storm that led to the early cancellation of school and the cancellation of many other meetings. In the end, I decided to brave the weather and risk showing up at a cancelled meeting because I had no reliable way of otherwise finding out if the meeting had been cancelled. No wonder that only one other member of the public—other than the Capital reporter and Chief of Staff for Speaker Mike Busch--showed up at this ostensibly "public" meeting.
Key Issues Ahead
I see my contribution to this process as providing the critical analytical perspective of a political scientist—someone who can apply basic principles of democratic theory to this particular problem of electoral design. If I had my druthers, the County's system of school governance would either be based on municipal (county) executive appointment (as recently instituted in Washington, DC) or a citizens assembly school board member appointment process (which would be a variation on the current nominating convention process; see elsewhere in this blog for the details). But at this late stage, those are not practical recommendations. Needed now are proposals to fine tune the present process. The Commission has a very tight timeline to get its recommendations to the Governor by May 1 or earlier. Tim Mennuti, president of the Anne Arundel County teachers' union, stated it eloquently when he observed: "We're sailing this ship while we're building it." Meanwhile, the Commission's Chair has submitted a number of procedural questions to Maryland's Attorney General and is awaiting a response.
A surprising development is that the Chair appears quite concerned that the School Board Nominating Convention, which never had a statutory basis and whose recommendations were purely advisory, could be a competitor to the School Board Nominating Commission. I had simply assumed that the School Board Nominating Convention was dead and gone and could not be a threat to anybody.
At the end of the meeting, the Chair requested that the bylaws of the Nominating Convention be copied and distributed to the Commission members for discussion at the secret meeting on January 23. Those bylaws have some excellent precedents I hope the Commission will adopt.
I would strongly encourage the CACs and other members of the public to ask that language be included in the Nominating Commission's bylaws requiring:
1) that all interviews with candidates for the school board be made public,
2) that the dates, time, and place of such meetings be made public at least a month in advance,
3) that making a meeting public includes not just a blurb in the Capital but an email to the head of every public school citizens advisory committee in the County and every member of the County who signs up to receive such emails,
4) that public Commission meetings be televised on the County's new multimillion dollar government and public access TV channels and video web server,
5 ) that Commission meetings to discuss its bylaws and procedures be made public,
6) that the Commission create and post on its website a statement of principles explaining in some detail the qualifications it is looking for in a school board nominee (the statement "we are looking for the best qualified individual" is wholly inadequate; the type of clear statement of principles judicial nominating committees issue can be used as a model),
7) that the Commission state whether it intends to operate according to majoritarian or consensus principles,
8) that the Commission commit to taking public, recorded roll call votes on all its votes held in a public meetings,
9) that the Commission will post all its public proceedings, including its minutes and roll call votes, on its public website within one week of a public meeting and that these documents will be stored in perpetuity,
10) that the Commission website include brief biographies of all Commission members including basic factual information, such as what legislative district each political commissioner represents, and what they believe are their credentials for serving on the Board (the one sentence description provided by the Governor's office was inadequate for this purpose).
Commission members will say that such detail is unnecessary. Experience with such bodies, however, demonstrates that such written rules are necessary. The well established pattern of such bodies is to do the minimal amount legally necessary whenever they face a controversial issue—exactly the type of issue that is usually most important for the public to learn about.
Over the next few weeks, I'd encourage CAC members and other parent activists to email Joshua Greene, Chair of the Nominating Commission, to let him know that you think it's important that he follow through on his stated commitment to openness. In particular, Joshua Greene should commit to passing bylaws only after holding at least one and preferably two well-publicized hearings to get public feedback. Notice and a link to the text of the proposed bylaws should be sent out at least a week in advance. In addition, the text of the proposed bylaws should be posted on the Commission's website at least 72 hours before any vote on them is made. In addition to emailing Joshua Greene, parent activists should cc: their Maryland House of Delegates representative, their Maryland Senate representative, and their County Councilor. Contact information for your state reps can be found here: http://mdelect.net/electedofficials . Contact information for your county councillor can be found here: http://www.aacounty.org/CountyCouncil/index.cfm . Joshua Greene's email address is: email@example.com.
Note that the political commissioners were probably all appointed based upon the advice and consent of the legislators in the districts from which they come, so the political commissioners will be especially responsive to whichever legislator was their sponsor. Note also that Joshua Greene has contributed $4,000 to a bipartisan cast of county councillors over the last legislative cycle.
Don't accept any excuses that the Commission is under a very tight schedule and doesn't have the time to engage in standard democratic due process. These issues are too important to be glossed over. There is still plenty of time left to allow for meaningful public input in the development of the Commission's procedures. Remember, too, that the Commission members have already had three months since they knew they would be taking on this responsibility (the actual announcement was November 6--eleven weeks ago).
A Call for a More Healthy Style of Democratic Deliberation
Where have we seen this pattern before? Consider, most recently, the attitudes toward former Superintendent Eric Smith. When he came in, our elites took him at face value. They treated him like a godsend. Anyone who dared to publicly criticize his actions during his first few years was treated as a mean spirited, evil egotist. Then, after only three years in office, the tides turned. Now, no one could be found to publicly defend Eric Smith and anyone who dared raise his voice in support of the superintendent was treated as evil incarnate. With Smith gone and now head of the State of Florida's educational system (with a budget more than twenty times the size of Anne Arundel County), the history of people's actions is now once again being rewritten.
Perhaps the most important reason for encouraging alternative points of view is the incredible sloppiness of our politicians and media when alternative viewpoints aren't forced upon them. The incentives for today's politicians are to spend their time raising money, running for office, attending community events, and projecting a certain type of public spirited persona. Paying attention to the details of bills doesn't fit in that job description. The local media are often even more sloppy; I'd be shocked, for example, if the Capital's editorial board even read the bill (even though the entire bill can fit on a single page). Recall the electric utility deregulation fiasco. Who was minding the store and paying attention to the details of the legislation when it mattered? Did any politicians pay a political price? Has the Capital lost any subscription or ad revenue? Unless the public demands more from its political elites in designing a democratically accountable school governance system, I believe the results we'll see five or ten years out will not be all that different from what that carelessly drafted electric utility bill got us.
Perhaps the most remarkable feature of the School Board Nominating Commission is not that, of the more than 14,000 school boards in the United States, it is unique in the way it selects a school board. It is the way that such a striking and important policy innovation was never subject to public deliberation. This is remarkable because the legislature spent more than a decade deliberating over how to replace the current nominating process and held multiple hearings to that effect. But this particular and unprecedented method of selecting school board members was never discussed in public with anything more than soundbite quips. Those with reservations about the particulars of this innovation were not granted a hearing but shunned. Ridicule, rather than reasoned argument, was the response to concerns voiced by the public.
I hope that that culture of ridicule will not now be insensibly passed on to the Nominating Commission. The members of the Nominating Commission avowed lofty democratic principles at their first meeting. The question now, as they make critical decisions over the coming weeks affecting our children's education, is whether those words will be translated into deeds. Too often in the past there has been a great chasm between the democratic rhetoric and deeds of our education leaders. Let's try to create a school board nominating process that will reveal the hypocrits and reward those who act as the true representatives of the parents and kids.