Sunday, January 25, 2009

School Board Nominating Commission (SBNC) Update

The School Board Nominating Commission of Anne Arundel County will hold field hearings “to solicit the public's opinion on education issues facing their specific district, the Commission's process and procedures, and qualities necessary for a successful Board of Education candidate.” Hearings will be held in each of the five legislative districts represented on the SBNC. The field hearing for District 30, the first in the sequence, will be held on January 28, 2009 at 7pm at Annapolis High School.

Below I suggest eleven questions you might want to ask the SBNC commissioners. Remember that AACPS is a billion dollar organization with almost half as many employees (about 10,000) as a Fortune 500 company like Google (about 22,000 last I checked) and representing a district (about 500,000 citizens) as large as some U.S. states. Therefore, it’s reasonable to expect a high standard of democratic accountability.

1) The traditional ethic was that school board members represented all the kids in Anne Arundel County, not just those in their own district. This was reflected, for example, in the School Board Nominating Convention, where candidates spoke to the interests of the entire County. During the candidate public hearings last May, it was clear that at least several of the SBNC commissioners presented themselves as champions of their own district’s interests. The structure of the public hearings also reflects a focus on district interests. Yet the retention vote is countywide, not districtwide, and there has been a lot of rhetoric about not representing particularistic interests and representing all the kids in the County, with the example being set by the SNBC chair who nevertheless represents a particular district. Do the representatives of the five legislative districts see themselves as champions of their district interests (like most representatives) or the interests of all the kids?

2) Do the representatives of the five private interest groups see themselves as champions of those interests or the public’s interest? Presumably they will all say they see no conflict between their group’s and the public’s interest. If so, it is good democratic practice for them to make this claim and their reasons for making it on the public record.

3) It is also good democratic practice that representatives should provide public reasons for their actions. Will the SBNC members each commit to explaining on the public record why they voted for a particular candidate?

4) The members of the SBNC and members of the public appear to have a conflict of interest in recruiting school board candidates. The SBNC has demonstrated that it wants as many people as possible to apply for the school board, even if some of those candidates have no chance of being selected. Last year, for example, the SBNC was very proud when some 24 people applied as candidates (most soon dropped out when they discovered they had no chance of winning). Candidates, in contrast, don’t want to apply if they have no chance of winning. Will the SBNC as a whole and SBNC members in particular clearly state on the public record, and update each electoral cycle, what criteria they are looking for in school board members? One can assume, for example, that the SBNC looks for a mix of school board members by gender, ethnicity, and geography. Why not publicly state this? Judicial nominating commissions, for example, often have a clear and readily accessible public statement of the credentials they are looking for in a successful candidate.

5) Will the SBNC members representing legislative districts publicly disclose their relationship with the legislators in their district, including any financial transactions and campaign services provided?

6) Will all SBNC members commit to include in their public biographies the credentials that they believe make them qualified to serve as the public’s representatives on the SBNC? (Currently, some provide biographical credentials, albeit mostly shorter than they should be, while others do not.)

7) Will all SBNC members commit to publicly disclose any financial relationship they or their extended family have with the Anne Arundel County Public School Systems? This should include both current and retirement compensation.

8) Will the SBNC commit to treating its website as a public record (rather than a PR vehicle) with all the document integrity therein implied? Moreover, will it commit to posting all public documents at the same time that insiders on the SBNC get access to them? (This is a basic reference point used to judge the democratic quality of public record systems.)

9) Will the SBNC members commit to disclosing private meals and meetings with the candidates even if those meetings are not conducted as part of the officials business of the SBNC? Will the SBNC members take steps, such as the creation of ex parte disclosure rules, to discourage candidates’ private lobbying of the commissioners?

10) What type of questions should SBNC members ask of candidates during the public hearings and which commissioners should ask them? Some commissioners who were very talkative during the Commission’s private meetings asked no questions during the public candidate interviews last year. Very few of the commissioners who did speak asked candidates follow-up questions seeking proof of the candidate’s key claims about their credentials to serve on the school board. Such follow-up questions are standard practice in Congressional nomination hearings. Their absence at the SBNC hearings was striking.

11) Does the SBNC intend to make the public record of these district hearings public? Will that record be posted on the SBNC’s website? Will the SBNC place the public’s written statements in the public record and post them online?

Saturday, January 24, 2009

Follow-up: Is the School Board Nominating Commission (SBNC) illegal?

[Note: On January 24, 2009 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:

On October 21, 2008 I sent you an e-mail presenting arguments why the School Board Nominating Commission (SBNC) may violate the law of democracy. Five Anne Arundel County delegates replied to my e-mail and two queried the Maryland Attorney General’s Office for a legal opinion. On January 8, 2009 that legal opinion, written by Sandra Brantley, Assistant Attorney General, was sent to one of the delegates, who in turn passed it on to me. Some of you may be interested in my take on that opinion.

On the surface, Ms. Brantley appears to argue that there is no merit to my concern about the SBNC’s legal status. A careful reading, however, suggests that she has significant doubts about her own case.

As a caveat, let me state upfront that I am not a lawyer and claim no authoritative legal expertise. My training is as a political scientist with a decent knowledge of democratic theory. Of course, there is often a wide chasm between commonly accepted norms of democratic theory and practice. Just think of the long history of slavery and civil rights abuses in the United States. Nevertheless, there is a strain of law beginning in the 1960s that has tried to reduce the previous chasm between democratic theory and law concerning the democratic principle of one-person, one-vote. That is the strain of law I believe is relevant in this case.

Here are some points worth noting about Ms. Brantley’s legal reply:

1) Prior to passage of the law creating the School Board Nominating Commission the Attorney General’s office gave the same opinion. This potentially creates a conflict of interest because to change the opinion now would be to admit a mistake. I cannot conceive what the Attorney General’s office, and especially the attorney who has been responsible for giving these opinions, would gain by admitting a mistake. I would also like to note that Ms. Brantley has represented the SBNC as her legal client. For example, when I previously sought to get some information from Ms. Brantley concerning a legal opinion she gave the SBNC, she replied that the correspondence was protected by the client-attorney privilege. As an analogy, a certain citizens group filed a complaint with the AACPS attorney arguing that AACPS was violating Maryland’s COMAR regulations (AACPS was illegally trying to increase the amount of time and resources devoted to tested subjects at the expense of untested subjects). The attorney replied that the citizens group’s argument had no legal merit. But when the citizens group later filed the same complaint with the Maryland State Board of Education, it won with a unanimous decision. The point is that attorneys in this type of situation have a clear conflict of interest.

2) Ms. Brantley’s legal strategy appears to be to change the subject rather than address the specific issues raised in the cases I cite. For example, it is irrelevant what Maryland statutory law may or may not be when Constitutional law is at issue. Similarly, the cases she cites, including Commission on Medical Discipline v. Stillman, McCurdy v. Jessup, and African-American Voting Rights Legal Defense Fund v. Missouri are irrelevant to the issues I raised because the law of democracy
treats general elections such as for school board and town council very differently than for judicial appointments and highly specialized elections such as Board of Medical Examiners. As an aside, I caution that in the general debate over the SBNC the analogy to Maryland’s judicial nominating process has been grossly abused. The Judicial Nominating Commission is created by executive order, not statute, and the Governor has the right to ignore its recommendations if he so chooses.

3) Although Ms. Brantley ostensibly is attempting to refute my arguments, a careful reading of the actual substance of her argument suggests otherwise. This is because she attempts to shift the focus of attention away from the legality of the SBNC to the legality of the retention vote. Her argument seems to be that the legality of the SBNC doesn’t matter as long as the retention vote follows one-person, one-vote. I do not dispute that the retention vote conforms to the principle of one-person, one-vote (although it may be offensive in terms of other democratic norms such as competitive elections). However, Ms. Brantley overlooks two facts that would undermine her argument. First, the retention vote comes AFTER the school board members appointed by the SBNC have already taken public office. Thus, the legal status of the retention vote is irrelevant to the legal status of the SBNC. Second, the law grants the SBNC a de facto veto power over the decisions of the voters in the retention vote. This is because the SBNC is under no obligation to choose a replacement in a timely matter; indeed, it could refuse to appoint a replacement until the term of the sitting school board members was over. The timing of seeking a replacement is left completely to the discretion of the SBNC.

In conclusion, I do not believe the Attorney General’s Office has made a compelling case for the SBNC’s legality. It’s quite possible that such an argument could yet be made. My point is only that it has yet to be made.

Note that whether you prefer an elected school board, an appointed school board, or any other public school governance system should be irrelevant to this case. The question is only whether the SBNC violates the law in addition to the democratic norm of one-person, one-vote.

Thank you for your interest in this matter.

--Jim Snider, Editor (Version 2.0 will be available in early February)

P.S. I’d also encourage you to investigate the SBNC’s persistent violations of both the spirit and letter of Maryland’s right-to-know laws. Unfortunately, these laws are as unenforceable as the nanny tax and as obsolete as the Model T, so the games practiced by the SBNC illustrate that they are badly in need of reform. During his first day on the job, President Obama declared: “Transparency and the rule of law will be the touchstones of this presidency.” This is hardly a controversial statement of values, but it would still be a good touchstone for the Anne Arundel County delegation to keep in mind when considering SBNC reforms.

Tuesday, January 6, 2009

SBNC and BOE TV Updates


On January 12, 2009 at 7:00 pm, the School Board Nominating Commission (SBNC) will hold its third meeting of the coming appointment cycle for the AACPS Board of Education. The SBNC uses these low profile hearings to discuss critical procedural issues.

At the SBNC’s last meeting, it tentatively decided to decide what its nomination rules would be after candidates had submitted their applications. The specific rule concerned whether those who had been nominated during the previous round of nominations would have their names automatically forwarded to the Governor during the current round of nominations. I think there are good arguments that can be made for and against this particular type of multi-nomination system. But I cannot think of a single reason, consistent with widely accepted democratic norms, for allowing the SBNC to make this decision after it sees the pool of applicants. This is like changing the electoral rules after an election—a practice frequently done in political systems characterized as “electoral authoritarism” (many countries, such as Russia and Venezuela, have heads-I-win, tales-you-lose elections) and universally condemned by democratic theorists.

At the SBNC’s first meeting, it was suggested that the public hearings be conducted at schools scattered across the County. The tradeoff proposed was no TV coverage of the hearings in return for getting a larger and more diverse face-to-face audience. Although no final decision was made, it was striking that no one mentioned that such a tradeoff was unnecessary. The County has spent millions of dollars connecting every high school and middle school—and many libraries and elementary schools—to a gigabit Ethernet network. Internet feeds from this network, in turn, can be automatically fed into the public access TV channels (this, for example, is how the Anne Arundel Community College does it). Moreover, the SBNC’s discussion of this matter revealed no recognition of the importance, from the standpoint of democratic accountability, of having a high fidelity, easily accessible record of the candidate hearings. Currently, candidates can promise to the SBNC whatever sounds politically expedient at the moment, and there is virtually no public accountability because there is no readily accessible public record of their promises. Similarly, the SBNC commissioners can utterly fail during the Question & Answer period to do their due diligence—that is, failing to ask the most obvious follow-up questions—and know that they face no consequences for such behavior. The purpose of a public record, then, is to try to keep both the candidates and SBNC commissioners reasonably honest. At the SBNC’s second meeting (I was the only member of the public to speak at either the first or second meeting), I did try to make these points, especially about the technical feasibility of televising meetings outside Riva Road. But I wouldn’t count on my arguments making much of an impression.

In general, I would encourage all prospective candidates for the AACPS Board of Education to attend at least one of these preliminary hearings. So far, three have done so, and I think for good reason.

Board of Education TV Update

The completion of the Board of Education TV system has been postponed—once again. But the current expected completion date, January 20, 2009, is likely to be met. Too bad it comes a week after the public budget hearings—the most popular type of televised hearing in most school systems.

I wish people could have seen the October 2007 Board of Education public meeting that discussed and voted upon the proposed Board of Education TV system. It was held during the work day, and I counted only four members of the public in attendance, including myself and the Capital reporter. In light of subsequent events, these are the points that such a record could have revealed:

1) The false promises of the AACPS staff, including the 400% cost overrun, unmet completion deadlines, and inaccurate claims of urgency (the excuse used for rushing the TV proposal to a School Board vote without prior public discussion).

2) The failure of the School Board to do meaningful oversight, including due diligence before, during, and, as it turns out, after the hearing.

3) The failure of anyone to be held accountable for the above.

You can bet that the when the TV system is complete it will generate a self-congratulatory press release--one that will probably be run next to verbatim in the Capital.