Wednesday, July 29, 2009

SBNC Update: Leahy and Pruski Nominated

On the evenings of July 28 and July 29, the Anne Arundel School Board Nominating Commission (SBNC) met to seek a replacement for the seat vacated by former school board member Tricia Johnson. On July 14, the SBNC announced it would hold hearings to seek a replacement and announced a deadline eight days later, July 22, for candidates to submit their applications. Four candidates submitted applications. Three of them—Michael Leahy, Andrew Pruski, and Paul Rudolph—resubmitted applications they had submitted during the last SBNC application cycle. A fourth candidate—Janet Pogar—was new. On July 29, the SBNC voted to nominate to the Governor Michael Leahy and Andrew Pruski. Both won by a vote of 9-1. Eight votes are necessary to secure nomination. Commissioner Wayson, the eleventh commissioner, could not attend the meeting. Commissioner Kovelant also couldn’t attend but provided the SBNC Chair with his votes in a sealed envelope, which the Chair of the SBNC duly read and recorded at the appropriate time.

The format of the meeting on July 28 was that the SBNC discussed its procedures and then the candidates gave opening statements and the commissioners could then ask questions of them. The most important procedural question concerned clarifying the status of incumbent school board members. The question was: under the statute creating the SBNC, did incumbents have to go through the SBNC process to seek re-election? The feeling was that the Maryland Attorney General had already issued an affirmative opinion. But just to be sure that there was no ambiguity, the SBNC asked its counsel to draft a letter to the Maryland Attorney General seeking more explicit confirmation of this reading of the statute.

The most time consuming procedural issue concerned Commissioner Kovelant’s request to postpone the SBNC’s July 29 vote on candidates for a week so he could go back to his 300 stakeholders, present his impressions of the candidates, and get their feedback (Commissioner Kovelant represents the Anne Arundel County Association of Educational Leaders and said he felt obligated to do this). The SBNC tried hard to accommodate a delay but too many commissioners would be on vacation or otherwise busy, so it was decided to retain the original schedule.

I was intrigued by Commissioner Kovelant’s sense of obligation because judicial nominating commissions, which the SBNC was supposedly modeled after, generally specify that commissioners are to be independent; for example, lawyers appointed to serve as commissioners by the local bar association are nevertheless expected to act independently once appointed. This is central to the philosophy of “merit selection,” which underlies the use of judicial nominating commissions; the goal is to take politics out of the nominating process. My reading of the statute creating the SBNC actually corresponds to Commissioner Kovelant’s interpretation: that he has a duty to represent those who appointed him.

The candidates’ opening statements were remarkably brief, less than fifteen minutes in total, mostly because three of them had already gone through the process just months before and didn’t think an extended introduction was necessary. The commissioners’ comments were overwhelmingly directed to Janet Pogar, the only new candidate. At the end of the meeting, I raised my hand to ask a point of information and was told by the SBNC Chair that members of the public could not speak.

Before the July 29 meeting, I asked Elisabeth Hulette (the Capital reporter) and Tom Frank (an activist citizen) if they could recall an SBNC meeting where the public had been invited to comment and ask questions not about candidates or the desired attributes of candidates but about the SBNC process. Elisabeth Hulette has been to most of the meetings since the launch of the SBNC in 2007. Other than myself, Tom Frank has attended more meetings than any other member of the general public. Neither could recall such a meeting. As a result, Tom Frank went up to the Chair of the SBNC and requested open public comments at the end of the meeting. The Chair agreed to allow such comments.

The format of the meeting on July 29 provided an opportunity for members of the public to speak about the candidates. Five individuals spoke. Four individuals spoke in favor of Andrew Pruski. A fifth represented an organization that would not allow him to explicitly endorse a candidate. But he also seemed to be endorsing Andrew Pruski. None of the other candidates had people speak on their behalf. After this fairly brief testimony, the SBNC conducted a roll call vote on each of the four candidates. If my memory serves me correctly, those voting yeah and nay for Michael Leahy and Andrew Pruski had no change of votes between their last vote in May and this vote in July. I believe that Commissioner Mennuti was unique in voting yeah for all four candidates.

At the end of the meeting, I was the only member of the public to speak. I mentioned that neither Elisabeth Hulette, Tom Frank, nor myself could recall a meeting where the public had been invited to discuss procedural issues (as opposed to candidate related issues) and asked if the Chair could recall such a meeting. No such meeting was recalled.

I then recounted Commissioner Kovelant’s statement of the previous evening and asked the Chair whether he viewed the Governor or the citizens of District 33 (which he represents and of which I am one) as his stakeholder(s). He replied the citizens of District 33 and that he did indeed consult some of them.

I then asked Commissioner Owens, who represents the Anne Arundel County Association of PTAs, whether she consulted her members. She replied that it was impractical during the summer to do so and reminded me that my kids have attended schools that have PTOs, whose members she does not represent.

Lastly, I asked the Chair of the SBNC whether he retained copies of the legally required email or print notices he sent providing notice of SBNC meetings. By way of explanation, I noted that last year and this year I had filed complaints with Maryland’s Open Meetings Compliance Board concerning the absence of such notice (as well as other violations of Maryland’s right-to-know laws). Concerning the first complaint, the SBNC alleged it had sent legally timely notice to the Capital. However, the Capital was not able to find such notice and the Chair of the SBNC also could not provide it. The Open Meetings Compliance Board ruled that it couldn’t rule on my alleged violation because I did not provide definitive evidence of the lack of such notice.

On May 12, 2009, I filed the second complaint with the Compliance Board concerning lack of legally timely notice to another meeting. In a response to the Compliance Board in late June, the SBNC Chair again asserted that such timely notice had been sent. But again, no written proof was provided.

In response to my question, the SBNC Chair said the SBNC had no records retention policy and was not legally obliged to have one. Commissioner Tedesco observed that the Maryland Open Meetings Act places the burden of proof on citizens to prove a violation rather than on a public body to prove a violation had not occurred. To this I replied that the Open Meetings Act does not specify who shall bear the burden of proof. As a result, the Open Meetings Compliance Board makes such determinations on an informal, ad hoc basis. I also observed that if this interpretation of the law was correct, it indicated an incredible double standard. If a citizen asserted to the government that his tax form had been duly sent to the IRS but could provide no proof of mailing via the United States Postal Service, the government would dismiss this defense out-of-hand. More generally, the government places the burden of proof on citizens to prove that they filed legally required documents in a timely way. Why should a different standard apply to a public body such as the SBNC (which includes professional legal counsel and a distinguished panel of experts and government officials)?

I didn’t say this at the meeting, but I’ve said it many times elsewhere: I believe the SBNC serves a very important function. The person it nominates has a high probability of serving two terms of office and voting on more than $10 billion of AACPS expenditures during that tenure. If I as a citizen can preserve my own emails more than 30 days old (my gmail service is free and includes all my emails going back about a decade), why cannot the SBNC?

--Jim Snider

P.S. I filed my Maryland Open Meetings Act complaint on May 12, 2009. The SBNC took more than the legally specified 30 days to reply to it and now the Maryland Open Meetings Compliance Board says it is overwhelmed with work and thus wasn’t able to meet its own legally specified 30 day deadline. Nor, given its claimed crush of work, would it tell me when it would be able to get to it.

Tuesday, July 14, 2009

School Board Nominating Commission Update

As you probably know by now, school board member Tricia Johnson has been appointed to the County Council, thus opening up a seat on the school board for a 4 year term. The School Board Nominating Commission (SBNC) has announced in a press release that it will accept applications until July 22 (eight days from its announcement) and hold a single meeting on July 28 to interview candidates. The vote to select the candidates will take place the following day, July 29. No mention is made whether the July 28 meeting will be televised.

This is a tremendously truncated version of the selection process the SBNC used during its first two rounds of operation. The justification for this compression is the immediate need to fill a vacant seat. But why the rush? Even without the replacement for this at-large seat, the school board will have 8 members—the full size of the school board for many decades until its July 1, 2008 enlargement to 9 members.

My judgment is that selecting a school board member in such a rushed manner sets a bad precedent. Whoever is selected will have control of a $1 billion/year budget for four years—as long a term as a governor, county executive, county councilor, or delegate to the General Assembly. It’s too important a position to needlessly rush.

On the other hand, vacancies for other important offices have been picked relatively quickly. Consider the recent selections of Maryland senator and county councilor in Anne Arundel County. From Senator Janet Greenip’s retirement announcement to Councilman Ed Reilly’s selection as a replacement took only a few months; and from Councilman Reilly’s resignation to School Board member Tricia Johnson’s selection as a replacement took only a bit less time.

But there are four noteworthy differences. First, those officials represented geographic constituencies who would lose representation and thus valuable resources if they weren’t quickly replaced. In contrast, school board members are expected to represent the interests of all children regardless of geographic location.

Second, it may be impractical to hold a special election, thus necessitating that an appointment process be used; appointment processes by their nature are almost always faster than special elections. In contrast, no special process is required of the SBNC when a vacancy opens up; indeed, the law mandates that its basic nominating process be the same regardless of whether or not it is filling a vacancy.

Third, the viable candidates for those offices are typically well known by both the public and those who will do the selecting. Thus, there is relatively little information to gather. For example, Ed Reilly was County Council Chair and Tricia Johnson a long time school board member before being selected for their new positions. In contrast, school board candidates are typically less well known, so more public deliberation is necessary, unless the intent is to give insiders an advantage.

Fourth, those who do the selecting are usually elected officials themselves and thus directly accountable for their actions. In contrast, there is much less public accountability for SBNC officials. One reason for the SBNC to have a more deliberative selection process is so that the public has a chance to observe it and assess the extent to which it is functioning as its representative.

Nevertheless, my overall sense is that the rush won’t make much difference; the same set of candidates would probably win either way.

--Jim Snider

P.S. Maryland’s Open Meetings Compliance Board has yet to respond to my May 12, 2009 complaint concerning the SBNC’s violations of Maryland’s right-to-know laws. The SBNC responded on Jun 29—ten days later than required by law. Last year the Open Meetings Compliance Board ruled against the SBNC on a related matter.

For related articles in the Capital, see:

Eric Hartley: Musical chairs leaves out voters,
July 16, 2009

Panel to decide how to fill school board vacancy, July 16, 2009.