SBNC Update: Review of the SBNC's first meeting preparing for the 2010 electoral cycle

On Monday, January 25 the SBNC met.  Eight of the eleven SBNC commissioners showed up as well as six audience members, including myself, the Capital reporter, a school board member, and two potential candidates. 

The first order of business was to approve the minutes from the last SBNC meeting on July 29, 2009. 

Two board seats are open.  One for district 30 and one for district 31.

Both school board incumbents have the ability to run for another term.  The SBNC chair was told that Enrique Melendez (district 30) has decided not to run for a second term but Edward (“Ned”) Carey (district 31) has not made clear whether he will run for a third term.   As a general rule, school board members can only serve two terms.  But Carey was appointed as a result of the death of a school board member, so he is eligible for a third term.  Carey is expected to run for a seat in the Maryland legislature this fall.

A third school board member, Victor Bernson (district 33), has also indicated he is considering running for a seat in the Maryland legislature this fall.  But there has been no reason to expect that, even if he does, he would resign his school board seat in time for the SBNC to nominate replacements prior to the launch of the next school board on July 1, 2010.   

One of the major topics of discussion was the Maryland Attorney General’s January 21, 2010 set of opinions on the laws the SBNC must follow.  The law creating the SBNC was very vague, so the Maryland Attorney General (AG) has routinely been called on to provide guidance.  Another set of opinions on additional issues may also be issued before this round of nominations is complete.

One opinion concerned whether Andrew Pruski (an at-large school board member) would be subject to a retention vote.  He replaced Tricia Johnson, who left in the middle of her term to serve on the Anne Arundel County Council.  The AG ruled that Pruski does indeed have to go before the voters for a retention vote in the November elections.

Also clarified was that retention votes will take place every two years, during both federal and state elections.  The law creating the SBNC was not clear on this and some thought that the retention votes would only take place during state elections every four years.

This suggests that there may be as many as four school board retention votes this November, two for the two school board members selected last year, and two for the two school board members who will be selected this year.

The AG also ruled that Pruski was eligible to serve a third term starting in 2018 because his first term was a partial term.  The law creating the SBNC was unclear on this point.  It is now clear that if one wants to understand the law creating the SBNC one must consult related laws, such as the laws in Maryland concerning appointed school board members in other counties. 

The AG also ruled that incumbent school board members don’t have to go through the SBNC nominating process to have their names forwarded to the governor; all incumbents eligible for an additional term will have their names forwarded to the governor.  Until now, this interpretation of the law wasn’t clear, which is why Michael Leahy last year was forced to go through the nominating process.  Under this interpretation of the law, one wonders what would have happened if the SBNC had not nominated Leahy.  Since it did nominate Leahy, thus giving the governor an opportunity to select him, this is a moot point.

There is some awkwardness for the SBNC associated with this ruling.  If incumbents don’t subject themselves to the SBNC nominating process, the SBNC does not have a basis to compare the incumbents with other candidates.  The power of the SBNC is also undermined.

One of the most substantial discussions was how to do outreach to both recruit potential school board candidates and seek public feedback on the attributes sought in a school board member.   The SBNC has no budget and must largely defer to others for outreach.  It was suggested that the school board and AACPS communications (“PR”) office be solicited for help.  One commissioner expressed concern that approaching school officials would represent a conflict of interest.  Another commissioner suggested that Ms. Finney at Riva Road had a great rolodex and that she should be consulted.  The same commissioner then added that representatives from the two political parties should also be consulted.

The plan proposed was to hold public field hearings in districts 30 and 31, the two districts that have school board seats open.  It was decided that Commissioner Wayson, who was not present, would be consulted for public outreach in District 30, his district, and that Commissioner Davenport, who was present, would be consulted for public outreach in district 31.  There was also a question about whether outreach would be necessary in Ned Carey’s district, if he did indeed decide to run for another term.

One of the most interesting questions not discussed was whether school board members and commissioners should represent their own districts or the interests of all students in Anne Arundel County.  Traditionally, school board members have said they represent the interests of all the students in Anne Arundel County.  But the structure of the SBNC and its actions over the last few years suggest a more conventional political mindset on local representation.

SBNC Chairman Greene stated that the SBNC had no budget and that this was a problem.  He set up a P.O. Box in Annapolis at his own expense for SBNC correspondence and subsequently canceled it, forwarding SBNC mail to his house.  Chairman Greene uses gmail, a free email service provided by Google, for SBNC business.  This is useful because SBNC email is subject to Maryland’s Public Information Act, so it is desirable to have a clear separation of personal and official email.  But the use of such nongovernmental communication services raises tricky questions about record retention and compliance with Maryland’s right-to-know laws.  Currently, the school system’s PR office runs the AACPS website as a free service to the SBNC.

There was talk of creating a physical mailbox at AACPS and seeking email accounts for each commissioner through AACPS.  But there was also concern that the SBNC should have an arm’s length relationship with AACPS and that other government agencies, notably Maryland’s Department of Education, might be a better source of free help.  It was also proposed that SBNC move its meetings from the Community College to the school board meeting room at Riva Road, now that the school board has such state-of-the-art audio visual equipment and sophisticated technical support. 

There seems to have been great reluctance to approach the Maryland General Assembly for any funding for SBNC expenses, perhaps because elected officials had promised that the SBNC wouldn’t cost the taxpayers any money.  At this point, I think that’s a rather fanciful argument.  An attorney from the Maryland Department of Legislative Services provides significant staff support to the SBNC, attending every SBNC meeting and serving as legal counsel and secretary.  Many other government offices, including Maryland’s AG, the Community College,  and AACPS, also provide some free staff support.  My guess is that the series of legal opinions that have come out of the AG’s office cost many thousands of dollars in staff support.

It was decided to hold the next meeting of the SBNC at the Community College on February 23.

I would like to close with a prediction about the evolving politics concerning the SBNC should a Republican win the office of governor this coming November.  The governor currently appoints the chair and five of the eleven members of the SBNC.  He also gets to choose among the SBNC nominees.  This gives him extraordinary power.  As long as the Democrats hold both the legislature and the governor’s office, this is not a political problem, especially as the governor consults with local legislators in the selection of SBNC commissioners.  However, should a Republican governor be elected, the politics would be completely different.  I cannot conceive that a Democratic legislature would allow a Republican governor to have so much power over the selection of school board members.  Thus, the Democrats would be forced to introduce legislation to change the current system for appointing SBNC members.

The political problem is that this would violate a basic principle of democratic theory called the “veil of ignorance.”  According to this principle, one’s policy positions on democratic procedures should not be influenced by the individuals that hold particular office.   This principle was lately given a lot of publicity in Massachusetts and considered a factor in the Republican victory in the recent election to replace the late U.S. Senator Ted Kennedy’s seat.  In 2004, when U.S. Senator John Kerry, also from Massachusetts, was running for president and a Republican was governor of Massachusetts, there was a fear that if Kerry was elected president and the governor got to appoint his replacement, that he would appoint a Republican senator.  The legislature thus voted to change the laws so a special election would replace Massachusetts senators who left office before their term was up.  In 2009, when Senator Kennedy was dying, the politics were quite different.  A Democrat was in the governor’s mansion and the Democrats desperately wanted a 60^th vote to pass health care legislation.  Thus, the governor was once again granted the right to appoint an interim senator until a special election could be held.  This self-serving inconsistency was widely noted in the press, and in the end appears to have backfired.

So here is my prediction:  Should a Republican be perceived to have a good chance of winning the governor’s office in November, the Democrats will start positioning themselves to change the SBNC to weaken the governor’s role in the selection process.  They won’t do anything to change the law until the outcome of the election is clear, but they will give themselves some political cover.  The same goes for the Republicans.  Until now, those who have spoken out publicly about the SBNC have been critical of it.  But the current system could be good for Republicans if they hold the governor’s office.  Thus, I’d expect a greater effort to say positive things about the SBNC. 

None of this relates to the fact that the legislature rushed through the law creating the SBNC without clearly thinking about all the issues involved in creating a new electoral system.  The result has been an extraordinary delegation of power to the SBNC and Maryland’s AG to figure out what the legislature really intended.  Some of those interpretations will surely surprise the legislature.  At some point, regardless of whether a Democrat retains the office of governor, the legislature is going to feel great pressure to amend and codify the increasingly complex and scattered set of rulings guiding the SBNC.

My own biggest complaint is that the SBNC’s structure, with five of eleven members appointed by private sector entities, violates the core democratic principle of one-person, one-vote—a type of violation that the U.S. Supreme Court and a variety of state supreme courts have previously ruled unconstitutional.  To my knowledge, the last time the courts ruled against such an illegal electoral procedure in Maryland was in 1964, when the U.S. Supreme Court ruled that Maryland’s system of apportioning legislative districts violated the one-person, one-vote principle (see my recent Baltimore Sun op-ed for more details on this event).  This ruling was made at the height of the civil rights era, when discrimination against minorities was considered no longer acceptable.  What is noteworthy is that for decades the legislature knew it was violating its own one-person, one-vote legal requirement and chose to ignore the violation because it was politically inconvenient to address it.  If the legislature could for decades ignore that type of fundamental violation of the norms and laws of democracy, it certainly has the capacity to ignore the far more trivial and localized violation of democratic norms and laws embodied in the SBNC’s electoral structure.