Sunday, May 23, 2010

SBNC Update: Wrap-up for 2010

Introduction & Summary

On May 11 and 12, the Anne Arundel School Board Nominating Commission (SBNC) interviewed candidates for District 30 and District 31.  On May 17 the SBNC heard testimony on behalf of the candidates and then voted for two nominees for each district.  The two nominees for District 30 are Richard K. Giroux of Arnold and Solon K. Webb of Annapolis; for District 31, Deborah T. Ritchie of Pasadena and Lisa Shore of Pasadena .  The links point to the applications they submitted.  The SBNC removes applications from the public portion of its website after the electoral cycle is complete, so if you want to see the applications, I recommend doing it now.
The three hearings, followed by a vote, showed off the SBNC at its finest.  The candidates were well-qualified to serve on the Board of Education (“School Board”), and the SBNC commissioners came across as thoughtful leaders working on behalf of the community.
The average number of candidates running for each open seat declined from 12 during the first SBNC nominating cycle in 2008 to 3.5 in 2010 (four for District 30 and three for District 31).  Assuming that all the candidates had an equal chance of winning, those running in District 30 had a 50% chance of winning while those running in District 31 had a 66.7% chance of winning.  The decline in number of candidates highlights the growing importance of the early and invisible part of the SBNC nominating cycle, whereby candidates are recruited and otherwise given incentives to formally apply for a nomination.
The Governor must now appoint a representative from districts 30 and 31 by July 1, when the next Board of Education takes office.

Based on a legal opinion delivered by Maryland’s Attorney General on April 8, 2010 (and posted on the SBNC’s website only AFTER my last SBNC Update on May 9, 2010), Board members appointed after June 30, 2008 are automatically reappointed by the Governor for a second term and are not subject to a competitive election for the duration of their two terms in office, for a total of 10 years (two new terms) or as many as fourteen if they came to office midterm (two new terms plus the completion of a partial term).  School Board members are only allowed to serve two full terms.  School Board members are subject to a second reterntion vote at the next general election AFTER their second term begins.

The next big event on the School Board electoral calendar takes place on November 2, 2010, when four sitting Board members, half of the adult Board, are on the ballot for a retention vote, often called an “approval” vote in the political science literature.  Board members who pass this hurdle will then be able to serve for as many as 6.4 years before being subject to another reterntion vote.  The 6.4-year calculation is as follows: Board terms are for five years.  Those appointed after June 30, 2008 are automatically appointed to a second term and subject to a retention vote at the next general election, which is 16+ months later during odd-year automatic reappointments (and four months during even years).  Five years plus 16 months equals 6.4 years.  In practice, however, it may take many months after a lost reterntion vote for the SBNC to nominate and the Governor to appoint a replacement, during which time the incumbent board member stays in office.  Note, too, that there appears to be no DEADLINE to replace an incumbent who has lost a retention vote.  Thus, the 6.4 year figure is a MINIMUM term of office for odd-year appointments.

The duration of an Anne Arundel County School Board member’s term of office without facing a competitive election is striking because I believe it is the longest such term of office for any school board member in not only Maryland but possibly also any elected office, other than a judge, in the entire United States.

Unless there is an unexpected development, I expect this to be my last SBNC Update until the next SBNC nominating cycle in 2011.

The outline of my observations and analysis follows:

1) May 10 District 30 Public Hearing
2) May 11 District 31 Public Hearing
3) May 17 Hearing for Candidate Testimonials and Vote
4) Implications of Ned Carey’s Withdrawal Announcement
5) November 2, 2010 Retention Vote for Four Board of Education Members
6) Third Complaint Filed with Maryland’s Open Meetings Compliance Board

1) May 10, 2010 District 30 Public Hearing

All SBNC Commissioners plus their legal counsel and four members of the AACPS Public Information Office (including three TV producers) were in attendance.  No reporter was present.  Thirteen individuals were in the audience, including only three people not affiliated with the candidates or the Board of Education.   I left after about an hour, during the mid-hearing break, and watched much of the remainder of the hearing at home on my TV.  Although the half-million dollar TV setup in the Board room and quarter-million dollar TV backroom facility can support high definition television, the production was in standard definition due to ongoing negotiations with Comcast about high definition carriage.
Four candidates were competing for the two nominations for District 30.  However, one candidate, Richard D’Amato, a former member of the Maryland House of Delegates, couldn’t make it for the District 30 hearing, so he was allowed to join the District 31 hearing the following evening.
Each commissioner was allowed to ask a question of the candidates.  The hearing ran for more than two hours.  Those not present could watch via TV, which was broadcast at a higher quality than most C-SPAN coverage of public affairs events but at a lower quality than network TV coverage of presidential debates.  For example, C-SPAN covers most think thank events with a one or two person crew, not the three person crew used here (four people if you include the TV crew’s boss).  Similarly, C-SPAN usually doesn’t operate in a conference room with a half dozen robotic cameras and perfect lighting; indeed, it is unlikely that there is a single think tank in Washington, DC with a conference room—even one used for events a half dozen times a day—outfitted with a half million dollars of TV equipment ($464,000, to be exact).

I will not summarize the Q&A here.  But I’d like to note one part of the Q&A that might be of particular interest to citizen advisory committee readers.  Commissioner Christine Davenport, following in a long tradition of School Board candidate questioners in Anne Arundel County, asked the candidates what they would do to enhance parental involvement.  Candidate Victoria Garcia replied: “televise CAC meetings.”   The following night, responding to a similar question, two other candidates advocated using more “technology” to get parents involved in the school system.

I agree with Candidate Garcia that when a high level public official comes to speak to a CAC meeting, especially of the Countywide CAC, those not physically present should have the opportunity to hear what is said.  Coming from the think tank world, where it has become routine to webcast events, I would consider such coverage a no-brainer.
(Incidentally, more parents in Anne Arundel County now have broadband than cable TV connections; note that satellite TV is separate from cable TV and that satellite TV customers cannot see the County’s educational channels.  In addition, County libraries provide free broadband but not free cable TV service.  So broadband is now not only the most convenient but also the most equitable medium for educational public affairs TV coverage.  Of course, there is no reason that CAC TV cannot be delivered over BOTH broadband and PEG cable TV, as is now done in many U.S. towns with a population a fiftieth the size of Anne Arundel County and a commensurately smaller TV/PR budget.)

However, I consider the odds of AACPS allowing the Countywide CAC to televise its meetings close to zero.  Indeed, Riva Road is so senstive about its public officials saying anything controversial on TV (or otherwise on the record) that I would bet that it would greatly restrict access to senior level ACCPS officials if the Countywide CAC recorded their presentations and Q&A. A caveat would be if Riva Road could keep the video under lock and key, as it does the SBNC’s video recordings. This would allow it to preserve an important measure of control.  But such restricted access would defeat much of the purpose for providing video coverage in the first place.  Needless to say, I believe Riva Road’s mindset seeking to tightly control information is harmful to public participation and our democracy.  I hope and expect that the current tight control of information will loosen up in the coming years.

Commissioner Sandra Anderson, in charge of the SBNC’s communications plan (a euphemism, in my opinion, for PR), closed the meeting with the following observation: “Regardless of how many press releases we send out, we’re not overwhelemed with people coming to our hearings….  Please think about how we might engage the parents on these topics.”

Commissioner Anderson’s observation about poor parental involvement was, of course, correct. I attended every SBNC event this election cycle and I could count on my fingers the number of audience members who weren’t AACPS officials, prospective candidates, or relatives of prospective candidates.  Even the Capital reporter stopped coming during the SBNC’s last five public meetings.
So I applaud Commissioner Anderson’s heartfelt concluding remark.  But who or what is to blame for the problem she describes?  It’s not clear to me why a rational member of the public would want to participate since the public has no real role in the SBNC’s selection process.  The public doesn’t select the nominees, and it doesn’t select the commissioners who select the nominees.  The democratic lines of accountability are so blurred as, in my opinion, to be all-but-unreadable by anyone except a handful of insiders.  Asking the public to participate is like asking someone from Anne Arundel County to participate in an election in East Podunk, Illinois.  Why should they?
The part of Commissioner Anderson’s statement that made me wince was her conclusion pleading for more parental involvement.  I’ve been attending School Board candidate hearings for close to ten years and have observed that there is no greater cliché in AACPS school politics than the plea for more parental public policy involvement.  Yet it never seems to happen.  The reason, unfortunately, is much more fundamental than the fact that politically astute parents recognize they have no meaningful role in the SBNC election process.  It is that real public participation—the way that democratic theorists define it—is often actually considered, at best, an annoyance.   Real public participation must come from the bottom up; that is, people must feel that they can make a real difference and that they aren’t being used just for show.  But the incentives, all too often, are to use public participation and the appearance of openness for show.  After all, we live in a democracy, and school boards and other public bodies get their public legitimacy from appearing democratic. Indeed, the calling of a public meeting with warm bodies in the audience has proven to be one of the most effective democratic shows.  Admittedly, there are pockets of real participation in AACPS.  But the SBNC hasn’t been one of them.
Lastly, I’d like to note one of my greatest frustrations attending the SBNC hearings in the Board room: no WiFI (wireless Internet) access for my laptop.   The Board room has two very strong WiFi hotspots, but they are only accessible to ACCPS employees with a password; the public is barred from access.  I routinely attend public events in federal buildings, hotels, and think tanks, and I can say it is now very common to provide free WiFi access during public meetings.  Such WiFi access greatly increases both the quantity and quality of public participation.  That’s because it’s much less burdensome attending a long, boring public meeting if one can multitask; and the quality of participation increases when audience members can become active listeners by looking up speaker references, better researching their questions, and exploring unexpected implications of what the speaker is saying.  The same goes for CAC meetings held in the evening in the Board room.  I just cannot fathom any reason why CAC members shouldn’t have WiFi access.
Actually, this is not quite true.  Try on this for an explanation:  Via its I-NET link, Riva Road can access broadband Internet access about 1,000 times faster than the fastest broadband service (about 20 Mbps) available to Anne Arundel County residents.  Perhaps someone is worried that if the public experienced Riva Road’s superfast broadband connections, especially in the evening when Riva Road is empty and the network unused, the Board room would be overwhelmed with public participation. :-)

2) May 11, 2010 District 31 Hearing

All SBNC commissioners were eventually in attendance, but two of the eleven commissioners arrived late.  No reporter was present.  Other than AACPS and SBNC staff, only two individuals, including myself, were in the audience during the first hour of the hearing.  This hearing went on for more than three hours.  I left after the first break and watched most of the remainder of the hearing at home.

Four candidates were present, one competing for a District 30 nomination, three for a District 31 nomination. 

This time the SBNC’s PTA representative, Commissioner Anita Owens, asked the parental involvement question: How do we increase parental involvement in the schools?  Candidates Lisa Shore and Richard D’ Amato both called for better use of technology.  But it wasn’t clear to me whether they meant more top-down communications (as in PR) or bottom-up communications (which, if not astroturf, I would call democratic participation).  Whenever the parental involvement question comes up, there is also the question of what exactly is meant by “parental involvement”: does it mean civic involvement or mentoring one’s own children with their schoolwork?  Often the latter is meant, but it is noteworthy that the candidates interpreted the question as including both parential civic involvement and child mentoring.
Perhaps my favorite question of the evening, also involving ambiguous concepts, was Commissioner Konrad Wayson’s: Should School Board members vote by district or at-large?  This question gets at a fundamental ambiguity in the current School Board electoral system.  Three of the four candidates, with some hedging, answered: “by district.”  The other candidate, who would go on to win the most votes of any nominee for District 31, answered: “at-large.”  Since School Board members are supposed to care about all kids first and foremost and forego anything resembling politics, I believe the at-large answer was clearly the politically correct one.

But a reasonable person, including a School Board candidate, could (and should) be confused on this point.  I’ve discussed this at length in earlier SBNC Updates, so I won’t repeat myself here.  The key points are that the design of the electoral system, how SBNC members are selected, and how the SBNC conducts its business, all send very mixed messages.  But what I want to add is that even if the electoral system unambiguously sent the message that “at-large” was the correct answer, it still wouldn’t be a politically plausible strategy for many of the School Board members.  That is because most School Board members in recent years have used the School Board as a launching pad for political careers.  And for all other legislative positions other than the School Board, the correct answer is absolutely unambiguous: by district.  School Board members aspiring for higher office have every incentive to represent the subset of Anne Arundel County constituents they hope to represent if elected to higher office.  Although I’ve never seen the Capital report them this way, high profile School Board earmarks should always be viewed, at least partially, based on Board room politics. (As an aside, the Capital’s lack of coverage of Board politics—either due to indifference or ignorance--remains a striking feature of its news and editorials.)

3) May 17 Hearing for Candidate Testimonials and Vote

All SBNC commissioners and support staff were present.  No reporter was present.  The initial audience, including candidates, candidate relatives, and those giving testimonials on behalf of the candidates, was the largest of the three hearings.  But only one member of the public, other than me, was present.

The meeting was supposed to consist of four parts: 1) designated candidate witnesses, 2) public comments about the candidates, 3) secret deliberations by the SBNC commissioners, and 4) the final, public vote.  Since there were no public comments about the candidates, that part of the meeting was skipped.

One confusing part of the testimonials in favor of the candidates was their separation into public and secret parts.  Those giving their testimonials in person did so in public.  But there were apparently a number of written testimonials that were not read and were otherwise publicly inaccessible.  The SBNC commissioners did not publicly state how or if the written recommendations had been privately distributed to them.  But it’s reasonable to presume that the SBNC commissiones had access to the written recommendations before the hearing.
Commissioner Greene opened the meeting reporting that today he had received a letter from School Board Member Ned Carey stating that Carey would not accept the Governor’s appointment to the School Board even if it was offered to him.  Greene noted that the letter was dated May 13.
One interesting feature of the TV coverage on May 17 compared to May 11 was the TV camera work.  I don’t recall any audience shots on May 11 when the Board room looked all but completely empty (note that I did miss part of the May 11 hearing).  But on May 17, when the camera could focus on a cluster of folks, the audience was introduced to viewers.
I thought the candidate testimonials were impressive and compelling.  I also thought there was a close correlation between the number and intensity of the testimonials and the number of votes the candidates ultimately received from the SBNC commissioners.

As a ballpark figure, I estimate that the total taxpayer cost of the three hearings was $3,000: $2,000 for the four AACPS staff ($200/hour for the four staff times 10 hours) and $1,000 for the SBNC’s attorney ($100/hour times 10 hours).  Of course, AACPS employees and the SBNC’s attorney (provided gratis by the Maryland General Assembly) are paid on a salary basis and don’t charge the SBNC for their services.  But they also certainly don’t come free for taxpayers.  If 50 members of the public watched the hearings (and this is little more than a wild guess), that comes to $40/viewer ($2,000/50 viewers = $40/viewer).
In my opinion, the public might have been better served by having an all-volunteer high school student TV crew televise the meetings (using their own equipment, not Riva Road’s), automatically index the footage to the agenda (standard even for tiny rural towns in Vermont), and then post the resulting footage on an independent website such as YouTube (one of the most common websites used by think tanks for public affairs events).

Note that these calculations assume that the SBNC has discontinued the costly (and secret) practice of transcribing the candidates’ testimony and Q&A.  These transcripts, presumably paid for by the Maryland General Assembly, were never posted on the SBNC’s website and were for the exclusive use of SBNC commissioners.
Overall, the lack of press coverage of the SBNC during this electoral cycle was striking.  In the old days of the nominating convention—and I’m not advocating a return to those days—the Washington Post, Baltimore Sun, and Capital would all compete in their coverage of the School Board candidates.  In recent years, the Washington Post and Baltimore Sun completely abandoned the School Board electoral beat.  And now we’re left with the Capital’s reports, which have evolved during this election cycle into little more than rewritten press releases.  As for informed and thoughtful commentary, I don’t recall that we ever had that, so there hasn’t been a change there.

4) Implications of Ned Carey’s Withdrawal Announcement

Following my two SBNC Updates describing the Attorney General’s ruling that incumbent School Board candidates elected prior to June 30, 2008 automatically have their names forwarded to the Governor for nomination, the Capital reported on May 14, 2010 that incumbent Ned Carey would definitely not accept an appointment if appointed to another term by the Governor.  Part of the article included the following statement:

Carey said he was unaware of the [Attorney General’s] ruling and assumed that by not submitting an application he was out of the running for a second term.  But to clarify his position, on the advice of attorneys, he sent a letter to the commission yesterday stating he doesn't want to stay on the board.

Assuming that the Capital accurately reported Carey’s statement, we have the following three implications:

a) The SBNC didn’t do its job. One of the primary duties of the SBNC is to encourage the strongest possible candidates to run for the SBNC.  If potential candidates are under the impression that a popular incumbent, sure to win the Governor’s endorsement, is likely to run, it is reasonable to infer that fewer and less qualified candidates would be likely to run.  In this circumstance, the SBNC would have a responsibility not only to ask Carey whether he was running but inform him of the Attorney General’s January 22, 2010 public legal opinion (issued more than three months before the April 30, 2010 candidate deadline) that his name would automatically be forwarded to the Governor and that potential candidates would learn that fact.  I say the January 22, 2010 “public” legal opinion because the Attorney General recently revealed an apparently private memo to the SBNC on May 1, 2009 (exactly one year before the April 30, 2010 application deadline) providing the same legal advice (see footnote 2 to the Attorney General’s April 8, 2010 legal opinion).   Accordingly, the SBNC had the correct information about the nominating system for Ned Carey more than one year before Carey says he knew that information.  (As an aside, my guess is that the May 1, 2009 memo was kept private because its public release on May 1, 2009 would have been highly embarrassing to the SBNC, which had already accepted applications, including 2 incumbent School Board members, and announced public hearings based on the original understanding of the law.)

The SBNC was chosen so that all important stakeholders would have a say in the nominating process.  Those stakeholders are in regular contact with the School Board, so it would have been easy for them to alert Carey of the January 22, 2010 legal opinion (or, presumably, the earlier, apparently private, May 1, 2009 legal opinion), but it apparently didn’t happen.

It is clear that throughout the winter and spring of 2010 the SBNC agonized over whether Carey would run and regularly asked him about his intentions.  Those who observed their deliberations could see that Carey was popular and that the SBNC did not at all relish the prospect of recruting challengers or even nominating anyone other than Carey for the District 31 opening.  In the end, I think the SBNC made a genuine attempt to recruit people to attend both the District 30 and District 31 field hearings and to encourage candidates to run in District 31.  Nevertheless, I believe its members were negligent in not informing Carey of the May 1, 2009 legal opinion and then reaffirmed in the January 22, 2010 legal opinion (which has been inexplicably removed from the SBNC website; the May 1, 2009 memo was never posted there).

An additional important consideration is that astute candidates for the District 31 seat would have recognized that even if Carey ran and was appointed by the Governor for a second term, it was to their advantage to run in this electoral cycle.  The best precedent here is Tricia Johnson, the former School Board president nominated for a second term starting on July 1, 2009.  The Governor appointed her to a second term, which she resigned weeks later when she was elected to the County Council.  The SBNC was happy with one of the candidates who was nominated with her and so, with minimal fuss in the middle of the summer (July 28, 2009), nominated him and someone else who had no chance of being selected by the Governor (by the way, this rushed, low profile electoral cycle is an excellent illustration of the SBNC’s invisible nominating system at work).  If this happened once (the last election), it could happen again, which may help explain the strong candidates who eventually applied for the District 31 seat.

b) The Capital didn’t do its job.  The Capital’s education reporter was at the January 25, 2010 SBNC meeting where the January 22, 2010 Attorney General legal opinion was publicly announced.  I then wrote about it in my January 27, 2010 SBNC Update, which is widely read throughout the County, including by various Capital reporters.  Here is what I said: “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.”

The Capital reporter attended some of the early SBNC meetings where the practical significance of whether Carey would run was repeatedly mentioned.  The Capital then reported three times, presumably based on first-hand communications with Carey, that Carey was undecided.  Two of these reports, the last on April 23, 2010 (7 days before candidate applications were due), came after the January 25, 2010 SBNC meeting where the January 22, 2010 Attorney General letter was discussed.
I do not believe the Capital should have been held responsible for not knowing about the SBNC’s apparently secret May 1, 2009 memo from the Attorney General.  But several Capital reporters were aware of my complaints concerning the SBNC’s pattern of violating both the spirit and letter of Maryland’s right-to-know laws.  Indeed, the complaints were featured in my May 30, 2009 wrap-up to the 2009 SBNC nominating cycle (which, I think, comes off as prescient in light of the fact that at that time I was ignorant of the May 1, 2009 legal opinion).  The Capital’s determination that these complaints—or even an earlier ruling that the SBNC had violated Maryland’s Open Meetings Act—were not newsworthy helped establish an environment where vital information, such as the May 1, 2009 legal opinion, could be withheld from the public, including apparently, the president of the Board of Education.

c) Ned Carey didn’t do his job.  Please note that I have great respect for Ned Carey’s skill as both a member and president of the School Board.  But logic leads me to conclude that in this particular case he didn’t do his job.
Carey is in frequent contact with both SBNC commissioners and the Capital reporter.  As president of the School Board, he also recieves copies of Capital articles and my SBNC Update.  Regardless of whether or not he knew of the Attorney General’s May 1, 2009 and January 22, 2010 legal opinions, he certainly knew about the April 30, 2010 deadline for candidates to submit applications.  He also knew that the Capital repeatedly reported on his indecision and that the SBNC repeatedly asked him about his plans.  This was not for no reason: everyone with any political knowledge knew that Carey’s plans could have great practical significance, and Carey must have known that, too.  Of course, Carey has every right to want to keep his political options open.  And, nothwithstanding his lawyer’s apparent legal advice (see the Carey quote above), elected officials have generally not faced legal obstacles when holding one office while running for another. (Here I’ll add two caveats: I’m not a lawyer, and the current School Board electoral system is so bizarre and has been subject to so many Alice in Wonderland interpretations that perhaps I’ve overlooked something.)

However, the claim here is one of ignorance, not whether Carey had a duty to announce his political plans.  Candidates who run for the School Board are regularly told that they need to be good listeners and regularly reach out to major stakeholders for information. If all the SBNC commissioners, the Capital education reporter, and senior AACPS staff knew of the January 22, 2010 legal opinion (if only because they religously read my SBNC Update!), then there was a striking breakdown in communications between Carey and the school system’s key stakeholders in the three plus months between January 22, 2010 and April 30, 2010 (or, if May 1, 2009 is used as the reference point, the twelve months between May 1, 2009 and April 30, 2010).  In my opinion, the democratic implications of such a breakdown are scary.

5) November 2, 2010 Retention Vote for Four Board of Education Members

On Novermber 2, 2010, the four School Board members appointed by the Governor during 2009 and 2010 will have their names placed on the ballot for a retention vote.  I expect this to be an invisible election, as is almost always the case with retention votes for judges (an incumbent who hasn’t done anything extremely controversial has historically had virtually no chance of losing a retention vote).  One way to explain this phenomenon is that in an election for “X” or “Nobody,” X should always win because it’s better to have someone in office than no one.  Public officials do have an important job to do, and somebody, not Nobody, needs to do it.
Nevertheless, this is a big and potentially highly visible vote because it’s for an uncontested term of up to ten years—quite a novelty in Anne Arundel County, Maryland, U.S., and perhaps even world politics.

Please note that I was incorrect in my May 9, 2010 report on the interpretation of the Attorney General’s April 8, 2010 legal opinion.  I was operating from memory and should have reread the legal opinion, which at the time was still not posted on the SBNC’s website. (It can now be found there, and I’d encourage anyone interested in the School Board electoral system to read it.)

Here is the correction: Incumbents appointed after June 30, 2008 are automatically reappointed for a second term, but—and here is the correction--they do have to undergo a second retention vote at the next general election after their automatic reappointment.  The second election, like the first, is uncontested.  And, like the first, the SBNC is under no obligation to replace the incumbent by a specific deadline.
Now let’s suppose one or more of the four candidates on the ballot lose the retention vote.  Since the enabling legislation creating the SBNC is very vague on what happens next, I suppose we’d get a new series of Attorney General legal opinions telling the SBNC what it should do.  One of the problems is that the retention vote doesn’t appear to be like any other retention vote held in Maryland or possibly the U.S. for that matter.  On the surface, the retention vote looks like it is binding (hence the legislators’ claim that the new school board electoral system gives the public a meaningful vote).  But, in fact, the election is only advisory because, as far as I know, there is no date by which the SBNC must select a replacement.  So it is conceivable (but exceedingly unlikely) that a candidate could serve ten years even after losing a retention vote.

It gets much more interesting, especially from a political standpoint, if all four candidates lose the retention vote.  I consider this as unlikely as a large asteroid hitting the U.S. on November 2, 2010 and creating a second Grand Canyon.  But it’s still an interesting thought experiment.

This would mean that in one year the SBNC could replace 5 of 8 adult members of the School Board.  I don’t think it would want to do that, both because it would be too much work and would eliminate too much institutional knowledge.
At the same time, the Maryland General Assembly would have a firestorm of proposals to modify or completely can the legislation creating the SBNC.  This would create a lot of uncertainty, which could provide the SBNC with many excuses for delay or other impromptu actions.

But now what if a Republican were elected governor in November?  Then I would imagine there would be a panicky rush to 1) appoint five new school board members before the governor could appoint new SBNC commissioners and take control of the School Board, and 2) draft legislation canning the SBNC.

In any case, I would be shocked if during its next session the Maryland General Assembly doesn’t pass some legislation reforming the statute creating the SBNC.  In the wake of the last three Attorney General legal opinions, there are just too many easy pickings for reform for a smart legislator not to pick up the ball.  I’d start by reducing the extraordinarily long terms to a more democratic length.

My further sense is that, regardless of the outcome of the November 2 elections, we may be entering the home stretch for the SBNC during the next four-year term of the General Assembly.  It’s hard for me to imagine that during a single session (that is, one year) the Anne Arundel delegation to the General Assembly could come up with a politically viable substitute for the SBNC.  In the short-term, only expect some easy patches (such as eliminating the automatic second term).  But a sense of inevitably could quickly emerge that the SBNC is doomed.  Despite my criticism of the SBNC, I think that would be a misfortune.  Just as the legislature (and press and citizenry) mindlessly rushed into creating and endorsing the SBNC, the danger is that it will equally mindlessly rush into destroying it rather than thinking carefully about how a commission nominating system could preserve its virtues while also ensuring a greater measure of genuine democratic accountability.  What a tragedy that the Maryland General Assembly and our local press appear to be completely unable to engage in an adult conversation on electoral systems.

Meanwhile, an advocate for the current retention voting system should demonstrate that, as promised, it is possible for the November 2, 2010 retention vote to actually mean something other than a PR gambit.  I’m not sure how that could be accomplished, but a good starting point would be to post the SBNC candidate testimony online.  Unfortunately, that means going through the AACPS Public Information Office to ask for a controversial piece of information—an experience I wouldn’t wish on anyone.  During the first electoral cycle I asked for those tapes (because during Spring Semester 2008 I was a fellow living in Cambridge, Massachusetts at Harvard’s Kennedy School of Government and couldn’t watch the hearings in person), and it took me something like three months of enduring excuses and being referred to different people to get them.  When you ask for a controversial piece of information, you’re immediately pegged as a potential troublemaker (this type of phenomenon was written about by the famous German sociologist Max Weber during the 1920s).  As the delays pile up and you don’t go away, this only confirms the original suspicion that you’re a troublemaker.  It’s sort of like the Salem witch trials: there is no right answer for the inquisitor.  But the Salem witch trials eventually came to an end, and I suspect that the Public Information Office’s instinctive practice of hoarding video is not sustainable.  And, in this case, there is nothing to hide: the video records are perfectly innocuous.  The AACPS Public Information Office could have its cake and eat it, too.  None of the above should imply that AACPS doesn’t have an exceedingly talented Public Information Office that is just doing its job. 

6) Third Complaint Filed with Maryland’s Open Meetings Compliance Board

On Monday, May 24, 2010 I will file my third set of complaints concerning the SBNC’s compliance with Maryland’s Open Meetings Act (see for a copy).  The complaints primarily deal with loose ends remaining from my complaints filed at the end of the SBNC’s last electoral cycle.
The three most striking lessons I have learned from dealing with Maryland’s Open Meetings Compliance Board are the following:

1)      The Open Meetings Compliance Board is only concerned with providing legal opinions about the letter rather than the spirit of the Open Meetings Act.

2)      The Open Meetings Compliance Board primarily serves to advise public bodies on the absolute minimum they need to do to comply with the letter of Maryland’s Open Meetings Act.

3)      The Open Meetings Compliance Board has adopted a standard of evidence that, in practice if not theory, not only strongly favors public bodies over citizens, but is inconsistent with widely adopted norms of evidence that require documentary evidence of compliance with documentary legal requirements.

Sunday, May 9, 2010

SBNC Update, Including a Bombshell

Since my last School Board Nominating Commission (SBNC) update, there have been three major events:     
1)      The candidate application deadline passed (April 30)
2)      Two field hearings were held (April 12 and April 19)
3)      The Attorney General issued a legal opinion (April 8)

The bombshell is the Attorney General’s legal opinion, but I’ll start with the candidate applications.  Some readers may want to jump to the bombshell, which increases the term of office for a school board member to ten years, assuming the board member wins the initial retention vote after first being appointed by Maryland’s governor.  The result is that Anne Arundel County not only has a unique school board electoral process, but likely the longest school board member term in the U.S. and possibly the world.  With more than 14,000 school boards in the U.S., that’s quite a distinction.

Candidate Applications

As the Capital has already reported, seven candidates applied to the SBNC, including four for the District 30 seat and three for the District 31 seat.   The seven candidates for the school board all have excellent credentials and offer diverse demographic options for the SBNC.  Collectively, the candidates have a wealth of knowledge of Anne Arundel County schools as parents, in-school volunteers, PTA leaders, CAC leaders, and spouses of school employees.  Compared to past applicants, there appears to be a growing understanding of what is involved in writing a winning application.  This may because the current round of applicants had the benefit of learning from what succeeded and failed in the three earlier rounds of applications.

Of course, one shouldn’t confuse the number of SBNC applicants with the number of eligible nominees for the School Board.  That’s because incumbent school board members serving a first term before June 30, 2008 are automatically nominated regardless of whether they submit applications to the SBNC.  Since school board members Enrique Melendez and Ned Carey will automatically be nominated regardless of whether they have any intent to actually serve a second term, the total number of people eligible to be nominated is actally nine, rather than seven, as the Capital article implied.  

I was unhappy that it took six days from the date candidate applications were due (from Friday, April 30 at the “close of business” to the evening of Thursday, May 6) to publicly announce the names of the candidates and post their applications on the SBNC’s website.  As of Saturday evening, May 8, one of the candidate applications, for C. Richard D'Amato, had still not been posted.  After candidate applications were due, I repeatedly emailed the SBNC Chair for an explanation of the delay.  He explained that the delay was caused by technical difficulties, including coordinating with the AACPS public information officer who maintains the SBNC’s website.

The SBNC will interview the candidates on Monday, May 10, and Tuesday, May 11, at 7 pm.  The SBNC has moved the venue for the interviews from the Anne Arundel Community College to the Board of Education room at Riva Road.  This will be the first set of candidate hearings broadcast on the School Board’s new half million dollar TV facilities.

One item in the Capital’s news coverage may be incorrect.  The SBNC has regularly reported during the spring that incumbent School Board member Ned Carey had not yet decided whether he would run for a second term on the School Board or run for the state senate seat currently held by Bryan Simonaire.  The Capital also reported this.  Thus, I was very surprised to see that the Capital seemed to report that Carey had publicly announced he was not running for a second term on the school board.  I don’t always read the Capital, and it’s possible that I missed this public announcement in its pages.  But it’s also possible that the Capital made the seemingly logical inference that because 1) three candidates have submitted applications to run for Carey’s seat in District 31, and 2) Carey isn’t one of those three, that 3) Carey must have decided not to seek a second term on the School Board.  But if you read the attorney general’s letter, discussed below, you’ll see that this is a faulty set of inferences. Carey is automatically nominated regardless of whether he goes through the SBNC process.
Why would Carey take so long to announce his intentions?  Here’s a plausible explanation based on my observations of many other candidates in similar situations.  Senator Simonaire is a popular incumbent who has announced that he hasn’t decided whether to run for another term.  Carey may simply be waiting to find out if Simonaire is running before deciding whether to run himself.  Since it is usually much harder to beat an incumbent than win an open seat, this would be a rational course of action.  Again, this is little more than speculation.  The important point is that unless the Capital has information that I somehow missed, its information about the status of the District 31 open seat may be incorrect.
Of course, one should also not assume that if Carey runs for Simonaire’s seat he will necessarily choose to leave the school board ahead of time.  For example, school board member Vic Bernson has announced he’s running for the House of Delegates but no one expects him to resign from the school board unless he actually wins the House of Delegates seat.  As far as I can tell, the same political logic applies to Carey, except that Bernson sent out a press release clearly announcing his intensions, whereas I’ve seen no such statement from Carey.

District 31 Field Hearing, April 12, 2010

The District 31 field hearing was held at Glen Burnie High School on April 12, 2010.  Ten of eleven SBNC commissioners showed up, as well as the SBNC’s evepresent staff attorney provided free of charge by Maryland’s Department of Legislative Services.  The audience consisted of three individuals: two residents of District 31 and myself.  No reporter was present.

The SBNC chair discussed routine business, including the dates of the candidate hearings, a correction in the minutes involving a previous attorney general opinion letter, and notice of a new attorney general opinion letter dated April 8, 2010.

The discussion of the SBNC’s publicity/outreach plan was unintelligible to me because it was whispered between Commissioner Anderson and Commissioner Greene, who were sitting next to each other.  There were no mics, so it was easy to discuss this part of the public meeting in private.

Chairman Greene stated that the goal of the field hearings was to foster interaction with the community.  He then opened the meeting to audience questions.  Each audience member would ask a question.

The first resident was highly critical of the SBNC’s election process.  My summary of his comments follows:
General Assembly representatives to District 31 are Republicans, the County Executive is Republican, and a majority of county councilors are Republicans, yet the school board has ‘dangerously tilted to one side.’  District 31 doesn’t have a voice on the School Board.  I don’t have a voice electing the Governor.  Folks in Prince George’s County and Baltimore choose the Governor.  Our County was formed by people who believed that one shouldn’t be taxed without representation.  We deserve to have a voice on the School Board.  Without that, people will tune out.

Chairman Greene replied that “we have a statutory requirement to nominate at least 2 candidates to the Governor.  We try not to do that on the basis of politics.”

As an aside, Chairman Greene’s notion of nominating two candidates may be a bit confusing because it suggests that the SBNC has discretion in the selection of the two candidates.  According to the Attorney General’s legal opinion, the SBNC has no discretion in nominating a first-term incumbent member of the school board such as the current school board member from District 31.

The second resident wanted to know 1) if “politics or a commitment to children is more important in a candidate, and 2) “Why this process?”
Starting with the second question, Chairman Greene replied that compared to the old process, the new process gives the public a greater voice.  The new process finally gives the public a vote on who serves in office.  He also noted that the new process was created in statute.   In answer to the first question, he observed that “we evaluate each candidate on their merits.”

I asked Chairman Greene if the SBNC had held an executive session, as announced at the previous SBNC meeting, to discuss an opinion from the Attorney General.  He replied “yes.”

The SBNC did not hand out the Attorney General’s legal opinion dated April 8, 2010 (and as of May 9 it was still not posted on the SBNC’s website), but I was able to get the SBNC’s staff attorney to give me a copy.
As an aside, last year I also attended the SBNC’s first field hearing, which had a slightly larger audience.  When I raised my hand to ask a question, I was told that field hearings were only for members of the legislative district in which they were held but that I would nevertheless be allowed to speak.  I then asked for clarification whether school board members represent all the citizens of Anne Arundel County or just the members of the legislative district in which they live.  This year the residency test for asking questions was dropped. 

District 30 Field Hearing, April 19, 2010

The District 30 field hearing was held at Annoplis High School on April 12, 2010.  All SBNC commissioners attended, as well as the SBNC’s staff attorney.  Ten members of the public attended, including myself.  Three members of the audience appeared to be children--or friends of the children--of one of the parents.  As at the previous field hearing, no reporter was present.
The comments/questions were too numerous for me to report here.  The most popular comment was that members of the School Board should make caring about children their first priority.  For example, one audience member said that “what is important in a school board member is caring about the child, showing not just in word but in deed a dedication to children.”  Another said: “the priority should be children.”  Other comments included a complaint about the increasing use of quantitative data to evaluate teachers, a complaint about the need to get School Board approval for a school-specific issue, and praise for the SBNC’s work.

Commissioner Wayson read a letter from a resident of District 30 who couldn’t be present but wanted her comments heard.  He asked for the letter to be placed in the SBNC’s record and Chairman Greene moved to place the letter in the record, without objection.
I thought this was curious because it seemed to raise a double standard.  There was no recording or meaningful record of public comments made in person, but here was a comment being preserved in full fidelity and, as far as I could tell, for eternity.  I wondered: Where would this letter be held?  Would it be published on the SBNC’s websitge?  What did it mean to have a letter placed in the record?

Later, I asked a question concerning the SBNC’s archival policy.  I observed that almost all the information posted to the SBNC’s website prior to 2010, including candidate applications, press releases, and attorney general legal opinions, had been removed from the SBNC’s website.  I thus wanted to know the SBNC’s archival policy.

Chairman Greene said he didn’t know that such information had been removed from the SBNC’s website, that the SBNC did not control its website, that the SBNC didn’t have an archival policy, and that he would get back to me.

As readers of my previous SBNC updates know, I consider easily accessible public records of public bodies to be very important.  I recalled that years ago I had sought clarification that SBNC candidate applications would remain on the SBNC website and had gotten an answer such as “we don’t plan to take them down” that suggested a yes.  I don’t have an objection to taking down the applications of losing candidates, but I believe it is essential to democratic accountability to keep up the applications of winning candidates. I also believe, as I’ve previously argued numerous times, that the videos of the candidate hearings should be publicly archived and posted online.

Perhaps most important, I believe the public has a right to know the laws under which it is governed.  As it has evolved, the series of legal opinions the Attorney General has written interpreting the statute creating the SBNC are arguably far more important to understanding how the SBNC actually works than the statutes that created it or the bylaws the SBNC adopted.  But of the many opinions the Attorney General has issued since early 2008, only one remains on the SBNC’s website.

I am surely being a bit unfair to the SBNC in the sense that its archives are not in its control.  Maryland’s General Assembly didn’t want to give the SBNC an operating budget, including money for a website. So the SBNC is dependent on the goodwill of others to maintain its public records.  The School Board has the resources and expertise to maintain the SBNC’s website, but it also has a blatant conflict of interest in doing so.  Any public official wants maximum control over public records, especially those with political salience.  So removing potentially controversial information from easy public access is an obvious and perfectly predictable move.
Assuming that the SBNC is actually an independent body from AACPS and would want its nominees to be democratically accountable, the solution is to give the SBNC a budget so it can maintain its own website.  A webhosting account costing less than $4/month (or $60/year, including a web domain) should be ample to cover more than 10,000 years of SBNC records (based on their present rate of creation) as well as thousands of times as much usage (my impression is that the SBNC website would never have very high traffic).  This assumes that at least one member of the SBNC, or the SBNC’s staff attorney, would have the technical skill and time to post SBNC records to a website.  From my perspective, this is no harder than hitting the “save” button on a word processing document.  But I recognize that some people would disagree with this assessment.
What is galling to me is that Maryland taxpayers have paid tens of thousands of dollars for extensive legal advice and administrative support to the SBNC, but the SBNC claims it has no money to pay for a webhosting service.  Similarly, AACPS has contributed significant resources to the SBNC.  My estimate is that the AACPS public information officer earns approximately $125 hour.  Even if he only spent a half hour per year managing the SBNC’s website, the cost would be greater than hiring an independent web hosting service.  The televised evening meetings on January 10, January 11, and January 17, which will require use of AACPS professional staff, will probably also cost the school district thousands of dollars in labor time, if labor costs were charged by the hour rather than treated as a fixed cost.

From the SBNC’s perspective, pleading poverty about a $60 cost is actually reasonable.  The legislature’s accounting and bill scoring rules allow it to provide its staff services to the SBNC without having to include the cost as a budget line item.  Similarly, AACPS can provide resources to the SBNC without having to bill the SBNC.  In contrast, even a negligible budget for webhosting would mandate a budget outlay, which would violate the legislature’s promise that the SBNC would cost the taxpayers nothing. 

Legal Opinion of Sandra Brantley, Maryland’s Assistant Attorney General, April 8, 2010

This legal opinion, written in the form of a letter, contains the completely unexpected bombshell.  Despite the fact that the Attorney General sent the letter to the SBNC more than a month ago, it still has not been posted on the SBNC’s website.  Here are the key points from this single-spaced, four page letter:

1) The statute creating the SBNC requires two completely different electoral processes for school board incumbents, one for those initially appointed before June 30, 2008 (the first class of SBNC nominated candidates took office July 1, 2008) and one for those initially appointed after that date.
2) For incumbents appointed before June 30, 2008, their names will automatically be nominated regardless of whether they go through the SBNC nominating process.  Thus, for example, Ned Carey is automatically nominated for a second term regardless of whether he goes through the SBNC nominating process.  In contrast, both Tricia Johnson and Mike Leahy, former school board members who sought a second term, thought that they had to go through the SBNC to be eligible for gubernatorial appointment.  Traditionally, incumbent school board candidates seeking a second term went through the school board nominating convention process. It was assumed by everyone that the same process would apply with the new SBNC.  That has turned out to be a faulty assumption.

3) The SBNC only has to nominate 1 individual in years when an incumbent elected before June 30, 2009 seeks a second term.

4) Now for the bombshell: Anyone appointed after June 30, 2008 is subject to a retention vote but does not have to either go through the SBNC nominating process or seek gubernatorial reappointment.  So, for example, if the school board members appointed this year win the November 2, 2010 retention vote, they are in for ten years if they want to be.  This suggests that a school board member filling a vacant seat and thus eligible for two more terms could serve, say, 14 years after initial appointment.  This may help explain why the SBNC wanted to hold an executive session to discuss School Board Memberer Andrew Pruski’s electoral status.  Pruski was appointed last year to replace Tricia Johnson, who left the School Board to join the County Council.

Why is this a bombshell?  No one, absolutely no one, publicly stated that the legislation creating the SBNC would allow school board members to have ten year terms if they passed the initial retention vote after being appointed by the Governor.  Look through the legislative record; look through the minutes of the SBNC; look at the articles about the SBNC in the Capital and other newspapers: no where is this supposed feature of the school board electoral system mentioned.
Perhaps even more shocking to me was that the Attorney General cited me as an authority for this interpretation of the legislature’s intent in creating a ten year term for school board members apponted after June 30, 2008.  When I read this, I just couldn’t believe my eyes.  Back in 2007 I submitted written testimony at a House of Delegates hearing just prior to passage of the bill creating the SBNC.  I had tried to testify in person but was told that I would not be allowed to: no member of the public would be allowed to testify at this hearing (or, for that matter, at any meeting about the proposed SBNC legislation).  Thus, I submitted comments merely on the record, which anyone can do.  As far as I could tell, those comments were not read by any legislators and had absolutely no impact on the passage of the bill.  I certainly got no feedback from a legislator saying my comments were read, let alone taken seriously.  But my written comments for the record included this text: “In reality, then, almost anyone who wanted to stay on the board for 10 years will almost certainly be able to do so.”  The Attorney General used this quote to suggest the legislature’s intent in creating a ten year term for incumbent school board members.  But what I primarily meant by this statement is that judicial incumbents who avoid doing anything controversial rarely, if ever, lose a retention vote.  We should thus expect the same for school board members, who would only face one retention vote on a November ballot in their school board careers no matter how long they served.  In addition, an incumbent initially appointed by the SBNC and who avoids controversy during his or her term would most likely be reappointed by the SBNC for a second term.  The Attorney General’s use of me as an authority, therefore, seems absurd to me.  What it does suggest, once again, is the sloppy and rushed legislative drafting that went into creating the statute creating the SBNC.
An additional irony is that the Attorney General previously ridiculed my analysis that the statute creating the SBNC may violate the constitutionally protected principle of one-person, one-vote, thus violating the U.S. Constitution.   From my perspective, the cases the Attorney General cited to make her case were irrelevant to the argument I was making (and, by the way, the Attorney General’s office in Maryland has a long history of ignoring the one-person, one-vote law of democracy, which was why the U.S. Supreme Court ruled in 1964 that Maryland had to reapportion legislative districts as a result of decades of willfully ignoring this law).  So here I am, cited on behalf of the Attorney General as an authority, despite the fact that in both cases my arguments were used out-of-context.

Lastly, the Attorney General’s bombshell has made me rethink a prediction I made on an earlier SBNC update.   There I predicted that if the Republicans won the governor’s office this November the politics of the SBNC would flip: Democrats would turn into its opponents and Republicans into its champions.  That is because the governor gets to appoint five of the SBNC’s eleven members as well as its chairman.  A Republican governor, combined with a Republican county executive (who gets to appoint one of the SBNC’s commissioners) would thus be in a position to take control of the SBNC.  But with this new interpretation of the law creating the SBNC, the next governor, regardless of his party affiliation, might have minimal control over the composition of the School Board if its incumbents, who are overwhelmingly first termers, decide to serve a second term.  However, if it were perceived that many first term school board members would not run for a second term (most school board members in recent years have left the school board to run for higher office before completing or winning a second term) or a Republican won a second term to the governor’s office (a political scenario that seems most implausible for Maryland), my initial political analysis would still hold.