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.

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