Reflections on key developments concerning the School Board Nominating Commission since its March 25 public meeting

The following comments concerning the School Board Nominating Commission (SBNC) commence with its March 25 meeting and end with its April 10 press release. These comments include actions taken by the SBNC and actions taken by the School Board and General Assembly with regard to the SBNC.

On Monday April 14 at 7:00 p.m., the SBNC will hold its first public hearing broadcast live on Anne Arundel County Government Television.

This may be my last report and analysis of the SBNC—at least for 2008. With the coming SBNC hearings being heavily promoted and televised, I feel I can now comfortably fade out of the picture. One exception is if a major and unpublicized procedural issue arises. Another exception is my series of complaints and the SBNC's responses to those complaints filed with the Maryland Open Meetings Act Compliance Board. I may be one of the few people who consider such procedural issues a big deal; my hope is that those appointed to interpret and enforce the Open Meetings Act will take their responsibilities seriously.

March 19—Public notice of March 25 SBNC public meeting

On March 20 the SBNC sent out a press release announcing its next public meeting, scheduled for March 25. The website lists the date of the press release as March 19. Since SBNC’s bylaws state that public notice is to be sent out ten days before a public meeting, SBNC’s notice violated its own bylaws

Shortly before its March 25 meeting and in response to my complaint filed with Maryland’s Open Meetings Compliance Board, the SBNC posted the minutes of its two meetings held on January 23 and January 30. Both meetings were held in secret and in violation of Maryland’s Open Meetings Act. Prior to this posting, I was unaware that in fact two meetings were held illegally. The only Open Meetings Act violation I had known about was the January 23^rd meeting. The website with the posted minutes makes no mention that the two meetings were held illegally.

March 25—SBNC public Meeting

On March 25, the SBNC held a public meeting to receive public testimony from three invited panelists on the proper role and desirable skills of school board members.

Other than a reporter from the Capital, I was the only audience member from Anne Arundel County present. In addition, there were three individuals from another County who were curious about the SBNC method of nominating school board candidates. Senator Simonaire’s aide also attended.

The panelists were Kitty Blumsack with the Maryland Association of Boards of Education; Penny Cantwell with CommerceFirst Bank of Annapolis; and Dr. Pamela Brown, Executive Director of Leadership Anne Arundel. The latter two were clearly chosen to serve, in part, as ambassadors from the business community. In a press release after the meeting, the SBNC summarized the testimony as follows: “Four overarching points were constants in all the testimony given to the Commission regarding what to look for when attracting, reviewing, and selecting potential Board members for appointment: a commitment to serve; an ability to listen to all sides; strong interpersonal and analytical skills; and a recognition that the proper role of Board members is to focus on policy making and strategic planning not school system operations.” Then it added a fifth point: “Another important recommendation from the panel related to remaining cognizant of the role that the business community can play in the strengthening of not only the Board of Education, but the school system itself.”

I don’t disagree that all the points in the summary were made by the witnesses. But there is one major theme that doesn’t appear in the summary. That theme is that the SBNC wants to appoint someone with business credentials who can credibly talk the talk of efficiency and accountability. The panelists emphatically stated--if abstractly and without relation to anything in particular--that the public wants board members who will use public resources efficiently. Members of the SBNC strongly echoed this theme—again abstractly--during the question and answer time.

My guess is that the SBNC will go out of its way to appoint one or more nominees who can be presented to the public as having business skills. This makes political sense. The school board is facing a huge structural deficit. The insiders know that a tsunami of pain is heading in the direction of parents. They also know that to get a tax increase passed to address the expected pain, it will be necessary to create the impression that the school board runs a tight ship. By the time budget reality finally begins to kick in with the public during May and June (after the County Council refuses to fully fund the school system’s structural deficit), picking someone with business credentials should be politically popular with just about everybody.

Do business people make better school board members? It’s hard to really answer this question because very few accomplished business people run for school board seats. And those who do run, win, and attempt to apply their business acumen often quit after one term, disillusioned with the difficulty of making any meaningful changes in the system. This doesn’t mean that a lot of business people don’t run and win, often on a platform including vague language of accountability and efficient use of taxpayer resources. But how do they actually perform once in office? Does all their rhetoric translate into meaningful action?

In my experience, having observed business people on school boards in many different communities, the answer is surprisingly “no.” People with business credentials who run for the school board are usually smart enough to recognize that the only political payoff is to talk like a business person, not act like one. If not, it usually doesn’t take them long to learn better.

So if business people rarely choose to use the skills for which they are lauded, does that make them bad school board members? The question, then, largely becomes one of motives. My guess is that business people are no more likely than other board members—and perhaps less so--to deep down in their bones really care about education. Many are on the board primarily to create visibility for themselves, either because it helps their business or political careers. For example, the last thing a community bank wants is to have one of its executives stir up controversy. If that executive is visible in the community in an uncontroversial authoritative way, then great, it’s good for business; the business person cum school board member becomes a rainmaker. Similarly, a business person using the school board to launch a political career will have no interest in stirring up any hornet nests. If a school maintenance department is incompetent, if public school construction costs twice as much as in the private sector (and results in ugly, factorylike buildings that endure for decades), and if making commitments creating a long-term structural deficit won’t create a political backlash during their term of office, their political philosophy is most likely to be “let sleeping dogs lie.” Why follow their business principles if the only result will be to stir up trouble that cannot help them achieve their true ambitions?

In America, we have created school boards constituted by lay people. The American public deeply mistrusts experts as democratic representatives because it understands that all the expertise in the world is of no use if the expert has no incentive to use his expertise to represent the public interest. That’s why a passionate, committed mom often makes a better school board member than a business person.

King Solomon, renowned for his wisdom, once faced a dispute between two women who each claimed the same baby as her own. To resolve the dispute, King Solomon ruled that he would cut the baby in half and give half to each woman. One of the women then immediately cried that she would give up the child. King Solomon knew that that was the person who truly cared about the child and therefore must be the true mother. School board members are like the moms; they all profess from morning to night that concern for the kids is all that drives them. In my experience, the school board business person is much more likely to be the fake mom.

Along these lines, I thought it was humorous when the head of the administrators’ union asked the three panelists: if business skills are important in a school board member, then shouldn’t we get rid of the student member of the board? This was funny because, when someone is a school board member negotiating with the administrators’ union, one doesn’t think of the administrators’ union, to put it mildly, as representing business values. I will be curious to see if the administrators’ union, during the SBNC’s public hearings, asks any hard nosed business questions of the school board candidates. If they did, I would be frankly shocked.

Quite surprisingly, the union leader’s question turned the tide of the discussion on business skills. All three panelists jumped to the defense of student members of the board, arguing that a good board is made up of people with a diverse set of skills and interests and that, in their experience, student members of the board made valuable contributions to school boards and often more so than their adult counterparts. More generally, the panelists reiterated that diverse skills, not just business skills, should be valued in a board.

Near the end of the meeting, SBNC’s Chair asked if there were any questions from the audience. I raised my hand and observed that the SBNC had violated its own bylaws when it sent out its notice for this meeting less than the 10 days required in its bylaws. I then asked how the SBNC would respond to this violation and if there was any penalty when the Chair violated the SBNC’s bylaws? The Chair responded that he simply does the best he can and there is no penalty when the bylaws are violated. I thought that, under the circumstances, this was a good answer. But it was alarming that not a single member of the SBNC said they were in any way upset by the violation and would try to make sure that it wouldn’t happen again.

My overall assessment, admittedly a cynical one, is that what the members of the SBNC got from this meeting is a set of vocabulary to describe how they should frame their final selection criteria. The words used at this hearing will be the types of words they will use to justify their final decisions to the public. But these words will mostly be make-believe; they will have little or no relationship to the negotiation of interests that will go on in the backrooms.

Corresponding to the make-believe aspect of the meeting, the elephant in the room during the discussion was the importance of political skills in a school board member. Nobody mentioned the importance of such skills. It never came up. But from my observations and from having read quite a bit about school board politics, political skills are essential in a school board member. There is an incredible amount of make-believe that goes along with being a successful school board member. Indeed, sometimes I think that, like the famous tale of the emperor’s clothes, the most important skill in a school board member is to regress to first grade math skills so as to avoid having to acknowledge the budget math self-evident even to simpletons. Perhaps in this deeper sense the political values reflected in this meeting, though never openly stated, reflected the true skills that go into becoming a successful school board member.

April 2—School Board Vote on HB1607 and Senate hearing on HB1607

On the morning of April 2, the school board voted unanimously (8-0) that the student member should be paid the same as the other members of the School Board. School Board member Mike Leahy then went to the same day Senate hearing on HB1607 and reported the result of the School Board’s vote. This apparently caused Anne Arundel County Delegation Chair Maryann Love and House Speaker Mike Busch to be furious. They were caught totally unprepared by both the School Board’s vote and Mike Leahy’s testimony reporting it. In the end, however, the School Board vote made no difference. On April 5, late in the night and only minutes before the end of the General Assembly’s session for 2008, the bill sailed through the Senate without amendments and ready for the Governor’s signature.

Why the hectic rush near the end of the session? One classic reason to rush last minute business is to make sure that opponents don’t have time to mobilize. In this case, however, there was an additional reason. The legislation setting up the SBNC had flaws that needed to be fixed. The SBNC needed official staff support, and the original version of the bill failed to provide that. Incumbent school board members also wanted to be paid as much as the school board members appointed under the new system. Thus, if the only practical choice was the bill as it existed or the status quo, the choice was easy. The bill was an improvement over the status quo with or without the provision to turn the student member of the board into a second class member of the Board. By waiting until the last possible moment, the option set was restricted to just two choices, and that rendered the School Board’s vote politically irrelevant. All this is Procedural Politics 101. But for those who don’t understand how the game is played, it can be useful to point out.

April 2 –Press release announcing 21 applicants for open seats

On April 2, the SBNC announced that 21 applicants had applied for the two contested seats open this year. Why the huge number? I think the key was the Capital article published a few days previously announcing that no one other than Tricia Johnson, a current board member, had either applied or publicly announced their candidacy for the two positions. Consider this comment by one of the 21 applicants, Roberta L . (Kitty) St. Romain, in response to the question why she was interested in serving on the School Board: “I am interested in serving on the Board because I was horrified to learn that there were no applicants for positions that have the potential to positively influence the community.”

In politics, potential candidates are very sensitive to who else is or might run for the same office. Candidates then decide whether they have a chance of winning and act accordingly. In the great majority of elections, promising candidates announce early and scare off potential rivals who decide they have no chance of winning. In this case, a very unusual political dynamic was set up where all those who were considering running decided it wasn’t in their self-interest to publicly announce their candidacy.

On the question of the electoral rights of incumbent school board members, there was a lot of confusion (including by me) about what procedures incumbent school board members would have to follow in seeking reappointment to the Board. The statute wasn’t clearly drafted and so the SBNC didn’t know how to interpret it. Thus, it solicited the opinion of Maryland’s Attorney General. The consensus now appears to be that incumbent school board members will have to go through the SBNC process just like any other candidate. This corresponds to the process used by the previous School Board Nominating Convention and has been revealed to be the intent of those who drafted the statute. This issue now appears to be finally resolved.

April 7—Press release with updated count of applicants

In this press release, the SBNC announced that the number of applicants it previously announced had been “misreported.” No explanation was given for how the number could have been misreported. The new total number was 19. Subsequently, the number has dropped to 18. If the SBNC follows a vetting voting procedure, I think there is a good chance that the number of applicants will stay high. Otherwise, I expect it to drop considerably before the final vote is taken. Candidates who know that it is very unlikely that they will win won’t want to embarrass themselves unnecessarily.

April 6—Letter to Open Meetings Compliance Board explaining SBNC’s violation of the Open Meetings Act

In a letter dated April 6, the SBNC’s Chair responded to my March 6 complaint about its violation of the Open Meetings Act at its January 23^rd meeting. According to the law, the SBNC had 30 days to respond (the SBNC took 31). In practice, the Open Meetings Compliance Board uses 30 days plus the time a particular correspondence is in the mail. The SBNC letter acknowledged that it violated the January 23^rd meeting but didn’t mention either the existence of a January 30^th meeting or that it also violated the law by holding that meeting in secret. When I filed my original complaint in mid-February, I did not know about the existence of the January 30 meeting.

The gist of the SBNC Chair’s excuse for violating the law was that he was ignorant of it at the time of the violation and lacked staff support. My guess is that all these excuses are primarily for PR purposes. According to my understanding, ignorance of the Open Meetings Act—even if it were true--is not a valid excuse for public officials who violate it. The Open Meetings Compliance Board has no enforcement powers, just the power to rule whether the law was, in fact, violated, which means that the only true enforcement power is the court of public opinion. Thus, SBNC doesn’t really care about what the Open Meetings Compliance Board rules; what it cares about is how that ruling might be framed in the press.

April 10— Press release with changes to public hearing format

In a press release dated April 10, the SBNC announced it would drop television coverage of the second phase of its public hearings. Faced with the choice of dropping the broadcast of embarrassing testimonials to the entire County or changing its pre-announced format for its second phase of public hearings, the SBNC has decided to do the former rather than the latter. I am frankly torn by this decision. On the one hand, I thought the format for the second phase of public hearings was subject to abuse (see my last post before the March 25 public meeting), with the greatest potential harm done if it was televised. On the other hand, television is one of the few meaningful ways to make the Commission democratically accountable. Televised debate formats that allow for audience give-and-take are very popular and informative (think of the CNN presidential debate with the Youtube questions and talking snowman).

My overall philosophy about the SBNC is that whether it is a poorly designed democratic institution or not doesn’t matter that much if it is exposed to enough sunlight. Sunlight will disinfect the SBNC’s undemocratic propensities. And I believe that TV coverage and accessible records could provide a good measure of that disinfectant. Thus, when TV coverage and record keeping is made impractical, the SBNC is weakened as a democratic institution.

The SBNC might argue publicly that cost was the reason for dropping TV coverage of the second phase of the public hearings. But I don't buy that because the TV infrastructure is already available in the County Council chamber, and coverage of public candidate debates is one of the highest and best uses of this infrastructure. In Vermont, where I originally came from, volunteers would televise such debates in political districts one fiftieth the size of Anne Arundel County. The broadcasts would then be preserved and become part of the public record.

The SBNC could yet change its mind. It could come out and say it was able to find the resources to cover the second phase of its hearings. But it’s my educated guess that this is not how it’s going to play out.

Conclusion

Despite all my criticisms—and perhaps in part because of them—the SBNC is off to a pretty good start. I believe it is struggling with its natural undemocratic tendencies and discovering that to preserve its good name it will not only have to spout democratic rhetoric but actually take steps to live up to it. I am frankly quite curious to find out whether this will, in fact, be the case.

School board wants equal pay for student

Publication: Capital
Title: School board wants equal pay for student;Unanimous vote supports $6,000 paycheck for teen member
By: Elisabeth Hulette
Date: April 3, 2008

The county Board of Education agrees its one student member is equal to her adult counterparts and should be treated and paid equally. The members even voted yesterday - unanimously, 8-0 - to say so.

The vote was spurred by discussion of a state bill that gives adult board members their expected raise earlier than planned. But the bill also would keep the student member working for a lower salary than the adult board members.... (click title for full article)

Two school board openings, no candidates

Publication: The Capital
Title: Two school board openings, no candidates; Tuesday deadline approaching
By: Erin Cox
Date: March 27, 2008

Wanted: school board members.

Must have ample free time, business acumen, public relations skills, no special-interest agenda and work well with others. Apply immediately. To repeat: immediately.

Less than a week remains before the application deadline for two spots on the county's Board of Education. Zero applications have been submitted.... (click on the title for the rest of the article)

Reflections on key developments concerning the School Board Nominating Commission since February 20, 2008

The following are my reflections on key developments concerning the School Board Nominating Commission (SBNC) that have occurred since February 20, 2008. These include the second meeting of the SBNC, the SBNC’s publicly released application for school board candidates, the Maryland Attorney General’s opinion clarifying ambiguities in the enabling legislation that created the SBNC, and the legislation from Maryland’s General Assembly amending the legislation passed last year.

February 20, 2008--Second Public Meeting and Release of Bylaws

On February 20, 2008 the School Board Nominating Commission met for the second time in public. The notice for the meeting said that public comments would not be allowed at the meeting. This time only one member of the public, other than the Capital reporter, was present. I was unable to attend this meeting, so my information comes from Tom Frank (the member of the public present), the Capital’s report on the meeting, and the bylaws that came out of the meeting.

The two main purposes of the meeting were to pass the bylaws and to discuss additional procedures that would guide the operations of the School Board Nominating Commission. The bylaws were developed in secret, and at no time prior to their passage was the public given a draft of them either to review or provide comments upon. The standard practice in American democracy is for the rules of public bodies to be posted publicly before they are voted upon. I am not aware of any democratic theorist who has ever argued for doing otherwise.

The bylaws mostly come across as unobjectionable boilerplate for this type of entity. The existence of grammatical mistakes suggests at least some divergence from canned bylaws. Some of the bylaws noteworthy features are discussed below.

The bylaws state that the public will be given at least ten (10) days notice of the Commission’s public meetings. This is not as much notice as the School Board Nominating Commission gave, but it’s a significant improvement over the much briefer notice the SBNC gave for its first two public meetings.

Unfortunately, this clause hasn’t gotten off to an auspicious start, as I received notice of the Commission’s third meeting, set for March 25, on March 20 (only five days before the announced meeting). On the Commission’s website, the press release giving notice of the March 25 meeting is dated March 19.

These facts raise two questions. Why do the press releases seem to be sent out after the dates posted on them? And what happens when the SBNC violates its own bylaws? Clearly, the SBNC doesn’t take its own bylaws very seriously. If the SBNC can so easily disregard its own bylaws, it raises the question of whether the public should take them any more seriously.

Other than the ten day notice clause, the general tenor of the bylaws is that the SBNC will do the minimum necessary to comply with the Open Meetings Law and Public Information Law. This is touched on in the complaint I filed on March 18, 2008 with Maryland’s Open Meetings Compliance Board. The gag clause seems especially onerous because its presumption is that the burden of justification should be placed on openness rather than secrecy. The gag clause reads as follows:

Except as may be required by law, all information received by the Commission, including, but not limited to, applications, communications, correspondence, and notes received in a written, oral, or electronic manner shall be held in the strictest of confidence and shall only be discussed or disseminated among Commissioners to be used in the performance of their tasks and undertakings as provided for in these Bylaws. Any requests for the disclosure of Commission information and materials shall be reported to the Chairperson as soon as practicable. (Article VIII, page 6)

Will the SBNC really enforce this rule with respect to the interest group and other political patrons of the SBNC’s commissioners? I doubt it very much. The practical import of a gag clause like this is just to keep the public in the dark.

Overall, I would say that the bylaws are most interesting for the procedural issues they don’t cover rather than those they do. For example, a key question not addressed in the bylaws is how the SBNC will vote on candidates and how the public hearings will be conducted. The SBNC addressed these issues but hasn’t yet come to agreement on how to handle them.

The Maryland legislation creating the Commission requires that it hold two public hearings. The SBNC has decided to televise those two hearings on the County’s government access channel. I applaud that step, but I also believe it runs far short of what is needed. I had pushed for webcasting and archiving the hearings. The SBNC has apparently decided not to do this.

There is an economic conflict of interest involved in this decision because the SBNC includes representatives from Comcast and Verizon, companies which provide TV service in Anne Arundel County. The conflict arises because only about 60% of Americans subscribe to either cable or telco provided TV. The rest get their TV via satellite or over-the-air broadcasting. Giving the telcos and cable companies an exclusive right to televise local candidate coverage gives them a competitive advantage.

There is also, perhaps more importantly, a political conflict of interest. Comcast has a de facto policy of not archiving and making accessible its candidate TV coverage (e.g., Comcast airs local candidate interviews on CNN Headline News just before elections). Comcast does this, in part, because it knows that politicians hate to have these types of records lying around. Since a major reason Comcast provides this TV service is to cultivate goodwill among politicians, it would make no sense to distribute candidate videos in a way that might alienate those politicians. However, what is good for politicians and Comcast is not necessarily good for democracy. In the age of YouTube, there is simply no good excuse not to webcast as well as cablecast the public hearings, and then archive those hearings as an important historical record. Moreover, as a result of more than $10 million of public, educational, and government access TV funds—funds that were generated as a result of a congressional statute seeking to enhance citizen access to information about their communities and government--the County has an immense array of fancy internet equipment (far more than most YouTube users could even dream of) that can and should be used to for this purpose.

The SBNC has also apparently decided to use the first hearing to allow the candidates to present their case and provide time for SBNC’s commissioners to ask questions of the candidates. The proposed use of the second hearing is to allow members of the public to comment on the candidates.

I like the proposed format for the first but not the second hearing. Part of me does like the radical, highly unusual format of the second hearing because it suggests a desire for openness. On the other hand, I cannot imagine a single elected official in our County who would allow himself to be subject to such a public format because it is a blazing invitation to abuse. Who would speak up at such a meeting? Would they be representative of the public? Or would they be stacked by special interest groups—what every politician would expect and fear? Generally, when politicians are willing to open themselves to public comment it is not in a high stakes, televised, and recorded environment where they aren’t given control over who and on what terms their critics are allowed to speak.

The format of the second hearing also reflects a conceptual misunderstanding. SBNC seems to think that the purpose of the public hearings is to hold the candidates accountable. I would agree that that is one purpose of the public hearings. But I believe the far more important purpose is to hold the SBNC’s commissioners accountable. The public needs to hear the questions they ask of the candidates and how the commissioners respond to the candidates’ answers. The public then needs to be able to compare the commissioners’ votes on the candidates with the information revealed at the public hearings. This will give the public a better sense of whether the public hearings are a mock exercise in democratic deliberation. The commissioners need to provide a public display of democratic legitimacy. But they also have a powerful incentive to engage in closed door, power politics negotiation. The public hearings should provide the public with a way to gauge whether the decisions actually made by the commissioners correspond to their public rhetoric.

An alternative format for the second hearing would be to do what the School Board Nominating Convention did: allow citizens to ask questions of the candidates. However, the Nominating Convention provided three nights rather than one for asking such questions. In addition, the questioners, to become members of the School Board Nominating Convention, had to be vetted by their local communities. These are major differences, and they make the citizen question format less desirable.

More generally, the democratic theory behind the SBNC is that it is representative of the public; otherwise, its powers make no sense. With minimal time for a public hearing, the first priority for the public should be to assess how well those representatives actually represent them. The design of the public hearings seems to take that representation for granted.

Perhaps the most important issue discussed at the February 20 meeting was whether the commissioners would simply vet the candidates’ qualifications for serving on the school board or pick only their top two choices. The first system, advocated by the Chair of SBNC (and favored by me), would suggest an up or down vote on each candidate (called “approval voting”). The second system, advocated by some other commissioners, would aggregate all preferences so that only the top two with the most votes would be nominated for selection by the governor.

In practice, I’m pretty confident that the two voting mechanisms would result in the same outcome: just two candidates being sent on to the governor. The reason I say this is that the commissioners, in the long run, will naturally tend to want to maximize their own power, and they can best do this by nominating only two candidates. Indeed, I would go further and say that SBNC’s interest group representatives have a fiduciary duty to the organizations that appointed them to seek to maximize their own power and thus, by extension, SBNC’s power. Their comments, as reported in the Capital, would bear out this analysis of their self interest.

What I like about the approval system is that it would make the commissioners more accountable to the public because it would reveal a lot more information about their true preferences.

As I understand it, no final decision has been made about whether the individual votes of the commissioners will be made by public or secret ballot. In general, the theory of representative democracy is that the public should be able to know how their representatives voted. In practice, however, representatives hate to give up control over this information and are very clever at designing systems to prevent its revelation (I am currently writing a major national report on just this issue). I don’t expect that SBNC’s commissioners will be able to pull off a secret ballot; it would offend the public too much. But on the more subtle question of on-the-record up-and-down votes, I’m confident that they will eventually get their way, even if it isn’t during the first year of SBNC’s operation.

An important fact in assessing the desirability of the type of candidate-by-candidate voting I recommend is that, regardless of the voting system selected (individual vs. aggregate and public vs. secret ballot), insiders will know this type of voting information. That is, by the end of the nominating process it’s likely that the commissioners will know each other’s preferences. It’s also likely that it will be in their self-interest to reveal their own and their fellow commissioners’ preferences to their political backers. Thus, it doesn’t matter whether bylaws or any other procedure says otherwise: the insiders will have all the information necessary to hold the commissioners accountable. Only the public will be left out of the political calculus--a voting design that harms democracy.

March 6, 2008--Application for Appointment to the Anne Arundel County Board of Education posted on SBNC’s website

Like the School Board Nominating Convention, candidates are asked to fill out a long application concerning their qualifications and public policy agenda. The application, released on March 6, doesn’t say whether the answers will or will not be made public. However, the intermixing of private contact information with the rest of the questionnaire suggests that the answers will only be available to the SBNC’s commissioners and their political allies. I suggest that the practice adopted by the School Board Nominating Convention, which was to make such applications public, should be adopted. This is especially so if the SBNC plans to hold a public hearing with public questions.

In terms of the content of the application, I would recommend dropping the question concerning the three most critical questions facing Anne Arundel County. That’s a reasonable question for the public hearing, but in the context of the SBNC, it’s not a good question for the candidate questionnaire. Like the Judicial Nominating Commission application, it should focus on a candidate’s past accomplishments. I would be a bit more sympathetic to asking this written question if I knew the answer would be posted publicly on the SBNC’s website. Since that doesn’t appear to be the intention, such questions should be reserved for the public forum.

I would also recommend eliminating the fifteen year clause attached to each of the biographical narratives. Despite its innocuous wording, it is simply unnecessary and will tend to cause younger but qualified people not to apply.

Lastly, all prospective SBNC commissioners should be required to fill out an identical questionnaire and post this information on the SBNC website as a condition for their appointment to the SBNC.

March 10, 2008—Maryland’s Attorney General provides a written opinion to the SBNC concerning its role in nominating incumbent school board members.

The Chair of the SBNC sought to resolve ambiguities in the legislation creating the SBNC by asking for various opinions from Maryland’s Attorney General. The questions to the Attorney General were not posted on the SBNC’s website. The Attorney General’s answers were, but without repeating the questions. The Chair’s confusions resolved around the re-election rights of incumbent school board members appointed under the previous nominating system, and the necessity and timing of retention elections for those already appointed to the school board.

Even with the Attorney General’s letter, I am still confused about the exact set of rights that incumbent school board members have. It appears that the nominating system will no longer vet incumbent school board members seeking a second term. Under the previous nominating system, incumbent school board members were vetted by the School Board Nominating Convention. The Attorney General ruled that currently sitting incumbents would be able to bypass the SBNC and automatically be nominated to serve on the School Board for a second term. This would be striking because legislative and newspaper editorial advocates for establishing the SBNC repeatedly told the public that the SBNC would correct a major defect in the School Board Nominating Convention system of nominating candidates: that the governor could bypass the Nominating Convention’s nominees. Now it appears that under the new law the SBNC has no control over the nominations of incumbent school board members.

March 16, 2008—The Capital’s Eric Hartley writes an opinion piece raising concerns about the SBNC

After a series of news articles and editorials during the past 16 months endorsing the SBNC procedure, the Capital published an opinion piece by Eric Hartley suggesting that the SBNC might actually have some institutional downsides. Hartley seems to have actually read and thought about the legislation, rather than merely regurgitated information off a press release. Bravo to him and the Capital!

I don’t want to give too much praise to the Hartley article because I don’t buy into his theory that the SBNC is a Democratic plot against the Republicans. But I do very much like his conclusion: “American history is full of hedges against unfettered democracy…. But if that is really what’s behind this convoluted school board process—if our lawmakers think we cannot be trusted—just tell us.”

March 21—Maryland’s House Passes Bill HB1607 to amend certain flaws in the legislation setting up the SBNC

Without any public hearing or discussion, the Maryland House passed legislation (132-6) to fix certain problems with the original SBNC legislation that had become evident. The legislation is a bit jarring because last year we heard our County leaders saying that, after a decade of debate and numerous public hearings leading up to passage of the legislation creating the SBNC, they expected not to have to revisit this issue for thirty years. Now we are seeing several amendments to the original legislation rushed through the legislature at the end of the session.

There are two major changes to the legislation. First, it provides staff support for the SBNC. The School Board Nominating Convention relied on volunteer help, but, as an official government entity, the SBNC needs professional staff. The Department of Legislative Services has been given this role. It seems to me that this amendment is good for the SBNC. I’m not sure, however, if it’s good for the Department of Legislative Services, which has over the years studiously tried to stay out of partisan and special interest politics. The responsibilities of the Department of Legislative Services are left ambiguous. But if they eventually come to include candidate relations and even possibly recruitment, as I expect they will, then a danger zone will have been entered.

Why was the Department of Legislative Services given this role? It’s interesting to note that no money was allocated in the legislation to pay for their services. Nor did the accompanying fiscal and policy note, mandated by Maryland law, estimate their cost. If this was Congress, this would be a clear violation of the law. My guess—and I could be wrong on this—is that it’s also a violation of Maryland law for the legislature to mandate new expenditures and not disclose their cost. Admittedly, the amendment is written so vaguely it’s hard to put a cost on the assigned tasks to be provided by the Department of Legislative Services. But it’s certainly not zero, and given the high cost of state employees (including benefits and overhead), I doubt it can be less than $40,000/year, especially given that SBNC meets at the busiest time of the year for legislative services, which is when the General Assembly is in session. Remember that the SBNC has been complaining to the legislature that this is a very time consuming job, what with dealing with 11 commissioners, candidate applications, public relations, and a website that needs to be regularly updated. I believe that this has also been their excuse for violating the law (Maryland’s Open Meetings Act).

My guess is that putting in a $40,000+ figure to maintain the SBNC would have been perceived as embarrassing. Moreover, by allocating the cost to an ongoing organization, it was perceived to be easy to hide. From this I infer that one of the chief attractions of writing such a vague job description, violating rules concerning disclosure of expenditures, and assigning an inappropriate job to the Department of Legislative Services, was to avoid public disclosure of this cost.

The second amendment involved pay for incumbent school board members. The previous legislation only paid compensation to new school board members appointed under the new electoral system. As a result, the incumbent school board members complained to the legislature that they were being treated unfairly: for equal work there should be equal pay. A competing theory is that people who have agreed to a contract for one price should not be able to renegotiate that contract before it expires (this is why politicians usually get newly approved pay increases only after the next election). The incumbent school board members, however, didn’t want to wait for reappointment to get their equal compensation.

If this compensation increase was so important to the sitting school board members, why didn’t they just include it in the school system’s budget rather than having our County’s delegation to the state legislature include it in legislation? Did the sitting school board members know that voting on a salary increase for themselves would be controversial and that by having the legislature do the deed quickly and quietly this potential controversy could be avoided?

A striking feature of the equal pay for equal work argument is that it ignores the student member of the school board. Does that mean the incumbent school board members making this case are simply assuming that the student member does not do equal work and is therefore undeserving of equal pay? That would appear to be the only way to make sense of their argument to the legislature.

Until last year, the student member of the school board was treated equally with the other board members. Then, just a few days before the legislation creating the SBNC was passed in the House--and without any public hearing--an amendment was slipped in to exclude the student member from the compensation to be paid the other school board members. This was presented as an innocuous amendment, but it actually represented a radical change. Henceforth, the student member would be a second class member of the school board and would become dependent on other board members for reimbursement of expenses.

So why does the principle of equal pay for equal work not also apply to the student member? The Chair of the Anne Arundel County House delegation now says it’s because the student member doesn’t need the money as much and gets a greater reward than the other board members in terms of resume padding. But can these claims withstand scrutiny? Students arguably have higher expenses than the other board members because the other board members already have cars whereas a student often has to purchase a car and auto insurance to serve on the school board. The practical effect of not giving the student compensation is that students who don’t come from well off families won’t be able to serve on the board. In terms of resume padding, many school board members use their office as a stepping stone to higher office, a better lobbying job, a better school system job, more offers to serve on prestigious boards, and other types of career and social advancement. Why is this so different from a student who, too, has benefited from serving on a school board? (Disclosure: my daughter is currently the student member of the school board. But I should note that she would not personally benefit from any pay increase because the pay increases for the additional school board members would not take effect until July 1, 2008, after her term expires.)

If I had my druthers, the single most important amendment the legislature should introduce would be to increase the number of individuals from two to three that the SBNC has to nominate for each open school board position. The current system makes it far too easy to rig the system so that the SBNC takes on both the roles of nominating and appointing candidates. Consider the following scenarios. Let’s say the SBNC knows the governor wants to select a Democrat to serve on the School Board. Then all it has to do is nominate a Republican and Democrat to have de facto appointment power. Similarly, let’s say that during a particular year the governor wants a woman (or man), black (or white), North County resident (or South County resident), businessman (or parental activist)—you fill in the blank. All the SBNC has to do then, is pair up someone with an undesired trait with someone with the desired trait. The result is that the governor has no option but the one the SBNC wants. Meanwhile, the SBNC looks good to the public for sending a “balanced” slate of candidates to the governor.

If the SBNC were constituted as a representative body (rather than as an advisory body) this wouldn’t be a big deal. But to give self-selected interest group representatives the power to administer $1 billion in tax revenue is a gross abuse of democracy. I believe that requiring the SBNC to nominate a minimum of three individuals would greatly reduce its ability to engage in this type of strategic behavior.

If anyone is aware of a similar unelected body in the United States with so much power to select representatives to spend taxpayer money on behalf of the public, please let me know. I am also unaware of a public purchasing committee anywhere in the United States (e.g., at the U.S. Defense Department) where a significant proportion of the committee members represent independent organizations who have a direct financial stake in the committee’s purchasing decisions.

When it comes to advisory committees, the standards are very different. There the possession of expert knowledge relevant to a decision trumps other considerations. But the SBNC is currently structured to be far more than an advisory body; it has huge powers to act on behalf of the public.

Please note that the Judicial Nominating Commissions, which are cited as a precedent for the School Board Nominating Commission, has thirteen members, nine appointed by the governor, including the chair, and four chosen by the presidents of the local bar associations. For the Governor’s last appointment on February 25, 2008, the Judicial Nominating Commissions chose from an applicant pool of twenty-five names and sent eleven names to the Governor (including those vetted during the past two years) for an open seat.

My guess is that over the next few years we’ll see a lot of legislation introduced to fix the flaws in the current SBNC system. If the past is any guide, that legislation will be introduced at the last minute, without public debate, in the dead of night.

Conclusion
I’ve dwelt on the dangers of allowing the SBNC to publicly endorse one set of values and privately pursue another. One of the dangers of allowing this type of discrepancy has not been mentioned. It is that it will tend to discourage qualified candidates from applying to become school board members. If candidates sense that all the talk about openness and reasoned deliberation is mostly for show and that the recruitment and choice of candidates will in reality be an inside job, then fewer qualified candidates will seek to apply to become school board members. The SBNC has stated that its primary goal is to recruit and nominate as many highly qualified candidates as possible. If this is indeed its true desire, then it should devote its utmost effort to preserving the integrity of its process.

Second Complaint File with Maryland's Open Meetings Compliance Board

Today I filed a second complaint with Maryland’s Open Meetings Compliance Board concerning the School Board Nominating Commission (SBNC). The first complaint was filed on February 16, 2008. This new complaint focused on two obscure provisions of SBNC’s bylaws, which were passed on February 20, 2008, and pointed to some hard-to-justify differences in the stated intent versus actual implementation of the Open Meetings Act. Unlike the first complaint, which focused on blatant violations of the Open Meetings Act, this complaint focused on areas where the School Board Nominating Commission was apparently following the letter of the law but clearly violating its intent and spirit.

No one should be under the illusion that violating the Open Meetings Act is considered a serious offense by law enforcement authorities. The reason the Open Meetings Act and the Public Information Act are so frequently violated is that they are not enforced in any meaningful way and thus taken no more seriously by office holders than speed limits or mandates to pay the payroll tax for babysitters. On the other hand, democracy requires that citizens be able to hold their representatives to account. So when our representatives play the game of spouting openness but practicing secrecy (especially when that secrecy involves vital issues of public concern), the public is harmed.

I hope to write up my reflections on the SBNC’s last meeting (February 20, 2008), new bylaws, and other related actions, either later today or, most likely, tomorrow. Please note that the next meeting of the SBNC is scheduled for Tuesday, March 25, 2008. At the February 20, 2008 meeting only one member of the public, other than the Capital reporter, was present.

Second complaint URL

http://s173754652.onlinehome.us/CASB/SchoolBoardNominatingCommission--OpenMeetingsActViolationLetter--3-18-08.doc

First complaint URL

http://s173754652.onlinehome.us/CASB/SchoolBoardNominatingCommission--OpenMeetingsActViolationLetter--2-16-08.doc

New rules, but same old politics shape school board

Publication: Capital
Title: New rules, but same old politics shape school board
Date: March 16, 2008

http://www.hometownannapolis.com/cgi-bin/read/2008/03_16-60/PRI

School Board Nominating Commission of Anne Arundel County - IMPORTANT NEW INFORMATION

From: Anderson, Sandie [mailto:Sandie_Anderson@cable.comcast.com]
Sent: Thursday, March 06, 2008 4:05 PM
To: Anderson, Sandie
Subject: School Board Nominating Commission of Anne Arundel County - IMPORTANT NEW INFORMATION

All –

Please find attached the March 5^th School Board Nominating Commission media press release which announces the launch of the Commission’s official website as well as announces the Board of Education Member Candidate Application process. As you know our goal is to reach as many citizens as possible with this information.

Please consider the following.

1) Providing a link from your organization’s homepage to the Commission’s website. Something along the lines of “For Information on the new School Board Nominating Commission please click here”

2) Immediately sending the press release and/or notice to your membership sharing the information on the candidate process.

3) Include this information in any regular communications [email blast, newsletters, etc.] you might have with your membership over the next month

Application deadline is April 1, 2008. Specific details can be found at http://www.aacps.org/sbnc/

If you have questions please feel free to contact me directly.

Thanks for your support and assistance in this endeavor.

Sandie Anderson

Sandie Anderson Communications Manager Comcast Bay Shore Group
253 Najoles Road Millersville, MD 21108 (tel) 410.729.8007 (fax ) 410.729.8001
sandie_anderson@cable.comcast.com www.comcast.com

SCHOOL BOARD NOMINATING COMMISSION OF ANNE ARUNDEL COUNTY LAUNCHES WEB SITE, ANNOUNCES OFFICIAL CANDIDATE PROCESS

The School Board Nominating Commission of Anne Arundel County announced

today it has officially launched the commission’s web site at www.aacps.org/sbnc. The

Commission web site will provide detailed information on the Commission’s bylaws,

structure, timeline, and public process.

The Commission has also announced its official candidate application process.

Details can be found at www.aacps.org/sbnc. Anne Arundel County School Board

Candidate applications will now be accepted by the Commission until close of business

April 1, 2008, by mail or e-mail.

Applications should be submitted to School Board Nominating Commission of

Anne Arundel County, P.O. Box 591, Annapolis, MD 21404-0591 or electronically to

sbncacc@gmail.com. Inquires should be directed to sbncacc@gmail.com.

P.O. Box 591

Annapolis, MD 21404-0591

sbncacc@gmail.com

Ninth seat coming to Anne Arundel school board

Publication: The Examiner
Title: Ninth seat coming to Anne Arundel school board
By: Josh Kowalkowski
Date: 2/22/08

School board nominating process taking shape

School board nominating process taking shape

No limits on number of candidates sent to governor

By ELISABETH HULETTE, Staff Writer

Published February 21, 2008

The new committee that will select county school board members is placing no limit on the number of candidates it can send to the governor.

Three of the 11 members of the School Board Nominating Commission voted last night against the plan, under which any applicant that garners a simple majority of commissioners' votes - six out of the 11 - will be sent as a candidate to the governor.

The commission was created by the legislature last year hurriedly and with little attention to detail. Its members voted last night on a process, timeline and officers - details crucial to selecting candidates for the county Board of Education.

The commission is charged with submitting at least two candidates for each open seat on the school board to the governor, who must appoint one of them to the board.

Three of the 11 commissioners - Richard Kovelant, of the Association of Educational Leaders, Tim Mennuti of the county teachers' union and Lee Roy Payne, who was appointed by the governor - voted against selecting candidates by a simple majority vote.

"A simple majority does not do the process justice," said Mr. Kovelant, who argued the commissioners should score candidates and send only the top-scoring candidates to the governor.

Mr. Mennuti said one negative is that under a simple majority vote, the commission could potentially send every applicant to the governor for consideration, if every applicant earned six commissioners' votes.

"We should manage the board so they have a collection of talent," he said. "We want them to be a diverse candidate pool."

Joshua Greene, chairman of the commission, said the simple majority vote is similar to how judges are nominated in the county, and there was some expectation that the commission would work the same way. He did not say who held that expectation.

The 11-member commission has five members appointed by the governor, one appointed by the county executive and five appointed by local interest groups.

The commission is a change from the previous system, under which local interest groups in a nominating convention submitted names to the governor, who could then appoint those candidates or anyone else he wanted.

Two seats will be open this year - board president Tricia Johnson's seat as she comes up for reappointment, and a new ninth seat that was also created by the legislature last year.

Mr. Greene drafted the process documents and timeline with communication from the state Attorney General's Office, the legislature and some county school system officials. The other commissioners approved most of those drafts, which are subject to change.

The commission agreed:

On two officers: Matthew Tedesco, one of the governor's appointees, will be vice chairman of the commission; and Anita Owens of the County Council of Parent Teacher Associations will be secretary.

Applications from candidates for the school board must be in the hands of the commission by April 1.

To hold two public hearings on the candidates. Scheduled for April 14 and 28, they will be broadcast on the school system's cable television channel.

To hold a public meeting. The commission will hold a public meeting May 5 to deliberate and vote on candidates and then send those names to the governor on May 12.

To seek an exemption from the state ethics law that would otherwise require financial disclosure from the commissioners. That's routine, Mr. Greene said, because the commission does not directly control any government money.

Because the commission has no budget - not even for office supplies - its members are asking the legislature for some funding. They are trying to get an unpaid student intern from Anne Arundel Community College to work as their executive assistant.

The commission will launch a Web site next week under the county school system's site, http://www.aacps.org/. The timeline, bylaws and minutes from the past two closed meetings will be posted on the site shortly, Mr. Greene said.

The commission's next meeting will be open to the public March 18 at a location yet to be determined.

Complaint alleges the School Board Nominating Commission violated the Maryland Open Meetings Act

Today I filed a complaint with Maryland’s Open Meetings Compliance Board concerning the Anne Arundel County School Board Nominating Commission. The Commission is subject to the Open Meetings Act and discussing the bylaws of the Commission is not an exempt topic for discussion. At its first meeting on January 17, the Commission stated that it would hold a secret meeting on January 23 to discuss its proposed bylaws.

The next meeting of the Commission will be held this coming Wednesday, February 20, at 6:30pm. At this meeting, the Commission will publicly discuss its proposed procedures. The Commission is under no legal obligation to seek public comment on its proposed bylaws, and its press release for the meeting states that it will allow no such comments at this meeting. Its only legal obligation under the Open Meetings Act is to make its own deliberations public.

I would encourage members of this community to ask the Commission to follow not only the letter of the Open Meetings Law but also its spirit. I believe that the precedent of openness established by the Anne Arundel County School Board Nominating Convention is a good basis for discussion. The Convention, in its many weeks advance notice of meetings and in many other little ways, went well beyond the minimum standards established in Maryland’s Open Meetings Act. However, given the extraordinary powers invested in the Commission and the fact that five of its eleven members are appointed by private interest groups, I believe that the Commission should strive for an even greater level of openness. For example, it should use the County’s new multimillion dollar TV system to broadcast and webcast candidate presentations (analogous to the current system of broadcasting/webcasting presidential debates). The purpose of these broadcasts would be to assess not only the candidates but also the Commission itself. Indeed, I believe the latter purpose would be even more important than the former one. The public needs to come to its own judgment about the extent to which the Commission acts as a backroom negotiating body among power brokers or, as it presents itself, a truly independent deliberative body intent on finding the best leadership for AACPS. The public can only come to this judgment if it has an opportunity to see for itself how the Commission acts. Moreover, the public’s ability to conveniently monitor the Commission will force the Commission to stay true to its stated principles.

Next Meeting of the School Board Nominating Commission Announced

Attached below is the substance of the press release sent to the press:

SCHOOL BOARD NOMINATING COMMISSION OF ANNE ARUNDEL COUNTY TO HOLD PUBLIC MEETING
ON FEBRUARY 20

The School Board Nominating Commission of Anne Arundel
County will hold a public meeting on Wednesday, February, 20, 2008. The meeting
will begin at 6:30 p.m. in Room 161 of the Arundel Center located at 44 Calvert
Street, Annapolis, MD 21401.

The purpose of this meeting will be to
adopt operating procedures and other administrative functions of the Commission
as well as announce general information regarding the planned timelines and
framework for the consideration of applicants to be appointed to the Anne
Arundel County School Board.

While the Commission is a public body under
the state Open Meetings Act, and the public is welcome to attend, no public
testimony will be taken at this meeting.

School Board Nominating Commission Meets For the First Time; Decides to Hold Secret Hearing to Discuss its Bylaws

On Thursday, January 17, 2008, the Anne Arundel School Board Nominating Commission met for the first time. The meeting was publicly announced the previous afternoon in a blurb in the Capital. Four members of the public were present at the meeting, the Chief of Staff for Speaker of the House Mike Busch, the Capital education reporter, Tom Frank, and me. The primary decision made at the meeting was to hold a secret meeting, scheduled for the evening of January 23 (tonight), to formulate bylaws. There was a great sense of urgency to compose a set of bylaws so the candidate recruitment and selection process could begin.

The School Board Nominating Commission was appointed by the Governor on November 6, 2007. It has eleven members, five appointed by interest groups (publicly described as "stakeholders", a term popular with politicians but not political scientists) and six appointed by elected representatives. I shall call the former group the "Interest Group Commissioners" and the latter the "Political Commissioners."

The Interest Group Commissioners were appointed by the five interest groups: business community (Anne Arundel County Chamber of Commerce) teachers union (Teachers Association of Anne Arundel County), administrators union (Association of Education Leaders), parents (Anne Arundel County Council of PTAs), and higher ed (Anne Arundel County Community College Board of Trustees). Five of the Political Commissioners were appointed by the Governor; the sixth was appointed by the County Executive.

The bill creating the Commission was incredibly sketchy, a slapdash piece of legislation that delegates huge legislative powers to the Commission. Some of the mess was cleaned up in the midnight rush before the bill passed (when an amendment was introduced to increase the size of the school board from 8 to 9 members to fix an unanticipated inconsentency caused by the change in school board districts). Maryland's Attorney General is being called upon in unspecified ways to clarify other ambiguities (such as the degree to which the Commission must follow laws created for other appointed bodies). Still, there are vital issues and apparently unanticipated scenarios the Commission must sort through before it can get down to business. (Alan Lang provided an outstanding, if incomplete, summary of these unresolved issues in an email to individual legislators on March 22, 2007, which I highly recommend reading.) Such problems aren't unusual for new laws coming out of America's legislatures; they are nevertheless worthy of note, not only because of the carelessness they reveal, but also because the result is to delegate very significant and unspecified powers to unelected bodies.

So what kind of political body is the Nominating Commission? The answer to this question is by no means self-evident. The part that is most explicit is that this is an appointed political body granted substantial powers. The most important power is the power to limit the Governor's choice of school board members to one of two candidates for each available position. If the Nominating Commission chose to act strategically—by selecting one candidate it knew the Governor would not choose—it would actually have essentially both nominating and appointive powers. Given that the school board administers approximately $1 billion of taxpayer funds (about half of local taxes and a large fraction of state taxes), this is a truly remarkable set of powers for a body that has no elected members and, of its appointed members, only approximately half appointed by elected representatives. An added wrinkle on the lack of direct representation is that more than 80% of those appointed by elected representatives are appointed by the Governor, a very distant representative who represents 23 other counties in addition to Anne Arundel. Imagine if the president of the U.S. was given the responsibility of appointing school board members in every school district in the U.S. Obviously, the Governor is not so remote a figure, but this thought experiment helps clarify the political logic of the situation.

Still, the above analysis of the Nominating Commission's democratic accountability is very superficial because it relies on the explicit text of the bill. There are many other ingredients that go into determining whether a political body is democratically accountable. Upon close inspection, we will see that the Nominating Commission embodies an inconsistent set of democratic accountability principles. Sorting through the extent to which the resulting system is a muddled mess or a brilliant creative synthesis will largely depend on the Commission's currently unwritten rules of procedure.

Before we can move ahead with our analysis of the Nominating Commission's democratic characteristics, we need a little more conceptual background on what makes an appointed body democratic. An appointed political body with democratic powers may attain democratic legitimacy (which I define as the perception of democratic accountability) by being accountable to elected representatives or by being intrinsically representative of the public.

A body that is representative of the public need not be under the thumb of elected officials in order to be democratic. A jury, for example, is democratic despite not being appointed by elected officials. It is intrinsically representative due to random nature by which its members are selected. Such a body can be completely independent of elected representatives yet democratic.

Since democratic representation is defined in terms of interests (i.e., to what extent does the body represent a microcosm of the public's interests?), it is possible that a body that appears to be intrinsically representative by obvious descriptive characteristics (e.g., gender, race, and geography) may in fact be anything but representative in a democratic sense.

The most common type of appointed political body created by elected officials is granted no democratic powers; it is purely advisory. As such, it needs to makes relatively minimal claims on democratic legitimacy. The federal government has more than 900 such advisory bodies. I am not aware of a single federal body with formal democratic powers whose members are appointed by interest groups.

The hallmark of an advisory committee is that it is made up of experts—often, as is the case with the Nominating Commission, experts representing politically important stakeholders. This stakeholder diversity of expert opinion is often confused with democratic representation. But it is no such thing, as demonstrated by the fact that if such bodies had democratic legitimacy, they would be granted formal legislative powers. But legislators rarely grant such committees such powers because they recognize that an advisory committee of experts intrinsically lacks democratic legitimacy.

All poltical bodies that seek democratic legitimacy must also be transparent in their actions so that the public can hold their members and those who appoint them to account.

So with this conceptual scaffolding, let us now ask three questions that should be asked of any appointed body when assessing its democratic accountability: 1) how independent is it? 2) how democratically representative is it? And 3) how transparent is it?

Independence. The five interest group representatives on the Nominating Commission are clearly highly independent of our elected representatives. They are appointed by the interest groups, and elected officials have no statutory power to veto their selection or recall them.

A less easily answered question is the degree to which the interest group commissioners are independent of the interest groups that appoint them. Here there is already some controversy. It is clear that the political commissioners are appointed for four year terms and that there is no provision for them to be recalled by the elected official who appointed them. However, the ability of an interest group to recall its representative is less clear. For example, the representative of the Community College is expected to leave the Community College in July. Will he continue on the Nominating Commission for his four year term or be replaced by his interest group in July? Presumably, the interest group can change its representative on the Nominating Commission whenever it so desires. The significance of this is that the public should assume that the interest group representatives will be tightly controlled by those who appoint them.

The independence of the political commissioners from those who appoint them would appear to be greater because they have four year terms (except for the first set of commissioners, whose terms end in January 2009) and cannot be recalled during that term. Their jobs would also appear to give them more independence because they are not directly linked to their performance on the Nominating Commission. The representative appointed by the County Executive works for the County Executive and thus has an obvious financial interest in maintaining the goodwill of the County Executive. However, none of the Governor's appointees directly works for him. On the other hand, it is hard to imagine why it would be in their self interest, especially for the two professional lobbyists, including the chair of the Nominating Commission, to do anything that might anger the Governor (or their local legislative sponsors). As one of the lawyer-lobbyists complained during the organizing session of the Nominating Commission, he is doing this pro bono and his partners want to know why he is leaving the office at 5:30 pm without his time clock running. The obvious answer is that lobbyists are in the business of cultivating goodwill among the powerful—and the governor (and their legislative sponsors) are powerful people. The struggle to create goodwill, for example, is why the Chair of the Commission presumably gave some $20,000 to politicians during the last election cycle (this is just his personal contribution, his firm gave many, many times more).

All in all, then, we should assume the political appointees are highly dependent on the person who appointed them. This is not necessarily bad. Indeed, it might be considered the key democratic characteristic of this political body. But it is very important to keep in mind when assessing responsibility for the success or failure of this democratic body. (It is also important to keep in mind that the key district legislators the governor relied upon in choosing a particular nominee may never be publicly known because this information need not be disclosed.)

As is evident to everyone who observes politics closely, politicians have strong incentives to blame others for bad outcomes and take credit for good outcomes. The problem with political bodies that are ambiguously independent is that politicians may be able to play the blame game to the detriment of democratic accountability. All bad outcomes will be attributed to the independence of the political body whereas all good things will be attributed to themselves. The result is that the public is effectively disenfranchised. I would recommend that the public assume that, despite all appearances to the contrary, the political appointees have minimal practical independence.

Thus, the Nominating Commission has a confusing mix. The six political commissioners have minimal practical independence but the five interest group commissioners are in the opposite camp. This will make it very hard for the public to assess political accountability.

Another important observation regarding independence is that all five political commissioners appointed by the Governor are loyal Democrats. Unlike the public, most political scientists like partisan politics because choice of party is the prime characteristic the public uses for judging elected representatives in low profile offices such as state representative. Party labels are the branding system that makes the public politically relevant. By giving the Nominating Commission a clear partisan bias, Democrats will be in a position to claim credit for its successes and Republicans for its failures.

However, the public tends to disagree with political scientists' assessment that partisan politics is good for democracy. This is especially true for school politics, where the word "partisan" is as bad as a four letter word. So how did this happen? When the Commission was being set up, no one debated whether such partisan accountability would be desirable. I don't recall a single politician saying he wanted to shift Anne Arundel school board politics from a non-partisan to partisan system; indeed, it was one of the major arguments used against having elections for school board members.

Another twist is that partisan bodies usually have members of both parties. For example, the SEC, FTC, FEC, and FCC seek partisan balance among commissioners. Similarly, legislative committees include members of both parties. In this case, presumably, the interest group representatives will take on the role traditionally assumed by the minority party.

Another effect of the Commission's level of independence is whether it is fundamentally a negotiating or deliberative body. We can take it for granted that all commissioners will describe their views as deliberative in nature; as disinterested discussions motivated by a desire to find the common good. But to the extent commissioners are not in fact independent, their fundamental mode of operation will be bargaining on behalf of their external backers. Such bargaining will be kept out of sight because the commissioners know it is embarrassing. Still, the public can use the Commission's level of independence as a cue to likely hidden bargaining behavior.

Perhaps the key characteristic the public should look for is whether the governor appointed chair of the Commission acts according to majoritarian or consensus norms. In local education politics, as opposed to traditional party politics, there is strong pressure to act according to consensus norms. In traditional party politics, legislatures merely strive to get a majority to pass legislation. In consensus politics, a premium is placed on no overt public conflict and unanimous or near unanimous votes. As a practical matter (rarely publicly acknowledged), consensus results are usually achieved by giving minority interests veto power over the final recommendation. It may be presumed, then, that if the political appointees act as a block and the Commission strives hard to reach consensus, then one or a few interest group commissioners hold de facto veto power over the recommendations of the Nominating Commission.

I'm not saying that consensus politics is necessarily bad. Many European governments operate on such principles to avert civil war. (In contrast, most U.S. politicians go out of their way to hide evidence of non-majoritarian politics because they sense such politics is not popular; i.e., majoritarian.) What I am saying is that this is a very important attribute of the Nominating Commission that the public should be aware of. My guess is that future governors will largely evaluate the work of the Nominating Commission's chair by whether he can achieve consensus (because this is not an area where governors can be expected to welcome controversy). When the public is told that the Commission reached consensus based on the merits of an issue or candidate, it should react with a healthy skepticism: the result may have been obtained through antimajoritarian means.

Representation. There is no question that the Governor and other elected leaders went out of their way to make the Nominating Commission look representative of the public. According to what political scientists call "descriptive representation," this body is highly representative of the public by gender, race, and geography. Of the eleven members of the Commission, four are women and two are black. Each of the Governor's five political appointees must reside in one of the five legislative districts (although it should be noted that one of the five districts is only partly located in Anne Arundel County, and these district boundaries are subject to change with each census, taken every ten years). Overall, the Commission members appear to hail from representatives geographic areas within the County.

Similarly, the Nominating Commission features stakeholder representation, with designated represenatives from the parent, business, teacher, administrator, and community college communities. The Community College is an important stakholder because a large fraction of its students come from the County's K12 public school system.

Neither descriptive representation nor stakeholder representation assures democratic representation. They may be indicators of it but, at best, they are highly imperfect indicators.

It may be instructive here to contrast the representation of the new Nominating Commission with the old Nominatnig Convention. The vast majority of the members of the Nominating Commission were citizens with kids currently enrolled in the Anne Arundel County public school system. Much of the balance had been attending the Nominating Convention for years and continued to attend even after their kids graduated. Most members of the Nominating Convention had participated in local citizen advisory committees or otherwise had established reputations in their communities as parental representatives.

I am only aware of a single member of the Nominating Commission who has kids currently enrolled in the Anne Arundel County Public School system. In the member introductions at the iniital organizing event, a number of mumbers highlighted that they formerly had kids in the school system or expected to in the future, but only one said she currently does (and she is not known as a parental activist).

This marks a radical departure from the type of parental representation traditionally found in the school board nominating convention. The Chair of the Nominating Commission proudly noted that he had three kids--ages 5, 2, and 9 months--and that his wife thought this would be a good opportunity for him to learn about and shape the school system.

On the other hand, the Commission members excel in educational experience within the Anne Arundel County school system. In addition to the experience represented by the teacher and administrator interest groups, two members claimed a combined total of 68 years teaching within Anne Arundel County school system. Adding the close relatives of other Commission members, the total experience level would probably rise to over 150 years.

This is an extraordinary amount of direct experience in Anne Arundel County public schools for a body of this size. It clearly suggests a huge level of expertise. But that expertise is not a substitute for direct parental experience. It therefore marks a great departure from the tradition of the Nominating Convention, where those without any direct or indirect work experience in the county schools overwhelmingly predominated.

Transparency. In the modern, developed world, all leaders, whether they are in generally recognized democracies or autocracies, make some effort to claim the mantle of democratic legitimacy. All the other major modes of claiming government legitimacy have been discredited. In practice, our leaders often find democratic procedures very inconvenient and unwelcome, but these reservations are rarely publicly stated.

A key democratic norm is transparency. If the public lacks the information to hold its representatives to account, then democracy becomes meaningless. The legislation creating the School Board Nominating Commission is almost wholly silent on issues of due process in general and transparency in particular. The legislation stipulates that the Commission will hold two public hearings, but that is about it. It doesn't stipulate what it has to discuss at those hearings or what it cannot discuss in private. Apparently, as a public body appointed by the legislature, the School Board Nominating Commission is subject to Maryland's open meeting, records, and ethics laws. But these laws represent minimal standards of openness (moreover, since they are rarely enforced and incur minimal penalties when enforced, public bodies routinely ignore them when it is convenient for them to do so).

For example, the School Board Nominating Convention publicized the date of its key hearings months before they took place. This included a significant information outreach program to the community. The Convention also established that the interactions between its members and the candidates would be public. Deliberations about changing the bylaws were also public. In contrast, the School Board Nominating Commission publicized its first meeting one day before the meeting (a small blurb in the Capital was deemed to be adequate notice to satisfy the Open Meeting Law) and ruled that its discussions about how to operate (and to what extent it would copy the public deliberative features of the Nominating Convention) would be discussed in secret ("executive session") on the evening of January 23.

During the organizing meeting, all the Commission members who spoke up about the openness issue claimed that it was of great importance to them and they would seek to do everything important in open and comply with all the relevant laws. These pronouncements are surely to be applauded. But given the track record of at least some of the Commission members, the public should keep its attention narrowly focused on verifiable commitments manifested in actions taken.

Even during this specific meeting, there was a discrepancy between the stated general commitment to openness and the specific actions taken. For example, the Chair did not hand out an agenda to members of the public and set no time aside for public comments. He did accept unsoliciated questions from the public near the end of the meeting. But he did so with a noticeable frown and pointedly reminded the audience that the first meeting of the Commission was merely organizational in nature. But if the Commission members could ask procedural issues, why couldn't the public, too? And why would an organizational meeting necessarily preclude asking questions about the actual procedures of the Commission and the means by which the Commision would create those procedures?

As the meeting appeared near its end, I raised my hand and asked a few questions about the proposed bylaws, to which I got no answers. Would the Commission make the candidate interviews public? Would it include the candidate interviews in the two public hearings? Would it use the County's multi-million dollar government access TV network to televise the proceedings? The commissioners then arranged to discuss these issues in executive session at an undisclosed location.

When I told the Commission how difficult it was for me to find out about their first meeting and asked to be put on an email list for future meetings, I got blank stares and one comment that the folks on the Commission were working pro bono and this would be an unreasonable burden placed on the Commission. In mid-December, four weeks after the Governor set up the Commission, I had called the Governor's appointments secretary to ask when the first meeting would be held. She said she didn't know and would contact the Commission Chair and get back to me in a week. Not having heard back from her, in early January I called her again. She said she had had no response but would try the Chair again and hopefully one of them would get back to me within a week. She also asked me out of curiousity if I intended to run for one of the open school board seats (to which I answered "no"). Then, almost two weeks later, without having received any response from the Governor's aide or the Commission's Chair, my wife pointed out to me a blurb in the Capital for a meeting the following day. Unfortunately, the day of the meeting was also the day of the big snow storm that led to the early cancellation of school and the cancellation of many other meetings. In the end, I decided to brave the weather and risk showing up at a cancelled meeting because I had no reliable way of otherwise finding out if the meeting had been cancelled. No wonder that only one other member of the public—other than the Capital reporter and Chief of Staff for Speaker Mike Busch--showed up at this ostensibly "public" meeting.

Key Issues Ahead

I see my contribution to this process as providing the critical analytical perspective of a political scientist—someone who can apply basic principles of democratic theory to this particular problem of electoral design. If I had my druthers, the County's system of school governance would either be based on municipal (county) executive appointment (as recently instituted in Washington, DC) or a citizens assembly school board member appointment process (which would be a variation on the current nominating convention process; see elsewhere in this blog for the details). But at this late stage, those are not practical recommendations. Needed now are proposals to fine tune the present process. The Commission has a very tight timeline to get its recommendations to the Governor by May 1 or earlier. Tim Mennuti, president of the Anne Arundel County teachers' union, stated it eloquently when he observed: "We're sailing this ship while we're building it." Meanwhile, the Commission's Chair has submitted a number of procedural questions to Maryland's Attorney General and is awaiting a response.

A surprising development is that the Chair appears quite concerned that the School Board Nominating Convention, which never had a statutory basis and whose recommendations were purely advisory, could be a competitor to the School Board Nominating Commission. I had simply assumed that the School Board Nominating Convention was dead and gone and could not be a threat to anybody.

At the end of the meeting, the Chair requested that the bylaws of the Nominating Convention be copied and distributed to the Commission members for discussion at the secret meeting on January 23. Those bylaws have some excellent precedents I hope the Commission will adopt.

I would strongly encourage the CACs and other members of the public to ask that language be included in the Nominating Commission's bylaws requiring:

1) that all interviews with candidates for the school board be made public,

2) that the dates, time, and place of such meetings be made public at least a month in advance,

3) that making a meeting public includes not just a blurb in the Capital but an email to the head of every public school citizens advisory committee in the County and every member of the County who signs up to receive such emails,

4) that public Commission meetings be televised on the County's new multimillion dollar government and public access TV channels and video web server,

5 ) that Commission meetings to discuss its bylaws and procedures be made public,

6) that the Commission create and post on its website a statement of principles explaining in some detail the qualifications it is looking for in a school board nominee (the statement "we are looking for the best qualified individual" is wholly inadequate; the type of clear statement of principles judicial nominating committees issue can be used as a model),

7) that the Commission state whether it intends to operate according to majoritarian or consensus principles,

8) that the Commission commit to taking public, recorded roll call votes on all its votes held in a public meetings,

9) that the Commission will post all its public proceedings, including its minutes and roll call votes, on its public website within one week of a public meeting and that these documents will be stored in perpetuity,

10) that the Commission website include brief biographies of all Commission members including basic factual information, such as what legislative district each political commissioner represents, and what they believe are their credentials for serving on the Board (the one sentence description provided by the Governor's office was inadequate for this purpose).

Commission members will say that such detail is unnecessary. Experience with such bodies, however, demonstrates that such written rules are necessary. The well established pattern of such bodies is to do the minimal amount legally necessary whenever they face a controversial issue—exactly the type of issue that is usually most important for the public to learn about.

Over the next few weeks, I'd encourage CAC members and other parent activists to email Joshua Greene, Chair of the Nominating Commission, to let him know that you think it's important that he follow through on his stated commitment to openness. In particular, Joshua Greene should commit to passing bylaws only after holding at least one and preferably two well-publicized hearings to get public feedback. Notice and a link to the text of the proposed bylaws should be sent out at least a week in advance. In addition, the text of the proposed bylaws should be posted on the Commission's website at least 72 hours before any vote on them is made. In addition to emailing Joshua Greene, parent activists should cc: their Maryland House of Delegates representative, their Maryland Senate representative, and their County Councilor. Contact information for your state reps can be found here: http://mdelect.net/electedofficials . Contact information for your county councillor can be found here: http://www.aacounty.org/CountyCouncil/index.cfm . Joshua Greene's email address is: joshuacgreene@yahoo.com.

Note that the political commissioners were probably all appointed based upon the advice and consent of the legislators in the districts from which they come, so the political commissioners will be especially responsive to whichever legislator was their sponsor. Note also that Joshua Greene has contributed $4,000 to a bipartisan cast of county councillors over the last legislative cycle.

Don't accept any excuses that the Commission is under a very tight schedule and doesn't have the time to engage in standard democratic due process. These issues are too important to be glossed over. There is still plenty of time left to allow for meaningful public input in the development of the Commission's procedures. Remember, too, that the Commission members have already had three months since they knew they would be taking on this responsibility (the actual announcement was November 6--eleven weeks ago).

A Call for a More Healthy Style of Democratic Deliberation

Here is a prediction about how the politics of the School Board Nominating Commission will play out over the coming years. During its first few years, our political elites will be highly critical of anyone who dares to publicly criticize any part of their handiwork. They will demand that we give the Nominating Commission "the benefit of the doubt" and they will have an arsenal of arguments, not least the friendly community people placed on the Commission, to support their case. Accordingly, critics will be dismissed as cranks and marginalized by whatever means possible. To the extent the critics offer politically compelling ideas, the elites will respond that they always intended to act on those ideas anyway. In five years, however, the tides will turn. It will now be the elites who are the chief castigators of the Nominating Commission. Their past behavior will now be forgotten and rationalized away and now they will seek to paint anyone who defends the Nominating Commission as a crank.

Where have we seen this pattern before? Consider, most recently, the attitudes toward former Superintendent Eric Smith. When he came in, our elites took him at face value. They treated him like a godsend. Anyone who dared to publicly criticize his actions during his first few years was treated as a mean spirited, evil egotist. Then, after only three years in office, the tides turned. Now, no one could be found to publicly defend Eric Smith and anyone who dared raise his voice in support of the superintendent was treated as evil incarnate. With Smith gone and now head of the State of Florida's educational system (with a budget more than twenty times the size of Anne Arundel County), the history of people's actions is now once again being rewritten.

This is not a democratically healthy way to conduct public policy debates. It is the politics of demagoguery and intimidation and faddism; it debases rather than strengthens public discourse; it appeals to the worst in us rather than the best. A better way to go about politics is to create a respectful environment for diverse points of view, for those who criticize the actions of our elites as well as those who praise them; for those who seek a more tempered balance in discourse in recognition that public policies and their creators are neither the works of saints nor devils but the imperfect hand of man and always subject to incremental improvement. Following such advice is not easy; it is in fact very painful and contrary to the most basic human instincts, which seek immediate gratification and punishment of anyone who disagrees. But it constitutes the essence ofa population's democratic education. Democracy got a bad name in Ancient Athens—most famously in the trial and killing of Socrates for unpopular views—because the political culture of that time did not adequately recognize the necessity of a spirit of toleration and dissent for the long-term healthy development of democracy. All the leaders in our County give lip service to such values; what I'm asking is that they now act consistently with those values.

Perhaps the most important reason for encouraging alternative points of view is the incredible sloppiness of our politicians and media when alternative viewpoints aren't forced upon them. The incentives for today's politicians are to spend their time raising money, running for office, attending community events, and projecting a certain type of public spirited persona. Paying attention to the details of bills doesn't fit in that job description. The local media are often even more sloppy; I'd be shocked, for example, if the Capital's editorial board even read the bill (even though the entire bill can fit on a single page). Recall the electric utility deregulation fiasco. Who was minding the store and paying attention to the details of the legislation when it mattered? Did any politicians pay a political price? Has the Capital lost any subscription or ad revenue? Unless the public demands more from its political elites in designing a democratically accountable school governance system, I believe the results we'll see five or ten years out will not be all that different from what that carelessly drafted electric utility bill got us.

Concluding Thoughts

If I were to summarize in a single phrase the underlying political logic of the new system of selecting school board members, I would call it "insiders appointing insiders to appoint insiders on behalf of insiders." Admittedly, this is too cynical, as the Commission is still largely an unshaped entity. Its current structure is more a back-of-the-envelope outline than a complete, polished draft. The outline may be flawed, but the overall work can be greatly improved by rigorous attention to detail, which at this point in time means shining a light on key democratic procedural issues that must be addressed in very short order. It is my philosophy that the public (and press) ultimately gets the quality of government it deserves. If each citizen rationalizes his or her apathy and expects someone else to look after his or her best interests, the predictable result will be a weakened democratic process.

Perhaps the most remarkable feature of the School Board Nominating Commission is not that, of the more than 14,000 school boards in the United States, it is unique in the way it selects a school board. It is the way that such a striking and important policy innovation was never subject to public deliberation. This is remarkable because the legislature spent more than a decade deliberating over how to replace the current nominating process and held multiple hearings to that effect. But this particular and unprecedented method of selecting school board members was never discussed in public with anything more than soundbite quips. Those with reservations about the particulars of this innovation were not granted a hearing but shunned. Ridicule, rather than reasoned argument, was the response to concerns voiced by the public.

I hope that that culture of ridicule will not now be insensibly passed on to the Nominating Commission. The members of the Nominating Commission avowed lofty democratic principles at their first meeting. The question now, as they make critical decisions over the coming weeks affecting our children's education, is whether those words will be translated into deeds. Too often in the past there has been a great chasm between the democratic rhetoric and deeds of our education leaders. Let's try to create a school board nominating process that will reveal the hypocrits and reward those who act as the true representatives of the parents and kids.

Capital Article: School board nominators off to slow start

Newspaper: Capital
Title: School board nominators off to slow start; Law that established panel was light on details; 2 will be named in 2008
Date: January 18, 2008
By: Elisabeth Hulette

School Board Nominating Commission's First Meeting Announced

Newspaper: Capital
Title: New school board process kicks off
Date: January 16, 2008

Annapolis - The county's new School Board Nominating Commission will hold its first organizational meeting tomorrow.

The 11-member commission, which was created last year, is charged with submitting nominees for the county school board to the governor. The governor must then appoint new school board members from that list.

The commission was the legislature's answer to calls for a more democratic school board. Under the previous system, the governor was under no obligation to appoint candidates named by the local nominating convention.

The meeting is open to the public and is set for 6:30 p.m. in the Anne Arundel County Delegation Room in the House Office Building at 6 Bladen St.