SBNC Update

The School Board Nominating Commission’s deadline for candidate applications to serve on the AACPS Board of Education was April 1. As you probably know by now, ten people applied for the position:

1. Shaun M. Brady of Davidsonville

2. Kevin L. Jackson of Edgewater

3. Michael G. Leahy of Severna Park

4. Michel S. Pawlowski of Edgewater

5. Peter A. Pervi of Millersville

6. Andrew C. Pruski of Gambrills

7. Paul Rudolph of Severna Park

8. Rhonda Simon of Annapolis

9. Joseph J. Thomas of Annapolis

10. Jessica S. Tickle of Churchton

Michael Leahy is the incumbent holder of the seat. Paul Rudolph is a former two-time school board member. Both Kevin Jackson and Paul Rudolph ran for a board seat last year, the SBNC’s first year of operation. My guess is that at least several of the candidates will drop out once they see the competiton and realize they have no chance of winning.

I’ve looked over the applications and observed which candidates show up at the SBNC meetings and how they interact with the SBNC commissioners. Based on that information and my general knowledge of school board politics, I’ve decided that Andrew Pruski is very likely to be not only nominated by the SBNC but also selected by the Governor. As for the mandatory second choice, my guess is it will be the incumbent Michael Leahy. But it could also be others, including Paul Rudolph, Joseph Thomas, Kevin Jackson, or Michel Pawlowski. The SBNC is not limited to nominating only two individuals, but it would undercut its power to nominate more than the minimum required by law. My guess is that it will not do so unless it can be confident which candidate the Governor will ultimately select.

During the last few months, the SBNC has launched an openness PR campaign. This consists of holding six field hearings throughout the County, four of which have already been held. I attended two of those hearings. At both, four people attended, including myself. At both, only one member of the public, other than myself or a reporter, spoke. The last hearing was over within fifteen minutes. I’ve been looking for the minutes of the hearings but so far none has been posted on the SBNC website.

How do the SNBC’s field hearings compare to the three hearings held by the old School Board Nominating Convention? Again, I’ve only attended two of the four SBNC field hearings and two are yet to come. But I think it’s fair to say that they are incomparably different. The School Board Nominating Convention hearings would attract more than 100 activist parents. The questions were directed to the candidates, addressed a wide range of issues, and were quite substantive. These field hearings, with the comments/questions addressed to the SBNC’s commissioners, are very different in tone and substance. The idea is that instead of the public asking questions of the candidates directly, they will tell the SBNC members what questions are important. This does not seem to be a format that can generate a comparable amount and quality of public participation.

Last week the Capital ran an editorial complaining that only nine candidates had applied for the open Board of Education position and speculating on the reasons for the low number of candidates. In my opinion, that was an awful editorial. First, nine (now ten) is a huge number of candidates for a position like this. Second, what counts is the quality, not the number, of candidates (the Capital wrote the editorial without knowing who the candidates were). Third, there are very serious issues of democratic accountability concerning the SBNC that the Capital is either oblivious to or has chosen to ignore. I have previously written in depth about those issues (see the posts below) and will not repeat them here. The question I have is: why would the Capital choose to criticize the SBNC for its strengths while ignoring it weaknesses?

My OpEd, "Public school systems should post compensation data online," published in the Washington Examiner

My OpEd, "Need Teachers? Show Them the Money," published in the Washington Post

School Board Nominating Commission (SBNC) Update

The School Board Nominating Commission of Anne Arundel County will hold field hearings “to solicit the public's opinion on education issues facing their specific district, the Commission's process and procedures, and qualities necessary for a successful Board of Education candidate.” Hearings will be held in each of the five legislative districts represented on the SBNC. The field hearing for District 30, the first in the sequence, will be held on January 28, 2009 at 7pm at Annapolis High School.

Below I suggest eleven questions you might want to ask the SBNC commissioners. Remember that AACPS is a billion dollar organization with almost half as many employees (about 10,000) as a Fortune 500 company like Google (about 22,000 last I checked) and representing a district (about 500,000 citizens) as large as some U.S. states. Therefore, it’s reasonable to expect a high standard of democratic accountability.

1) The traditional ethic was that school board members represented all the kids in Anne Arundel County, not just those in their own district. This was reflected, for example, in the School Board Nominating Convention, where candidates spoke to the interests of the entire County. During the candidate public hearings last May, it was clear that at least several of the SBNC commissioners presented themselves as champions of their own district’s interests. The structure of the public hearings also reflects a focus on district interests. Yet the retention vote is countywide, not districtwide, and there has been a lot of rhetoric about not representing particularistic interests and representing all the kids in the County, with the example being set by the SNBC chair who nevertheless represents a particular district. Do the representatives of the five legislative districts see themselves as champions of their district interests (like most representatives) or the interests of all the kids?

2) Do the representatives of the five private interest groups see themselves as champions of those interests or the public’s interest? Presumably they will all say they see no conflict between their group’s and the public’s interest. If so, it is good democratic practice for them to make this claim and their reasons for making it on the public record.

3) It is also good democratic practice that representatives should provide public reasons for their actions. Will the SBNC members each commit to explaining on the public record why they voted for a particular candidate?

4) The members of the SBNC and members of the public appear to have a conflict of interest in recruiting school board candidates. The SBNC has demonstrated that it wants as many people as possible to apply for the school board, even if some of those candidates have no chance of being selected. Last year, for example, the SBNC was very proud when some 24 people applied as candidates (most soon dropped out when they discovered they had no chance of winning). Candidates, in contrast, don’t want to apply if they have no chance of winning. Will the SBNC as a whole and SBNC members in particular clearly state on the public record, and update each electoral cycle, what criteria they are looking for in school board members? One can assume, for example, that the SBNC looks for a mix of school board members by gender, ethnicity, and geography. Why not publicly state this? Judicial nominating commissions, for example, often have a clear and readily accessible public statement of the credentials they are looking for in a successful candidate.

5) Will the SBNC members representing legislative districts publicly disclose their relationship with the legislators in their district, including any financial transactions and campaign services provided?

6) Will all SBNC members commit to include in their public biographies the credentials that they believe make them qualified to serve as the public’s representatives on the SBNC? (Currently, some provide biographical credentials, albeit mostly shorter than they should be, while others do not.)

7) Will all SBNC members commit to publicly disclose any financial relationship they or their extended family have with the Anne Arundel County Public School Systems? This should include both current and retirement compensation.

8) Will the SBNC commit to treating its website as a public record (rather than a PR vehicle) with all the document integrity therein implied? Moreover, will it commit to posting all public documents at the same time that insiders on the SBNC get access to them? (This is a basic reference point used to judge the democratic quality of public record systems.)

9) Will the SBNC members commit to disclosing private meals and meetings with the candidates even if those meetings are not conducted as part of the officials business of the SBNC? Will the SBNC members take steps, such as the creation of ex parte disclosure rules, to discourage candidates’ private lobbying of the commissioners?

10) What type of questions should SBNC members ask of candidates during the public hearings and which commissioners should ask them? Some commissioners who were very talkative during the Commission’s private meetings asked no questions during the public candidate interviews last year. Very few of the commissioners who did speak asked candidates follow-up questions seeking proof of the candidate’s key claims about their credentials to serve on the school board. Such follow-up questions are standard practice in Congressional nomination hearings. Their absence at the SBNC hearings was striking.

11) Does the SBNC intend to make the public record of these district hearings public? Will that record be posted on the SBNC’s website? Will the SBNC place the public’s written statements in the public record and post them online?

Follow-up: Is the School Board Nominating Commission (SBNC) illegal?

[Note: On January 24, 2009 this post was emailed to all elected officials representing Anne Arundel County in the Maryland legislature and in the Anne Arundel County Council]

Dear Anne Arundel County Elected Official:

On October 21, 2008 I sent you an e-mail presenting arguments why the School Board Nominating Commission (SBNC) may violate the law of democracy. Five Anne Arundel County delegates replied to my e-mail and two queried the Maryland Attorney General’s Office for a legal opinion. On January 8, 2009 that legal opinion, written by Sandra Brantley, Assistant Attorney General, was sent to one of the delegates, who in turn passed it on to me. Some of you may be interested in my take on that opinion.

On the surface, Ms. Brantley appears to argue that there is no merit to my concern about the SBNC’s legal status. A careful reading, however, suggests that she has significant doubts about her own case.

As a caveat, let me state upfront that I am not a lawyer and claim no authoritative legal expertise. My training is as a political scientist with a decent knowledge of democratic theory. Of course, there is often a wide chasm between commonly accepted norms of democratic theory and practice. Just think of the long history of slavery and civil rights abuses in the United States. Nevertheless, there is a strain of law beginning in the 1960s that has tried to reduce the previous chasm between democratic theory and law concerning the democratic principle of one-person, one-vote. That is the strain of law I believe is relevant in this case.

Here are some points worth noting about Ms. Brantley’s legal reply:

1) Prior to passage of the law creating the School Board Nominating Commission the Attorney General’s office gave the same opinion. This potentially creates a conflict of interest because to change the opinion now would be to admit a mistake. I cannot conceive what the Attorney General’s office, and especially the attorney who has been responsible for giving these opinions, would gain by admitting a mistake. I would also like to note that Ms. Brantley has represented the SBNC as her legal client. For example, when I previously sought to get some information from Ms. Brantley concerning a legal opinion she gave the SBNC, she replied that the correspondence was protected by the client-attorney privilege. As an analogy, a certain citizens group filed a complaint with the AACPS attorney arguing that AACPS was violating Maryland’s COMAR regulations (AACPS was illegally trying to increase the amount of time and resources devoted to tested subjects at the expense of untested subjects). The attorney replied that the citizens group’s argument had no legal merit. But when the citizens group later filed the same complaint with the Maryland State Board of Education, it won with a unanimous decision. The point is that attorneys in this type of situation have a clear conflict of interest.

2) Ms. Brantley’s legal strategy appears to be to change the subject rather than address the specific issues raised in the cases I cite. For example, it is irrelevant what Maryland statutory law may or may not be when Constitutional law is at issue. Similarly, the cases she cites, including Commission on Medical Discipline v. Stillman, McCurdy v. Jessup, and African-American Voting Rights Legal Defense Fund v. Missouri are irrelevant to the issues I raised because the law of democracy
treats general elections such as for school board and town council very differently than for judicial appointments and highly specialized elections such as Board of Medical Examiners. As an aside, I caution that in the general debate over the SBNC the analogy to Maryland’s judicial nominating process has been grossly abused. The Judicial Nominating Commission is created by executive order, not statute, and the Governor has the right to ignore its recommendations if he so chooses.

3) Although Ms. Brantley ostensibly is attempting to refute my arguments, a careful reading of the actual substance of her argument suggests otherwise. This is because she attempts to shift the focus of attention away from the legality of the SBNC to the legality of the retention vote. Her argument seems to be that the legality of the SBNC doesn’t matter as long as the retention vote follows one-person, one-vote. I do not dispute that the retention vote conforms to the principle of one-person, one-vote (although it may be offensive in terms of other democratic norms such as competitive elections). However, Ms. Brantley overlooks two facts that would undermine her argument. First, the retention vote comes AFTER the school board members appointed by the SBNC have already taken public office. Thus, the legal status of the retention vote is irrelevant to the legal status of the SBNC. Second, the law grants the SBNC a de facto veto power over the decisions of the voters in the retention vote. This is because the SBNC is under no obligation to choose a replacement in a timely matter; indeed, it could refuse to appoint a replacement until the term of the sitting school board members was over. The timing of seeking a replacement is left completely to the discretion of the SBNC.

In conclusion, I do not believe the Attorney General’s Office has made a compelling case for the SBNC’s legality. It’s quite possible that such an argument could yet be made. My point is only that it has yet to be made.

Note that whether you prefer an elected school board, an appointed school board, or any other public school governance system should be irrelevant to this case. The question is only whether the SBNC violates the law in addition to the democratic norm of one-person, one-vote.

Thank you for your interest in this matter.

--Jim Snider, Editor
MyAACPS.net (Version 2.0 will be available in early February)

P.S. I’d also encourage you to investigate the SBNC’s persistent violations of both the spirit and letter of Maryland’s right-to-know laws. Unfortunately, these laws are as unenforceable as the nanny tax and as obsolete as the Model T, so the games practiced by the SBNC illustrate that they are badly in need of reform. During his first day on the job, President Obama declared: “Transparency and the rule of law will be the touchstones of this presidency.” This is hardly a controversial statement of values, but it would still be a good touchstone for the Anne Arundel County delegation to keep in mind when considering SBNC reforms.

SBNC and BOE TV Updates

SBNC UPDATE

On January 12, 2009 at 7:00 pm, the School Board Nominating Commission (SBNC) will hold its third meeting of the coming appointment cycle for the AACPS Board of Education. The SBNC uses these low profile hearings to discuss critical procedural issues.

At the SBNC’s last meeting, it tentatively decided to decide what its nomination rules would be after candidates had submitted their applications. The specific rule concerned whether those who had been nominated during the previous round of nominations would have their names automatically forwarded to the Governor during the current round of nominations. I think there are good arguments that can be made for and against this particular type of multi-nomination system. But I cannot think of a single reason, consistent with widely accepted democratic norms, for allowing the SBNC to make this decision after it sees the pool of applicants. This is like changing the electoral rules after an election—a practice frequently done in political systems characterized as “electoral authoritarism” (many countries, such as Russia and Venezuela, have heads-I-win, tales-you-lose elections) and universally condemned by democratic theorists.

At the SBNC’s first meeting, it was suggested that the public hearings be conducted at schools scattered across the County. The tradeoff proposed was no TV coverage of the hearings in return for getting a larger and more diverse face-to-face audience. Although no final decision was made, it was striking that no one mentioned that such a tradeoff was unnecessary. The County has spent millions of dollars connecting every high school and middle school—and many libraries and elementary schools—to a gigabit Ethernet network. Internet feeds from this network, in turn, can be automatically fed into the public access TV channels (this, for example, is how the Anne Arundel Community College does it). Moreover, the SBNC’s discussion of this matter revealed no recognition of the importance, from the standpoint of democratic accountability, of having a high fidelity, easily accessible record of the candidate hearings. Currently, candidates can promise to the SBNC whatever sounds politically expedient at the moment, and there is virtually no public accountability because there is no readily accessible public record of their promises. Similarly, the SBNC commissioners can utterly fail during the Question & Answer period to do their due diligence—that is, failing to ask the most obvious follow-up questions—and know that they face no consequences for such behavior. The purpose of a public record, then, is to try to keep both the candidates and SBNC commissioners reasonably honest. At the SBNC’s second meeting (I was the only member of the public to speak at either the first or second meeting), I did try to make these points, especially about the technical feasibility of televising meetings outside Riva Road. But I wouldn’t count on my arguments making much of an impression.

In general, I would encourage all prospective candidates for the AACPS Board of Education to attend at least one of these preliminary hearings. So far, three have done so, and I think for good reason.

Board of Education TV Update

The completion of the Board of Education TV system has been postponed—once again. But the current expected completion date, January 20, 2009, is likely to be met. Too bad it comes a week after the public budget hearings—the most popular type of televised hearing in most school systems.

I wish people could have seen the October 2007 Board of Education public meeting that discussed and voted upon the proposed Board of Education TV system. It was held during the work day, and I counted only four members of the public in attendance, including myself and the Capital reporter. In light of subsequent events, these are the points that such a record could have revealed:

1) The false promises of the AACPS staff, including the 400% cost overrun, unmet completion deadlines, and inaccurate claims of urgency (the excuse used for rushing the TV proposal to a School Board vote without prior public discussion).

2) The failure of the School Board to do meaningful oversight, including due diligence before, during, and, as it turns out, after the hearing.

3) The failure of anyone to be held accountable for the above.

You can bet that the when the TV system is complete it will generate a self-congratulatory press release--one that will probably be run next to verbatim in the Capital.

Upcoming AACPS budget hearings

Regarding the upcoming budget hearings (see AACPS press release below), will both the January 13 and January 15 hearings be televised on the Board of Education’s new $400,000 TV system? (Not to mention the millions of dollars spent on the complete AACPS telecommunications network.) In most school systems, budget hearings are the most popular regularly scheduled hearing of the year to watch on TV.

A related question is whether the Glen Burnie hearing will be televised. Past experience with the AACPS public relations personnel leads me to believe the answer will be “no.” Contrary to AACPS excuses, however, this really has little to do with technology. In Burlington, Vermont (where I once served as a school board member), we televised the Board of Education budget hearings wherever they were located.

Even if a school district cannot cover a hearing in real time, if it is already paying for TV staff (and AACPS has a princely TV operation), then it costs minimal money to set up a TV camera and televise the hearing. In rural towns in Vermont (with populations as small as a fiftieth the size of Anne Arundel County), it’s often community volunteers, including high school students and civic associations such as the League of Women Voters, who televise the public meetings and candidate debates—regardless of location. With the County’s $1 million public access TV studio in Glen Burnie, surely a volunteer could be found to televise the budget hearing at Glen Burnie High School.

Note that Anne Arundel County taxpayers have spent millions of dollars connecting the public schools to an ultra high speed broadband network (the backbone runs at 20 gigabytes per second and each high school and middle school gets at least 2.5 gigabit per second access; this is about a thousand times the broadband speeds most Anne Arundel County residents get at home from their local cable or telco provider). Moreover, this network can be connected into the cable system. Thus, even when the budget hearings are held at Glen Burnie High School, they should be accessible in real time to the entire community.

It would be a good contribution to local democracy, too, if a local civic organization would take responsibility for televising the upcoming public meetings of the School Board Nominating Commission (SBNC). The members of the SBNC would be unlikely to shower that civic association with praise. But do local civic associations exist to flatter the powerful or provide a voice to the people?

Important News - FY2010 Budget Proposal delivered Wed, 12/17

SUPERINTENDENT KEVIN M. MAXWELL TO DELIVER FY2010 BUDGET PROPOSAL TO
BOARD OF EDUCATION

Board schedules budget hearings, workshop

The next meeting of the Anne Arundel County Board of Education will be
held on Wednesday, December 17, 2008, in the Board Room at the Parham
Building, 2644 Riva Road, Annapolis.

During the meeting, schools Superintendent Dr. Kevin M. Maxwell will
deliver his recommended Fiscal Year 2010 operating and capital budgets
to the Board of Education.

The Board will meet at 5:30 p.m. to vote to go into Executive Session,
during which time it will discuss confidential matters including, but
not limited to, legal advice, personnel, and negotiations. Executive
Session is closed to the public.

The general session of the meeting, which is open to the public, will
begin at 7:00 p.m.

A complete agenda will be posted on December 11, 2008, on the AACPS Web
site, www.aacps.org, in the Board Docs section under the Board of
Education tab.

BUDGET HEARINGS, WORKSHOP

The Board of Education has scheduled two public hearings and a public
workshop on Dr. Maxwell's budget recommendation. Public hearings
will be held on Tuesday, January 13, 2009, at Glen Burnie High School,
and Thursday, January 15, 2009, in the Board Room at the Parham Building
in Annapolis. Both hearings begin at 7:00 p.m. Those wishing to testify
can sign up beginning at 6:00 p.m. Testimony will be limited to three
minutes per person.

A public workshop on Dr. Maxwell's budget recommendation will be
held at 6:00 p.m. on Tuesday, January 27, 2009, in the Board Room at the
Parham Building. No public testimony will be taken at the workshop.

Electoral Authoritarianism

[My letter-to-the-editor published in the Capital on November 19, 2008]

In its November 6, 2008 editorial interpreting the school board election results, the Capital concluded: “The results will inevitably be read as a thumbs-up for both the school board and the new method for picking its members.” Sure, school board boosters will argue that. But their democratic logic will be deeply flawed. All over the world today we see countries that fraudulently call themselves “democracies” because they have elections. Take Russia and Venezuela. Both have elections and both have elected leaders who won by huge margins. But are they democratic? Are they as popular as the Capital’s logic would suggest?

In addition to self-serving electoral systems, all these regimes have at least one other attribute in common with AACPS: weak civil societies. The only strong civic organization in AACPS politics today is the teachers’ union. The PTA barely even pretends to be anything more than a support organization for AACPS staff. The CACs, which were originally conceived of as a remedy for the PTAs civic shortcomings, have unfortunately become an arm of the AACPS PR apparatus. Is there a way out of this civic nightmare? One small but helpful step would be to dismantle at least part of the AACPS PR apparatus, including the subtle but effective staff gag rules and parental intimidation that now pervade AACPS.

AACPS faces an immense structural deficit. For the last five years it has been rolling in dough, with operating expenditures up 43.3% while student enrollments held steady. It is addicted to huge infusions of new cash, but instead of acknowledging its addiction all we’re getting out of Riva Road is a steady flow of Orwellian Doublespeak. Interpreting the recent school board elections as public satisfaction with the school board is the type of self-serving analysis we should expect out of Riva Road, not the Capital.

What's this about "lower costs for school construction"?

In its editorial yesterday, “Ballot offers voters chance for input on school board,” the Capital repeats Tricia Johnson’s claim that she “lowered costs for school construction.” I’d love to know specifically what Tricia Johnson is referring to when she makes this claim. Ms. Johnson also featured this claim in her testimony before the SBNC on April 14, 2008, but there were no details provided to back up the claim. I hope she isn’t referring to the high profile Blue Ribbon Commission on School Construction costs. That document was a joke. I have an MBA from the Harvard Business School and worked as a senior research assistant writing cases for Harvard Business School and other business students. I cannot imagine giving a student even a “C” for the quality of the analysis represented in that report.

The report authors blamed the architects for the high cost of Anne Arundel County’s schools. The architects?!?! How politically convenient! Did anyone from the Capital ever read that report? Why did the county and school system never publicly release it? Were they embarrassed by the highly politicized questions the report authors asked and the infantile analysis that inevitably followed? Perhaps not, given the number of times Board of Education members have claimed credit for following the report’s recommendations.

What we now have in Anne Arundel County is incredibly high priced schools that look only a cut above prisons and will have outsized maintenance costs far into the future. Why is it okay for the Anne Arundel County Government and Community College to design good looking buildings while the schools have to look like prisons and use poor construction materials so the County taxpayers will think the Board of Education is fiscally prudent? Ditto for private K12 schools in Anne Arundel County, who still manage to build much better designed school buildings at lower cost. The best public school districts, in my experience, build school buildings that the community can be proud of.

Can anyone recall an oversight hearing that this school board has held on AACPS construction or maintenance costs? I cannot. But isn’t that one of the major functions of legislative bodies—to conduct oversight hearings on issues of overriding importance to the community? If Tricia Johnson or Teresa Birge want to address the County’s construction and maintenance problems, they can begin by conducting some oversight hearings and asking some tough questions (preferably televised with the Board of Education’s—get this—$400,000 boardroom TV studio). Do they have the intelligence to do so? Sure. Do they have the political will to do so? There is nothing in their track record that says “yes.”

--Jim Snider

P.S. I’m considering making a video clip and placing it on YouTube of Tricia Johnson’s claim before the SBNC that lowering construction costs was one of her prime achievements while serving on the Board of Education. But the really interesting part of her interchange with the SBNC was not her boast but the SBNC’s reply. None of the SBNC commissioners followed up with a question about how she accomplished this wondrous feat and what it indicates about her vision for the future of the physical spaces where our kids spend their days and our communities congregate. Clearly, for all the candidates’ talk about the importance of school construction and maintenance (both Ms. Johnson and Ms. Birge said that school construction would be one of their top three priorities as board members), it was not an issue the SBNC commissioners genuinely understood or cared about. And what about all the school board rhetoric during the last five years about the importance of construction and maintenance? During that period the school budget increased by more than 40% (with no increase in student enrollment) while maintenance expenditures (“maintenance of plant”) actually shrunk.

What would have been the most revealing question the SBNC commissioners could have asked to reveal the candidates’ true priorities as Board of Education members? Here is a go: “Ms. Johnson and Ms. Birge: Both of you in your testimony and applications have stated that one of your highest priorities is school construction costs. Last year Maryland State refused to give the Board of Education an extra $10 million for school construction because the Board of Education would not allocate an additional $40 million in matching funds. If you were faced with this decision again, would you spend the $40 million to get the $10 million? If so, what would you cut to raise the $40 million? It’s unlikely the candidates would have answered the question. But at least the question would have signaled that the SBNC was doing its job.

interesting article on televising school board meetings

The Society of Professional Journalists published an excellent article on televising school board meetings. The article, It’s time for school boards to televise their meetings — and skip the lame excuses, helps explain why Anne Arundel County collects $1.6 million in PEG taxes every year, still doesn’t televise school board meetings, and will waste a lot of money on school-board-flattering-doodads when it eventually does get around to televising its meetings.

Is the SBNC illegal?

[Note: On October 21, 2008, this post was emailed to all elected officials representing Anne Arundel County in the Maryland legislature and in the Anne Arundel County Council]

Dear Anne Arundel County Elected Official:

It has come to my attention that Anne Arundel County’s School Board Nominating Commission (SBNC), created during the Maryland General Assembly’s 2007 legislative session (see House Bill 1114), may violate the law of democracy as interpreted by the courts. This may help explain why the SBNC’s method of selecting school board members is unique and unprecedented among the more than 14,000 school board electoral systems in the U.S.

Three court cases, two by the U.S. Supreme Court and one by the Illinois Supreme Court, have held that the democratic law of one person, one vote must apply to school board elections. Does this law apply to the Anne Arundel County School Board Nominating Commission (SBNC), which does not follow one person, one vote because it delegates binding electoral authority to private interest groups? If so, the SBNC would violate the U.S. Constitution.

Clearly, if the SBNC only had advisory powers (like Maryland’s judicial nominating commissions), it would not violate the law. Nor would it violate the law if elected officials or duly appointed administrative officials directly appointed all its members. But neither of these two standard checks on the delegation of authority to an independent public body was included in the law creating the SBNC. (Note that I have been told the Maryland Attorney General classifies the SBNC as an “advisory” body. If so, I don’t know how that squares with the binding authority it is granted under statute. Perhaps the word “advisory” has multiple legal definitions.)

You might specifically want to investigate the legality of delegating four of the eleven votes on the SBNC to four membership-based private interest groups. As an analogy, consider the legal and public reaction if Congress allocated 40% of the presidential electors to member-elected representatives of business and union trade associations. Alternately, consider the reaction if Congress attempted to create a public body with binding veto authority over government appropriations—and then appointed the largest incumbent government contractors to serve on it. As for the other seven SBNC members, I don’t see a problem with the delegation of electoral authority to the six members appointed by elected officials and the one member appointed by the Anne Arundel Community College (an administrative agency). Note also that the SBNC adopted a supermajority rule giving the private interest groups veto power over the SBNC’s decisions.

It is possible that there are other provisions in the law creating the SBNC that may exempt it from the law upholding one person, one vote. For example, the fact that it is a nominating body rather than a general election body could provide it some legal protection. But it is an extraordinarily powerful nominating body: through strategic voting (nominating two individuals to the Governor, one of whom it knows the Governor will not select), it can exercise de facto, if not de jure, general election powers. Thus, it is a binding nominating body with general election like powers.

Historically, courts have been hesitant to rule on election law. But when the core principles of representative democracy have been at stake, the courts have made an exception.

With the first set of SBNC nominated and Governor approved school board members on the ballot for an up or down vote on November 4, 2008, now is an opportune time to ascertain the legality of the electoral powers delegated to the SBNC. Note that the school board members have been serving in office since July 1, 2008; if the November election had come before the school board members took office, the principle of one person, one vote would not have been violated.

Attached is a summary of the three court cases taken from Professor Richard Briffaultt’s law review article, “Who Rules at Home?: One Person/One Vote and Local Governments,” published in the University of Chicago Law Review, Vol. 60, N. 2, Spring 1993. . Another source you might want to check is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press, 2002 (see Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208).

Introduction
The fundamental premise of federal voting rights law is that democratic government means government by consent of the governed. As the Supreme Court observed in Wesberry v Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."

Avery v Midland County
Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply arms of the states. Avery and its progeny, therefore, imposed new restrictions on state provisions for the organization of local governments.

Kramer v Union Free School District No. 15
In Kramer v Union Free School District No. 15, the Supreme Court again presumed that a local government's action has a community-wide impact. Kramer involved a New York law that limited the right to vote in school board elections to the owners or renters of taxable property in the school district and to the parents of children enrolled in the district's schools. The plaintiff was an otherwise eligible voter who had no children, lived with his parents, and neither owned nor leased taxable property.

Fumarolo v Chicago Board of Education
In Fumarolo v Chicago Board of Education, the Illinois Supreme Court… found that Kramer and Hadley continued to apply… when it invalidated the franchise and representation provisions of the Chicago School Reform Act. The Act provided for the creation of local school councils with a variety of powers for each of the grammar and high schools in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils' role in local education … mandated the application of strict scrutiny.

In defending the restricted franchise, the Chicago Board of Education contended that the local school councils were advisory rather than governing bodies. The Court determined that, although the district councils lacked the power to levy taxes or set basic educational policy for local schools, their functions were more than advisory, and the councils had considerable authority over local school operation.

The underlying reason the SBNC may violate the law of democracy is that it violates the core democratic principle of political equality (e.g., see Yale Professor Robert Dahl’s On Political Equality). However, the law of democracy only covers a small subset of good democratic practice; there are many undemocratic practices that are not illegal. Until the 1960s and the emergence of the civil rights movement, for example, the courts did not apply the Constitutional principle of one person, one vote to local government elections. Case law since the 1960s, however, indicates a very different court mindset. If elected officials pass laws violating the democratic principle of one person, one vote, the courts will not necessarily uphold those laws.

--Jim Snider, M.B.A., Ph.D.
Editor, MyAACPS.net

P.S. Please ask the School Board Nominating Commission to stop violating both the spirit and the letter of Maryland’s Open Meetings Act. In May 2008, Maryland’s Open Meetings Compliance Board ruled that the SBNC violated the Open Meetings Act. The SBNC has nevertheless continued to violate the law and its own bylaws with impunity. If the Maryland General Assembly is not to convey the impression that it considers the Open Meetings Act a cruel joke inflicted on the public—a set of democratic values to be espoused in public but in practice ignored whenever they prove inconvenient—then it must investigate this pattern of abuse and take steps to ensure that the Open Meetings Act has credible penalties.

“All tyranny needs to gain a foothold is for people of good conscience to remain
silent.” -- Thomas Jefferson.

Addendum Posted October 22, 2008
An additional legal argument has come to my attention since writing the above email. It turns out that the way the statute creating the SBNC was written, the SBNC has been granted veto power over the wishes of the electorate. That is, the SBNC has the power to ignore the results of a retention vote by simply indefinitely postponing its selection of a replacement. Here is the relevant statutory language.

(4) IF THE VOTERS REJECT THE RETENTION OF THE MEMBER, OR THE VOTE IS TIED: (I) THE POSITION SHALL BECOME VACANT 10 DAYS AFTER CERTIFICATION OF THE ELECTION RETURNS; AND (II) THE MEMBER SERVES UNTIL A SUCCESSOR IS APPOINTED AND QUALIFIES.

What this means in practice is that the five SBNC members appointed by private interest groups can veto the wishes of the electorate. In other words, not only has the SBNC been granted binding, general election like nominating powers, but it has also been granted veto power over the wishes of an electorate that embodies the democratic principle of one person, one vote.

A delegate to the Maryland General Assembly has forwarded a copy of the above e-mail to Maryland's Attorney General and requested a legal opinion.

Re: Capital article, "School board's TV debut delayed"

In relation to the Capital’s article last week on TV coverage of Board of Education meetings, I’ve been asked “how is it possible that the budget for AACPS Board of Education meetings increased from $100,000 to $400,000 without any public discussion or vote?” Here is my attempt at an answer.

It’s my sense that the school system, much like the rest of County government, has decided to use PEG/iNet funds as a slush fund for non-PEG/iNet related expenditures. This is strictly against the law (and even the County’s PEG/iNet ordinance). But as far as I know, the Federal Communications Commission, which is supposed to administer and enforce the PEG/iNet laws, has no mechanism to do so . As long as AACPS provides a figleaf excuse for diverting PEG/iNet funds, it will face no penalty for doing so. If somebody else’s budget will pay for AACPS upgrading of electrical systems and the purchase of all sorts of neat toys, why not take advantage of it? Think of yourself as one of AACPS’s TV guys working under Don Cramer: the more high-tech toys you have, the more respected you will be within AACPS and the more competitive you will be when you look for other, non-AACPS TV work.

Do we really need BOE meeting coverage in high definition TV? Does AACPS really need an additional $400,000 TV studio at Riva Road in addition to the $250,000 studio they built a few years ago in the same building? And what about the $1 million dollar public access TV studio built in Glen Burnie a few years ago and linked via the iNet to Riva Road? With three state-of-the-art and grossly underutilized TV studios in the County, why are we building a fourth? With today’s robotic cameras, both editing equipment and camera operators could work remotely (a practice utilized by the best and most efficient government access TV operations).

In Vermont, the average town has less than 10,000 people, and the towns would cover public meetings in the early 1990s just fine with consumer grade video cameras. Someone would simply plug the video camera into the reverse feed cable socket, turn on the camera, and hit the on button. Sure, AACPS can afford to do it much more professionally—like a commercial TV studio. But $400,000+ for an anachronistic, citizen unfriendly, glitzy commercial broadcast TV style setup? Give me a break.

I televised one of the School Board Nominating Commission meetings with my simple Dell laptop (cost: $1,000), Microsoft OneNote program (cost: $44) and clip-on high resolution video camera (cost: $60). I sat in the front row of the meeting and simply pointed my lap, laptop, and camera at each speaker. Using Microsoft OneNote (a tool widely used by college students to record lectures), I was also able to index all the video, so I could immediately find any segment that was of interest to me. If the Commission had allowed me to plug the audio feed from the meeting into my laptop, I could have had crystal clear audio.

From my perspective, even video at a tiny fraction of my OneNote recording quality would have been more than adequate for purposes of our YouTube generation video users. What’s so terrible with YouTube quality video for talking heads? Did you find it so awful watching on YouTube the video of Katie Couric interviewing VP candidate Sarah Palin? If I have a choice between commercial broadcast HD quality and YouTube quality video, all other things being equal, I’d of course prefer HD quality. But what if that comes at the cost of conveniently posting video clips to the Countywide and local CACs? If it comes at the cost of much restricted video coverage, as the school board says it can only cover a fraction of its public meetings and none that don’t take place in the Riva Road boardroom? And what if it means that there is no money to integrate the written agendas with the video and provide other types of citizen friendly accessibility? And why do we have professional/broadcast quality images but not professional/broadcast quality access to those image? I cannot imagine a commercial TV studio today that doesn’t electronically index its video so producers cannot instantly call up and insert relevant video clips from prior programs into new programs; indeed, some TV shows now have more online than broadcast TV viewers. What are all those multipurpose servers in the County doing that they cannot use a small fraction of their capacity to empower the citizens?

Yeah, I like HD quality coverage with world class lighting and every vanity amenity (so those being filmed always know how they look on screen and can make adjustments to look the best possible). But AACPS is asking us to pay too high a price in lost accessibility (and democratic accountability) for those features.

I posted my critique of the Capital’s BOE TV coverage article on MyAACPS.net.

--Jim Snider

Re: Update on BOE TV Coverage Update

Cathy,

Thank you for seeking clarification of my comments concerning coverage of County Council proceedings. First, I want to applaud the County Council for televising its meetings. And yes, the newspapers and website contain the schedule of the County Council meetings. My point was a different one. I am told that more than 50% of Americans now have some type of a Digital Video Recorder. In my case, I use a DVR from Tivo. But most Americans use a DVR provided by their cable, telco, or satellite TV provider. These DVRs are able to pick up programming information and not only display the information on their TV set but also use the information for convenient recording. As I understand it, the County Council does not provide this type of electronic information integrated with its broadcasts.

If the County Council made its proceedings available online—as do many towns and school districts one tenth the size of Anne Arundel County—such convenience would be less important because the information would be available on-demand. But the County Council doesn’t provide such assess to its proceedings, so convenient DVR recording is a second best alternative. If you want to look at a nearby jurisdiction with greatly superior coverage of its town council, I’d suggest checking out Takoma Park, MD. There the video, minutes, and agendas are integrated and available online.

Having noted how the County Council provides better meeting coverage than the school board, I would now, in the interest of fairness, like to note a way in which it does not. By the standards of the Google generation, the school board may provide awful online access to its meeting minutes, but at least the minutes are available online (via the AACPS BoardDocs system in pdf format). The last I checked, the same cannot be said of the County Council. If I want to find the minutes of the County Council, I must pay 25 cents a page to copy them and be the subject of gossip among the County Council administrators who do the copying and are naturally intensely curious why anyone would want such information. In other words, to find the complete record of how my County Councilor voted over a four year term, I must pay the County Council approximately $400 (this is an estimate I made several years ago based on the 25 cents a page photocopying cost). That might have been an acceptable system to access county council votes a generation ago. But for the generation in which we currently live (and for a County Council with a $16 million ten year PEG/iNET budget and every tech gadget under the sun), it’s inexcusable.

Again, thank you for the opportunity to raise these issues.

--Jim Snider

P.S. Cathy, please try out MyAACPS.net if you haven’t already done so.

Re: Update on BOE TV Coverage Update

Posted by: "CMVitale-County Council"

Fri Sep 26, 2008 11:58 am (PDT)

Jim,

The County Council meets the same day and the same time each month. The same channel as well. The website has that information, as does the newspapers. If you want to record us onto a dvd from your home, no problem. I do it every week, I don't know what the issue is that you said the county council has a bad practice of. Please clarify.

Cathleen M. Vitale

Update on TV Coverage of Board of Education public meetings

At a Board of Education (BOE) meeting in October 2007, the BOE unveiled a proposal to spend more than $400,000 of taxpayer money on equipment to makeover the BOE meeting room for TV coverage. The BOE told the public there was no time to propose modifications to the plan for BOE TV coverage because an immediate vote was necessary on the plan if BOE TV coverage was to commence at the start of the coming school year in late August 2008. When the August 2008 deadline came and went without a pipsqueak from the BOE, an October deadline for BOE TV coverage was put forth. Now the word is that BOE TV coverage will not be instituted until after the BOE elections on November 4. The hope is to begin installing TV equipment in the BOE meeting room the week of Thanksgiving, with possible completion not until January 2009.

At the October 2007 meeting of the BOE, I suggested online access to BOE meeting TV coverage, including webcasting. I also asked for the integration of meeting agendas with the TV coverage (critical for online access to meeting coverage but less important for traditional TV coverage). The BOE replied it had no plans for such coverage.

Now I would like to suggest two very minor modifications to the current plan for BOE TV coverage. By “minor” I mean inexpensive and easy to implement. The first is for the BOE to provide programming information along with its broadcasts so that the broadcasts can be easily recorded by DVR. All non-local cable stations provide such programming data. Locally, the Anne Arundel Community College channel also provides such data. The County Council does not. This is a bad practice the School Board should not copy. The ability to easily record BOE TV coverage by DVR should be considered an essential function.

Second, the school board should switch to electronic voting with a real time feed displayed on the TV screen. Such voting systems are now ubiquitous and inexpensive. My kids in college regularly use this type of technology when the professors are seeking feedback from the students in class. And when I attend conferences in Washington, DC, I increasingly see this type of technology being used to solicit audience feedback.

--Jim Snider

P.S. Thanks to all those who volunteered to help MyAACPS.net at the Countywide CAC meeting last evening (September 25).

SBNC May Violate the Law of Democracy

The School Board Nominating Commission (SBNC) has widely been recognized as a travesty of democratic practice because it violates basic democratic norms of political equality, including one person, one vote. But until this summer it never dawned on me that it might also violate the U.S. Constitution and the series of Supreme Court cases beginning in the 1960s applying the democratic principle of one person, one vote to local elections, including school board elections.

What follows are excerpts from Professor Richard Briffaultt's law review article, "Who Rules at Home?: One Person/One Vote and Local Governments," published in the University of Chicago Law Review, Vol. 60, N. 2, Spring 1993. Professor Briffaultt describes three key cases, two decided by the U.S. Supreme Court and one decided by the Illinois Supreme Court, that apply the law of one person, one vote to municipal and school board elections.

Introduction
The fundamental premise of federal voting rights law is that democratic government means government by consent of the governed. As the Supreme Court observed in Wesberry v Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."

Avery v Midland County
Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply arms of the states. Avery and its progeny, therefore, imposed new restrictions on state provisions for the organization of local governments.

Kramer v Union Free School District No. 15
In Kramer v Union Free School District No. 15, the Supreme Court again presumed that a local government's action has a community-wide impact. Kramer involved a New York law that limited the right to vote in school board elections to the owners or renters of taxable property in the school district and to the parents of children enrolled in the district's schools. The plaintiff was an otherwise eligible voter who had no children, lived with his parents, and neither owned nor leased taxable property.

Fumarolo v Chicago Board of Education
In Fumarolo v Chicago Board of Education, the Illinois Supreme Court… found that Kramer and Hadley continued to apply… when it invalidated the franchise and representation provisions of the Chicago School Reform Act. The Act provided for the creation of local school councils with a variety of powers for each of the grammar and high schools in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils' role in local education … mandated the application of strict scrutiny.

In defending the restricted franchise, the Chicago Board of Education contended that the local school councils were advisory rather than governing bodies. The Court determined that, although the district councils lacked the power to levy taxes or set basic educational policy for local schools, their functions were more than advisory, and the councils had considerable authority over local school operation.

Note that these cases do not hinge on whether an elected body approved a particular local electoral system. It would not matter, for example, whether the Maryland legislature unanimously approved a system of election that violated one person, one vote. For the courts, one person, one vote is a constitutional right that supersedes the right of legislatures to make laws.

Note also that these cases only indirectly apply to the structure of the SBNC. For example, the SBNC only has nominating powers, not general election powers. However, the SBNC is a very powerful nominating body because its recommendations are mandatory rather than advisory and because it only nominates two individuals to the Governor. If the SBNC acts strategically and nominates one individual who it knows the Governor will not appoint, then it has de facto general election powers.

Another question is whether the SBNC is an electoral body or an appointed/administrative body. As I read the case law above, it would be defined as an elected body with a restricted franchise, even though the SBNC is characterized in popular discourse as an appointed/administrative body (if all the members were appointed by elected officials, I would agree it was an appointed/administrative body, but by delegating membership in SBNC to the votes of special constituencies, it functions as an elected body).

Assuming that the SBNC does indeed violate the law, a simple solution would be to make its recommendations advisory rather than mandatory. But this would undercut the primary public rationale for the SBNC, which is that in the old School Board Nominating Convention process the Governor could override the preferences of the nominating body. Note that the recommendations of the judicial nominating commissions, a much cited precedent for the SBNC, are advisory only.

I am not a lawyer and have quite possibly overlooked some important considerations. This case may be especially tricky because, to the best of my knowledge, the school board electoral system in Anne Arundel County is unique and unprecedented in the United States (there are more than 14,000 school boards in the U.S., so this is saying a lot). Perhaps there is a legal reason why this is so. My hope is that there is at least one sharp legal mind out there who can shed some light on the applicability of this case law to the SBNC.

Note that even if the SBNC is violating the law, that doesn't necessarily mean much in the real world. For example, even after Maryland's Open Meetings Compliance Board found in May 2008 that the SBNC violated the Maryland's Open Meetings Act, there were no negative consequences. The press decided the story wasn't newsworthy (as a Baltimore Sun reporter told me, "this happens all the time, so it's not newsworthy"). When the Capital's Eric Hartley wrote about the SBNC's propensity to secrecy and the Capital's editorial board editorialized against it, neither even mentioned the SBNC's repeated violations of the law even though they were well aware of it. The general public also appears all but indifferent to Open Meeting violations.

Moreover, assuming that the SBNC does indeed violate the law of democracy (again, an assertion that is still speculative at this point), it's not clear to me who would have sufficient incentive to take the necessary steps to enforce the law. In the Fumarolo case above, for example, it was the school principals who brought the case because they were directly harmed by the law. What similar highly motivated constituency would do the same here? Not any existing parental organization that I know off. On the other hand, I can readily imagine some politicians or a political party getting a few good sound bites out of this. But concerted, effective action or a court challenge seems much less likely to me.

Additional Resources
An authoritative textbook on the law of democracy is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press. I have the 2001 edition. See Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208.

MyAACPS.net Launched

Today marks the official launch of MyAACPS.net. MyAACPS.net offers a one stop source of education news about Anne Arundel County. It provides the following four services:

1) Get RSS feeds of articles on AACPS.

2) Search for articles by source, date, reader ranking, and unstructured text.

3) Comment on an article.

4) On a 1 to 5 start scale, recommend an article or comment to others to read.

Its primary intended audience is opinion leaders among AACPS parents. It is not intended for parents with only a casual interest in AACPS policies, practices, and politics.

I designed the website with the advice of the MyAACPS.net Advisory Board, including Paul Rudolph (Former Member and President, Anne Arundel County Board of Education), Tom Frank (Education Chair, Greater Crofton Council), Sam Georgiou (Former Chair, Countywide Citizens Advisory Committee), Steve Johnson (Former Chair, Annapolis Cluster Citizens Advisory Committee), and Pallas Snider (Former Member, Anne Arundel County Board of Education). Perhaps the closest precedent for MyAACPS.net is the national article rating service, Digg.com.

MyAACPS.net was created with volunteer effort and will need to be maintained by volunteer effort. Over the coming months, I’ll be looking for volunteers to take on a number of responsibilities, including posting links to articles to AACPS.net in a timely way (it takes about 30 seconds to post each article link to MyAACPS.net) and moderating comments for SPAM.

Currently, MyAACPS.net only includes major local newspaper coverage of AACPS (e.g., Capital, Baltimore Sun, and Washington Post). Eventually, I would also like it to include blog coverage of AACPS. This would allow AACPS bloggers to develop a reputation and build an audience. However, this enhancement of MyAACPS.net would depend on a number of factors, including the emergence of AACPS bloggers and volunteer commitment to maintain such an enhanced information service.

Please take a look at MyAACPS.net, subscribe to its RSS feed, read some articles and comments, post some of your own comments, and use the star rating system to recommend articles and comments to others. New information technology is creating all sorts of new opportunities to enhance democracy in general and empower Anne Arundel County parents in particular. I hope that MyAACPS.net helps to realize some of that promise.

--Jim Snider

P.S. I am on the agenda to introduce MyAACPS.net to the countywide CAC at the CAC’s Thursday, September 25 meeting. I hope those interested in volunteering to help maintain and enhance MyAACPS.net will attend that meeting and speak to me privately afterwards.

BOE TV Coverage Postponed until at least October; SBNC seeks to restrict video use for democratic accountability

Board of Education TV coverage has been postponed until at least October 2008, with a possibility that there will be no coverage at all this year because no contract for the job has yet been awarded.

Last October, AACPS held a last-minute hearing on an AACPS plan for Board TV coverage. When I suggested modifications to the plan at that hearing, the AACPS TV manager and Public Information Office chief told the Board it had to make an immediate decision on the AACPS Board TV plan if Board TV coverage was to begin when the school year started in August 2008.

After many months of delay (the original request for bid proposals was promised for November 2007 but didn’t come out until spring 2008, a delay AACPS blamed on the Leopold administration), bidding was finally scheduled for June 2008. Unfortunately, no company made a bid by the bidding deadline, although four companies attended the pre-bidding session. I am told that the reason that no company made a bid is that at the last moment AACPS decided to change the bidding specifications by adding some ill-defined electrical requirements. Given the uncertainty over the job requirements, the companies that attended the pre-bidding session decided not to bid. After that fiasco, the project was put out to bid again in July—this time with the last minute changes dropped. For reasons I don’t know, only one of the four companies decided to bid in this second round. Having only one bidder created a red flag for the County, the result of which is that it has not yet signed a contract with the bidder and may choose not to do so. An additional complication is that the original plan was to do the installation during the summer months when the Board meeting room was accessible. The contractor has now refused to commit to a project completion date for the job because AACPS won’t commit to a schedule when the Board meeting room will be available to do the necessary work.

In May 2008 I sent the following letter-to-the-editor to the Capital and Baltimore Sun. The Capital printed it in late June 2008. The letter deals with the larger problem of how AACPS has been budgeting its millions of dollars of PEG funds.

Seeking accountability for the millions of dollars spent on AACPS TV

Over the last five years, millions of tax dollars have gone to funding the school system’s TV operations, most visibly its cable educational access TV channel, including a state-of-the-art broadcast studio and extensive, high priced staff support. What have we gotten for all that money? It is time that there was a general accounting for these expenditures. Some of them have been funded out of a special information technology and PR slush fund generated from the PEG access TV fee (98 cents/month for every household subscribing to cable or FIOS TV; about $16 million over the life of the franchise agreement). The rest comes out of AACPS’s budget.

Consider the rushed, overpriced, and poorly conceived plan to provide school board meeting cable TV coverage starting in late August 2008. Such coverage was decades overdue (many school systems a small fraction of the size of AACPS have had such coverage since the 1970s), but rectifying that deficiency is not an excuse for AACPS’s gold-plated broadcast TV design while undelivering on inexpensive but essential democracy enhancing features such as webcasting, integrated agendas with video, and online access to the resulting records. In the age of YouTube, the school system should have done much better. If small school districts in Vermont one-twentieth the size of Anne Arundel County can afford to do this, why cannot Anne Arundel County? The PR oriented culture of the AACPS TV staff strikingly conflicts with the democracy enhancing goals behind the congressional and county council laws enabling PEG TV funding.

Unfortunately, the school system’s printed budget is essentially useless for gathering information about its TV and PR operations. (Perhaps those who design the budget format are embarrassed that this year the school system spent more on central administration PR than, say, student field trips). Gathering such information would require an oversight hearing with thoughtful, tough questions. That’s the type of hearing we’ve learned not to expect from our school board, but it still would be a pleasant surprise to see.

Lastly, I want to call your attention to a video usage policy announced by the School Board Nominating Commission (SBNC). As you many know, SBNC televised its school board candidate hearings on Anne Arundel County public television. Subsequently, I asked to get a copy of the resulting video records, which I was entitled to do under Maryland’s Public Records Act. SBNC did not send me the copies within the 30 days required under the Public Records Act. But for public bodies in Maryland, such a delay is par for the course and thus hardly noteworthy. What is noteworthy is the notice that was sent to me prior and subsequent to the release of the copies. Here is the note:

These DVDs are provided to you as a courtesy and are intended for your personal use only. The School Board Nominating Commission does not authorize distribution or broadcast in any manner.

For any legal minds who might be reading this, I would be curious about your interpretation of this passage. I know of no passage in the Open Meetings Act or Public Records Act that would support the legality of such a clause. Indeed, I believe that such a clause is a clear violation of the intent of those two acts. Could such a clause be legally binding in any way?

Politically, the intent of this passage is much clearer. Public officials throughout the United States have sought to maintain as much control over public meeting video as they possibly can. AACPS is doing this with its planned board TV coverage, for example, by not making its video footage available over the Internet and requiring that all requests for video go through the school board’s office. This makes it much more costly for the public to access video records of public meetings and can be a very effective way to intimidate members of the public who are fearful of the repercussions of asking for potentially controversial information and won’t do so unless they can do so anonymously. I would be curious what members of this listserv think of such restrictions on public usage of public meeting video records. Do you think this is good or bad for AACPS’ democratic accountability?

--Jim Snider

School Board Nominating Commission: What does it take to win?

Yesterday the Governor announced the appointment of Tricia Johnson and Teresa Birge to serve on the School Board. It has been about a month since I’ve posted anything on the School Board Nominating Commission. What have we learned in that time about the SBNC process?

Here are some facts that I think are interesting:

21 people originally applied to compete for the two open slots on the Board; by
the time the SBNC voted, only 13 were still in contention.

On May 5, 2008, the SBNC voted to require a supermajority for nomination to the school board. When they voted on the candidates on May 12, 2008, two candidates received a majority of votes but without receiving the two-thirds necessary for nomination. Rules do make a difference.

The SBNC said it would follow the precedent of the Judicial Nominating Commission (which appoints judges in Maryland) and only seek to vet the qualifications of school board candidates. Its behavior suggests otherwise. How else can one explain that Paul Rudolph was not vetted as qualified by the SBNC? After all, Paul was twice selected by the School Board Nominating Convention, was twice selected by the Governor to serve on the School Board, and was selected by his fellow school board members to serve as president of the School Board. The SBNC’s rejection of Tom Frank raises a similar question, as Tom was previously one of two candidates nominated by the School Board Nominating Convention.

It is hard to assess how much strategic voting there was among SBNC members (strategic voting occurs when someone doesn’t vote their sincere preferences). Strategic voting for a candidate would be least expected when the preliminary vote was 7-3 because with a two-thirds majority requirement the eighth vote becomes the swing vote and an insincere vote becomes costly. My overall impression is that
there was surprisingly little strategic voting, although in at least one case it was clearly evident.

The press and public demonstrated to the SBNC that it could willfully violate both the spirit and letter of the Open Meetings Act without paying a price.

The candidates who won had nothing critical to say of AACPS. Future candidates: take heed.

Based on these observations, here are some predictions for the future:

There will be continuing pressure within SBNC to drop the pretense of vetting
candidates and move to nominating just two candidates for each open position. In this way, the SBNC can maximize its power.

There will be continuing pressure within SBNC to drop its candidate-by-candidate voting and select a slate in the backroom, which it would then vote up-or-down in public. In this way, SBNC members can avoid public scrutiny and accountability for their actions.

Fewer serious candidates will apply for open seats. In the extreme case, when an
incumbent running for re-election has not alienated any powerful interest groups, no serious contenders will emerge.

Successful candidates will play the inside rather than outside game. Electoral politics generally encourages politicians to play the outside game; members of Congress, for example, routinely run for Congress by running against Congress; presidential candidates typically run for office by running against business-as-usual in Washington. This is not going to be a successful strategy for candidates running for the school board. No mavericks need apply.

The SBNC will ignore its own bylaws and the Open Meetings Act when it deems them to be a nuissance, and there will be no public penalty for doing so, as long as a violation is done reasonably discreetly and with due consideration to create conditions for plausible deniability. The SBNC will continue to publicly pronounce its fervent devotion to the norms of openness and accountability--while conducting as much business as it reasonably can through private email correspondence, which is exempt from the openness requirements of the Open Meetings Act.

To the extent that backroom politics dominate the school board selection process, this will remain unreported.

Capital Editorial on SBNC Process

There are parts of this editorial I agree with, but I disagree with its skewed priorities. The part I agree with is that every SBNC member should be expected to explain why they voted for the winning candidates that they did. An important part of lawmaking is not just voting but explaining those votes for the public.

The part of the editorial I find objectionable is the argument that the SBNC should discuss the candidates' qualifications in public. This is not a requirement either in the letter or the spirit of the current Open Meetings Act. In some fantasy world, maybe this would be desirable. But it's unrealistic to expect, and I'm not sure it's desirable. What is more practical and useful for democratic accountability is to ensure that SBNC members explain their votes for the winning candidates. When SBNC members publicly state a set of candidate selection principles--e.g., that their goal is to merely vet candidates--and then act otherwise, that is the type of information the Capital should call out.

In terms of priorities, the Capital should have focused on the SBNC's violations of the Open Meetings Act and its own bylaws. Instead, the Capital made it clear that it doesn't really take these laws seriously, if only because their violation is so widespread that it would be unfair to pick on any public body for violating them. But if the Capital doesn't take the law seriously, why should the SBNC?

Even the best open meeting laws are not an adequate substitute for some genuine investigative reporting, which requires real work and putting the little guy's interests first. The real failure here was not with the SBNC but with the Capital for failing to do its journalistic job.

Publication: Capital
Date: May 20, 2008
Type: Editorial

The School Board Nominating Commission - the first to convene under a new law - has forwarded six names to the governor for his consideration for two school board slots.
Although the public knows who was chosen, it is been kept in the dark about why they were chosen. That's a troubling sign for a new public body.

The board decided to meet privately to discuss the candidates, then cast its votes in a public session. At least one commissioner, representing the teachers' union, also wanted the voting behind closed doors. Arguing against that, Commissioner Matthew Tedesco said the panel should be "as translucent as possible." Yet the panel decided to keep its discussions behind closed doors to avoid giving the nominees any discomfort.

Public bodies should be transparent. That's what the commissioners promised the public at their very first meeting. And isn't a robust discussion about future school board members the public's business?

A private meeting to discuss these nominations - on the ground that this is a personnel decision - may be within the letter of the law, but has nothing to do with the law's spirit.

If you apply for an influential public office, enduring a public discussion of your qualifications - and perhaps your temperament - isn't too much to ask. Would we want a county executive or County Council member chosen behind closed doors? Why should it be any different for a school board member who will have a major voice on our children's education?

A full and open discussion keeps the public informed and assures people that a public body isn't mired in cronyism or conflicts of interest.

Openness is not always convenient or easy, but it keeps public officials honest. We doubt legislators intended to drop a cloak of secrecy around this process when they created it last year.