"Serving on school board panel could cost you money," Capital, January 29, 2010

In an editorial, the Capital reiterates some of the observations I made concerning the SBNC's January 25 meeting.  The editorial starts:

It's no secret the legislative gurus who crafted the School Board Nominating Commission three years ago left out some details.

Little things, like how the commission that vets and nominates candidates for the county Board of Education would pay for a Web site and e-mail accounts for members, where it would meet, when it would take applications and how it would make decisions.

But now this dearth has reached a new low.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

School Board Nominating Commission (SBNC) Update

The first meeting of the School Board Nominating Commission of Anne Arundel County (SBNC) for the 2010 election cycle will take place on Monday, January 25, at 7:00 pm at Anne Arundel Community College, West Campus (Arnold) in CADE 219.  This year the second term of school board member Ned Carey (district 31) expires. Carey was appointed in 2002, after another school board member died while in office.  He was reappointed in 2005.  Although school board members are generally only allowed to serve two terms, the special circumstances of his appointment apparently allow him to serve a third term.  The first term of school board member Enrique Melendez (district 30) also expires.  In addition, school board member Victor Bernson (district 33), whose terms expires next year, has been publicly exploring a candidacy for the Maryland Senate.   The SBNC must nominate at least two candidates for each open school board member position, and the Governor must select one of the nominees by July 1, when new school board members take office.  The agenda for the January 25 meeting only covers administrative matters and public testimony will not be allowed.

In front page story, Capital demonstrates how little it knows about the school board

How many black school boards members are there on the AACPS board of education?  According to a front page Capital story by Eric Hartley, the answer is one.  The article seeks to defend the Capital's coverage of the Annapolis mayoral candidate, Zina Pierre, who was forced to withdraw from the election after winning the Democratic primary.  Here is the relevant section:

Tillett said he hopes Pierre’s victory teaches local Democrats they can’t take black voters for granted.

“It’s lighted a fuse,” said Eugene Peterson, a Pierre supporter and the only black county school board member. “I don’t think Annapolis is ever going to be the same.”

The correct number is three.  Since July 1, 2009, the AACPS Board of Education has had three black members, including the student member of the Board.

How many eyes reviewed this article before it was published?  At least two: Hartley and a senior editor.

What does this slip up reveal?   First, it undercuts a central point in Hartley’s article: that the Zina Pierre coverage is an aberration from the Capital’s pattern of rigorous investigative journalism.  One way Hartley goes about this is by rebutting Tillet’s argument that race had something to do with the Zina Pierre coverage.  Hartley argues that the Capital routinely does investigative journalism concerning political candidates:

Tillett felt compelled to argue that no other Annapolis candidate had faced such scrutiny from the press.

“Something’s different here. What could it be?” he asked sarcastically.

I’ve looked through many other candidates’ court histories. It’s part of the job. Just ask Sam Shropshire, who is white and had reporters cover his recent, still-pending criminal charges and even call his wife in Slovakia to ask about allegations of abuse in an old divorce case that Scott Daugherty of The Capital dug up.

There’s no evidence race had a thing to do with coverage of Pierre. But Tillett said, “You will not be able to convince a large segment of the community anything other than (that).”

The fact that Hartley didn’t know that the School Board has three rather than one black member indicates, at the least, that he and at least one senior editor (nothing gets published on the front page of the Capital without being reviewed by an editor) doesn’t pay much attention to school board candidates and politics.  It could be argued that school board politics is not very important.  But the facts speak otherwise.  AACPS spends more than half the total County budget, and its budget is more than ten times the total budget of the City of Annapolis.  Polls also indicate that the public cares hugely about the quality of K12 public education and what is going on in the schools.

It is also striking that this article, which is largely about local racial politics, would get wrong such an obvious racial fact.  If either Hartley or his senior editor had watched a public school board meeting in the last four months or attended a school board candidates event (there have been at least a half dozen since last May, four of them televised), he could not possibly have made this journalistic error because the error would literally be staring him in the face.

I would suggest that this article is not an aberration but deeply reflective of the Capital’s coverage of the school system.  It’s a pity that this revealing slip up had to come from Hartley, who has genuine journalistic instincts.

SBNC Update: Leahy and Pruski Nominated

On the evenings of July 28 and July 29, the Anne Arundel School Board Nominating Commission (SBNC) met to seek a replacement for the seat vacated by former school board member Tricia Johnson. On July 14, the SBNC announced it would hold hearings to seek a replacement and announced a deadline eight days later, July 22, for candidates to submit their applications. Four candidates submitted applications. Three of them—Michael Leahy, Andrew Pruski, and Paul Rudolph—resubmitted applications they had submitted during the last SBNC application cycle. A fourth candidate—Janet Pogar—was new. On July 29, the SBNC voted to nominate to the Governor Michael Leahy and Andrew Pruski. Both won by a vote of 9-1. Eight votes are necessary to secure nomination. Commissioner Wayson, the eleventh commissioner, could not attend the meeting. Commissioner Kovelant also couldn’t attend but provided the SBNC Chair with his votes in a sealed envelope, which the Chair of the SBNC duly read and recorded at the appropriate time.

The format of the meeting on July 28 was that the SBNC discussed its procedures and then the candidates gave opening statements and the commissioners could then ask questions of them. The most important procedural question concerned clarifying the status of incumbent school board members. The question was: under the statute creating the SBNC, did incumbents have to go through the SBNC process to seek re-election? The feeling was that the Maryland Attorney General had already issued an affirmative opinion. But just to be sure that there was no ambiguity, the SBNC asked its counsel to draft a letter to the Maryland Attorney General seeking more explicit confirmation of this reading of the statute.

The most time consuming procedural issue concerned Commissioner Kovelant’s request to postpone the SBNC’s July 29 vote on candidates for a week so he could go back to his 300 stakeholders, present his impressions of the candidates, and get their feedback (Commissioner Kovelant represents the Anne Arundel County Association of Educational Leaders and said he felt obligated to do this). The SBNC tried hard to accommodate a delay but too many commissioners would be on vacation or otherwise busy, so it was decided to retain the original schedule.

I was intrigued by Commissioner Kovelant’s sense of obligation because judicial nominating commissions, which the SBNC was supposedly modeled after, generally specify that commissioners are to be independent; for example, lawyers appointed to serve as commissioners by the local bar association are nevertheless expected to act independently once appointed. This is central to the philosophy of “merit selection,” which underlies the use of judicial nominating commissions; the goal is to take politics out of the nominating process. My reading of the statute creating the SBNC actually corresponds to Commissioner Kovelant’s interpretation: that he has a duty to represent those who appointed him.

The candidates’ opening statements were remarkably brief, less than fifteen minutes in total, mostly because three of them had already gone through the process just months before and didn’t think an extended introduction was necessary. The commissioners’ comments were overwhelmingly directed to Janet Pogar, the only new candidate. At the end of the meeting, I raised my hand to ask a point of information and was told by the SBNC Chair that members of the public could not speak.

Before the July 29 meeting, I asked Elisabeth Hulette (the Capital reporter) and Tom Frank (an activist citizen) if they could recall an SBNC meeting where the public had been invited to comment and ask questions not about candidates or the desired attributes of candidates but about the SBNC process. Elisabeth Hulette has been to most of the meetings since the launch of the SBNC in 2007. Other than myself, Tom Frank has attended more meetings than any other member of the general public. Neither could recall such a meeting. As a result, Tom Frank went up to the Chair of the SBNC and requested open public comments at the end of the meeting. The Chair agreed to allow such comments.

The format of the meeting on July 29 provided an opportunity for members of the public to speak about the candidates. Five individuals spoke. Four individuals spoke in favor of Andrew Pruski. A fifth represented an organization that would not allow him to explicitly endorse a candidate. But he also seemed to be endorsing Andrew Pruski. None of the other candidates had people speak on their behalf. After this fairly brief testimony, the SBNC conducted a roll call vote on each of the four candidates. If my memory serves me correctly, those voting yeah and nay for Michael Leahy and Andrew Pruski had no change of votes between their last vote in May and this vote in July. I believe that Commissioner Mennuti was unique in voting yeah for all four candidates.

At the end of the meeting, I was the only member of the public to speak. I mentioned that neither Elisabeth Hulette, Tom Frank, nor myself could recall a meeting where the public had been invited to discuss procedural issues (as opposed to candidate related issues) and asked if the Chair could recall such a meeting. No such meeting was recalled.

I then recounted Commissioner Kovelant’s statement of the previous evening and asked the Chair whether he viewed the Governor or the citizens of District 33 (which he represents and of which I am one) as his stakeholder(s). He replied the citizens of District 33 and that he did indeed consult some of them.

I then asked Commissioner Owens, who represents the Anne Arundel County Association of PTAs, whether she consulted her members. She replied that it was impractical during the summer to do so and reminded me that my kids have attended schools that have PTOs, whose members she does not represent.

Lastly, I asked the Chair of the SBNC whether he retained copies of the legally required email or print notices he sent providing notice of SBNC meetings. By way of explanation, I noted that last year and this year I had filed complaints with Maryland’s Open Meetings Compliance Board concerning the absence of such notice (as well as other violations of Maryland’s right-to-know laws). Concerning the first complaint, the SBNC alleged it had sent legally timely notice to the Capital. However, the Capital was not able to find such notice and the Chair of the SBNC also could not provide it. The Open Meetings Compliance Board ruled that it couldn’t rule on my alleged violation because I did not provide definitive evidence of the lack of such notice.

On May 12, 2009, I filed the second complaint with the Compliance Board concerning lack of legally timely notice to another meeting. In a response to the Compliance Board in late June, the SBNC Chair again asserted that such timely notice had been sent. But again, no written proof was provided.

In response to my question, the SBNC Chair said the SBNC had no records retention policy and was not legally obliged to have one. Commissioner Tedesco observed that the Maryland Open Meetings Act places the burden of proof on citizens to prove a violation rather than on a public body to prove a violation had not occurred. To this I replied that the Open Meetings Act does not specify who shall bear the burden of proof. As a result, the Open Meetings Compliance Board makes such determinations on an informal, ad hoc basis. I also observed that if this interpretation of the law was correct, it indicated an incredible double standard. If a citizen asserted to the government that his tax form had been duly sent to the IRS but could provide no proof of mailing via the United States Postal Service, the government would dismiss this defense out-of-hand. More generally, the government places the burden of proof on citizens to prove that they filed legally required documents in a timely way. Why should a different standard apply to a public body such as the SBNC (which includes professional legal counsel and a distinguished panel of experts and government officials)?

I didn’t say this at the meeting, but I’ve said it many times elsewhere: I believe the SBNC serves a very important function. The person it nominates has a high probability of serving two terms of office and voting on more than $10 billion of AACPS expenditures during that tenure. If I as a citizen can preserve my own emails more than 30 days old (my gmail service is free and includes all my emails going back about a decade), why cannot the SBNC?

--Jim Snider

P.S. I filed my Maryland Open Meetings Act complaint on May 12, 2009. The SBNC took more than the legally specified 30 days to reply to it and now the Maryland Open Meetings Compliance Board says it is overwhelmed with work and thus wasn’t able to meet its own legally specified 30 day deadline. Nor, given its claimed crush of work, would it tell me when it would be able to get to it.

School Board Nominating Commission Update

As you probably know by now, school board member Tricia Johnson has been appointed to the County Council, thus opening up a seat on the school board for a 4 year term. The School Board Nominating Commission (SBNC) has announced in a press release that it will accept applications until July 22 (eight days from its announcement) and hold a single meeting on July 28 to interview candidates. The vote to select the candidates will take place the following day, July 29. No mention is made whether the July 28 meeting will be televised.

This is a tremendously truncated version of the selection process the SBNC used during its first two rounds of operation. The justification for this compression is the immediate need to fill a vacant seat. But why the rush? Even without the replacement for this at-large seat, the school board will have 8 members—the full size of the school board for many decades until its July 1, 2008 enlargement to 9 members.

My judgment is that selecting a school board member in such a rushed manner sets a bad precedent. Whoever is selected will have control of a $1 billion/year budget for four years—as long a term as a governor, county executive, county councilor, or delegate to the General Assembly. It’s too important a position to needlessly rush.

On the other hand, vacancies for other important offices have been picked relatively quickly. Consider the recent selections of Maryland senator and county councilor in Anne Arundel County. From Senator Janet Greenip’s retirement announcement to Councilman Ed Reilly’s selection as a replacement took only a few months; and from Councilman Reilly’s resignation to School Board member Tricia Johnson’s selection as a replacement took only a bit less time.

But there are four noteworthy differences. First, those officials represented geographic constituencies who would lose representation and thus valuable resources if they weren’t quickly replaced. In contrast, school board members are expected to represent the interests of all children regardless of geographic location.

Second, it may be impractical to hold a special election, thus necessitating that an appointment process be used; appointment processes by their nature are almost always faster than special elections. In contrast, no special process is required of the SBNC when a vacancy opens up; indeed, the law mandates that its basic nominating process be the same regardless of whether or not it is filling a vacancy.

Third, the viable candidates for those offices are typically well known by both the public and those who will do the selecting. Thus, there is relatively little information to gather. For example, Ed Reilly was County Council Chair and Tricia Johnson a long time school board member before being selected for their new positions. In contrast, school board candidates are typically less well known, so more public deliberation is necessary, unless the intent is to give insiders an advantage.

Fourth, those who do the selecting are usually elected officials themselves and thus directly accountable for their actions. In contrast, there is much less public accountability for SBNC officials. One reason for the SBNC to have a more deliberative selection process is so that the public has a chance to observe it and assess the extent to which it is functioning as its representative.

Nevertheless, my overall sense is that the rush won’t make much difference; the same set of candidates would probably win either way.

--Jim Snider

P.S. Maryland’s Open Meetings Compliance Board has yet to respond to my May 12, 2009 complaint concerning the SBNC’s violations of Maryland’s right-to-know laws. The SBNC responded on Jun 29—ten days later than required by law. Last year the Open Meetings Compliance Board ruled against the SBNC on a related matter.


For related articles in the Capital, see:


Eric Hartley: Musical chairs leaves out voters, July 16, 2009

Panel to decide how to fill school board vacancy, July 16, 2009.

SBNC Update

As many of you undoubtedly know by now, the Anne Arundel County School Board Nominating Commission (SBNC) on May 27 nominated three candidates for the School Board. Ten candidates initially applied for the position, two dropped out, and several others only made a token attempt to compete for the position. Still, it was a large field. The biggest surprise was Kevin Jackson, who also applied last year for the nomination. He apparently learned from that experience and did a significantly better job this year. Still, I don’t believe that it’s going to be Kevin Jackson’s year this year. If he keeps at it and picks the right year, he is practically a shoe-in. Thus, after watching the entire process and weighing the political variables, I retain my initial judgment that the Governor will appoint Andrew Pruski. Incumbent Michael Leahy was the third nominee.

Note that political scientists often believe they can predict with a high degree of accuracy who the public will vote for even before the public has been exposed to the candidates for a position (e.g., if a political scientist knows the party makeup of a district, the incumbent’s party affiliation, and the condition of the relevant economy, he can predict with a high degree of accuracy who will win months before an election). Of course, we are often wrong. It is in that spirit that I have made this prediction.

Last year I filed a complaint with Maryland’s Open Meetings Compliance Board concerning Open Meetings Act violations by the SBNC. The Open Meetings Compliance Board ruled that the SBNC had in fact violated the Open Meetings Act in holding one meeting in secret and said it needed more information to assess whether adequate notice was given for a second meeting. In the attached letter, sent to the Open Meetings Compliance Board on May 12, 2009, I have responded to its request for more information and added numerous additional complaints about the SBNC’s Open Meetings Act and Public Information Act violations.

Note that there is no legal penalty in Maryland for violating the Open Meetings Act; the Open Meeting Compliance Board has no enforcement powers. The only real enforcement is the court of public opinion, which makes the Open Meetings Act a rather strange law. If the public doesn’t care, then for all practical purposes the law doesn’t exist. Note that no politician of sound mind is ever going to admit withholding material information from the public; that would be political suicide. But there is a difference between claiming openness and actually being open about providing controversial information.

Based on my experience, I wonder if we might be better off just abandoning the Open Meetings Act. Public officials would still need to go out of their way to suggest to the public that they are open, but I think the public might then be a little less gullible. The Public Information Act is a bit different because it does have an enforcement mechanism, albeit one totally impractical for most parents and especially anyone pursuing what political scientists call a “collective good.”

I suggest that the public would do well by trying to get their elected officials to take both the spirit and the letter of Maryland’s public right-to-know laws seriously. But I know from a lot of experience that this is unlikely to happen. The public thinks this issue is irrelevant to their pressing concerns. You can get the public out in force to complain about issues such as redistricting their school, building their school, or protecting their school’s programs. But to take any constructive steps to create meaningful and enforceable right-to-know laws, I’m not sure that it is possible without a major scandal involving secrecy. That is not the case here. We’re just talking about a lot of petty violations due to personal and political convenience.

I recently wrote a post on a related topic to the Obama administration, which has taken some extraordinary steps to open up the Federal government during its brief time in office. You might be interested in taking a look at this less for its content than for how the Executive Office of the President, working through the National Academy of Public Administration, has gone about soliciting public feedback. The website is completely open and the public can comment and vote posts up or down (but only for a brief comment period). In MyAACPS.net, I tried to create such a website this year. I conclude the school year by saying it was not a success. But this is clearly the future, and I’m confident that in the coming years we’ll be seeing a lot more of this type of information in Anne Arundel County. Eventually, someone will figure out a way to make it work.

As you know, I’ve been critical of the SBNC for violating the core democratic principle of one-person, one-vote (can you imagine allocating 40% of the seats in Congress to private interest groups?). But perhaps a more serious democratic problem is the decline of the press. The Washington Post has all but abandoned coverage of AACPS. The Baltimore Sun has reduced its news staff to a third of its former size, with a commensurate loss in the quantity and quality of AACPS coverage. The Capital has remained pretty much where it was—a typical small town paper with faux populism and a boosterish agenda. Unfortunately, Anne Arundel County is as big as some U.S. states. Overall, it’s not a pretty picture, and I suspect that the results will tell over the next few years. Paul Starr, in a recent article in The New Republic titled “Goodbye to the Age of Newspapers (Hello to a New Era of Corruption),” closed with this observation: “Newspapers have helped to control corrupt tendencies in both government and business. If we are to avoid a new era of corruption, we are going to have to summon that power in other ways.” For the sake of us all, I hope his worst fears aren’t realized.

Critique of the guest column published in the Capital expressing adulation for the SBNC

Concerning the May 10 guest column in the Capital expressing adulation for the Anne Arundel County School Board Nominating Commission, I have never been able to figure out the Capital’s conflict of interest disclosure policy. Sometimes it discloses trivial, obvious conflicts. Other times it misses the big conflicts. Perhaps the explanation is that if you’re a big Capital advertiser, you’re exempt from basic conflict of interest disclosure.

Wouldn’t it have been relevant to point out that the Anne Arundel County Chamber of Commerce, of which Bob Burdon is President, appoints one of the eleven School Board Nominating Commission (SBNC) members? In other words, Burdon’s organization is a direct beneficiary of the new system.

As a bonus, it would also have been relevant to point out that Burdon is a registered lobbyist, and, as such, lives or dies based on the goodwill of the elected leaders who created the SBNC. Lobbyists like Burdon love to have representation on the SBNC because it provides access and goodwill among the movers and shakers that determine their lobbying success.

In regard to the content of Burdon’s argument, who can disagree with the attributes he seeks in a school board member? They are motherhood and apple pie. He devotes the bulk of his commentary to describing those traits. But the question he purports to address in his commentary is whether the SBNC is the best way to select for those traits. Yet he provides no argument in his commentary as to why the SBNC is the best means to select candidates with those universally agreed upon attributes. He simply asserts it and says trust me: “as one of the architects of the legislation that created the commission, I had these criteria in mind that I felt the commission process could evaluate better than the former convention process.”

But why should we? Burdon should have set his task in this commentary to make his argument directly. Instead, he develops a straw man argument and asks us to trust his good faith and judgment as a representative of a major local institution. Although I have been highly critical of the SBNC, it certainly is not without its merits. Burdon would have made a stronger case by presenting them.

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.