School Board Nominating Commission Update for 2011

My column in the Patch (click on the title to go to the article; also copied below).

During the last four years I have closely followed the development and implementation of the Anne Arundel School Board Nominating Commission (SBNC), which nominates individuals to the Governor for appointment to the School Board.  I have written literally hundreds of pages on the 2007 legislation creating the SBNC and its first three years of operation from 2008-2010 (see www.myaacps.net).   No one, excluding about half the commissioners, has attended more SBNC meetings.  Indeed, I have attended more than three times the number of SBNC meetings as all local newspaper reporters combined.  Often the only members of the public who attend the SBNC meetings are candidates and school staff.  This year was worse than normal, with no reporter from the Capital, Washington Post, or Baltimore Sun either covering the meetings (let alone thoughtfully or with any sense of history) or even bothering to reprint the SBNC’s press releases.  An exception was the Severna Park Patch, which profiled the Severna Park candidate.

At the end of last year I decided four years of covering the SBNC was enough.  So this year, while Chair of the Countywide Citizen Advisory Committee, I emailed all local CAC representatives announcing I’d no longer be covering the SBNC and seeking someone else to take over reporting on the SBNC on behalf of the parents.  I got no takers, not even an expression of mild interest.

The last regular meeting of the SBNC for the 2011 election cycle took place on May 17, two weeks ago.  Since then, there has been no newspaper coverage of the election results, let alone of the bombshell announced during the last minute of the May 17 meeting.  Since it’s now clear that no one else is going to cover the SBNC for the 2011 election cycle, I’ve decide to extend my coverage for one more year.

During the 2011 Anne Arundel County School Board election cycle, the Anne Arundel County School Board Nominating Commission (SBNC) was tasked with finding two individuals from District 33 to nominate for the School Board.  The current incumbent from District 33, Vic Bernson, decided not to run for a second term.  Bernson, a Republican, is the last member of the School Board appointed under a Republican governor.  In recent years, he was also typically the only dissenting vote on the School Board.

The SBNC met three times: March 28, May 16, and May 17.  The first meeting was administrative in nature, including setting a deadline for candidates to file applications, the dates for the two candidate hearings, and the date for the final election of the candidates.  A separate date for the final election (May 23) was subsequently canceled.  The SBNC did not send me any email notices regarding the above meetings, including the date cancellation, despite my numerous requests to its leadership that it do so and past promises from it that it would.

Given that the School Board administers approximately $1 billion, 10,000 employees, 121 schools, and 76,000 students—one of the largest school districts in the United States—the blasé approach to appointing/electing School Board members is noteworthy.  In the great majority of school districts, school board races generate substantial newspaper coverage and public interest, if only among the 20% or so of the population with kids in the public schools.

For the first year in its four year history, the SBNC offered no opportunity for public comment on SBNC administrative matters.  Public comments were specifically banned from its March 28 meeting to discuss administrative matters, and no opportunity for general public comment was offered at its May 16 or May 17 hearings.  The May 17 hearing offered an opportunity for public comment on the two SBNC candidates, but no public comment on any other matter.

Both the number of meetings (three) and the total time spent in meetings for the year (under four hours) were a historic low for the SBNC.  This year there was no field hearing for the open position.  This was blamed on lack of public participation at previous field hearings.   As a result, District 33 has been the only district not to receive a field hearing during the SBNC's four-year existence.  But the SBNC's perception, accurate I believe, is that the District 33 community wouldn't care one way or the other.

Only two candidates applied: Amalie Brandenburg of Severna Park and James Pembrook Scott of Crownsville.  Neither had the long track record of public involvement with AACPS policy issues that was once typical of successful AACPS school board candidates.  The low applicant pool may indicate a sense of hopelessness among people who in prior years might have aspired to a School Board position.

On May 17, the SBNC voted on both candidates. Amalie Brandenburg was unanimously approved (11-0) and James Scott was unanimously rejected, with two abstentions.  However, the law stipulates that the SBNC must submit two nominees to the Governor, so both names were forwarded to the Governor.  The Governor is expected to make his selection by July 1, 2011, when by law the new School Board member is to take office.

The SBNC did not discuss the problems created by its unanimous vote against Scott.  The vote disclosed an inconsistency in the SBNC's rules.  By statute, the SBNC must forward two names to the Governor.  But the SBNC has a rule, passed unanimously if I recall correctly, that a candidate must receive eight of eleven votes (a supermajority) to have his or her name passed on to the Governor.  There is no provision in the written rules to cover a situation where two candidates don’t get the required supermajority, probably because there was an assumption that many more candidates would submit applications to the SBNC.  More than twenty candidates applied during the SBNC's first year of operation in 2008.

The bombshell released at the end of the May 17 meeting was that, in the opinion of the Chair, in consultation with counsel from the Maryland Attorney General's Office, the Governor need not appoint either of the two candidates and may request that the SBNC submit the names of additional candidates.   This is a radically new interpretation of the law.   One of the major public selling points for the SBNC when it was created was that its nominations would, unlike those of the previous School Board Nominating Convention, be binding on the Governor.  All prior discussions that I recall assumed that the Governor would have to choose among the candidates submitted by the SBNC, not that he could keep coming back to the SBNC requesting the names of additional nominees until he was satisfied with them.

This ruling generates a fundamental shift in the balance of power between the Governor and the SBNC.   It also suggests that SBNC commissioners, without publicly acknowledging so, may be losing confidence in their ability to operate effectively as an institution.  My sense is that the SBNC commissioners have become fearful of their own power to shape the School Board in their own image.  Sometimes there is danger in being perceived as too influential.  This may also have been reflected in the lack of behind-the-scenes candidate recruitment this year.

Assuming this ruling is not overturned (and it was made in a way that would allow plausible deniability if it should prove politically embarrassing), it creates a new set of unresolved issues in interpreting the statute creating the SBNC.  If the Governor doesn't have to pick among the SBNC's nominees in a timely way, what is the status of the July 1, 2011 deadline to appoint a new school board?  I'd have to go back and carefully read the various scattered rules for enlightenment on this question.   Perhaps the incumbent could stay on indefinately.  Or perhaps the School Board would have to operate short one member.  Other interpretations and unanticipated legal conflicts could be possible.  Sure enough, we might need yet the gazillionth legal interpretation from the Attorney General's office to figure out what the law creating the SBNC really means (incidentally, only a few of those legal opinions have been posted on the SBNC's website).   The original legislation creating the SBNC was created in haste, without due consideration of practical realities, without an opportunity for public comment, and without a template to work from (of the more than 14,000 school boards in the United States, Anne Arundel’s school board electoral system is unique).

In this particular case, I don't expect the Governor to exercise his newly announced powers unless Ms. Brandenburg has some major undisclosed skeletons in her closet.  Ms. Brandenburg said all the right things at her hearing and has the important characteristics the Governor would be expected to want in an AACPS school board member.  If anyone doubts that, the SBNC's unanimous vote for her should make that clear.  I expect that she will be a popular choice in the community.

There are always delightful inconsistencies to be found when attending an SBNC meeting.  My favorite year after year is the SBNC's protestations that it loves community involvement.   Since there has consistently been awful community involvement, the implication is always that the lack of involvement is the fault of the community, not the SBNC.  If the SBNC wasn't defensive on this point, I don't know why it would so incessantly harp on it.   This year did not disappoint.  At the May 16 meeting, the SBNC's Chair gave his perfunctory statement praising community involvement.  Then he proceeded to ask a question to the candidates about what they see as the role of a school board member.  Great question.  But then he clarified his question and gave away the type of answer he wanted.  He asked if school board members should micromanage the administration (for those in the know, "micromanage" is a dirty word in school politics).  And he elaborated by stating that micromanagement included soliciting feedback from individual schools rather than relying on the communications from AACPS administrative staff and official group representatives.

Following both the spirit and letter of Maryland's Open Meetings Law has never been the SBNC's strong suit.  2011 was no exception.

At the March 28 meeting, it was announced that the next meeting would include a presentation from a representative from the office of Maryland's Attorney General explaining what the ambiguous SBNC statute really means.  Since 2008, the requirements for incumbent school board members to seek reelection have been reinterpreted multiple times by the Attorney General’s office.  At the May 17 meeting there was in fact a representative from the Attorney General's office to do that.  But inconsistent with the promise at the March 28 meeting, the advice was provided in executive session.  No explanation was given why a public official providing an explanation of a public law to a public body had to do so secretly.  As a political scientist with a background in democratic theory, I would say that there are few more important ingredients to a well functioning democracy than the ability of the public to have access to the laws under which it is ruled.

Another interesting feature of the March 28 meeting was its apparent exclusive televising for School Board members: a nice perk not available to the average citizen.  The March 28 meeting was televised live over Channel 96, giving the Board the plausible excuse that it wasn't merely for the convenience of insiders.  However, past SBNC administrative meetings have not been televised and there was no public notice of the televised meeting.  Nor was there any indication on the AACPS website that the meeting would be rebroadcast or had ever in fact been broadcast.  The only people I know for sure who watched the meeting, or knew that it would be available on TV, were Board members.

As an aside, televising meetings the way the Board does it is not inexpensive; it has typically required the services of three AACPS employees.  The Board and the Public Information Office remain adamant that they will not webcast Board meetings, despite the fact that communities one hundredth the size of Anne Arundel County now routinely provide such webcasts of their public meetings.  (Speaking as a political scientist, webcast meetings are widely considered to be a much greater political risk than the type of live broadcast AACPS now tolerates).   The cost of televising the March 28 meeting for the convenience of Board members, not the public, could have been better spent providing years worth of archived, online webcasts of school board meetings. (In our YouTube age, labor is expensive compared to webcasting, which explains why even a few hours of labor costs the same as many more hours of archived, online webcasting.)

Writing about Open Meetings Law violations is famously hard because one doesn’t know what one doesn’t know.  Nevertheless, sometimes one can infer violations from public evidence.  An example is the SBNC's going into the secret executive session on May 17 without providing advance notice of the subjects that would be discussed and why they were exempt from public disclosure.  But this is a relatively trivial example because when the SBNC came out of executive session, reasons were provided.   On the other hand, the reason the topics of executive session are supposed to be presented upfront is so that there is an opportunity to challenge the need to go into executive session to discuss a particular topic.

In contrast, the Chair’s announcement at the very end of the May 17 meeting that the Governor was not bound to choose among the two nominees was not a trivial violation.  This issue had never been discussed either publicly at an SBNC meeting or announced as a topic of discussion for executive session.  Announcing such a bombshell legal opinion, with no prior warning and only a few minutes before the last meeting of the SBNC not only for the year but also before the expiration of the terms of all the gubernatorial appointees to the SBNC, has a dirty odor to it.

The SBNC has always been poor at posting the minutes of its last meeting of each election cycle.  This is the set of minutes that features its votes on the candidates (bombshells such as the announcement of the legal opinion concerning the governor's option not to appoint the SBNC's nominees may or may not make the minutes because they are not official actions).  Usually there has been an approximately eight month delay in publicly posting the minutes.  By the time they are posted, no one is usually any longer interested in them.  The candidate bios and much other relevant information to which they refer may also be long since removed from the public portion of the website (but still available to insiders behind a firewall).  Since the SBNC never posts the dates when it posts (or modifies) minutes (and most other documents as well), all this is invisible to anyone who doesn’t watch closely.

Note that an eight month delay in posting minutes is by no means the worst case.  For example, the last set of minutes from the 2009 election cycle, from the meeting held on July 29, 2009 to vote for an open at-large seat after Tricia Johnson resigned from the School Board, has still not been posted as of May 31, 2011, close to two years later.  It is noteworthy that as of May 31, 2011 none of the SBNC meeting minutes from its 2011 election cycle had yet been posted on the SBNC's website.   It has not been unusual for many SBNC public meetings to go by without such a public posting of the minutes.  In 2008, the SBNC illegally held two meetings in private.  After I complained to Maryland’s Open Meetings Compliance Board, the SBNC did post the minutes to those meetings.  But more than three years later it has not posted that the meetings were held illegally in private.

Notwithstanding the above, there is much to commend an appointed school board, especially in a giant school district such as AACPS.  Sir Winston Churchill once said that “democracy is the worst form of government, except for all the other forms that have been tried.”  I do not doubt that hundreds of other school systems have worse electoral systems than ours.

My written comments to the School Board regarding its proposed rewrite of the CAC regulations

To Whom It May Concern: Setting aside the question of what one might think about the substance of the Board’s proposed CAC regulations, they do have the advantage of honesty.  Under the previous regulations, the Board and Administration made a pretense, consistent with the formal written rules and nominal procedures, that CAC officers were independently elected, not appointed, and that the CACs could control their own agenda even if it conflicted with that of the Board and Administration.  The proposed regulations make very little pretense of continuing that fraud. For a glimpse of the often hidden relationship between CAC leaders and the Administration/Board, see the two letters from the past and current Board presidents concerning the mandated Countywide CAC agenda for the current, 2010-2011, school year.  The first is from the former Board President to then Countywide CAC Chair Tom Frank.  The second is from the current Board President reaffirming the first letter and clarifying that the Countywide CAC would not be allowed to host any candidate forums, including a forum for the four school board members up for an approval vote on November 2, 2010.  My commentary on related matters published in the Capital, “Can we strengthen the parents’ voice in education,” is available here.  My extensive comments to Countywide CAC members on rewriting the CAC regulations are available here.  My survey of Countywide CAC members on related matters is available here.  (If these links are stripped out by AACPS when it posts this comment, you can find them all atwww.aacac.info.) It should be understood by those involved in the revision of the CAC regulations that administrators, school boards, and PTAs have never been, to put it mildly, champions of a strong CAC system.  Maryland’s original state mandated CAC system in 1970 was set up uniquely for Anne Arundel County, and there is no record that it was supported by either the School Board or countywide PTA.  Unfortunately, the original strong CAC system in Anne Arundel County was viewed as too successful as a means of giving parent stakeholders a voice in the school system.  Worcester County, also with an appointed school board at that time, copied Anne Arundel County in 1973.  Then there was a push to create a statewide CAC system.  This was a big mistake, as it mobilized the Maryland School Boards Association and the PTAs against the proposed legislation.   In 1976, the General Assembly created a statewide CAC system but at the price of significantly watering down the original rules specifically written for Anne Arundel County.  For example, the original rules mandated a system of local CACs with a countywide CAC for Anne Arundel County.  The revised rules, which applied to all Maryland counties, cut out the vision of a multi-level CAC system.  Nevertheless, Anne Arundel’s CAC regulations, which were orginally written before the statewide revision, maintained the multi-level CAC system, which the Administration and Board now wants to gut. Governor Marvin Mandel, the big champion of creating a strong CAC system in Maryland, wanted to call CACs “Parent Advisory Councils.”  He was defeated, however, as a result of the strong lobbying push on the legislature by the local school boards and PTAs.  One of the best strategies for killing the CACs with poison pills (sold as “friendly amendments”) has always been to give the CACs an ill-defined role overlapping with other stakeholder groups.  I am in favor of having current and former AACPS parents serve on CACs.  I see no advantage in having other stakeholder groups represented, each of which already has its own group to represent their interests. The current public face of the attack on the CACs has come from current and former Countywide PTA leaders (most notably one who currently serves on the School Board).   Going back to the creation of the CAC system in the early 1970s, PTAs have argued that CACs are unnecessary. The School Board currently grants PTAs the right both to lobby and raise funds.  It has withheld those rights from the CACs because it views the CACs as designed by the legislature as a checks & balances institution and therefore as a threat to its perogatives.  The PTA would retain this monopoly under the proposed CAC rules.  As an aside, I would also like to note that PTAs do not represent all the students in Anne Arundel County.  Over the years, this is an assertion that I have heard by the PTA representative to the School Board Nominating Commission, as well as by legislators who created the School Board Nominating Commission.  It is also consistent with the School Board’s practice of letting the Countywide PTA president speak at every school board meeting but the Countywide CAC chair only every second meeting.  PTA members are also appointed to serve on key countywide committees as the parents’ representative (e.g., see Superintendent Maxwell’s column in the Capital this week).  But this claim, whether made implicitly or explicitly, is misleading.  In the Severna Park feeder system, for example,fewer than 50% of the students attend public schools with a PTA.  Both the high school and middle school, and at least one elementary school, have PTOs.  Given all the talk by the current and former countywide PTA leaders about how unrepresentative the CACs are and how representative the PTAs are, I call on the Countywide PTA leadership to publicly provide the detailed membership information that the Countywide CAC has been asked to provide.  There also needs to be an acknowledgement that Maryland’s Governor and Anne Arundel County’s delegation to the General Assembly originally created the CAC system based on their observations that PTAs, while serving a very valuable role within the public school system, were not well suited to represent parents as a stakeholder group. AACPS administrators have reported to school board members that they have done a thorough investigation of CAC practices throughout the state.  This study should be publicly released.  Moreover, the study should clearly distinguish between school systems with appointed and genuinely elected school boards.  It seems to me that any data collected for appointed boards should be dismissed as irrelevant and that the focus of any data gathering effort should not be on doing the minimal amount required by Maryland statute but on explaining why the original vision of the CAC system is no longer appropriate for Anne Arundel County.   There also should be an acknowledgement and explanation of the revisions to the original CAC regulations over the last few decades that have gradually weakened the CACs.  With the decline of the School Board Nominating Convention and the rise of the School Board Nominating Commission (seewww.myaacps.net for details), the need for a strong CAC system may be greater than ever in Anne Arundel County.  Sincerely, --Jim Snider, Former Vice-Chair and Chair of the Countywide CAC, as well as amateur Countywide CAC historian (see CAC laws/regulations atwww.aacac.info and Chair’s “Weekly” Letter to Members, dated January 4, 2011, for additional information)

SBNC reform bill dies in the Maryland General Assembly

The Capital reports that the Maryland legislature has rejected a bill to codify the laws regarding the SBNC and to add some electoral features to the school board selection process:

The chances of changing Anne Arundel County's school board process are likely dead this year and through the next election in 2014, but the local House delegation still wants to study options for changing it.

Despite staunch opposition in the Senate, the county House delegation decided yesterday to study the school board set-up in the interim between this General Assembly session and next year's.

"There is a lot of will in this delegation to make some changes," said Del. Bob Costa, R-Deale, the chairman of the body. "We need to sit down with everyone involved. … We can do this over the interim and come back with a real bill."

County delegation to Maryland General Assembly passes SBNC reform bill

The Capital reports that the Anne Arundel County delegation to the Maryland House of Delegates has approved a bill to add electoral features to the School Board selection process:

The county's House delegation has approved a bill requiring appointed members of the Anne Arundel County Board of Education be subject to contested elections.

The 8-7 party-line vote was held during a meeting Friday. Del. Tony McConkey, R-Severna Park, the bill's sponsor, said it would allow more representation from different parties on the board but opponents saw it as a way to further politicize what is supposed to be a non-partisan appointment.

The legislation will now head to the county's five-member Senate delegation for consideration.

Four County Council Members Endorse Elected School Board

The Capital reports that the County Council endorsed an elected school board:

"Four Anne Arundel County Councilmen have introduced a resolution endorsing an elected Board of Education.  The resolution supports a state Senate bill designed to put the county's education leaders on the ballot. School board members currently are appointed to their jobs, although they do stand for approval from county voters.  Republican Councilmen John Grasso, Dick Ladd, Derek Fink and Jerry Walker introduced the legislation at Tuesday night's council meeting. They are expected to vote for the measure at the council's March 7 meeting."

In a unanimous vote, the County Delegation to the Maryland General Assembly reduces the terms of newly elected school board members

On February 17, 2011, the Anne Arundel Delegation to the Maryland House of Delegates unanimously approved HB220 (the same bill as SB78), which mandates that incumbent school board members to win an additional term must go through the SBNC nominating process as well as win a retention vote.  This would overturn the Maryland Attorney General’s opinion last spring that incumbents did not have to either get renominated by the SBNC or be reappointed by Maryland’s governor, only win a retention vote to seek re-election.  Given the partisan nature of most Delegation debates on the SBNC as well as that a large majority of the school board members individually opposed passage of the bill (although collectively the school board took no position), the unanimous vote in favor of HB220 is remarkable.   More votes on SBNC bills will   be coming up over the coming weeks.  My testimony in favor of HB220/SB78 can be found here and is posted below.

My testimony on SBNC before the Anne Arundel County Delegation to the Maryland House of Delegates

My name is Jim Snider, and I’m here to talk about the historic number of bills introduced into the General Assembly regarding the Anne Arundel School Board Nominating Commission.  I’ve been closely following the School Board Nominating Commission since it was created in 2007.  I think it’s fair to say that I’ve attended more meetings of the SBNC than anyone other than a handful of commissioners themselves.  I’ve also attended about twice as many SBNC meetings as any member of the press.  In terms of coverage, I’ve probably written twenty to forty times as much about the SBNC on my blog, MyAACPS.net and the Countywide CAC’s discussion forum, as any local newspaper. 

I also am the chair of the Countywide CAC, which represents the local Countywide CAC reps from the approximately 120 public schools in Anne Arundel County.  Although I have written extensively about the SBNC to Countywide CAC members, I’d like to be clear that I’m speaking personally here today and not on behalf of the Countywide CAC.

Lastly, I’m a political scientist by training who has worked in the academic and Washington, DC think tank communities on issues of democratic reform.

I’m generally in support of five of the SBNC bills, including HB 220, HB 399, HB 991, SB 78, and  SB 114.  Although these bills conflict with each other in parts and although I would add or change many provisions to improve them, I generally believe they are an improvement over the status quo.

As you review these bills, I hope you will keep the following facts and democratic values in mind:

First, the citizens in a democracy have a right to be able to understand, without unreasonable effort, the laws under which they are governed. 

I believe that this is not currently possible with the laws regulating the SBNC.  The SBNC embodies a novel method of electing school board members.  Of the more than 14,000 school boards in the U.S., I don’t believe that in 2007 there was one with an electoral process that even remotely resembled the SBNC.  Perhaps it should be no surpise, then, that many key issues in electoral design were not clearly specified or in some cases not included at all in the statute creating the SBNC. 

The result has been that the SBNC and other government agencies responsible for enforcing the statute have had to make it up as they went along over the last four years.  The key SBNC laws are now scattered across SBNC minutes, SBNC bylaws, Maryland Board of Elections rulings, and, arguably most important, a long series of opinions issued by Maryland’s Attorney General.  To understand the laws, one must also now consult a broad array of other statutes and regulations that are education or election related but not obviously related to the SBNC, except for the fact that the SBNC statute didn’t clarify certain questions so that other laws had to be consulted to fill in the gaps.  There is thus a crying need to codify the key provisions of these laws into a single statute so that a reasonably diligent citizen could get an overall sense of how the SBNC operates from reading the statute.  Currently, many prospective candidates for the SBNC and even incumbent school board members call me asking me what the rules of the SBNC actually are.  They shouldn’t have to do this. 

The problem has been compounded by the SBNC’s generally awful record keeping.  Not only does the SBNC have no physical and public location where it stores its records, but it often only posts publicly online the public records for the current year, with the balance needlessly placed behind a firewall granting access only to insiders.  I am pleased to report that the SBNC is now selectively posting on its website its meeting minutes from prior years, but many other critical public documents specifying the rules under which the SBNC operates are not similarly available.

I hope the entire delegation will agree that democracy requires not only the rule of law but also laws that a reasonably diligent citizen can locate and understand.  I believe that a number of the SBNC related bills that have been introduced mark a significant improvement in the codification of SBNC law.

Now to the second point: the SBNC that we have now is not the SBNC that the public was promised in 2007.  

When the public eventually finds out what has happened, I think we could have an ugly situation.  For example, last spring the Maryland Attorney General ruled in an opinion that incumbent school board members elected under the new system would not have to seek re-election either by going through the School Board Nominating Commission or seeking reappointment by the Governor.  All they would have to do to serve another term in office is survive an uncontested retention vote.  This is a remarkable reinterpretation of the law, which was most certainly not stated in any public announcement by the SBNC’s advocates or reported in the newspapers in 2007. 

How remarkable is this reinterpretation?  I’m not aware of any local school board or town council in the United States—and there are approximately 40,000 scattered across the U.S.—where incumbents can go for more than twelve years (two full five year terms plus a partial term) without facing a competitive re-election process.  

What do you think the public will think when they find out about this?  Perhaps  you should imagine how they’d react if you proposed making your own seats similarly uncontestable.

Last spring you had a reprieve.  The Capital education reporter was leaving the Capital and didn’t attend most of the SBNC meetings, let alone do due diligence other than calling the chair of the SBNC for official summaries of the meetings.  Even now, I understand that some of the delegates here don’t believe that the Maryland Attorney General has interpreted the law as I have described.   But at some point word will get out, and even the local newspapers will have to report on what’s happened. 

What I’d suggest to you is that you fix the problem before word gets out and it becomes a political embarrassment.  Indeed, there are many other embarrassments in the law that have cropped up and that I believe you should also fix, but I don’t have enough time here to go into them, and, in any case, I doubt they’re as politically dangerous as the problem I’ve just described.

Lastly, as my third point, I’d like to reiterate a point that I’ve made to most of you before: the current SBNC statute violates the essential democratic principle of political equality, as embodied in the widely understood phrase of one-person, one-vote. 

In America, we’ve had a 200+ year struggle to expand suffrage to poor whites, blacks, women, and other disenfranchised groups.  Even today, Maryland has a strong civil rights community dedicated to preventing vote dilution, so that all citizens are treated equally.  But by giving private groups a disproportionate share of the vote on a general purpose public body, the SBNC violates this sacred democratic principle. 

Advocates of this violation of one-person, one-vote  have countered that the SBNC models judicial nominating commissions, water district commissions, and other special purpose districts.  But there is a qualitative difference, as the courts have recognized, between those types of public bodies and a general purpose public body such as the SBNC.  Whether the SBNC not only violates one-person, one-vote but is unconstitutional is admittedly a much more difficult matter to assess.  Based on a series of U.S. and state Supreme Court cases regarding the application of one-person, one-vote to school boards, I believe there is a high likelihood that a high court would indeed rule that the SBNC statute violates the political equality principle embedded in the U.S. Constitution.  But I cannot imagine who would bring such a case, and I’d agree that the circumstances of the SBNC are unique and unprecedented, thus making prediction very difficult.  But regardless of the legality of the SBNC’s violation of one-person, one-vote, it indisputably conflicts with core democratic principles. 

This observation by no means implies that there is any inherent problem with an appointed nominating body such as the SBNC; only that there is a distinction between nominating bodies that conform to democratic principles and others, such as the SBNC in its current form, that do not. 

In conclusion, the bills I’ve endorsed above improve on the status quo school board electoral process in a least one of the following three ways: by codifying the law, by fixing the politically embarrassing reinterpretations and evolution of the law since 2007, or by mitigating the effects of the law’s violation of one-person, one-vote through the addition of auxiliary mechanisms to enhance political competition and popular sovereignty.   

Even if you’re an advocate of the current SBNC process, I hope you will agree that the law should be written in such a way that it is reasonably accessible to the public.  The current laws regarding the SBNC, scattered as they are in so many inaccessible places, clearly do not meet that test.  

SBNC Update: Wrap-up for 2010

Introduction & Summary

On May 11 and 12, the Anne Arundel School Board Nominating Commission (SBNC) interviewed candidates for District 30 and District 31.  On May 17 the SBNC heard testimony on behalf of the candidates and then voted for two nominees for each district.  The two nominees for District 30 are Richard K. Giroux of Arnold and Solon K. Webb of Annapolis; for District 31, Deborah T. Ritchie of Pasadena and Lisa Shore of Pasadena .  The links point to the applications they submitted.  The SBNC removes applications from the public portion of its website after the electoral cycle is complete, so if you want to see the applications, I recommend doing it now.

 

The three hearings, followed by a vote, showed off the SBNC at its finest.  The candidates were well-qualified to serve on the Board of Education (“School Board”), and the SBNC commissioners came across as thoughtful leaders working on behalf of the community.

 

The average number of candidates running for each open seat declined from 12 during the first SBNC nominating cycle in 2008 to 3.5 in 2010 (four for District 30 and three for District 31).  Assuming that all the candidates had an equal chance of winning, those running in District 30 had a 50% chance of winning while those running in District 31 had a 66.7% chance of winning.  The decline in number of candidates highlights the growing importance of the early and invisible part of the SBNC nominating cycle, whereby candidates are recruited and otherwise given incentives to formally apply for a nomination.

   

The Governor must now appoint a representative from districts 30 and 31 by July 1, when the next Board of Education takes office.

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

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

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

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

The outline of my observations and analysis follows:

1) May 10 District 30 Public Hearing

2) May 11 District 31 Public Hearing

3) May 17 Hearing for Candidate Testimonials and Vote

4) Implications of Ned Carey’s Withdrawal Announcement

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

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

1) May 10, 2010 District 30 Public Hearing

All SBNC Commissioners plus their legal counsel and four members of the AACPS Public Information Office (including three TV producers) were in attendance.  No reporter was present.  Thirteen individuals were in the audience, including only three people not affiliated with the candidates or the Board of Education.   I left after about an hour, during the mid-hearing break, and watched much of the remainder of the hearing at home on my TV.  Although the half-million dollar TV setup in the Board room and quarter-million dollar TV backroom facility can support high definition television, the production was in standard definition due to ongoing negotiations with Comcast about high definition carriage.

 

Four candidates were competing for the two nominations for District 30.  However, one candidate, Richard D’Amato, a former member of the Maryland House of Delegates, couldn’t make it for the District 30 hearing, so he was allowed to join the District 31 hearing the following evening.

 

Each commissioner was allowed to ask a question of the candidates.  The hearing ran for more than two hours.  Those not present could watch via TV, which was broadcast at a higher quality than most C-SPAN coverage of public affairs events but at a lower quality than network TV coverage of presidential debates.  For example, C-SPAN covers most think thank events with a one or two person crew, not the three person crew used here (four people if you include the TV crew’s boss).  Similarly, C-SPAN usually doesn’t operate in a conference room with a half dozen robotic cameras and perfect lighting; indeed, it is unlikely that there is a single think tank in Washington, DC with a conference room—even one used for events a half dozen times a day—outfitted with a half million dollars of TV equipment ($464,000, to be exact).

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

I agree with Candidate Garcia that when a high level public official comes to speak to a CAC meeting, especially of the Countywide CAC, those not physically present should have the opportunity to hear what is said.  Coming from the think tank world, where it has become routine to webcast events, I would consider such coverage a no-brainer.

 

(Incidentally, more parents in Anne Arundel County now have broadband than cable TV connections; note that satellite TV is separate from cable TV and that satellite TV customers cannot see the County’s educational channels.  In addition, County libraries provide free broadband but not free cable TV service.  So broadband is now not only the most convenient but also the most equitable medium for educational public affairs TV coverage.  Of course, there is no reason that CAC TV cannot be delivered over BOTH broadband and PEG cable TV, as is now done in many U.S. towns with a population a fiftieth the size of Anne Arundel County and a commensurately smaller TV/PR budget.)

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

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

Commissioner Anderson’s observation about poor parental involvement was, of course, correct. I attended every SBNC event this election cycle and I could count on my fingers the number of audience members who weren’t AACPS officials, prospective candidates, or relatives of prospective candidates.  Even the Capital reporter stopped coming during the SBNC’s last five public meetings.

 

So I applaud Commissioner Anderson’s heartfelt concluding remark.  But who or what is to blame for the problem she describes?  It’s not clear to me why a rational member of the public would want to participate since the public has no real role in the SBNC’s selection process.  The public doesn’t select the nominees, and it doesn’t select the commissioners who select the nominees.  The democratic lines of accountability are so blurred as, in my opinion, to be all-but-unreadable by anyone except a handful of insiders.  Asking the public to participate is like asking someone from Anne Arundel County to participate in an election in East Podunk, Illinois.  Why should they?

 

The part of Commissioner Anderson’s statement that made me wince was her conclusion pleading for more parental involvement.  I’ve been attending School Board candidate hearings for close to ten years and have observed that there is no greater cliché in AACPS school politics than the plea for more parental public policy involvement.  Yet it never seems to happen.  The reason, unfortunately, is much more fundamental than the fact that politically astute parents recognize they have no meaningful role in the SBNC election process.  It is that real public participation—the way that democratic theorists define it—is often actually considered, at best, an annoyance.   Real public participation must come from the bottom up; that is, people must feel that they can make a real difference and that they aren’t being used just for show.  But the incentives, all too often, are to use public participation and the appearance of openness for show.  After all, we live in a democracy, and school boards and other public bodies get their public legitimacy from appearing democratic. Indeed, the calling of a public meeting with warm bodies in the audience has proven to be one of the most effective democratic shows.  Admittedly, there are pockets of real participation in AACPS.  But the SBNC hasn’t been one of them.

 

Lastly, I’d like to note one of my greatest frustrations attending the SBNC hearings in the Board room: no WiFI (wireless Internet) access for my laptop.   The Board room has two very strong WiFi hotspots, but they are only accessible to ACCPS employees with a password; the public is barred from access.  I routinely attend public events in federal buildings, hotels, and think tanks, and I can say it is now very common to provide free WiFi access during public meetings.  Such WiFi access greatly increases both the quantity and quality of public participation.  That’s because it’s much less burdensome attending a long, boring public meeting if one can multitask; and the quality of participation increases when audience members can become active listeners by looking up speaker references, better researching their questions, and exploring unexpected implications of what the speaker is saying.  The same goes for CAC meetings held in the evening in the Board room.  I just cannot fathom any reason why CAC members shouldn’t have WiFi access.

 

Actually, this is not quite true.  Try on this for an explanation:  Via its I-NET link, Riva Road can access broadband Internet access about 1,000 times faster than the fastest broadband service (about 20 Mbps) available to Anne Arundel County residents.  Perhaps someone is worried that if the public experienced Riva Road’s superfast broadband connections, especially in the evening when Riva Road is empty and the network unused, the Board room would be overwhelmed with public participation. :-)

2) May 11, 2010 District 31 Hearing

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

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

This time the SBNC’s PTA representative, Commissioner Anita Owens, asked the parental involvement question: How do we increase parental involvement in the schools?  Candidates Lisa Shore and Richard D’ Amato both called for better use of technology.  But it wasn’t clear to me whether they meant more top-down communications (as in PR) or bottom-up communications (which, if not astroturf, I would call democratic participation).  Whenever the parental involvement question comes up, there is also the question of what exactly is meant by “parental involvement”: does it mean civic involvement or mentoring one’s own children with their schoolwork?  Often the latter is meant, but it is noteworthy that the candidates interpreted the question as including both parential civic involvement and child mentoring.

 

Perhaps my favorite question of the evening, also involving ambiguous concepts, was Commissioner Konrad Wayson’s: Should School Board members vote by district or at-large?  This question gets at a fundamental ambiguity in the current School Board electoral system.  Three of the four candidates, with some hedging, answered: “by district.”  The other candidate, who would go on to win the most votes of any nominee for District 31, answered: “at-large.”  Since School Board members are supposed to care about all kids first and foremost and forego anything resembling politics, I believe the at-large answer was clearly the politically correct one.

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

3) May 17 Hearing for Candidate Testimonials and Vote

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

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

One confusing part of the testimonials in favor of the candidates was their separation into public and secret parts.  Those giving their testimonials in person did so in public.  But there were apparently a number of written testimonials that were not read and were otherwise publicly inaccessible.  The SBNC commissioners did not publicly state how or if the written recommendations had been privately distributed to them.  But it’s reasonable to presume that the SBNC commissiones had access to the written recommendations before the hearing.

 

Commissioner Greene opened the meeting reporting that today he had received a letter from School Board Member Ned Carey stating that Carey would not accept the Governor’s appointment to the School Board even if it was offered to him.  Greene noted that the letter was dated May 13.

 

One interesting feature of the TV coverage on May 17 compared to May 11 was the TV camera work.  I don’t recall any audience shots on May 11 when the Board room looked all but completely empty (note that I did miss part of the May 11 hearing).  But on May 17, when the camera could focus on a cluster of folks, the audience was introduced to viewers.

 

I thought the candidate testimonials were impressive and compelling.  I also thought there was a close correlation between the number and intensity of the testimonials and the number of votes the candidates ultimately received from the SBNC commissioners.

As a ballpark figure, I estimate that the total taxpayer cost of the three hearings was $3,000: $2,000 for the four AACPS staff ($200/hour for the four staff times 10 hours) and $1,000 for the SBNC’s attorney ($100/hour times 10 hours).  Of course, AACPS employees and the SBNC’s attorney (provided gratis by the Maryland General Assembly) are paid on a salary basis and don’t charge the SBNC for their services.  But they also certainly don’t come free for taxpayers.  If 50 members of the public watched the hearings (and this is little more than a wild guess), that comes to $40/viewer ($2,000/50 viewers = $40/viewer).

 

In my opinion, the public might have been better served by having an all-volunteer high school student TV crew televise the meetings (using their own equipment, not Riva Road’s), automatically index the footage to the agenda (standard even for tiny rural towns in Vermont), and then post the resulting footage on an independent website such as YouTube (one of the most common websites used by think tanks for public affairs events).

Note that these calculations assume that the SBNC has discontinued the costly (and secret) practice of transcribing the candidates’ testimony and Q&A.  These transcripts, presumably paid for by the Maryland General Assembly, were never posted on the SBNC’s website and were for the exclusive use of SBNC commissioners.

 

Overall, the lack of press coverage of the SBNC during this electoral cycle was striking.  In the old days of the nominating convention—and I’m not advocating a return to those days—the Washington Post, Baltimore Sun, and Capital would all compete in their coverage of the School Board candidates.  In recent years, the Washington Post and Baltimore Sun completely abandoned the School Board electoral beat.  And now we’re left with the Capital’s reports, which have evolved during this election cycle into little more than rewritten press releases.  As for informed and thoughtful commentary, I don’t recall that we ever had that, so there hasn’t been a change there.

4) Implications of Ned Carey’s Withdrawal Announcement

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

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

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

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

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

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

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

b) The Capital didn’t do its job.  The Capital’s education reporter was at the January 25, 2010 SBNC meeting where the January 22, 2010 Attorney General legal opinion was publicly announced.  I then wrote about it in my January 27, 2010 SBNC Update, which is widely read throughout the County, including by various Capital reporters.  Here is what I said: “The AG also ruled that incumbent school board members don’t have to go through the SBNC nominating process to have their names forwarded to the governor; all incumbents eligible for an additional term will have their names forwarded to the governor.”

The Capital reporter attended some of the early SBNC meetings where the practical significance of whether Carey would run was repeatedly mentioned.  The Capital then reported three times, presumably based on first-hand communications with Carey, that Carey was undecided.  Two of these reports, the last on April 23, 2010 (7 days before candidate applications were due), came after the January 25, 2010 SBNC meeting where the January 22, 2010 Attorney General letter was discussed.

  

I do not believe the Capital should have been held responsible for not knowing about the SBNC’s apparently secret May 1, 2009 memo from the Attorney General.  But several Capital reporters were aware of my complaints concerning the SBNC’s pattern of violating both the spirit and letter of Maryland’s right-to-know laws.  Indeed, the complaints were featured in my May 30, 2009 wrap-up to the 2009 SBNC nominating cycle (which, I think, comes off as prescient in light of the fact that at that time I was ignorant of the May 1, 2009 legal opinion).  The Capital’s determination that these complaints—or even an earlier ruling that the SBNC had violated Maryland’s Open Meetings Act—were not newsworthy helped establish an environment where vital information, such as the May 1, 2009 legal opinion, could be withheld from the public, including apparently, the president of the Board of Education.

c) Ned Carey didn’t do his job.  Please note that I have great respect for Ned Carey’s skill as both a member and president of the School Board.  But logic leads me to conclude that in this particular case he didn’t do his job.

 

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

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

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

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

     

Nevertheless, this is a big and potentially highly visible vote because it’s for an uncontested term of up to ten years—quite a novelty in Anne Arundel County, Maryland, U.S., and perhaps even world politics.

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

Here is the correction: Incumbents appointed after June 30, 2008 are automatically reappointed for a second term, but—and here is the correction--they do have to undergo a second retention vote at the next general election after their automatic reappointment.  The second election, like the first, is uncontested.  And, like the first, the SBNC is under no obligation to replace the incumbent by a specific deadline.

 

Now let’s suppose one or more of the four candidates on the ballot lose the retention vote.  Since the enabling legislation creating the SBNC is very vague on what happens next, I suppose we’d get a new series of Attorney General legal opinions telling the SBNC what it should do.  One of the problems is that the retention vote doesn’t appear to be like any other retention vote held in Maryland or possibly the U.S. for that matter.  On the surface, the retention vote looks like it is binding (hence the legislators’ claim that the new school board electoral system gives the public a meaningful vote).  But, in fact, the election is only advisory because, as far as I know, there is no date by which the SBNC must select a replacement.  So it is conceivable (but exceedingly unlikely) that a candidate could serve ten years even after losing a retention vote.

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

This would mean that in one year the SBNC could replace 5 of 8 adult members of the School Board.  I don’t think it would want to do that, both because it would be too much work and would eliminate too much institutional knowledge.

 

At the same time, the Maryland General Assembly would have a firestorm of proposals to modify or completely can the legislation creating the SBNC.  This would create a lot of uncertainty, which could provide the SBNC with many excuses for delay or other impromptu actions.

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

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

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

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

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

On Monday, May 24, 2010 I will file my third set of complaints concerning the SBNC’s compliance with Maryland’s Open Meetings Act (see MyAACPS.net for a copy).  The complaints primarily deal with loose ends remaining from my complaints filed at the end of the SBNC’s last electoral cycle.

 

The three most striking lessons I have learned from dealing with Maryland’s Open Meetings Compliance Board are the following:

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

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

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