Maryland Attorney General's Office Rules That School Board Nominating Commission Violated The Law

Maryland’s Open Meetings Compliance Board, a division of the Maryland Attorney General’s Office, ruled that the School Board Nominating Commission violated the Open Meetings Act when it met in secret to choose its bylaws. Since there are no legal penalties for violating this law, the significance of the ruling is negligible. In theory, there could still be penalties in the court of public opinion for violating the Open Meetings Act, but since the School Board Nominating Commission is unelected and half isn’t even appointed, even this penalty is largely non-existent.

The School Board Nominating Commission’s strategy hasn’t been to deny that it violated the law but to throw up a smoke screen for the press, arguing that the Commission’s Chair was ignorant of the law. My analysis, however, is exactly the opposite: the Commission violated the law precisely because its members knew the law all-too-well. They knew that the likelihood of reporting a violation is rare, that even if found in violation the legal penalties are non-existent, that the political class doesn’t take violations seriously (like driving 65 mph in a 55 mph speed zone), and that even if the press reported on the subject, it would have no interest in getting at the truth and would report without challenge the Commission’s arguments asserting that there were valid extenuating circumstances. Weighing the downside risk of violating the Open Meetings Act with the great inconvenience, time delays, loss of power, and greater risk of controversy associated with discussing the bylaws/procedures in public, the decision was easy to make.

On another matter, on May 5 the School Board Nominating Commission made a major change to its procedural rules. It ruled that a supermajority, eight votes, would be needed to send a vote to the Governor. Previously, only a majority, six votes, was required to do this. In general, political scientists consider supermajority requirements to be highly undemocratic. But in the case of the School Board Nominating Commission, this is especially so because five of the eleven members are appointed by interest groups, not an elected official. It effectively gives private interest groups a veto on the Commission’s nominations. There was a reason that six of the eleven members of the Commission were appointed by elected officials: the politicians knew it would be too embarrassing to give majority control to private organizations. This rule now makes a mockery of even that minimal level of democratic control.

The stated purpose of the change was to reduce the power of the five delegates to the Commission appointed by the Governor. A closely related goal was to increase the power of the Commission in relation to the Governor, a position advocated in previous Commission meetings by the teachers (Tim Mennuti) and administrators (Bob Ferguson).

Also interesting is that this item wasn’t on the publicized agenda for the May 5 meeting. It’s yet another example of rushing through major policy decisions without time for thoughtful deliberation. The Founders of our country created a democratic process based on checks & balances. This served to slow down the legislative process and force the legislature to consider more points of view than it would otherwise have done. At the time, the Founders wanted to avoid the type of rushed, ill-considered legislation that helped lead to the defeat of Ancient Athens, the historical example of democracy that they knew best. This rushed, ill-considered legislation—which will surely someday be overturned once the public fully appreciates its stench—is a modern day illustration of what our Founders were so wary of. The system of notice and comment, the bedrock of the open meeting system, is supposed to provide a check on this type of behavior. In this case, that check failed.