January 14, 2016

The Washington Post

Maryland statute specifies that the Anne Arundel School Board Nominating Commission “shall hold at least two public hearings on the selection of nominees before recommending to the Governor nominees for appointment to the County Board.”  On Jan. 7, the newly appointed Nominating Commission held only one public hearing before making nominations to the governor. Thus, according to Maryland law, the nominations were illegally made and the nomination process must be reopened.

The sequence of nominating events was as follows.  On Dec. 15, the Nominating Commission announced that it would accept applications until Jan. 1 for two school board seats.  On Dec. 30, it announced — without posting the candidate names — that there would be two public hearings to vet the candidates:  Jan. 7 and Jan. 12. At the Jan. 7 meeting, it announced that it would make the appointment that evening, which it did.

Every previous Nominating Commission had held at least two public hearings for each set of candidates — and not only because it was a statutory requirement. In the annals of democracy, I am not aware of any major elected office where candidates are publicly announced one day before a primary election and the candidates elected the following day. There is a time period, invariably more than several days, allowing for public deliberation after the names of registered candidates are made publicly available and before the vote on the candidates.

However, the logic of politics often dictates rushed decision-making to avert opposition. For example, it is a classic maneuver in legislatures of all stripes, including the Maryland General Assembly, to pass controversial amendments with minimal public notice prior to the end of a session. Many lobbyists plan their whole legislative strategy around getting such provisions included at the last minute, under the public radar. To insiders, this is simply how the game is played. The final legislation creating the Nominating Commission itself was passed in a blitzkrieg at the end of the General Assembly’s 2007 session.

A similar logic played itself out at the new Nominating Commission’s administrative meeting on Nov. 17, where, in 45 minutes, it successfully rammed through a series of administrative changes without providing public notice. That success may have emboldened the commission’s leadership to eliminate its second scheduled candidate public hearing without public notice.

The flouting of due process was not only intrinsically wrong but it also likely affected the nominations. An example is that one of the four nominated candidates had substantial gaps in his resume that could not have survived public scrutiny.

Perhaps the Nominating Commission’s flouting of the two public hearing requirement was inadvertent. After all, the commission’s website is abysmal.  Minutes for three of its last four election cycles are completely missing and many other key minutes, such as those including vote tallies for candidates and various procedural decisions, are also missing. The laws affecting the commission’s procedures are scattered in more than a dozen places, and critical ones, including the statute creating the commission, cannot be found on its website. Given this record-keeping pigsty, no one should be surprised if most of the newly appointed commissioners hadn’t even read the statute mandating the two public hearings. But ignorance is no excuse for violating the law. Consider how the Internal Revenue Service would respond if you claimed that you didn’t pay certain taxes because you didn’t know they were owed.

The rule of law is a shaky reed among Anne Arundel County legislative bodies. Over the years, the Board of Education and its Nominating Commission have routinely flouted or otherwise ignored open government regulations they consider petty — and they have done so with no adverse consequences. But the latest perpetrators may have crossed a red line.

There is no more fundamental law in a democracy than the law of democracy itself. When a government body abuses its power by creating a monopoly over speech at a critical point in an electoral process, which is what the Nominating Commission did, that power should be curtailed.

The writer is president of iSolon.org, regularly writes about issues of democratic reform.

Source: Snider, J.H., Did the Anne Arundel School Board Nominating Commission violate election law?, Washington Post, January 14, 2016.