[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

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.