Maryland’s constitution bans a lame-duck governor from making appointments. For example, since June 24, the last primary in Maryland, Gov. Martin O’Malley has been unable to make school board appointments except in an emergency. However, the provision has a loophole that its framers did not anticipate: The appointment power can be exercised indirectly.
This loophole was created in 2007 when the General Assembly approved a two-step appointment process for Anne Arundel County’s school board. Until then, the constitution effectively prevented a lame-duck governor from making school board appointments. The loophole was neither explicitly described in the 2007 legislation nor publicly discussed during debate over its passage.
The loophole is currently being triggered by the election of Republicans for both Maryland governor and Anne Arundel County executive, which causes a night-and-day change in Republican power over Anne Arundel County school board appointments. After he takes office on Jan. 21, Governor-elect Larry Hogan will have control over the appointment of Anne Arundel County school board members and, phased in over several years, joint control with County Executive Steve Schuh over the nominating commission that nominates candidates from which the governor must choose.
Here’s how it works: In Anne Arundel County, the governor controls the school board appointment process, with an assist from the county executive. No part of the appointment process requires General Assembly approval.
A nominating commission of 11 individuals, five chosen by the governor and one chosen by the county executive, nominates at least two individuals for each open seat from whom the governor must choose. The six votes controlled by the governor and county executive give them control over the nominating process.
Due to an unusual confluence of circumstances, between now and next July 1 Hogan will have the power to appoint five members to the school board—a majority of its eight adult members.
Recognizing the sudden and unexpected shift in the power relationships, the nominating commission is currently engaged in a power grab to fill two seats prior to the governor-elect taking office. For example, three days after a school board member unexpectedly resigned (Nov. 19) and two days after The Capital published my op-ed about the rapidly changing power relationships (Nov. 20), the school system issued a press release (Nov. 22) on behalf of the commission announcing that the nominees would be selected on Jan. 15 — only six days before the governor-elect takes office.
The press release was sent on Saturday night at 8:26. Given that it is unheard-of for the school system to issue a nonemergency press release on a Saturday night, it is reasonable to infer that panic gripped the school system’s board and administration. Illustrative of the current unsustainable power relationships, four of the 11 nominating commission members are high-level public employee union representatives and half of the school board members appointed by them have spouses or children who work in the school system.
The nominating commission’s move to nominate candidates for the two open school board seats may be brilliant politics, as the commission knows that both the governor and county executive are currently distracted by other, more important, matters such as choosing their senior staff. But if, as the commission claims, this loophole to the constitution’s lame-duck appointments provision really does exist, it should be closed.
Moreover, even if the loophole is not fixed, the nominating commission’s power to restrict the governor’s pool of nominees may not be as great as is generally currently assumed. As with the judicial nominating system, the pool of nominees could arguably include previous nominees, as the head of the school board nominating commission has himself argued in a previous context. This is especially relevant because Maryland’s attorney general has previously ruled that all incumbent school board members are automatically nominated for a second term.
Meanwhile, the public should ask its newly elected Republican representatives what they plan to do with their new and extraordinary powers over Anne Arundel County’s public school system. Now that they have such power, the public should hold them responsible for not only its use but its non-use. The school board—and its powers—are now in their hands. The use of this power should be viewed as a test case for these Republican leaders’ K-12 public education vision or lack of vision.
Severna Park resident J.H. Snider writes frequently about education policy. He can be reached at snider@eLighthouse.info.
Source: Snider, J.H., Gov.-elect Hogan faces K-12 test, Capital, December 8, 2014.
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