Note: The following public testimony was read in part at three public hearings:
- November 17, 2015: I had a total of eleven points and got through the first two below before being cut off after three minutes.
- January 7, 2016: I had fourteen points (eleven old and three new) and read from three to eight. (On February 1, 2016, I complained about my inability to finish my procedural recommendations, which had been extensively covered in the press and forced the SBNC to convene the February 1 hearing.)
- March 14, 2016: My testimony was placed on the meeting’s agenda, and I was granted ten minutes to finish it. At that meeting, I had fifteen points (fourteen old and one new) and read from nine to fifteen. The webcast testimony and Q&A ran from 10:55 to 24:30, with the testimony read at a very fast pace to ensure it was completed within the allotted ten minutes.
Public Testimony of J.H. Snider
Before the Anne Arundel School Board Nominating Commission,
Presented in parts from November 17, 2015 through March 14, 2016
Congratulations to the new SBNC commissioners. My name is J.H. (“Jim”) Snider, and I have been an attentive student of the SBNC since the legislature passed legislation creating it in 2007. No member of the public or press has attended more SBNC meetings, and no one has published more about its proceedings. I, for one, consider the SBNC to be a very important democratic institution.
My primary focus, as someone with a Ph.D. in American Government and a career focused on democratic reform, has been to improve the SBNC’s democratic processes. My various observations and policy recommendations can be found at eLighthouse.info.
I want to preface my recommendations by applauding the newly constituted SBNC for televising this meeting to discuss administrative matters. From 2008 until now, not a single SBNC meeting to address administrative matters has been televised. But that’s the least of it.
No previous meetings to address administrative matters either allowed public comment or provided advanced public notice of the administrative agenda items to be discussed. Two of the SBNC’s most important administrative meetings shortly after the SBNC was created were conducted in secret and without public notice. Maryland’s Open Meetings Compliance Board later rebuked the SBNC for conducting those meetings in private. Good luck finding that rebuke on the SBNC website. The SBNC’s public record keeping has given the memory hole in Orwell’s 1984 a good name.
But even that only begins to scratch the surface. At least those administrative procedures were passed at an official meeting of the SBNC. This year the former SBNC chair took to passing critical new administrative procedures by fiat. In particular, he encouraged applicants to bypass the public hearings process established by statute by sending him electioneering information to his private email account, which was then shielded from public scrutiny, including via Public Information Act requests.
I wish to express my thanks to the current SBNC Chair for inviting me to share my thoughts at this meeting on improving SBNC administrative procedures. I hope at least some of my eleven recommendations prove useful:
- Move from a supermajority requirement of 8 votes to a simple majority requirement of 6 votes to nominate an applicant. I’d specify it as “6 members” rather than merely “a majority” to clarify that you are talking about a “majority of members” rather than a “majority of members present and voting.” Ever since the SBNC forced through the controversial supermajority rule in 2008 without either public notice or allowing any public comment, I have been opposed to this terribly undemocratic voting rule. I should also add that, in this particular factual context, I believe it violates the Equal Protection Clause in the U.S. Constitution’s 14th Amendment. But that’s a legal argument far too complex to go into here.”
- Move away from AACPS control of all recording keeping and PR functions. AACPS has a blatant conflict of interest when it fulfills such functions. In particular, candidate applications should not be sent to Molly Connolly, Secretary to the Board of Education—and sent secretly, to boot. When candidates submit their applications, they don’t know their applications have actually gone to her, a custodian of the interests of the incumbent school board members. Please note that I’m not questioning Molly Connolly’s skill or loyalty in serving members of the Board of Education. I believe she does her job well. But I cannot imagine, from an election integrity perspective, a less appropriate person to be given such a responsibility.
[Read to here at the November 17, 2015 SBNC public meeting.]
- Seek an explicit budget from the Maryland General Assembly for staff support. Maryland General Assembly Speaker Mike Busch and various AACPS superintendents have been generous in providing the Commission with free staff support with no budget authorization. Unfortunately, that type of secret and discretionary staff support violates basic democratic norms of transparency, accountability, and due process. I would be happy to elaborate on this point if you would like.
- Request that SBNC applicants disclose on their applications any financial relationships that their “immediate family members” have with AACPS. The term “immediate family members” has a statutory definition so it gets you out of the problem of defining what the phrase means. For an example of the type of disclosure form Congressional witnesses must sign, my written testimony published on eLighthouse.info provides a link.
- Alert applicants on their applications that their previous applications to the SBNC are public information and will be posted on the SBNC website along with their current applications. The public should be able to compare the promises of nominees with their actual behavior in office. [As an aside, I believe this has now been done.]
- Consolidate the SBNC’s scattered administrative rules so that one doesn’t have to earn a Ph.D. in SBNC procedure to understand them. The current rules are scattered in statutes, bylaws, minutes, opinion letters, informal advice from other government entities, and past practices established by fiat. I’ve regularly complained about the culture of secret law with regard to the SBNC since at least 2009. To its credit, since 2010 the SBNC leadership acknowledged the problem and repeatedly promised to do something about it. But six years later, after multiple broken promises, there is still no manual. I’d suggest that you request a copy of the SBNC manual drafted by Michelle Davis, the SBNC’s attorney. I’d also suggest, just as Ms. Davis did, using the judicial nominating manual as a reference point.
- Establish clear policies with respect to SBNC records retention and public access. The SBNC’s current record keeping makes a mockery of Maryland’s Open Meetings and Public Records acts. The Center for Public Integrity recently rated Maryland an “F” for access to public information. Based on that scale, I’d have to rate the SBNC as a triple F.
- Remove the AACPS Ethics Panel from ethics jurisdiction over the SBNC, which jurisdiction I believe was only formally instituted in 2013. I cannot imagine a less appropriate body in the world to serve as an ethics overseer for SBNC. The Ethics Panel itself is rife with conflicts of interest and routinely ignores its own rules. And, yes, Molly Connolly is also the Ethics Panel administrator. I’d personally prefer that ethics oversight be done, following the Massachusetts model, via the Maryland State Ethics Commission.
[Read to here at the January 7, 2016 SBNC public meeting.]
- Use one government email address for all official SBNC communications. Since 2008, the previous SBNC Chair used four different private email accounts for official SBNC communications, only one of which was publicized. In comparison to his email practices, I’d give presidential candidate Hillary Clinton an award for email transparency and accountability. [Postcript: I have an op-ed on this subject in today’s Huffington Post and Medium]. Unfortunately, the current SBNC Chair appears to be copying his predecessor’s email habits, which I’ll grant the Maryland General Assembly is largely to blame for by providing the SBNC with no budget.
- Fix either the bylaws or the SBNC’s procedures. Bylaws should have some semblance with reality. When bylaws aren’t worth the parchment they are written on, it fosters disrespect for the law. I’d especially encourage you to carefully consider revising the last sentence of Article VIII: “Any requests for the disclosure of Commission information and materials shall be reported to the Chairperson as soon as practicable.” There are so many problems with that provision, especially how it has been interpreted in practice, that it is hard to know where to begin.
- Request that stakeholders disclose on their SBNC web page bios the nature of their stakeholder financial relationships with AACPS. These are not as obvious as they might at first appear. I would suggest that the stakeholder bios include, at a minimum, the following public information: 1) Title within the stakeholder organization, 2) Any official roles negotiating stakeholder contracts with AACPS, 3) A link to a copy of those contracts and side agreements, 4) Any official AACPS committees on which one serves as an appointed member, 5) The amount of money the stakeholder’s organization directly receives from AACPS as a payee, with payee defined by the signature on the check (i.e., the check is cut from an AACPS official), and 6) Any government jurisdiction in which one is registered as a lobbyist. As of the 2013 election cycle, SBNC commissioners have had to disclose much of this information to the AACPS Ethics Panel, but the Ethics Panel, riddled with conflicts of interest, has demonstrated itself to be a cesspool of secrecy and public intimidation; consequently, the type of information I’m talking about needs to be posted on the SBNC website.I am adding a 12th, 13th and 14th item that I added for your January 7, 2016 public meeting.
- Postpone the nomination of candidates so that you can hold the originally scheduled second public hearing and avoid needlessly violating state law. Today you apparently canceled the originally scheduled second public hearing, which I believe is required by Maryland statute. [Postscript: This was implemented as a result of a Washington Post op-ed that I wrote and subsequent coverage in the Capital.]
- Move your meetings to the Anne Arundel Community College. I applaud the SBNC for moving its meetings out of a location controlled by the Board of Education. The previous arrangement was like holding a presidential debate in one of the incumbent candidate’s offices. Moving to the Anne Arundel Center eliminates such a blatant conflict of interest. But a better home would be the Anne Arundel Community College, which has a representative on the SBNC and has previously provided the SBNC with free access to its facilities, including its broadcast TV channel. Whatever you do, it is vital that the meetings be webcast and archived for at least ten years, the maximum term for Board of Education members. For the most part, the webcast is the only meaningful public record we have of what candidates promised to do in order to win office.
- Provide adequate public notice of your meetings. The SBNC’s bylaws, originally discussed in 2008 at two secret meetings of the SBNC in violation of Maryland’s Open Meetings Act, has a provision requiring that quote unquote “The time and place of these meetings shall be determined by the Commissioners and notice thereof shall be given at least ten days prior thereto to the Commissioners and the Public by a means that will provide the greatest opportunity for the Public to attend and where appropriate, participate in the same.” This public notice requirement was violated in the SBNC’s notice for this meeting, which was sent out on the evening of December 30, 2015, only 8 days before this meeting, including only four days after the holiday break. We all know from my various complaints to Maryland’s Open Meetings Compliance Board concerning the SBNC that it considers not only this bylaw requirement a joke but also the public notice requirement contained in Maryland’s Open Meetings Act. Nevertheless, I would encourage you to either fix or obey this bylaw requirement because doing otherwise inculcates into both the public and the SBNC a contempt for the law. Having said that, the eight days of notice was actually among the best the SBNC has done since 2008.I am adding a 15th item and conclusion that I added for your February 1, 2016 public meeting.
- Allow citizens to download and clip webcasts of your meetings. Currently, the SBNC has no published written minutes from 2011, 2013, 2014, and the 2nd election cycle of 2015. Its videos of meetings are only archived back to 2014 and are routinely and arbitrarily removed from public access with no public notice. If the SBNC will not provide an adequate public record, the public should be allowed to do so. Any other restrictions on public use, such as a ban on video clipping, should also be removed.
I would like to close with two questions [also prepared for the February 1, 2016 meeting].
First, over the years I have repeatedly asked SBNC commissioners and other Anne Arundel County politicians why they don’t create an explicit budget for the SBNC. The answer I have always gotten from politicians associated with both political parties is that they don’t want to spend money on such a line item. But taxpayers already pay a lot to support the SBNC. My estimate is that it has cost taxpayers at least $50,000 since 2008. What have taxpayers gotten for all that money? Not very much: a public records pigsty, massive shirking of right-to-know laws, including extensive use of private and unaccountable email for government business, and now nominees approved with a process that clearly violated Maryland law. Our Maryland General Assembly and local leaders have been providing administrative support under the table, which prevents political accountability. There is a reason we have right-to-know laws with regard to government budgets. It is to deter exactly the type of abuses I have chronicled in my comments. And, sad to say, creating controls to hold public officials accountable does cost money. Pretending that it doesn’t is simply a recipe for corruption. As SBNC commissioners often say, you get what you pay for. That includes not only teacher quality but political accountability. Do you genuinely believe that supporting a zero public accountability budget—that is, zero money explicitly allocated for such a purpose—is really in the public interest? [Postscript: Michelle Davis, the SBNC’s previous counsel provided gratis to the SBNC by the Maryland General Assembly’s Department of Legislative Services, should be invited to testify at the SBNC’s next public meeting to address procedural issues. Among the questions she should be asked is why, after many years of free service to the SBNC, she–or one of her colleagues, if she wasn’t able to attend an SBNC meeting–suddenly and permanently disappeared with no public notice when the terms of the last set of SBNC commissioners expired and the current set of commissioners held their first meeting on November 17, 2015. She should also be asked what she did with all the previous sets of minutes that she was responsible for drafting, revising as necessary, and archiving for the convenience of the commissioners. Finally, she should be asked about the draft of the procedural manual that she was tasked with drafting for the SBNC in 2010.]
Second, I would like to ask whether in retrospect it was really worthwhile trying to prevent me from raising SBNC procedural issues at the SBNC’s November 17, 2015 meeting? What did you really gain by doing so? When the Maryland General Assembly, Anne Arundel County Council, or Anne Arundel County Board of Education seek to make major procedural changes, they all use a system of public notice and comment. Since 2008, the SBNC has not allowed for public notice and comment when making major procedural changes. The culmination of that desire for control over public comment has resulted in the violation of law that this second public hearing seeks to remedy, the complaints filed by the Anne Arundel Democratic Central Committee to the Office of Maryland’s Attorney General, and abundant adverse coverage in both the Washington Post and Capital for the SBNC’s gross carelessness.
[Original conclusion.] To conclude, now that I have had a chance to present these administrative recommendations, I would like to announce publicly that I plan to bring my endeavors as an SBNC procedural gadfly, which began in 2007—exactly ten years ago to this winter, when the Maryland General Assembly passed the highly ambiguous and deeply flawed legislation creating the SBNC—to an end. I have told some of you of my intent to do this privately. I said, just let me finish my recommendations and I’ll finally go away. I’m now doing so publicly. An archive of my hundreds of pages of SBNC coverage since 2007, when the Maryland General Assembly created it, can be found at eLighthouse.info.
[Revised conclusion from March 14, 2016.] Finally, all my comments have been about the SBNC’s democratic design (uncapitalized d) writ small. In light of the legislation introduced by the Maryland General Assembly last week in regard to the future of the SBNC’s membership, I would like to add a comment about the SBNC’s democratic design writ large. Since at least 2008 I’ve argued that the SBNC’s institutional design probably violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. Since I believe the General Assembly’s proposed changes aggravate that violation, I would ask that you alert it to the legal risk it is taking. It is tempting to treat laws as a joke when no one has an incentive to enforce them and the press could care less. But if the current law passes the General Assembly the incentives could change. This is a risk that should be carefully considered, not glibly dismissed.
If you have any questions, I’d be happy to answer them.
[Read to here at the March 14, 2016 SBNC public meeting.]