Governor expected to make decision on nominees by July 1, 2011; bombshell announced in closing remarks at May 17 meeting.

During the last four years I have closely followed the development and implementation of the Anne Arundel School Board Nominating Commission (SBNC), which nominates individuals to the Governor for appointment to the School Board.  I have written literally hundreds of pages on the 2007 legislation creating the SBNC and its first three years of operation from 2008-2010 (   No one, excluding about half the commissioners, has attended more SBNC meetings.  Indeed, I have attended more than three times the number of SBNC meetings as all local newspaper reporters combined.  Often the only members of the public who attend the SBNC meetings are candidates and school staff.  This year was worse than normal, with no reporter from the Capital, Washington Post, or Baltimore Sun either covering the meetings (let alone thoughtfully or with any sense of history) or even bothering to reprint the SBNC’s press releases.  An exception was the Severna Park Patch, which the Severna Park candidate.

At the end of last year I decided four years of covering the SBNC was enough.  So this year, while Chair of the Countywide Citizen Advisory Committee, I emailed all local CAC representatives announcing I’d no longer be covering the SBNC and seeking someone else to take over reporting on the SBNC on behalf of the parents.  I got no takers, not even an expression of mild interest.

The last regular meeting of the SBNC for the 2011 election cycle took place on May 17, two weeks ago.  Since then, there has been no newspaper coverage of the election results, let alone of the bombshell announced during the last minute of the May 17 meeting.  Since it’s now clear that no one else is going to cover the SBNC for the 2011 election cycle, I’ve decide to extend my coverage for one more year.

During the 2011 Anne Arundel County School Board election cycle, the Anne Arundel County School Board Nominating Commission (SBNC) was tasked with finding two individuals from District 33 to nominate for the School Board.  The current incumbent from District 33, Vic Bernson, decided not to run for a second term.  Bernson, a Republican, is the last member of the School Board appointed under a Republican governor.  In recent years, he was also typically the only dissenting vote on the School Board.

The SBNC met three times: March 28, May 16, and May 17.  The first meeting was administrative in nature, including setting a deadline for candidates to file applications, the dates for the two candidate hearings, and the date for the final election of the candidates.  A separate date for the final election (May 23) was subsequently canceled.  The SBNC did not send me any email notices regarding the above meetings, including the date cancellation, despite my numerous requests to its leadership that it do so and past promises from it that it would.

Given that the School Board administers approximately $1 billion, 10,000 employees, 121 schools, and 76,000 students—one of the largest school districts in the United States—the blasé approach to appointing/electing School Board members is noteworthy.  In the great majority of school districts, school board races generate substantial newspaper coverage and public interest, if only among the 20% or so of the population with kids in the public schools.

For the first year in its four year history, the SBNC offered no opportunity for public comment on SBNC administrative matters.  Public comments were specifically banned from its March 28 meeting to discuss administrative matters, and no opportunity for general public comment was offered at its May 16 or May 17 hearings.  The May 17 hearing offered an opportunity for public comment on the two SBNC candidates, but no public comment on any other matter.

Both the number of meetings (three) and the total time spent in meetings for the year (under four hours) were a historic low for the SBNC.  This year there was no field hearing for the open position.  This was blamed on lack of public participation at previous field hearings.   As a result, District 33 has been the only district not to receive a field hearing during the SBNC’s four-year existence.  But the SBNC’s perception, accurate I believe, is that the District 33 community wouldn’t care one way or the other.

Only two candidates applied: Amalie Brandenburg of Severna Park and James Pembrook Scott of Crownsville.  Neither had the long track record of public involvement with AACPS policy issues that was once typical of successful AACPS school board candidates.  The low applicant pool may indicate a sense of hopelessness among people who in prior years might have aspired to a School Board position.

On May 17, the SBNC voted on both candidates. Amalie Brandenburg was unanimously approved (11-0) and James Scottwas unanimously rejected, with two abstentions.  However, the law stipulates that the SBNC must submit two nominees to the Governor, so both names were forwarded to the Governor.  The Governor is expected to make his selection by July 1, 2011, when by law the new School Board member is to take office.

The SBNC did not discuss the problems created by its unanimous vote against Scott.  The vote disclosed an inconsistency in the SBNC’s rules.  By statute, the SBNC must forward two names to the Governor.  But the SBNC has a rule, passed unanimously if I recall correctly, that a candidate must receive eight of eleven votes (a supermajority) to have his or her name passed on to the Governor.  There is no provision in the written rules to cover a situation where two candidates don’t get the required supermajority, probably because there was an assumption that many more candidates would submit applications to the SBNC.  More than twenty candidates applied during the SBNC’s first year of operation in 2008.

The bombshell released at the end of the May 17 meeting was that, in the opinion of the Chair, in consultation with counsel from the Maryland Attorney General’s Office, the Governor need not appoint either of the two candidates and may request that the SBNC submit the names of additional candidates.   This is a radically new interpretation of the law.   One of the major public selling points for the SBNC when it was created was that its nominations would, unlike those of the previous School Board Nominating Convention, be binding on the Governor.  All prior discussions that I recall assumed that the Governor would have to choose among the candidates submitted by the SBNC, not that he could keep coming back to the SBNC requesting the names of additional nominees until he was satisfied with them.

This ruling generates a fundamental shift in the balance of power between the Governor and the SBNC.   It also suggests that SBNC commissioners, without publicly acknowledging so, may be losing confidence in their ability to operate effectively as an institution.  My sense is that the SBNC commissioners have become fearful of their own power to shape the School Board in their own image.  Sometimes there is danger in being perceived as too influential.  This may also have been reflected in the lack of behind-the-scenes candidate recruitment this year.

Assuming this ruling is not overturned (and it was made in a way that would allow plausible deniability if it should prove politically embarrassing), it creates a new set of unresolved issues in interpreting the statute creating the SBNC.  If the Governor doesn’t have to pick among the SBNC’s nominees in a timely way, what is the status of the July 1, 2011 deadline to appoint a new school board?  I’d have to go back and carefully read the various scattered rules for enlightenment on this question.   Perhaps the incumbent could stay on indefinately.  Or perhaps the School Board would have to operate short one member.  Other interpretations and unanticipated legal conflicts could be possible.  Sure enough, we might need yet the gazillionth legal interpretation from the Attorney General’s office to figure out what the law creating the SBNC really means (incidentally, only a few of those legal opinions have been posted on the SBNC’s website).   The original legislation creating the SBNC was created in haste, without due consideration of practical realities, without an opportunity for public comment, and without a template to work from (of the more than 14,000 school boards in the United States, Anne Arundel’s school board electoral system is unique).

In this particular case, I don’t expect the Governor to exercise his newly announced powers unless Ms. Brandenburg has some major undisclosed skeletons in her closet.  Ms. Brandenburg said all the right things at her hearing and has the important characteristics the Governor would be expected to want in an AACPS school board member.  If anyone doubts that, the SBNC’s unanimous vote for her should make that clear.  I expect that she will be a popular choice in the community.

There are always delightful inconsistencies to be found when attending an SBNC meeting.  My favorite year after year is the SBNC’s protestations that it loves community involvement.   Since there has consistently been awful community involvement, the implication is always that the lack of involvement is the fault of the community, not the SBNC.  If the SBNC wasn’t defensive on this point, I don’t know why it would so incessantly harp on it.   This year did not disappoint.  At the May 16 meeting, the SBNC’s Chair gave his perfunctory statement praising community involvement.  Then he proceeded to ask a question to the candidates about what they see as the role of a school board member.  Great question.  But then he clarified his question and gave away the type of answer he wanted.  He asked if school board members should micromanage the administration (for those in the know, “micromanage” is a dirty word in school politics).  And he elaborated by stating that micromanagement included soliciting feedback from individual schools rather than relying on the communications from AACPS administrative staff and official group representatives.

Following both the spirit and letter of Maryland’s Open Meetings Law has never been the SBNC’s strong suit.  2011 was no exception.

At the March 28 meeting, it was announced that the next meeting would include a presentation from a representative from the office of Maryland’s Attorney General explaining what the ambiguous SBNC statute really means.  Since 2008, the requirements for incumbent school board members to seek reelection have been reinterpreted multiple times by the Attorney General’s office.  At the May 17 meeting there was in fact a representative from the Attorney General’s office to do that.  But inconsistent with the promise at the March 28 meeting, the advice was provided in executive session.  No explanation was given why a public official providing an explanation of a public law to a public body had to do so secretly.  As a political scientist with a background in democratic theory, I would say that there are few more important ingredients to a well functioning democracy than the ability of the public to have access to the laws under which it is ruled.

Another interesting feature of the March 28 meeting was its apparent exclusive televising for School Board members: a nice perk not available to the average citizen.  The March 28 meeting was televised live over Channel 96, giving the Board the plausible excuse that it wasn’t merely for the convenience of insiders.  However, past SBNC administrative meetings have not been televised and there was no public notice of the televised meeting.  Nor was there any indication on the AACPS website that the meeting would be rebroadcast or had ever in fact been broadcast.  The only people I know for sure who watched the meeting, or knew that it would be available on TV, were Board members.

As an aside, televising meetings the way the Board does it is not inexpensive; it has typically required the services of three AACPS employees.  The Board and the Public Information Office remain adamant that they will not webcast Board meetings, despite the fact that communities one hundredth the size of Anne Arundel County now routinely provide such webcasts of their public meetings.  (Speaking as a political scientist, webcast meetings are widely considered to be a much greater political risk than the type of live broadcast AACPS now tolerates).   The cost of televising the March 28 meeting for the convenience of Board members, not the public, could have been better spent providing years worth of archived, online webcasts of school board meetings. (In our YouTube age, labor is expensive compared to webcasting, which explains why even a few hours of labor costs the same as many more hours of archived, online webcasting.)

Writing about Open Meetings Law violations is famously hard because one doesn’t know what one doesn’t know.  Nevertheless, sometimes one can infer violations from public evidence.  An example is the SBNC’s going into the secret executive session on May 17 without providing advance notice of the subjects that would be discussed and why they were exempt from public disclosure.  But this is a relatively trivial example because when the SBNC came out of executive session, reasons were provided.   On the other hand, the reason the topics of executive session are supposed to be presented upfront is so that there is an opportunity to challenge the need to go into executive session to discuss a particular topic.

In contrast, the Chair’s announcement at the very end of the May 17 meeting that the Governor was not bound to choose among the two nominees was not a trivial violation.  This issue had never been discussed either publicly at an SBNC meeting or announced as a topic of discussion for executive session.  Announcing such a bombshell legal opinion, with no prior warning and only a few minutes before the last meeting of the SBNC not only for the year but also before the expiration of the terms of all the gubernatorial appointees to the SBNC, has a dirty odor to it.

The SBNC has always been poor at posting the minutes of its last meeting of each election cycle.  This is the set of minutes that features its votes on the candidates (bombshells such as the announcement of the legal opinion concerning the governor’s option not to appoint the SBNC’s nominees may or may not make the minutes because they are not official actions).  Usually there has been an approximately eight month delay in publicly posting the minutes.  By the time they are posted, no one is usually any longer interested in them.  The candidate bios and much other relevant information to which they refer may also be long since removed from the public portion of the website (but still available to insiders behind a firewall).  Since the SBNC never posts the dates when it posts (or modifies) minutes (and most other documents as well), all this is invisible to anyone who doesn’t watch closely.

Note that an eight month delay in posting minutes is by no means the worst case.  For example, the last set of minutes from the 2009 election cycle, from the meeting held on July 29, 2009 to vote for an open at-large seat after Tricia Johnson resigned from the School Board, has still not been posted as of May 31, 2011, close to two years later.  It is noteworthy that as of May 31, 2011 none of the SBNC meeting minutes from its 2011 election cycle had yet been posted on the SBNC’s website.   It has not been unusual for many SBNC public meetings to go by without such a public posting of the minutes.  In 2008, the SBNC illegally held two meetings in private.  After I complained to Maryland’s Open Meetings Compliance Board, the SBNC did post the minutes to those meetings.  But more than three years later it has not posted that the meetings were held illegally in private.

Notwithstanding the above, there is much to commend an appointed school board, especially in a giant school district such as AACPS.  Sir Winston Churchill once said that “democracy is the worst form of government, except for all the other forms that have been tried.”  I do not doubt that hundreds of other school systems have worse electoral systems than ours.