Next week Governor Hogan and County Executive Schuh are expected to gain control of the School Board Nominating Commission; how will they use their power?


The Minor News (yes, I’m burying the lead)

An Anne Arundel School Board Nominating Commission (SBNC) insider has provided me with a solution to a riddle: why the SBNC’s Chair, backed by the Office of Maryland’s Attorney General and Maryland’s Department of Legislative Services (acting as his agents), may have believed he could violate Maryland’s Public Information Act with impunity (see my correspondence on this question with the SBNC).  The answer?  Next week Maryland Governor Larry Hogan is expected to appoint five new SBNC commissioners, including replacing the SBNC Chair.

Maryland has no effective legal penalty for not complying with Public Information Act requests for public officials’ email.  The primary deterrent is not a court of law but the court of public opinion.  But who cares about public opinion when one will no longer be in office, especially given that neither the press nor public care about the shenanigans of former minor public office holders?  Moreover, the public may claim it cares about non-compliance with right-to-know laws, but in practice is only interested in non-compliance by very powerful, high profile public officials such as presidential candidate Hillary Clinton (compared to email practices in Anne Arundel County, hers have been a model of probity).  As for low profile public offices like SBNC commissioner, public records law is basically like the Wild West: whatever laws might exist on paper are essentially irrelevant in the real world.

None of this should surprise you: a rational person should, by definition, violate the law when there is no effective penalty for doing so and doing otherwise would impose real costs.  Just think about your neighbors who violate the law when they don’t shovel their sidewalks within 24 hours of a snowstorm or pay taxes on babysitter wages.  If your neighbors complied with the law, you might even laugh at them for their foolishness.

The Big News

So what’s the big news here that you might actually care about?  Now that Maryland Governor Hogan and Anne Arundel County Executive Schuh will jointly control a majority of SBNC seats, they can reopen the recently completed nomination process for two open seats.  Such a move would undoubtedly be controversial.  On the other hand, if they don’t exercise their newfound power, they won’t be able to blame the school board for not pursuing their agenda because the school board will in effect be one of their own creation.

If there is another round of SBNC nominations for the two currently open seats, it will be fun to see how the applicants tailor their comments to the new SBNC power balance.  I don’t expect the public to notice the contradictions—and certainly not the inattentive press, if the past is any guide.  But such a dramatic change in candidate behavior based on whom candidates are speaking to rather than “what’s good for the kids” would help settle the question of how political the school board nominating commission process really is and always has been.

One other riddle has also been solved by the Governor’s plan to appoint five new commissioners.  Apparently, the Governor has determined that the four-year terms of the commissioners representing the five legislative districts expired on June 30, 2015.  That was news to me.

On at least a half dozen occasions over recent years, I asked either the SBNC Chair or his legal counsel when the terms of the existing commissioners representing legislative districts expired.  I also asked the Chair to post this information on the SBNC’s website, as I considered it vital public information that even county councilors, state legislators, school board members, and SBNC commissioners didn’t know.  At first the SBNC Chair ignored me, but I finally got him to reply when I cornered him in the hallway after the SBNC’s January 13, 2015 meeting.  He replied that the terms expired during January 2016.  He also promised to send me his appointment letter, which I never received.

What motive might the SBNC Chair have had for verbally providing an incorrect date without providing written documentation to support it?  Here is the key point: given the lame duck SBNC’s general power grab since Governor Hogan took office earlier this year, such misinformation would have furthered the SBNC’s power grab by implying that its actions were irreversible.

Source: Snider, J.H., Why an Anne Arundel public body can violate Maryland’s Public Information Act with impunity; plus, some breaking news, Anne Arundel Patch, August 14, 2015.

P.S. Not only did this story eventually make the front page of the Capital, it made it as the top-of-the-fold story–albeit several months after this post.