This year the School Board Nominating Commission (SBNC) of Anne Arundel County must nominate candidates for two seats on the Anne Arundel County Board of Education. Candidate applications are due by the close of the business day on May 24. Hearings for the candidates will be held May 29 and May 30 at 7:30 pm at the school board’s headquarters building. The deliberation and voting session will be held June 5 at the same time and place. The Governor must appoint two members by July 1, 2013 and then the winners are subject to a retention election at the general election in November 2014.
Two incumbent school board members, Andrew C. Pruski (Board President) and Teresa Milio Birge (Board Vice President), are seeking a second term. Barring a wholly improbable scandal, they are expected to be shoo-ins for a second term.
However, the SBNC is legally obligated to nominate at least two individuals for every seat. This creates an awkward situation when the SBNC and the Governor overwhelmingly support an incumbent.
Nevertheless, it has always proved possible to attract two candidates for each open position, even when the odds against winning are overwhelming. Three types of candidates have traditionally applied when there has been no hope of winning:
- Those who do not understand how the system actually works and overestimate their odds of winning. When the SBNC was relatively new—it first met in 2008—there were many such individuals. Now they are rare.
- Those who don’t care about winning but think they can get publicity for their ideas. As experience has demonstrated that the SBNC is an ineffective forum for placing new issues on the public agenda, such candidates have also become rare.
- Those who recognize that they have no chance of winning but want to get nominated as the second candidate for one of the two open positions and thus position themselves for a future open seat when an incumbent isn’t considered a shoe-in for reappointment.
This third type of candidate can give the nominating process a surreal feel. Normally in elections we expect candidates to point out their differences and disagree about what should be done. With this third type of candidate, we can get a love fest between the incumbent and the person nominally challenging him or her. This is a smart strategy when the challenger knows that disagreements have no chance of being effective and the goal is to have an edge in a future nomination. Of course, if there is more than one challenger, then some semblance of a normal election debate might be possible as the challengers vie among themselves to get the second nomination.
One of the most interesting features of the SBNC is how it tailors its procedures each year in response to who is running. For example, when there is an open seat or a seat with an incumbent they don’t like, they have engaged in a much more aggressive effort to recruit candidates. These political activities are generally not subject to public disclosure, let alone the Hatch Act. But one public indicator of the pattern is the use of field hearings to recruit candidates. In the early years, field hearings were held in each district where there was a seat to be filled. Last year, there was a field hearing only for the open seat, not for the favored incumbent’s seat (Patricia R. Nalley’s seat). It was the second time there was such an asymmetrical pattern. This year there are no field hearings. Of course, there are other plausible explanations for such a pattern. For example, it may be argued that field hearings are just for show and no one attends them anyway, or that they are a waste of everyone’s time when the candidates other than the incumbent have a negligible chance of winning.
If my memory serves me, this annual nominating cycle for the SBNC has many unexplained firsts: the first year the SBNC hasn’t had a public administrative meeting prior to its first candidate hearing, met before April 1, held a field hearing for at least one seat, or set a deadline for applications before May 1. This election cycle the SBNC’s first hearing is May 29; in previous election cycles going back to its first in 2008 it was January 17, January 12, January 25, March 28, and February 22.
Clearly, the commissioners had to correspond among themselves outside of a public meeting to approve the 2013 application form, the 2013 application deadline, the omission of an administrative hearing, and the 2013 public hearing dates.
Was Maryland’s Open Meetings Act violated? I don’t know, and I don’t think it matters because of the general understanding among relatively obscure public bodies such as the SBNC that the Open Meetings Act need not be complied with when it is inconvenient to do so. Some public officials think of the law with the same regard as laws such as paying social security tax on babysitter earnings, paying sales tax on online purchases, and shoveling your sidewalk within 24 hours of a snowstorm.
During the last session of the General Assembly, many good government groups in Maryland, such as Common Cause, the League of Women Voters , and the state press association, pleaded before the General Assembly that public bodies be given more compelling reasons to obey the letter of the Open Meetings Act (no attempt was made to get public bodies to follow its “spirit”: the high minded and politically unrealistic principles of open government laid out in its preface). The result was a new law, HB331, effective July 1, 2013, with penalties (including generous loopholes) for violating the Open Meetings Act. It remains to be seen whether it will be effective.
The SBNC’s rule, contained in its bylaws, that only the SBNC chair is allowed to talk with the press about SBNC business, makes it unusually difficult to investigate whether the SBNC has violated the Open Meetings Act. That commissioners use their private email addresses to conduct official SBNC business would also hinder such investigation.
The SBNC’s new minimalistic meeting schedule is not without its positive side: it has reduced its cost to taxpayers. Fewer public meetings results in less need for an expensive legal counsel from the Maryland Department of Legislative Services, who attends meetings and provides legal counsel to the commissioners. During previous years, the SBNC has also solicited written legal opinions from Maryland’s Office of the Attorney General about ambiguities and apparent inconsistencies in the 2007 statute creating the SBNC. To my knowledge, this is the first year the SBNC hasn’t requested such a legal opinion.
One continuing disappointment is that the SBNC has repeatedly failed in its stated intent to create a consolidated reference guide to its school board selection process. To my knowledge, no such reference has yet been published. Current rules are scattered in the remarkably vague statute creating the SBNC, statutes and regulations explicitly or implicitly referenced in that statute, bylaws of the SBNC, minutes of the SBNC, and, most important, a half dozen written legal opinions by Maryland’s Office of Attorney General. Many SBNC practices, such as the use of field hearings or the recruitment of candidates, appear to be done without any reference to impartial law. If two tests of a well-designed democracy are that 1) election rules are chosen before candidates are known, and 2) the public can easily find the laws by which its representatives are chosen, the SBNC doesn’t get a high grade.