The Winner's Treatment

Some stuff is approaching the fan, as the school board will be announcing the membership of the new citizens advisory committee in a few days, and we just might want to know which side to be standing on when it hits. I'm no lawyer, just a guy trying to figure out what's going to happen. Well, a guy with a bunch of pdf files on his computer. Let's look at what might happen.

The legal settlement between the MCPS school board and the suing parties says, in part, that the committee:

will include one representative of PFOX and one representative of CRC, to be selected by the Board in accordance with Section C(2)(a)(3) of Board Policy BMA, provided such representatives are Montgomery County residents and are otherwise qualified and able to serve on the committee.

This was part of what they won; each group got a member on the committee, guaranteed. It sounds pretty straightforward, but we know there is more to it, and that the anti-MCPS groups are unhappy about it. According to the board's rules for applying for membership, designated groups were supposed to have submitted three names each, and nobody on the new committee can have been on the old committee, but indications are that the groups have not complied with those parts of the rules. These other stipulations were not part of the settlement agreement. But it does not seem reasonable to argue that that agreement, which settled a lawsuit, spelled out all the details of the selection process, that there couldn't be more.

The legal settlement told the two groups:

PFOX and CRC will inform the Board of their nominees in writing by July 1, 2005

but we saw in the Washington Times on July 5th that the board had just notified them of the rules requiring three nominees and non-veterans of the committee. So they had to apply before the rules were announced.

In that Times article, we also learned that:

PFOX and CRC are threatening to go back to court, after having signed an agreement with schools officials last week that ended the groups' previous lawsuit against the school system and guaranteed them two seats on the 15-member panel. Such a move could further delay the creation and implementation of the county's sex-education course.

Well, they know the only way they can ever win any of this is in court. They won last time, and that can only have encouraged them.

My guess is that they're going to complain that the rules were changed after they submitted their names. They could say that the board didn't like the people they nominated, and changed the rules so they could get somebody else.

But there is that little thing about "C(2)(a)(3) of Board Policy BMA" in that settlement agreement.

Rule C(2)(a)(3) of Board Policy BMA says:

In cases where the Board has determined membership on a committee will be by organization, the organization will be requested to submit nominees for vacancies. However, the final selection of membership remains the responsibility of the Board.

I am going to focus your attention on one little letter. That will be the letter "s" in the word "nominees."

Two organizations have been designated for membership, by a legal agreement. And thus, by longstanding policy, each "will be requested to submit nominees." Plural. "Organization" is written in the singular, and "nominees" in the plural.

Given that the Times piece lists the names of CRC and PFOX nominees on July 5th, we trust that the groups met their July 1st deadline. They submitted nominees, in compliance with the legal settlement. The board had not yet met to determine the process for choosing committee members.

The board voted on the selection process on July 27th. You can read the whole statement HERE. The rules gave a deadline of September 9th for groups and individuals to submit nominees for consideration.

Since the anti-Montgomery County groups had already submitted one name each, they may have felt that they had already done what they had to do.

It's true they had met the requirement of the legal settlement. But they had not met the requirements of the school board's policy for selecting committee members. That's because the board had not yet issued the policy.

I can see why the two groups may have been a little unhappy with the situation. By submitting names in compliance with the legal settlement, they had been forced to reveal their intentions before anybody else. When the rest of us applied, we already knew who they'd named, because we read it in the paper. Not that it made any difference, but they may have felt disadvantaged in some way. Also, I expect they felt that they could have other members of their groups apply for positions on the committee as individuals, rather than group members. These new rules kind of wrecked plans they may have had along those lines.

Of course, they could have prevented this situation by negotiating a later deadline in the legal settlement. Their lawyers knew that the board hadn't yet established the policy for resourcing this committee, and that of course some policy would be created. Instead of a July 1st deadline, they could have held out for one in August or even September.

The only reason there's any confusion is that they have to follow two independently developed sets of rules. The legal settlement says one thing about nominating people, but not everything. Submitting one name each by July 1st, they met the settlement's requirement, but the board's policy had a different deadline for complying with another set of requirements. It would be absurd to assume that there would be no process for selection, and when they submitted their names they knew that none had yet been developed. And when the process was voted in, of course it included stipulations beyond those in the legal agreement. And they have to adhere to those stipulations just like everybody else.

The two anti-MCPS groups might have felt trapped, and it's true, this is not a pretty way to do this sort of thing. Normally, groups would simply follow the board's selection policy, including deadlines, application procedures, necessary qualifications, etc. But remember, CRC and PFOX won the lawsuit. The extra rules come out of their own agreement with MCPS, which they got because they won. It's kind of uncoordinated-looking, with two sets of deadlines and two sets of requirements, but ... that's just special treatment for winners.