Secret Ballots: The Ultimate Affront to Open Government

COG2There are few actions of public agency officials that more directly fly in the face of open government  than the use of the secret ballot. Surely, forty three years after the passage of the open meetings law agency officials no longer indulge the absurd belief that they are permitted to employ secret ballots in conducting the public’s business.

Not so.

In an open meetings decision issued last week, Assistant Attorney General James Herrick took the McLean County Joint Planning Commission to task for improperly conducting a secret ballot on a rezoning issue. The commission’s defense? The members “did not know or believe” that they were taking final action.

General Herrick rejected that defense in 17-OMD-151.

Relying on the unambiguous language of the open meetings law and opinions dating back to 1982, he determined that KRS 61.835, coupled with the law’s statement of legislative policy, prohibited the commission’s secret ballot vote if its intent was to take final  action on the rezoning issue. KRS 61.835 requires public agencies to promptly record “minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and action taken at such meeting,” and the statement of legislative policy declares that “[t]he formation of public policy is public business.”

In other words, the public is entitled to know who voted and how they voted.

If, on the other hand, the commission members “did not know or believe” that they were taking final action, General Herrick concluded, they nevertheless violated KRS 61.810(1) mandating that “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed . . . shall be public meetings open to the public at all times.”

A secret vote by the members, he reasoned, “even if only a ‘straw vote’ to ascertain consensus, constitutes a communication about the public’s business and should not have been conducted in secret during an open session.” He relied on 01-OMD-110. In that open meetings decision the attorney general recognized that public officials “must avoid any whispered, inaudible or closed discussion of the public’s business” during open session. Such conduct derogates from the public’s absolute right “to observe with their eyes and ears what transpires at [public] meetings.”

This, along with Louisville Metro Government’s recent compulsory cancellation of the first meeting of a newly created solid waste board as a consequence of the board’s failure to comply with basic open meetings duties, confirms that many Kentucky officials are woefully ignorant or ill-informed when it comes to a law whose existence spans multiple decades.

It is useful to consider meaningful alternatives to the minimal open meetings training requirements currently imposed on some, but not all, public officials. Kentucky lags behind other states in recognizing that knowledge and understanding of the law promotes compliance with the law. One such alternative — utilizing a mandatory online training module for all public officials —  is advanced by the Bluegrass Institute in its 2017 report, “Shining the Light on Kentucky’s Sunshine Laws: A Proposal for Legislative Revision of the Open Meetings and Records Laws.”

It is also useful to remind public officials of the stirring words of the 1974 preamble to the open meetings law:

WHEREAS, it is the policy of the Commonwealth that the formation of public policy is public business and may not be conducted in secret; and WHEREAS, the legislature finds and declares that public agencies in this Commonwealth exist to aid in the conduct of the public’s business; and WHEREAS, the people of this Commonwealth do not yield their sovereignty to the agencies which serve them; the people, in delegating authority, do not give their public servants the right to decide what is good for them to know; the people insist on remaining informed so they may retain control over the instruments that they have created.

It was these words that prompted the Supreme Court to declare that “the right of the public to be informed transcends any loss of efficiency.”

Public officials whose actions are guided by these words avoid the imputation of wrongdoing under the open meetings law. Conversely, public officials who expend their energies in feigning ignorance of the law or seeking to evade its requirements, like the McLean County Joint Planning Commission members, risk not only the imputation of wrongdoing under the open meetings law, but an adverse ruling by the attorney general or the courts, and, perhaps, the imposition of monetary penalties.

Above all, they risk the well-deserved indignation of their constituents and equally well-deserved reputational damage to the agencies they serve.