July 10, 2007
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter in which you asked whether a board of education may vote “by paper ballot” to elect its president.
In this regard, first, §87(3)(a) of the Freedom of Information Law provides that:
"Each agency shall maintain:
(a) a record of the final vote of each member in every agency proceeding in which the member votes..."
Based upon the foregoing, when a final vote is taken by an "agency" subject to the Freedom of Information Law [such as a board of education; see §86(3], a record must be prepared that indicates the manner in which each member who voted cast his or her vote.
In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually concerning particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:
"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."
In an Appellate Division decision that was affirmed by the Court of Appeals, the state’s highest court, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[a]; §106, " Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)]. Further, in a case dealing directly with election of officers, it was found that secret ballot voting violated both the Freedom of Information Law and the Open Meetings Law (Wallace v. City University of New York, Supreme Court, New York County, Julu7, 2000).
There is nothing in either the Freedom of Information or Open Meetings Laws that specifies that a vote must be accomplished by means of a roll call or that a vote be “announced exactly as the same time it is cast.” In my view, so long as a record is prepared that indicates the manner in which each member cast his or vote, an entity would be acting in compliance with the open vote requirements imposed by those statutes. I note that the decision cited above referred to “open voting” in the context of both open and executive sessions. Since the Open Meetings Law permits public bodies to vote in proper circumstances during an executive session [see §§105(1) and 106(2) and (3)], it is clear in my view that roll call voting in public is not required.
Lastly, while the record of votes by members ordinarily is included in minutes, there is no requirement that it be included in minutes. Although such a record must be prepared and made available, the Court of Appeals has held that such a record may be maintained separate from the minutes [Perez v. City University of New York, 5 NY3d 522, 530 (2005)].
I hope that I have been of assistance.