August 14, 2002
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your letter in which you raised questions concerning "the so-called open voting requirement as it applies to elections of officers..."
You wrote that you are a student at the College of Staten Island, a unit of the City University of New York (CUNY), and that you were recently elected to serve on the Board of the College of Staten Island Association, Inc. ("the Association"). The Association "is in charge of overseeing the allocation and expenditure of student activity fees." You indicated that it has been advised that "the method of voting that best fulfills the requirements of the Open Meetings Law is a roll-call vote." However, you have contended that "it is not necessary for the vote to be announced exactly at the same time it is cast, but that the directors can pass a signed ballot to the secretary who then announces each vote." It is your view that an election carried out in that manner "would allow the directors to be less influenced by the vote of those called earlier in the roll call." To do so, you asked whether the following procedure would comply with law:
"1) Every director (including the president) is handed a ballot which they fill in with their choice of candidate(s) and sign their (the voter's) name onto the ballot.
2) The ballots are all handed to the secretary, who announces who each director voted for.
3) Any director can ask for another ballot and change their vote, up until the time the president announces who has been elected (or that there is a failure to elect)."
In this regard, first, as you suggested in your letter, the Court of Appeals, the state's highest court, has held that an equivalent entity, an association at a CUNY community college authorized to review budgets and allocate student activity fees and disbursements, constitutes a "public body" required to comply with the Open Meetings Law [Smith v. CUNY, 92 NY2d 707 (1999)]. Since the Board of the Association is analogous to the entity found to be a "public body" subject to the Open Meetings Law in the decision cited above, I believe that it is required to comply with the Open Meetings Law. It is noted, too, that the same kind of entity, a CUNY student government association, has also been found to be subject to the Freedom of Information Law, and that in that decision, it was determined that its board could not elect its officers by secret ballot vote (Wallace v. City University of New York, Supreme Court, New York County, NYLJ, July 7, 2000).
Second, with respect to the "open voting" requirement, I direct your attention to the Freedom of Information Law. Section 87(3)(a) 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 [see §86(3), a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Ordinarily, records of votes will appear in minutes.
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."
Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, 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)].
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. That being so, I believe that the procedure that you proposed would be consistent with law.
I hope that I have been of assistance.
Robert J. Freeman