Enid City Commission voting by secret ballots that violate Open Meeting Act

Enid city commissioners are considering using a secret ballot to appoint an interim commissioner -- a procedure the board has used before to "whittle down multiple applicants for other city boards and committees," the Enid News & Eagle reported this weekend. "That method had commissioners write their choice on a piece of paper, which was counted by a city staffer," reporter Dale Denwalt explained. "The applicant with the most 'votes' is then considered the winner, and no recorded public vote is taken."

Secret ballots are a blatant violation of the state's Open Meeting Act. It states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)

Such “language is clear,” said the Oklahoma Supreme Court in 1975. “The vote of each member must be recorded.” (Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶ 7)

The court was interpreting the current Open Meeting Act's predecessor. It also required that “any vote or action thereon must be taken in public meeting with the vote of each member publicly cast and recorded.”

In that case, the court rejected a school board’s practice of voting “by a show of hands unless a roll call was asked.” (Id. ¶ 5) The votes of each member were not recorded.

The Open Meeting Act clearly forbids secret ballots by public bodies. Otherwise, the members of these public bodies couldn't be held accountable for how they vote.

But the Enid City Commission has voted by secret ballot on multiple occasions according to the newspaper.

Mayor Bill Shewey -- told of my comments by the reporter -- said he would ask the city’s legal counsel, Andrea Chism, for clarification. He told the newspaper that Chism’s first suggestion was to make a public nomination.

Follow the Open Meeting Act this time? How transparent of the Enid City Commission.

But every previous appointment made by secret ballot is invalid. The Open Meeting Act states, "Any action taken in willful violation of this act shall be invalid." (Okla. Stat. tit. 25, § 313)

In 1984, the state Supreme Court said, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)

And the Enid Board of Commissioners -- Shewey, Ron Janzen, Mike Stuber, Ben Ezzell, Rodney Timm, Tammy Wilson and David Vanhooser -- are required to know the Open Meeting Act.

Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.