No Secret Ballots @ Board Meetings

Training for: Legal Notes

Question: Our board customarily votes by show of hands or voice vote, but we have a controversial decision to make, and several of our members have asked for a secret ballot vote. Is this legal?

Answer: No, it’s not. According to a 1981 opinion by the Maine Attorney General (Op. Me. Att’y Gen. (Oct. 6, 1981)), a secret ballot vote is not a permissible method of voting at any board meeting required by Maine’s Freedom of Access Act (FOAA) or “Right to Know” law to be open to the public. (Virtually all municipal board meetings are subject to FOAA’s open meeting requirements, see 1 M.R.S.A. §§ 402(2)(C), 403.)

The AG’s reasoning was simple: Section 401 of the law states that FOAA’s intent is for public bodies to deliberate and act openly. A secret ballot, being designed to ensure privacy and anonymity, defeats the purpose of the law because it shields officials from public scrutiny and personal accountability. Thus, it is an impermissible method of voting at open board meetings.

Although there was (and still is) no Maine case directly on point, and although the AG’s opinion is just that (an opinion), we couldn’t agree more with it.

Speaking of having to make controversial decisions, while Maine law does not obligate officials to vote unless excused (by conflict of interest, for example), some boards have adopted bylaws incorporating a no-abstention-unless-excused rule, to prohibit the cowardly or frivolous refusal to vote. For details, see “Board Members & the Duty to Vote,” Maine Townsman, Legal Notes, June 2001. (By R.P.F.)

Question: Our board customarily votes by show of hands or voice vote, but we have a controversial decision to make, and several of our members have asked for a secret ballot vote. Is this legal?

Answer: No, it’s not. According to a 1981 opinion by the Maine Attorney General (Op. Me. Att’y Gen. (Oct. 6, 1981)), a secret ballot vote is not a permissible method of voting at any board meeting required by Maine’s Freedom of Access Act (FOAA) or “Right to Know” law to be open to the public. (Virtually all municipal board meetings are subject to FOAA’s open meeting requirements, see 1 M.R.S.A. §§ 402(2)(C), 403.)

The AG’s reasoning was simple: Section 401 of the law states that FOAA’s intent is for public bodies to deliberate and act openly. A secret ballot, being designed to ensure privacy and anonymity, defeats the purpose of the law because it shields officials from public scrutiny and personal accountability. Thus, it is an impermissible method of voting at open board meetings.

Although there was (and still is) no Maine case directly on point, and although the AG’s opinion is just that (an opinion), we couldn’t agree more with it.

Speaking of having to make controversial decisions, while Maine law does not obligate officials to vote unless excused (by conflict of interest, for example), some boards have adopted bylaws incorporating a no-abstention-unless-excused rule, to prohibit the cowardly or frivolous refusal to vote. For details, see “Board Members & the Duty to Vote,” Maine Townsman, Legal Notes, June 2001. (By R.P.F.)