The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5262

January 31, 1978

OPEN MEETINGS ACT:

Secret ballots

The Open Meetings Act prohibits a voting procedure at a public meeting which prevents citizens from knowing how members of the public body have voted.

Honorable Richard J. Allen

State Senator

The Capitol

Lansing, Michigan 48901

You have requested my opinion on the following question:

Does the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq, prohibit a public body from voting by a secret ballot?

1976 PA 267, supra, Sec. 2(b) defines 'meeting' to mean 'the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.'

1976 PA 267, supra, Sec. 2(d) defines 'decision' to mean 'a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. (Emphasis added).

Also, 1976 PA 267, supra, Sec. 3(2) states that:

'All decisions of a public body shall be made at a meeting open to the public.'

Since the statute requires that a vote be taken at a public meeting, the Legislature clearly intended this vote be open to the public as well. This construction is supported by a decision of the Indiana Supreme Court in State v LaPorte Superior Court No 2, 249 Ind 152; 230 NE2d 92 (1967). LaPorte involved a section of the Indiana statute which requires that all 'public proceedings' be open to citizens of the state. As stated by the court:

'The term 'public proceedings' shall mean the transaction of governmental functions affecting any or all of the citizens of the state by any administrative body or agency of the state, or any of its political sub-divisions when such administrative body or agency is convened for the purpose of transacting the governmental function with which it is charged under any statute or under any rule or regulation of such administrative body or agency.'

Holding that a secret ballot is not permitted, the court said:

'It is further argued that the vote on April 24, 1965 was by secret ballot, in violation of Hughes' Anti-Secrecy Act (Acts 1953, ch 115, Sec. 1, p. 427, being Burns' Ind. State. Anno. Secs. 57-601 to 57-606). This act mandates that all public proceedings shall be open to citizens of this state, etc., and 'public proceedings' are defined, in our opinion, as covering the voting and balloting upon public issues before such Council.'

It is therefore my opinion that a voting procedure at a public meeting which prevents citizens from knowing how members of a public body have voted is prohibited by the Open Meetings Act, 1976 PA 267, supra. (1)

Frank J. Kelley

Attorney General

(1) It should be noted, however, that 1851 PA 156, Sec. 3; MCLA 46.3; MSA 5.323, with respect to county boards of commissioners provides:

'. . . No votes shall be taken by secret ballot except when voting for chairman of the board or on the appointment of officials or employees. . . .'

Such a provision with respect to a particular public body, being more specific, prevails over the provisions of the Open Meetings Act and therefore a county board of commissioners may vote by secret ballot when voting for chairman of the board or on the appointment of officials or employees.