That’s the question now being confronted in Colorado.

An appeals court there ruled a local agency did not violate the state’s open meetings law when it decided an issue in a public meeting via a secret ballot. The court held that there was no specific requirement for a public vote in Colorado’s law.

Henderson asks us to hold that the COML imposes a public voting procedure on local public bodies, and therefore Fort Morgan’s use of anonymous ballots violates that procedure. But nowhere does the statute impose a voting procedure, let alone one that prohibits the use of anonymous ballots. For instance, section 24-6- 402(3)(a) and (4) of the COML only address whether a formal action by a public body “may be taken” in “any executive session that is not open to the public.” Similarly, section 24-6-402(2)(d)(II) only requires that the “[m]inutes of any meeting of a local public body at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or could occur shall be taken and promptly recorded, and such records shall be open to public inspection,” but is silent as to whether the votes taken need to be recorded in a way that identifies which elected official voted for which candidate….Had the legislature intended to prescribe a voting procedure, and for that matter a procedure prohibiting anonymous voting, it could have said so plainly. Dep’t of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (we presume the General Assembly understands the legal import of the words and phrases it uses).

In contrast to the COML, other states’ open meetings laws clearly establish voting procedure requirements and identify which procedures are prohibited. See, e.g., Idaho Code § 67-2342(1) (“No decision at a meeting of a governing body of a public agency shall be made by secret ballot.”); Neb. Rev. Stat. § 84-1413(3) (“The vote to elect leadership within a public body may be taken by secret ballot, but the total number of votes for each candidate shall be recorded in the minutes.”).

As the Denver Post editorialized:

The public’s opinion of elected officials is already low. Just imagine how citizens would react if they couldn’t find out how each school board member voted on a controversial charter school application — or any number of hotly debated issues.

It is neither in the public’s best interest nor ultimately the best interests of elected officials for such a situation to exist.

Frankly, we were surprised the case got this far.

The broad policy declaration for the Colorado open meetings law is a clarion call for transparency.
“It is declared to be a matter of statewide concern and the policy of the state that the formation of public policy is public business and may not be conducted in secret.”

That’s pretty clear direction about how public business ought to be decided.

The Court of Appeals judges decided that since the statute doesn’t specifically say that votes to fill vacancies cannot be secret, that means they can.

It boggles the mind.

So it does.

Is Hawaii’s law vulnerable to a similar interpretation? I’m not sure.

In a quick scan, I only noticed two references to voting.

The first is in the section authorizing executive meetings.

§92-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting.

The second reference is in Section 92-9 regarding minutes, which provides that minutes must contain several types of information, including:

(3) The substance of all matters proposed, discussed, or decided; and a record, by individual member, of any votes taken.

Are those references clear enough to prevent public agencies here from retreating behind a secret ballot? I just don’t know.

In Los Angeles, there’s a controversy over disclosure of government reports on the deaths of children by abuse or neglect for an audit of child protective services.

In New Jersey, a letter to the editor flagged a violation of the sunshine law when a town council appears to have discussed matters in executive session that were clearly beyond the scope of the meeting. It’s the kind of violation that could and likely does happen here.

Georgia’s state attorney, Sam Olens, is pushing for amendments to increase penalties for violations of the sunshine law.

Olens says more serious violations occur when public officials discuss matters in private. He issued citations this year to three Savannah officials for closed-door meetings they had held.

“When you go to a public meeting, and they cover 20 topics in 15 minutes, please don’t think that the meeting’s agenda was handled at the meeting,” he said. “So the most meaningful change in this re-write frankly relates to the meetings act rather than public records.”

But he also warned supporters of sunshine not to try to extend the law to cover Georgia’s legislature or governor.

Olens said he had to be realistic.

“The problem is I need a majority in the House and a majority in the Senate, and I need to get the bill passed,” he said. “Everyone should be subject to the Open Records Act … but you have to make a decision if you want to improve the law or you just want to whine.”

An August 2 editorial in the St. Louis Post-Dispatch blasts Missouri law as too weak to deter violations.

The law exists so that taxpayers can see how their money is spent — and not only see how government decisions are made, but also participate in those decisions.
Missouri’s law, however, is too weak to put fear in the minds of those public officials afraid to do their business in the light of day, whether it be shouting from the rooftops or whispering in quiet city council chambers.

An article in the Chadron Record reports on a presentation reviewing Nebraska’s open meetings law.

And in case you thought such things only happen here in Hawaii, the University of Missouri said it would cost over $4,200 to make certain university travel records and emails available to the Colulmbia Daily Tribune.

University officials said part of the cost for the emails comes because an attorney would be needed to sift through the emails to determine which records were open under the state’s Sunshine Law. The school said that would cost $100 per hour.

Sounds familiar!