Attorney General's Opinion 1987-88 #034
ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.
Secret ballot voting violated Act; openly recorded vote must be taken in open session.
July 21, 1988
The Honorable R. Edward Houck
Member, Senate of Virginia
87-88 34
You ask whether it is permissible for a county school board, at a regularly scheduled meeting called to organize the board and elect a chairman, to elect that chairman by secret ballot vote at that open public meeting.
I. Virginia Freedom of Information Act Requires Public Meetings, Expressly Applies to Board
Section 2.1-343 of the Code of Virginia, a portion of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the "Act"), provides that all meetings of public bodies shall be public meetings unless otherwise specifically provided by law. Meetings of a county school board are expressly covered in the definition of the term "meetings" in the Act. Section 2.1-341 (a).
II. Prior Opinions Conclude Secret Ballot Voting Impermissible Under Act
Prior Opinions of this Office have consistently concluded that secret ballot voting by members of a public body constitutes a violation of the open meeting requirement of the Act. See Att'y Gen. Ann. Rep.: 1985-1986 at 333; 1982-1983 at 723; 1977-1978 at 492, 493; 1974-1975 at 578, 579. I am in agreement with the conclusion reached in these Opinions. This result is not affected by the fact that the secret ballot was taken in an open public meeting. See 1974-1975 Att'y Gen. Ann. Rep., supra.
In requiring that all public bodies, including county school boards, meet in open or public session, the Act seeks to ensure that our citizens witness the transaction of public business.
Central to such a requirement is the notion of accountability by members of the public body, both individually and as a group. The use of secret ballot voting procedures clearly deprives the public of any meaningful right to hold members of a public body accountable individually for their performance in the transaction of public business. Id.
III. Secret Ballot Voting Violates Act; Openly Recorded Vote Must Be Taken in Open Session
Based on the above, it is my opinion that the election of the chairman of the county school board by secret ballot, even though this secret ballot voting was conducted in an open public session, is violative of the Act. The result of the balloting, therefore, is of no legal effect and the board must reconvene in open public session, vote on the matter anew, and openly record their votes.
