The Attorney General of Texas
May 8, 1978
JOHN L. HILL
Attorney General
Honorable Chet Brooks Opinion No. H- 1163
Chairman
Senate Committee on Human Resources Re: Whether secret bsllots
State Capitol conducted by a governing body
Austin, Texas 767B violate the Open Meetings Act.
Dear Senator Brooks:
You indicate that a school district board of trustees recently met in an
open session and elected officers for the board; however, the election of one
of the officers was done by secret ballot. You ask if a secret ballot taken at
a public meeting constitutes a violation of the Texas Open Meetings Act.
The Texas Open Meetings Act, article 6252-17, V.T.C.S., provides:
Sec. Z.(a) Except as otherwise provided in this Act or
specifically permitted in the Constitution, every
regular, special, or called meeting or session of every
governmental body shsll be open to .the public; . . . .
Q) Whenever any deliberations or any portions of a
meeting are closed to the public as permitted by this
Act, no final action, decision, or vote with regard to
any matter considered in the closed meeting shall be
made except in a meeting which is open to the public
. ...
The Open Meetings Act is to be liberally construed to effect its purpose “of
assuring that the public has the opportunity to be informed concerning the
transactions of public business.” Toyah Independent School District v. Pecos-
Barstow Independent School District, 466 S.W.2d 377, 360 (Tex. Civ. App. -
San Antonio 1971, no writ).
A similar question was presented to the Illinois Attorney General in
1933. The Illinois statute provided that a board was required to “sit with open
doors.” ‘In construing that statute the Illinois Attorney General said
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Honorable Chet Brooks - Page 2 (H-1163)
This is a plain legislative declaration against secrecy of any
kind or character entering into the deliberation of the
county board. . . . Of what avail is an open door to the
public if the proceedings are secret. The eye can see, the
ear can hear, but secrecy conceals all. It is no advantage to
the citizen to see e member write a name secretly on a
ballot unless he is privileged to reed what is thereon written.
lllinois Attorney General Opinion No. 246 (May 4, 1933). This continues to be the
law in Illinois. Illinois Attorney General Opinion No. S-917 (June 20, 1975). At least
three other states have reached the conclusion that a secret ballot violates a
statute requiring open meetings of governmental bodies. Florida Attorney General
Opinion 073-264 (July 17, 1973); Oregon Attorney General Opinion No. 7ll5
(October 11, 1974); Virginia Attorney General Opinion to the Honorable Richard R.
G. Hobson (August 9, 1977); see Bassett v. Braddock, 262 So.2d 425 @la. 1972) (four
judge majority suggests, butdoes not hold, that a secret ballot is illegal; remaining
three judges specifically indicate that a secret ballot violates the Florida
Government in the Sunshine law). Cf. Kansas Attorney General Opinion No. 75-293
(July 15, 1975) (holds ~that an openmeetings statute which specifically prohibits
taking binding action by secret ballot prohibits a secret ballot ,for the election of a
school board officer). Contra Massachusetts Attorney General Opinion to Governor
John A. Volpe (July 19, ‘m
We concur in the conclusion reached by attorneys general of the majority of
states which have faced the question. The Open Meetings Act is designed to insure
that decisions of public bodies are reached openly and that the public can observe
the actions of their representatives. The secret ballot, when used to protect
citizens when choosing their representatives, is a hallmark of a democratic system
of government; but, when it is used to conceal e public official’s vote, it violates
the fundamental tenet of an elected or appointed official’s ultimate accountability
to the electorate. See generally 116 Cong. Rec. 25796-25616 (1970). We believe it is
the antithesis of the requirements of the Texas Open Meetings Act. Thus, it is our
opinion that the Open Meetings Act prohibits the use of secret ballots in meetings
of governmental bodies.
SUMMARY
The use of a secret ballot in a meeting of a governmental
body violates the Texas Open Meetings Act.
p. 4707
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Honorable Chet Brooks - Page 3 (B-1163)
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jst
p. 4708