concurring specially.
Plaintiffs, as citizens and taxpayers, brought an action for mandamus against the members of the Sumter County School Board and its superintendent to enforce that provision of our Constitution which states that "All official meetings of County or Area Boards of Education shall be open to the public.” Art. VIII, Sec. V, Par. III (Code Ann. § 2-5303). The Constitution also provides that when members of a board of education elect an interim member to fill a vacancy caused by death or resignation, such election "shall [be] by secret ballot.” Art. VIII, Sec. V, Par. II (Code Ann. § 2-5302 (a)). Therefore, so much of the trial court’s order as prohibits the use of secret ballots in such elections must be reversed (Case No. 35983).
Code section 23-802 provides with respect to school boards that all meetings of the governing bodies of all boards of public instruction shall be public meetings except that before or after such meeting such bodies may hold executive sessions privately, provided that the ayes and nays of any balloting shall be recorded at the conclusion of the executive session.
The "sunshine law”, Code Ann. § 40-3301 et seq., provides with respect to boards of education that all meetings at which official actions are to be taken are to be public meetings, except that discussion of certain matters (e.g., real estate acquisitions, employment and disci*789plinary matters) are excluded from the law.
The majority say that Code § 23-802, supra, can be harmonized with the "sunshine law” by permitting in executive session discussion and consideration only of those matters excepted from the "sunshine law.” To me, it would be clearer simply to say that the "sunshine law” repealed and replaced Code § 23-802. However, as the majority arrive at virtually this same result by harmonization, I concur in the result reached, except as set forth below. This leaves the constitutional provision for consideration.
That provision (Code Ann. § 2-5303, supra) applies to official meetings. It does not apply to unofficial meetings. Rather than "harmonize” the Constitution with the "sunshine law”, I would look only to the constitutional provision, would distinguish between official and unofficial meetings and would find that meetings to "discuss” the acquisition of real estate (as opposed to the vote thereon) and to "discuss” the appointment, employment, disciplinary action or dismissal of a public officer or employee (as opposed to the vote thereon) are not official meetings within the meaning of the Constitution, the official meeting on these topics being the meeting at which the vote is taken, which vote must be conducted in the public meeting. (See subparagraph (b) of Code Ann. § 40-3302 which excluded the voting of the Pardon and Parole Board from the "sunshine law.”) By distinguishing between official meetings and unofficial discussion, we avoid the appearance that we are "harmonizing” the Constitution with a law. Thus, although I concur in the judgment of the court, I am unable to agree to the rationale utilized by the majority.
On the other hand, I am unable to agree with the statement of the majority that the vote on these topics (real estate and personnel) may be taken in private session.