What appeared to be a simple decision to hold a secret ballot vote to appoint a new city councilor at the Dec. 11 meeting instead turned into a Colorado Open Meetings Law violation, the Colorado Freedom of Information Coalition says.
According to CFOIC Executive Director Jeffery Roberts, Colorado Open Meetings Law prohibits local and state public bodies from using secret ballots to adopt any policy, position or regulation or to take formal action.
“The appointment of someone to fill a council vacancy is the adoption of a position and a formal action, and those council votes should have been announced to the public during the meeting at which the vote was taken,” Roberts said.
City Attorney Heather Cannon stated that based on her understanding of the law, councilors did not take formal action with the secret ballot vote, and that the outcome of the vote would have to be recorded contemporaneously in the meeting minutes.
“We didn’t take any formal action through secret ballot, it was just to figure out who to nominate through secret ballot, and then they voted in public to fill the vacancy, taking formal action,” Cannon said.
Prior to the decision to hold a secret ballot vote on Dec. 11, Mayor Jarrod Ogden asked Cannon if they were able to proceed with a secret ballot vote, or if they needed to do a public motion and proceed that way.
Cannon stated in the Dec. 11 council meeting that she had emailed councilors prior to the meeting and told them that pursuant to statute, there was nothing prohibiting councilors from voting via secret ballot.
Councilors Tony Bohrer, Andrea Camp, Steve Mazzuca, Ryan Hess, and Chris Nichols, as well as Mayor Jarrod Ogden voted via secret ballot Dec. 11.
“That’s the adoption of a position – the council took the position that this person should be the sole nominee – and the open meetings law expressly prohibits using a secret ballot to adopt a position,” Roberts added.
Through the secret ballot vote, Roberts says that the public has no way of knowing whether any council members did not vote for the candidate during the secret ballot process.
In 2012, the state legislature added to the provision in CRS 24-6-402(2)(d)(IV), stating, “Neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized in accordance with the provisions of this subparagraph (IV). Notwithstanding any other provision of this section, a vote to elect leadership of a state or local public body by that same public body may be taken by secret ballot, and a secret ballot may be used in connection with the election by a state or local public body of members of a search committee, which committee is otherwise subject to the requirements of this section, but the outcome of the vote shall be recorded contemporaneously in the minutes of the body in accordance with the requirements of this section. Nothing in this subparagraph (IV) shall be construed to affect the authority of a board of education to use a secret ballot in accordance with the requirements of section 22-32-108 (6), C.R.S. For purposes of this subparagraph (IV), “secret ballot” means a vote cast in such a way that the identity of the person voting or the position taken in such vote is withheld from the public.”
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