                       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.




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             Honorable Chet Brooks   -   Page 3   (B-1163)



             APPROVED:




             C. ROBERT HEATH, Chairman
             Opinion Committee

             jst




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