Alabama Advisory Opinions June 09, 2000: AGO 2000-164 (June 9, 2000)

AGO 2000-164.

Dear Mr. Jones:

This opinion of the Attorney General is issued in response to your request on behalf of the Pike County Commission.

May the Pike County Commission vote by written or secret ballot as authorized in Robert's Rules of Order as adopted by the Pike County Commission, or does the Sunshine Act found in section 13A-14-2 of the Code of Alabama prohibit vote by written ballot?

Alabama's Open Meetings Law, or Sunshine Law, reads:

(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.

The Supreme Court of Alabama held that the Sunshine Law does not prohibit voting by written ballot in exceptional circumstances. Ex parte Shelby Medical Center , 564 So. 2d 63, 66 (Ala. 1990). In this case, two voice votes had been inconclusive, and a written vote was taken in accordance with Robert's Rules of Order. Id . at 66. The Supreme Court said, in this case, a vote by written ballot was appropriate. Id . at 66.

The public meeting requirement of section 13A-14-2 is to ensure that the public has the opportunity to become informed regarding the affairs of governmental bodies. Miglionico v. The Birmingham News Co. , 378 So. 2d 677, 680 (Ala. 1979). The whole deliberative process must be open to public scrutiny, rather than a mere formal announcement of decisions already made in private. Id. at 680.

The Attorney General is of the opinion that, in keeping with the purpose of the Sunshine Law to have public meetings with an open deliberative process, and Ex parte Shelby Medical Center , voice votes or a show of hands should be used whenever possible. Written ballots should be used only when a decision absolutely cannot be reached with voice votes or a show of hands. This Office also recommends that the public body have a written policy specifying the limited times when written ballots can be used, and stating that the result is to be immediately announced, recorded, and opened to public inspection. See Deriso v. Cooper , 45 Ga. 786, 267 S. E. 2d 217 (1980).

While the Sunshine Law does not prohibit voting by written ballots, the Pike County Commission should use this method only in limited cases similar to those previously approved by the Alabama Supreme Court.

Do the individual commissioners of the Pike County Commission have to disclose to the general public or any newspaper their individual votes when a vote was taken by written or secret ballot?

Voting by written ballot in meetings of public bodies is generally prohibited unless there are exceptional circumstances. While there may be voting by written ballot, there is nothing that requires the voter to record his name on the ballot. The results of the balloting are to be immediately announced and recorded. The ballots and sealed tally sheets are to be retained by the secretary until it is certain that a recount will not be ordered. Robert's Rules of Order 178 (1967).

Written ballots, when used in a public meeting, must be retained by the secretary until it is certain that there will be no recount. Members of the Pike County Commission are not required to disclose their individual votes to the public.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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