Alabama Advisory Opinions October 28, 2003: AGO 2004-016 (October 28, 2003)

AGO 2004-016.

Dear Mr. Stephens:

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

QUESTION 1

Is the process used by the county commission to elect a chairman of the commission legal, or should another process be used?

FACTS AND ANALYSIS

The probate judge serves as the chairman of the county commission unless otherwise provided by local law.

Ala. Code § 11-3-1 (Supp. 2002). Act 2003-218 provides for the composition of the Coffee County Commission. This act provides as follows:

The Coffee County Commission shall be composed of seven members, elected from single-member districts . . . . The chair of the commission, who shall be a voting member of the commission, shall be elected at the first meeting after the election of the county commission from among the seven members of the commission to serve for a one-year term. A successor shall be elected each year in the same manner and any person serving as chair may serve succeeding terms.

This act does not specify the process for electing the chairman. Your request states that, for a number of years, the county commission has followed a particular process for electing the chairman. During the appropriate public meeting of the commission, a ballot is passed out to each commissioner that contains the names of all seven of the commission members. Each commissioner marks his nomination, and the ballots are collected by the county administrator and a member of the press. The press member reviews the ballots and publicly announces the name that received the most nominations. If there is a majority nomination, a motion is made, seconded, and voted upon to make the nominated person the chairman. If there is not a majority nomination, the process is repeated until a majority nominates someone.

If the law is silent with respect to the method of electing a chairman, the county commission has the authority to adopt the procedure for electing the chairman. Nominations are not necessary when an election is by ballot or roll call, because each member is free to vote for an eligible member, whether he has been nominated or not. Henry M. Robert, III, et al ., Robert's Rules of Order Newly Revised 416-17 (10th ed. 2000).

Alabama's Open Meetings Law, or Sunshine Law, states the following:

(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 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. 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 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.

This Office has consistently opined that, in keeping with the purpose of the Sunshine Law, public meetings should be an open, deliberative process and in keeping with Ex parte Shelby Medical Center , voice votes or a show of hands should be used whenever possible. See Opinion to Honorable Allen C. Jones, Attorney, Pike County Commission, dated June 9, 2000, A.G. No. 2000-164. 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, which states that the result is to be immediately announced, recorded, and opened to public inspection. See Deriso v. Cooper , 245 Ga. 786, 267 S. E. 2d 217 (1980).

If voting by written ballot is used, this Office has stated that nothing in the law requires the voter to record his name on the ballot. A.G. No. 2000-164 at 3. The results of the balloting should, however, be announced and recorded and the ballots and sealed tally sheets retained by the secretary until it is certain that a recount will not be ordered. Id.

The county commission may select the method of electing a chairman. Voting by written ballot to elect a chairman should be done only when a decision absolutely cannot be reached with voice votes or a show of hands.

QUESTION 2

Is it legal for a commissioner to vote for himself or herself as chairman of the commission if the chairman receives a higher salary for service as chairman?

This Office is not aware of any provision of the law that prohibits a member of the county commission from voting for himself or herself for chairman, even if the chairman is entitled to a higher salary. You may also wish to submit this question to the State Ethics Commission for a determination under the State Ethics Law.

QUESTION 3

Does the commission have the authority to select a vice-chairman?

Section 11-3-20 of the Code of Alabama provides that, unless otherwise provided by local act, the chairman of the county commission may appoint another member of the commission to preside in his absence unless the commission directs otherwise.

Ala. Code § 11-3-20 (1989). The local act applicable to Coffee County does not address the appointment or election of a vice-chairman. Accordingly, the chairman of the commission may appoint a vice-chairman to preside in his absence unless the county commission, by resolution, provides another method of appointment for a vice-chairman.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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