Oregon Advisory Opinions February 20, 1979: OAG 79-22 (February 20, 1979)

OAG 79-22.

In 37 Op Atty Gen 183 (1974), we were asked whether the Public Meetings Law prohibited use of secret ballots by members of a public governing body in deciding matters before it. The answer we gave was yes, citing ORS 192.620, which provides:

We reaffirm that opinion.

When our earlier opinion was written, ORS 192.650 provided that minutes of the meetings of governing bodies must include:

"(c) The results of all votes, and upon request of a member, the vote of each member, by name;" ORS 192.650(1)(c). (1975 Replacement part, emphasis added).

This requirement of public recording of the votes of members of governing bodies was significantly strengthened by Oregon Laws 1975, ch 664, sec 1, which amended ORS 192.650(1)(c) so that it now reads:

"(c) The results of all votes and, except for public bodies consisting of more than 25 members unless requested by a member of that body, the vote of each member by name;"

Thus, ORS 192.650(1)(c) plainly forbids secret votes and requires, except for governing bodies of more than 25 members, that the vote of each member be recorded by name. A city council is clearly a "governing body" under the Public Meetings Law. ORS 192.610(3),(4).

The second question presented raises the issue of whether this state requirement could be overridden under Or Const art XI, sec 2 by a conflicting city charter provision. Or Const art XI, sec 2 provides in part:

Section 50 of the Springfield City Charter states in part:

"The Council shall choose by ballot one of its members to preside over the Council. . . ." (Emphasis added).

The phrase "by ballot" has generally been construed to mean "by secret vote." For example, Black's Law Dictionary (Rev. 4th ed 1968), defines "ballot" to mean ". . . act of voting, usually in secret, . . . ." See also, State ex rel Automatic Registering Machine Co v. Green, 121 Ohio St 301, 168 NE 131 (1929)

and Day v. Walker, 124 Neb 500, 247 NW 350 (1933), both noting that the word "ballot" designates a method of conducting elections in secrecy, as opposed to open or viva voce voting. We also note that the Oregon Constitution, in article II, section 15, states:

"In all elections by the Legislative Assembly, or by either branch thereof, votes shall be given openly or viva voce, and not by ballot, forever; and in all elections by the people, votes shall be given openly, or viva voce, until the Legislative Assembly shall otherwise direct." (Emphasis added).

The Springfield City Attorney has construed the city charter provision set forth above to require a secret vote. We do not believe that construction is necessarily required, but it is clearly reasonable. The question then arises whether a city charter providing for a secret vote would override the state's conflicting "public vote" requirement in ORS 192.650(1)(c).

The Oregon Supreme Court recently stated that Or Const art XI, sec 2 ". . . is addressed to the legislative assembly and to the cities, telling the legislature what it may not do and the voters of the several cities what they may do." La Grande/Astoria v. PERB, 281 Or 137, 147, 576 P2d 1204, former decision adhered to 284 Or 173, 586 P2d 765 (1978). (Emphasis added). The court went on to state that:

"When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.

"Conversely, a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community's freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organizaton." 281 Or at 156, supra. (Footnote omitted, emphasis added).

It may well be argued that a law concerned with "open government" and insuring that decisions of public governing bodies are arrived at openly and on the record is a "general law addressed primarily to substantive social . . . regulatory objectives of the state . . . ." It is clearly the intent of the legislature that this open meeting requirement apply to all "governing bodies," including city councils. ORS 192.610; 192.620; 192.650. It is also clear that this law does not interfere with the local community's freedom to choose its own political form. While the law does affect local governmental "procedure," it is primarily addressed to the state's substantive social concern that governing bodies at all levels of state government arrive at their decisions in the light of public scrutiny. Accordingly, under the La Grande/Astoria decision, the state law would prevail over contrary local provisions.

However, even if it was found that the state law is "addressed to a

concern of the state with the . . . procedures of local agencies" within the meaning of the first paragraph quoted above from the La Grande/Astoria case, we believe the law would prevail over a city charter requiring a secret ballot. As noted above, the Public Meetings Law is addressed to the legislative concern that decisions of all public governing bodies be arrived at openly. This concern exists because:

"The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made." ORS 192.620. (Emphasis added).

This policy could not be more clearly expressed. The state concern here is with safeguarding the soundness of the very structure of Oregon government. The Oregon Constitution guarantees its citizens the right to participate in their government. The Public Meetings Law is designed to ensure that those citizens have access to information necessary to make their participation meaningful. It is difficult to imagine a state interest which more clearly meets the La Grande/Astoria requirement that the "state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government." Accordingly, we find that state Public Meetings Law requirements concerning votes of governing bodies preempt any conflicting local provisions.