Rhode Island Advisory Opinions September 14, 1999: OM 99-12 (September 14, 1999)

Rhode Island Attorney General Opinions

1999.

OM 99-12 (1999).

Request for Open Meetings Act Advisory Opinion

Dear Mr. Miller:

You are the legal counsel for the Department of Health serving the office of Health Systems Development, which acts as staff for the Rhode Island Health Services Council. In this capacity, you are requesting an advisory opinion on behalf of the Health Services Council.

You relate that "[a]ccording to the By-Laws of the Health Services Council, officers are elected for a term of one year and the officers are elected by the membership of the Council." In addition, you state that the Health Services Council's By-Laws has a provision, which forms the basis of your request for an advisory opinion, that the "elections of officers shall be conducted by secret written ballot." You question whether this secret ballot provision violates R.I. Gen. Laws § 42-46-1 et. seq., the Open Meetings Act (OMA).

At the outset we note that it is unclear from your request whether the election of officers occurs in open or closed session. This ambiguity does not affect our analysis, however, because we are of the opinion that convening in executive session to vote for officers, through a secret ballot process or otherwise, is not a proper topic for closed session. See R.I. Gen. Laws § 42-46-5(a)(1)-(8). See also Graziano v. R.I. Lottery Commission, OM 99-06 ("[U]nder § 42-46-5(a)(1) . . . the public body must limit itself to 'discussions' and any votes must be taken in open session").

Having addressed this preliminary matter, we proceed to address the substance of your request, "would a[n open session] secret ballot vote for the election of officers constitute a violation of the Open Meetings Law, R.I.G.L. Chapter 42-46?" For the reasons that follow, we answer this question in the affirmative.

Joseph G. Miller, Esq.

September 14, 1999

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The OMA does not address the precise factual situation that you pose, specifically, whether the members of a public body may cast a secret ballot vote in open session. As such, "when confronted with an unclear or ambiguous statute, there is room for statutory construction and we examine the statute in its entirety in order to 'glean the intent and purpose of the Legislature.'" RIH Medical Foundation, Inc. v. Nolan, 723 A.2d 1123, 1126 (R.I. 1999). In doing so, we must not construe the statute to reach "an absurd result." Id.

The purpose of the OMA provides that "[i]t is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." R.I. Gen. Laws § 42-46-1.

In accordance with this policy, R.I. Gen. Laws § 42-46-7(b) mandates that within two (2) weeks of a vote (in open or closed session), a record of all votes taken, listing how each member voted on each issue, must be made available to the public at the office of the public body." Moreover, the OMA requires that all votes cast in an executive session "shall be disclosed once the session is reopened." R.I. Gen. Laws § 42-46-4. Despite these provisions mandating disclosure of votes within certain time frames, the OMA does not contemplate a time frame for disclosing votes that are cast in open session. The absence of such a provision leads us to the inescapable conclusion that the General Assembly intended that all votes that are cast in open session be disclosed to the public as they are cast, thereby precluding a secret ballot vote.

In addition, if this Department were to construe the OMA to permit secret ballot voting during open session meetings, this would create an anomalous result whereby votes cast in executive session would "be disclosed once the session is reopened," R.I. Gen. Laws § 42-46-4, yet votes cast in open session via a secret ballot, would not be subject to disclosure for possibly two (2) weeks. See R.I. Gen. Laws § 42-46-7(b). This, we believe, would create an absurd result not intended by the General Assembly.

Consequently, for the foregoing reasons, this Department is of the opinion that voting by secret ballot is incompatible with the intent and the spirit of the OMA. Any provision in the Health Services Council's by-laws permitting a secret ballot vote would, in our opinion, violate the OMA.

This advisory opinion is based upon the specific facts as you related. If the facts should differ in any respect, it may affect this Department's interpretation and ultimate opinion concerning whether such action would result in a violation of the OMA. This

Joseph G. Miller, Esq.

September 14, 1999

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advisory opinion does not abrogate any rights that the Department of the Attorney General is vested with pursuant to R.I. Gen. Laws § 42-46-8, and is strictly limited to this Department's interpretation of the OMA. This opinion does not address the Health Services Council's responsibilities under any other state law, rule, regulation, or town ordinance, nor does it shield the public body or its members from a complaint filed in the Superior Court by a citizen or entity pursuant to R.I. Gen. Laws § 42-46-8.

We hope that this advisory opinion is of assistance to the Health Services Council as this Department is committed to ensuring that public bodies comply with the Open Meetings Act.

Very truly yours,

Michael W. Field

Special Assistant Attorney General

Extension 2380

MWF/cc