A governmental body cannot conduct public business by way of a secret ballot, the Ohio Supreme Court ruled today.

In a unanimous decision, the Supreme Court sided with Patricia Meade, the operator of community newspaper MORE Bratenahl, in a lawsuit against the village of Bratenahl.  Meade claimed the village council violated the Open Meetings Act, R.C. 121.22, when it voted by secret ballot to elect a councilmember to serve as the president pro tempore.

Writing for the Court, Justice R. Patrick DeWine rejected the Cuyahoga County village’s position that it could vote by secret ballot during a meeting that was open to the public.

“The act is not satisfied simply because the doors of a council meeting are open to the public,” Justice DeWine wrote. “Rather, an open meeting requires that the public have meaningful access to the deliberations that take place among members of the public body, and that includes being able to determine how participants vote.”

Secret Ballots at Election Lead to Lawsuit
At Bratenahl Village Council’s first meeting of the year in January 2015, the council conducted a vote to select a president pro tempore — someone to serve as acting mayor when the mayor is absent or unable to perform the office’s duties.

Two members were nominated for the position, and the village mayor asked the councilmembers if they wanted to vote by secret ballot. One member endorsed the proposal to vote by secret ballot, saying, “We’ve always done that.” Another member expressed reluctance, questioning whether the Ohio Revised Code permitted secret ballots. Neither the mayor, the village solicitor, nor anyone else responded to the question.

The council proceeded to vote by secret ballot. Without announcing who voted for whom, the village solicitor announced the winner.

A year later, Meade sought a declaratory judgment that Bratenahl violated R.C. 121.22 by using secret ballots. She requested an injunction preventing the village from conducting future secret ballots, a $500 civil forfeiture, and reasonable attorney fees. During the course of the lawsuit, the village provided the ballot slips with sticky notes which purported to show how each member voted.

Both sides asked the Cuyahoga County Common Pleas Court for summary judgment. The court granted summary judgment to the village. Meade appealed the decision to the Eighth District Court of Appeals, which affirmed the trial court’s ruling. Meade then appealed to the Supreme Court, which agreed to hear the case.

Law Favors Openness
The village maintained that since the open meetings act does not specify a specific voting procedure to follow, it could determine its own voting rules. It argued that since it announced the winner of the election in open session, it did not violate the statute. The village’s view, explained the Court, is “that the act is satisfied as long as the doors to the meeting space are unlocked and the public is permitted to sit in the same room as the council.”

The Court noted the open meetings law requires that “[a]ll meetings of any public body are declared to be public meetings open to the public at all times.” It further explained that the term “open” is not defined in the open meetings law, and that the word had several dictionary definitions. The Court then looked to the full text of the act, as well as its structure and purpose.

The Court pointed out that the act does not just say that meetings must remain open to the public—it also provides that any “resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.”

“We read this to mean that that portion of the meeting in which the formal action is taken — here, the vote — must be open,” the Court wrote.

Such a reading, the Court explained, comports with the purpose of the law – to require public business to be conducted in a manner that is accessible to the public.

The Court rejected the village’s argument that since the act did not require a particular voting procedure, secret ballots were allowed. The fact that the law did not contain a particular voting procedure did not “alter[] the fundamental requirement that the public have meaningful access to what takes place in a meeting.” A public body could violate the act through its conduct at a meeting—such as concealing its deliberations through whispers, the opinion stated, citing the 1998 Manogg v. Stickle decision as an example.

“Nor do we think [a meeting] would be open if the members spoke only in Latin, or placed a screen between themselves and the audience, or took any of numerous other actions that would limit the public’s ability to access their deliberations,” the Court wrote.

The Court rejected the contention that the village could cure its violation of the open meetings act by releasing the secret ballot slips as public records. The Court stated that the prospect of future access to previously concealed information does not make a meeting “open to the public at all times.” The burden to hold an open meeting is on the public officials, not the public, the Court cautioned.

The Court remanded the case to the common pleas court to issue the injunction, require the $500 forfeiture, and award Meade any other relief consistent with the open meetings law.

2018-0440. State ex rel. More Bratenahl v. Bratenahl, Slip Opinion No. 2019-Ohio-3233.

View oral argument video of this case.

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