March 31, 1997




Mr. Charles Semowich
242 Broadway
Rensselaer, NY 12144

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Semowich:

I have received your letter of March 11 in which you requested an advisory opinion concerning "secret votes".

According to your letter the Common Council of the City of Rensselaer consists of nine members. At a recent meeting, the President was absent, leaving four republicans and four democrats. You wrote that:

"During the public portion of the meeting a vote was taken to elect a President Pro Tem. After two votes the vote was 4 to 4. Finally, the corporation lawyer suggested that a vote be taken by written ballot. This too ended in a tie. My question, is there an provision for secret votes by elected officials especially Rensselaer, City Council in voting for a President Pro Tem? Please note, the written ballot vote conducted on that evening was secret since the aldermen did not sign the ballots."

In this regard, since the Freedom of Information Law was enacted in 1974, it has imposed what some have characterized as an "open meetings" to requirement. Although the Freedom of Information Law pertains to existing records and generally does not require that a record be created or prepared [see Freedom of Information Law, §89(3)], an exception to that rule involves votes taken by public bodies. Specifically, §87(3) of the Freedom of Information Law has long required that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Stated differently, when a final vote is taken by an "agency" which is defined to include a municipal board [see §86(3)], such as a city council, a record must be prepared that indicates the manner in which each member who voted cast his or her vote.

Second, in the context of a votes taken by the Council to attempt to select a president pro tem as in the situation that you described, often a series of ballots may be taken until a particular member receives an affirmative vote of a majority of the membership of the body. If that is so, it does not appear that the preliminary votes, i.e., those votes that do not result in a majority, must be recorded, for they are not "final". However, any vote resulting in an affirmative total of a majority of the membership of the Council would, in my opinion, be required to be recorded and indicate how each member voted. Therefore, if the final vote was 5 to 3, for example, a record, presumably a portion of the minutes of a meeting, must identify how each member cast his or her vote.

In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually with respect to particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."

Further, in an Appellate Division decision, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987)].

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director