March 1, 1993



Ms. Marie L. Pratz
East Quogue Union Free School District
Board of Education
6 Central Avenue
East Quogue, NY 11942-9632

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

Dear Ms. Pratz:

I have received your letter of February 22 in which you raised
a question concerning the "ballot process" relating to the
appointment of a district superintendent of a board of cooperative
educational services (BOCES).

In your capacity as President of the East Quogue Board of
Education, you wrote that, due to a retirement, the BOCES board
will be called upon to appoint a replacement for the position of
BOCES I District Superintendent. The procedure for selecting a new
superintendent is described in §2204 of the Education Law, which in
subdivision (1) states in part that:

"The board of cooperative educational services
of a supervisory district shall meet upon the
direction of the commissioner of education, at
a time and place designated by the
commissioner, for the purpose of appointing a
district superintendent of schools whenever a
vacancy in such office shall occur..."

Subdivision (2) of §2204 states that:

"In the appointment of such district
superintendent the vote shall be by ballot and
the person receiving the majority of all votes
cast shall be appointed subject to approval of
the commissioner of education. Each member of
the board of cooperative educational services
shall be entitled to one vote in such

You have asked "whether this ballot can be done in secret, or if it
must be voted upon in public and properly recorded in the public

In this regard, I offer the following comments.

First, by way of background, §1950 of the Education Law
pertains to the creation of a BOCES and states in part that the
Commissioner of Education has the authority to establish such a
board "for the purpose of carrying out a program of shared
educational services in the schools of the supervisory district and
for providing instruction in such special subjects as the
commissioner may approve." Based upon the foregoing, I believe
that a BOCES is subject to the Freedom of Information Law. That
statute is applicable to agencies, and §86(3) defines the term
"agency" to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state

Since a BOCES is clearly a governmental entity performing a
governmental function, again, in my view it is required to comply
with the Freedom of Information Law.

Second, since the Freedom of Information Law was enacted in
1974, it has imposed what some have characterized as an "open vote"
requirement. Although the Freedom of Information Law generally
pertains to existing records and ordinarily does not require that
a record be created or prepared [see Freedom of Information Law,
§89(3)], an exception to that rule involves voting by agency
members. 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

Stated differently, when a final vote is taken by members of an
agency, a record must be prepared that indicates the manner in
which each member who voted cast his or her vote. Further, in an
Appellate Division decision that was affirmed by the Court of
Appeals, it was found that "[t]he use of a secret ballot for voting
purposes was improper", and that the Freedom of Information Law
requires "open voting and a record of the manner in which each
member voted" [Smithson v. Ilion Housing Authority, 130 AD 2d 965,
967 (1987), aff'd 72 NY 2d 1034 (1988)].

In this instance, each person voting would be a member of a
BOCES, an "agency". As such, to comply with the Freedom of
Information Law, I believe that a record must be prepared and
maintained indicating how each member cast his or her vote. From
my perspective, disclosure of the record of votes represents the
only means by which the public could know how their representatives
asserted their authority. Ordinarily, a record of votes of the
members will appear in minutes required to be prepared pursuant to
§106 of the Open Meetings Law.

Lastly, I have discussed §2202(2) of the Education Law
concerning the "ballot process" with an attorney from the Education
Department. It is his view, as well as mine, that there is nothing
in that provision that suggests that the ballots are intended to be
cast in secret. On the contrary, he agreed that a record
indicating how each member casts his or her vote should be prepared
and made available.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director