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Media > Newsletters > Open Book > November 2019 > Ohio Supreme Court: Even in Open Meetings, Secret Ballots Violate Ohio’s Open Meetings Act

Open Book

Ohio Supreme Court: Even in Open Meetings, Secret Ballots Violate Ohio’s Open Meetings Act

By: Mark W. Altier, Director of Open Government for Ohio Attorney General Dave Yost

Recently, the Ohio Supreme Court entered its unanimous decision in the matter of State ex rel. Bratenahl v. Village of Bratenahl, 2019-Ohio-3233, 2019 Ohio LEXIS 1640, 2019 WL 3805295 (Decided Aug. 14, 2019). In January 2015, the council of the village of Bratenahl (Cuyahoga County) gathered for its first meeting of the year and took up the matter of electing a president pro tempore.1 The village mayor, who was presiding over the meeting, asked the council members whether they wanted to proceed in the selection by a “show of hands” or by “secret ballot.”

One council member suggested that they use a secret ballot, the way the council had “always done it.” Another council member questioned the legality of such a process, but the council proceeded to vote in a properly convened-and-noticed open meeting by secret ballot.

After the first ballot, the village solicitor tallied the votes and advised that a second ballot would be necessary because one member had voted for someone who was not nominated. A second vote also ended in a tie. Following a third vote, the solicitor announced that a president pro tempore had been selected but did not publicly detail the final vote count.

A year later, a community news publication known as “MORE Bratenahl” and its operator, Patricia Meade, sued the village. The lawsuit sought a declaratory judgment, finding that the village had violated Ohio’s Open Meetings Act, R.C. 121.22 by conducting the election by secret ballot. It also requested that the village be enjoined from similar future actions and be required to pay attorney fees and a civil forfeiture of $500.

As part of discovery in the case, the village provided the ballot slips, each with an attached sticky note purporting to identify the council member who had cast the ballot. Both parties filed motions for summary judgment. The trial court denied the MORE Bratenahl motion but granted the village’s motion. On appeal, the 8th District Court of Appeals affirmed the trial court’s ruling, holding that the plaintiffs failed to prove that the village council violated the Open Meetings Act because the vote was conducted in an open council session and the voting slips were maintained as public records.

The Ohio Supreme Court disagreed, overturning the appellate ruling. The court noted that R.C. 121.22(A) indicates that the Open Meetings Act is to be “liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject is specifically excepted by law.” The court also pointed out that R.C. 121.22(C) provides that “[a] resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” The ruling noted that the village did not dispute that its council is a “public body,’ that the election of a president pro tempore of the council constitutes “official action” on “public business” and that the council’s gathering in January 2015 was a “public meeting.”

The opinion indicated that the words “open” and “open meeting” are not defined by the Open Meetings Act and, as such, must take on their plain and ordinary meaning. The court opined that “open” may be defined as “completely free from all concealment; exposed to general or particularly perception or knowledge” or, more narrowly, as “free to be entered, visited, or used,” or “[I]n a state which permits access, entrance, or exit.”

Based on the text of the law, its structure and its statement of legislative purpose, the court chose the former, more liberal interpretation. The court concluded that, although conducted in an open setting, a meeting is not open in compliance with the Open Meetings Act unless it meets the fundamental requirement that the public has meaningful access to that which takes place. In addressing the village’s argument that the act prescribes no particular method for the selection process and that the council may make its own rules, the court indicated that this does not alter the requirements of the act.

These requirements are not satisfied simply because the doors of the council meeting place are open to the public. Instead, meaningful access requires an ability to discern the deliberations that take place among the members of the public body, including being able to determine how members vote on matters and issues. The court indicated that a meeting of a public body, even though conducted in a public setting, would not satisfy the requirements of the law if the members of the body conversed in whispers or conducted their business in a foreign language, thereby frustrating the public’s understanding of the proceedings. On that basis, the court held that “the use of secret ballots in a public meeting violates the Open Meetings Act.”2

The village also argued that the matter at issue had become “moot” because the term of the president pro tempore elected by secret ballot had expired. The court cited R.C. 121.22(I)(1), which provides that an action alleging a violation of the Open Meetings Act may be brought within two years after the date of the alleged violation. On that basis, the determination of the court was that the action was appropriate and the provision of the requested injunctive relief was required. 

1 R.C. 731.10 requires that the members of a council of a village operating under the statutory scheme of government, “[a]t the first meeting in January of each year…shall immediately proceed to elect a president pro tempore from its own number, who shall serve until the first meeting in January next after his election.” The president pro tempore, so elected, and during his or her tenure, is to serve as “the acting mayor” and to “have the same powers and perform the same duties of the mayor” during the absence of the mayor or during periods when the mayor is “unable for any cause, to perform his duties.”  

2 In 2011 Op. Att’y Gen. 038, then-Ohio Attorney General Mike DeWine advanced reasoning similar to that of the Supreme Court in the Bratenahl case. Attorney General DeWine indicated that the “’open meetings’ mandate of R.C. 121.22 requires more than simply granting members of the public physical access to a meeting of a public body.” He advised that “a meeting is not ‘open’ to the public where the members of the public body vote by way of secret ballot,” which is the “antithesis of the definition of ‘open’.”

In so doing, the Attorney General overruled 1980 Op. Att’y Gen. 083, in which one of his predecessors had indicated his judgment that a county party central committee, when meeting for the purpose of filling the vacancy in a county office as provided by R.C. 305.02, must vote on the appointment in an open meeting but may do so by secret ballot. Attorney General DeWine wrote that “a public body that is subject to the requirements of the Ohio open meetings law may not vote in an open meeting by secret ballot.”