The St. Augustine Record, Monday, March 7, 2016
Posted: March 6, 2016 - 3:50pm | Updated: March 7, 2016 - 10:03am
By STEVE COTTRELL
Public Occurrences
Secret ballots at local government meetings are illegal in Florida. They violate the state’s sunshine law.
So why does the St. Augustine City Commission use secret ballots to make appointments to their advisory boards?
Florida Attorney General Pam Bondi’s opinion seems clear: “A secret ballot conducted at an otherwise open meeting constitutes a violation of the sunshine enactment, since the public and the news media are denied the right to know who voted for whom, and the meeting cannot therefore be regarded as ‘open to the public at all times.’”
She also notes on her website, “If at any time during the meeting the proceedings become covert, secret, or not wholly exposed to the view and hearing of the public and news media, then that portion of the meeting becomes violative of the statutory requirement imposed by the phrase ‘at all times.’”
Here’s how the city commission handled appointments to the Historic Architectural Review Board and Lincolnville Community Redevelopment Area Steering Committee at its Feb. 22 meeting.
Seven citizens applied for two seats on HARB. Four applied for three seats on the Lincolnville steering committee.
To fill the HARB openings, ballots were handed out, commissioners marked their ballots, handed them back to staff and staff tallied the ballots.
Appointments were clearly made by secret ballot and votes of individual commissioners were never publicly announced.
For that matter, commissioners didn’t even bother to affirm the appointments by subsequent voice vote.
Instead, once the city clerk and city attorney tallied the secret ballots, the city clerk announced the names of the prevailing applicants. And that was that.
It took only four minutes with neither an indication of which commissioners voted for which applicants, nor even a courtesy voice vote by the commission to affirm the appointments. Nothing.
Then it was time to appoint two members to the LCRA.
Once again, ballots were distributed to the five commissioners, then the city clerk and city attorney performed their tabulation duties and names of prevailing applicants were announced: another seemingly routine four-minute agenda item without commission discussion.
There was neither a voice vote affirmation, nor any indication of which commissioners voted for which applicants.
Commissioners (and city staff) might argue that ballots are allowed when determining advisory board appointments. Maybe, but keeping the vote a secret is the problem.
Big problem. Perhaps a big legal problem.
The cure? The Florida Supreme Court ruled several years ago that the legal “cure” for secret balloting is to publicly affirm the secret vote at a subsequent open meeting.
The Florida Attorney General made it clear at that time, however, that while such cure could be an allowable exception, it cannot be a policy.
“I do not think the Supreme Court intended ... to condone such action as a regular practice,” the AG wrote. “Although the initial ballot can be rendered valid by subsequent public affirmation, the initial misconduct is not thereby excused.”
The AG went on to say, “In cases where the initial violation was done knowingly and intentionally, it is my opinion that the members participating would be subject to prosecution for violation of the criminal provisions of the sunshine law.”
Strong words. Serious words.
Considering that the St. Augustine City Commission has been casting secret ballots “knowingly and intentionally” for years to fill advisory board vacancies, methinks City Hall needs to heed the long-held opinion of the state AG’s office — and quickly.
Using secret ballots to determine advisory board appointments is, indeed, “a regular practice” of the city commission, and I believe it needs to end.
Yes, commissioners sometimes affirm secret ballot tallies with unanimous courtesy voice votes, but the AG opinions seem clear on the point that the public is entitled to know — in real time, right then and there — who voted for whom.
Accepting 3-2 or 4-1 secret votes without announcing who voted for whom — or merely storing ballots in a public file at City Hall — appears to me to be inconsistent with relevant AG opinions.
Also, I wonder about the validity of currently-seated advisory board members appointed by secret ballot — not to mention the votes they have rendered.
What would Attorney General Bondi say if she knew?
Ouch!
Darn that pesky Sunshine Law.
Cottrell can be contacted at cottrell.sf@gmail.com
COMMENT
Archer 03/07/16 - 10:25 am 33RIGHT ON, STEVE!
Happy you took this on. Secret voting for citizen advisory boards et al. is our norm. I'd like to know when this section of the Sunshine Law came into effect (year).
But more, I'd like to know why every city attorney employed by the City of St. Augustine has failed to advise his/her bosses (the city commission) they are violating the law by these secret ballots.
This silly secret voting needs to stop now and the results of all past voting for citizen boards must be accessible to the public. I suggest a separate entry under every board, CRA, etc., that demands votes by the commission. Don't make it costly for citizens to obtain the information. Why would they unless there is something to hide.
Let us have recent voting results for HARB, PZB, and the Lincolnville CRA read into the record at the next city commission by the city clerk. As in, "Any items by the city clerk?" YES!
Excellent point about the validity of the appointments AND the votes of all members of every board. If someone wanted to challenge the decision(s), there would be chaos in every department of the city. Nothing is based on a sound, legal foundation.
Should this pass unreported to AG Pam Bondi? NO. It has gone on far too long. If one allows people to knowingly do the wrong thing over and over again, then WE are guilty, too, by condoning their actions. Now that we know, how can we ignore this end run around the law?
I hope a local activist will file a complaint or even a lawsuit, if that applies. We need some serious knuckle-rapping and far less smugness and lack of transparency.
Shame on the city manager, too.
A request: Could you please look into allegations surrounding City Commissioner Nancy Sikes-Kline's dual-office holding problem. It, too, is illegal, or so say articles. She was appointed to the cultural resource board of SJC (8 years) while serving on the city commission, thus holding two offices simultaneously. Caught inflagrante? Penalties? Replacement by the governor? I'd like to see an unbiased, clear, and precise look into exactly what these charges include and what they mean for the citizens of St. Augustine. Thank you.
From: Isabelle Lopez
Sent: Monday, March 07, 2016 6:18 PM
To: Nancy Shaver; Roxanne Horvath; Leanna Freeman; Nancy Sikes-Kline; Todd Neville
Subject: Steve Cottrell's editorial in today's Record, and my responses for your information
Steve Cottrell: Enough of St. Augustine's secret balloting
Posted: March 6, 2016 - 3:50pm | Updated: March 7, 2016 - 10:03am
____________
Statement: Secret ballots at local government meetings are illegal in Florida. They violate the state’s sunshine law.
Answer: This is correct.
Statement: So why does the St. Augustine City Commission use secret ballots to make appointments to their advisory boards?
Answer: This is incorrect. The City Commission utilizes written ballots, that are used during open, noticed public meetings. The written ballots include the name of the voting commissioner and the vote they took. The ballots are maintained as a public record and available for review. The meeting minutes reflect the outcome of the vote and include the individual scanned written ballots.
This practice is consistent with Attorney General Opinion 073-344, which states, “It is my understanding that after the commissioners cast their votes on the “vote sheet,” it is forwarded to the executive secretary of the commission and retained permanently in the commission files. I have no difficulty in concluding that such ballot is “made or received pursuant to law or ordinance” and made “in connection with the transaction of official business.” Since the ballot is a public record as soon as it is “made” and since public records, by virtue of 119.011, F.S., are open for a personal inspection of any citizen of Florida “at all times,” it follows that the final decision cannot be withheld for any period of time. It should be noted that I see nothing wrong with the votes being recorded on the vote sheet so long as they are made openly at a public meeting and so long as the vote sheets are available for public inspection.” (emphasis added)
Statement: Florida Attorney General Pam Bondi’s opinion seems clear: “A secret ballot conducted at an otherwise open meeting constitutes a violation of the sunshine enactment, since the public and the news media are denied the right to know who voted for whom, and the meeting cannot therefore be regarded as ‘open to the public at all times.’”
Answer: Again, written ballots are not ‘secret ballots’. The writer is quoting from Attorney General Opinion 71-32 (the opinion was rendered in 1971, when the current Attorney General was 6, therefore characterizing it as Attorney General Pam Bondi’s opinion is inaccurate). That particular case involved secret ballots being used and then destroyed. These are not the facts in our case. Attorney General Opinion 073-344 states, “I recommend that the commission adopt the following procedures to insure that it complies with the letter and spirit of the Sunshine and Public Records Laws: Notices of commission meetings and agendas should be released to the news media and the public and posted in the lobby of the commission’s general offices sufficiently in advance of meetings to give reasonable notice to those who may wish to attend. Discussion of all matters involving public business on which foreseeable commission action may be taken, and all votes by the commissioners, should be at public meetings open to the news media and the public at all times. Vote sheets, final orders, and all other documents and materials, “made or received pursuant to law or ordinance or in connection with the transaction of official business” should be open for inspection by members of the news media and public generally at all reasonable times.” The City’s procedures conform to this written Attorney General Opinion.
Statement: She also notes on her website, “If at any time during the meeting the proceedings become covert, secret, or not wholly exposed to the view and hearing of the public and news media, then that portion of the meeting becomes violative of the statutory requirement imposed by the phrase ‘at all times.’”
Answer: Again, this is a direct quote from Attorney General Opinion 071-32, which involved secret ballots and the destruction of those ballots. Attorney General Opinion 073-344 (written two years after the 1971 opinion) actually answers the question of whether a written ballot, taken during a noticed meeting and made available for public inspection violates Sunshine. It found that, “Since the ballot is a public record as soon as it is “made” and since public records, by virtue of 119.011, F.S., are open for a personal inspection of any citizen of Florida “at all times,” it follows that the final decision cannot be withheld for any period of time. It should be noted that I see nothing wrong with the votes being recorded on the vote sheet so long as they are made openly at a public meeting and so long as the vote sheets are available for public inspection.” (emphasis added)
Statement: Here’s how the city commission handled appointments to the Historic Architectural Review Board and Lincolnville Community Redevelopment Area Steering Committee at its Feb. 22 meeting.
Seven citizens applied for two seats on HARB. Four applied for three seats on the Lincolnville steering committee.
To fill the HARB openings, ballots were handed out, commissioners marked their ballots, handed them back to staff and staff tallied the ballots.
Answer: This is partially correct. It omits the fact that the commissioners wrote their name on their ballot, as well as who they were voting for, and all ballots were kept as a public record by the Clerk, available for inspection by the public. The record of the vote, and the individual scanned ballots, were included in the meeting minutes, which minutes will be approved by the City Commission at a future meeting.
Statement: Appointments were clearly made by secret ballot and votes of individual commissioners were never publicly announced.
Answer: Incorrect. There were no secret ballots.
Statement: For that matter, commissioners didn’t even bother to affirm the appointments by subsequent voice vote.
Answer: Partially incorrect. The record of the vote, and the individual scanned ballots, were included in the meeting minutes, which minutes will be approved by the City Commission at a future meeting.
Statement: Instead, once the city clerk and city attorney tallied the secret ballots, the city clerk announced the names of the prevailing applicants. And that was that.
Answer: Incorrect. There were no secret ballots.
Statement: It took only four minutes with neither an indication of which commissioners voted for which applicants, nor even a courtesy voice vote by the commission to affirm the appointments. Nothing.
Then it was time to appoint two members to the LCRA.
Once again, ballots were distributed to the five commissioners, then the city clerk and city attorney performed their tabulation duties and names of prevailing applicants were announced: another seemingly routine four-minute agenda item without commission discussion.
There was neither a voice vote affirmation, nor any indication of which commissioners voted for which applicants.
Answer: Partially incorrect. The written ballots identifying the commissioner and their vote were available at all times for public inspection. These ballots will be scanned and attached to the meeting minutes, which will be approved by the City Commission, and again, made available to the public.
Statement: Commissioners (and city staff) might argue that ballots are allowed when determining advisory board appointments. Maybe, but keeping the vote a secret is the problem.
Big problem. Perhaps a big legal problem.
Answer: Incorrect. The fact that the written ballot is utilized is not relevant to whether it is for appointments to advisory boards or any other reason. The vote is not a secret, neither are the written ballots. As the procedure utilized by the City complies with Attorney General Opinion 073-344, unless the Attorney General were to officially recede from that opinion in a future written opinion, the procedures appear to conform to the Sunshine Law.
Statement: The cure? The Florida Supreme Court ruled several years ago that the legal “cure” for secret balloting is to publicly affirm the secret vote at a subsequent open meeting.
The Florida Attorney General made it clear at that time, however, that while such cure could be an allowable exception, it cannot be a policy.
“I do not think the Supreme Court intended ... to condone such action as a regular practice,” the AG wrote. “Although the initial ballot can be rendered valid by subsequent public affirmation, the initial misconduct is not thereby excused.”
The AG went on to say, “In cases where the initial violation was done knowingly and intentionally, it is my opinion that the members participating would be subject to prosecution for violation of the criminal provisions of the sunshine law.”
Strong words. Serious words.
Answer: The strong, serious words quoted are from a 1973 Attorney General Opinion (AGO 73-264). That case involved deliberations at an open public session on a quasi-judicial matter, followed by a secret written ballot. That opinion pointed out that 286.012, F.S., requires that, “a vote be recorded or counted for each such member present.” The votes of each member present at our City Commission meetings are indeed recorded and counted on the written ballots provided. This opinion was issued in July of 1973, and it was quoting a Florida Supreme Court case called Bassett v. Braddock, decided in 1972. Therefore, the September 1973 Attorney General Opinion that guides the City’s actions (AGO 073-344) took into account both the court case and this opinion. Again, the quote is from a case that involved a secret ballot, which is not the case with the City’s procedures. The Florida Supreme Court specifically affirmed the validity of that vote, finding that, “It was first by secret written ballot but was then unanimously by election upon motion and vote in open meeting.” Interestingly, in his concurrence, the Chief Justice pointed out that, “I note that there was apparently an informal secret straw ballot between the members as to the selection of a chairman with an obvious understanding that the result of the straw vote would be approved in an open formal meeting. Since the secret straw vote was an integral part in the selection of the chairman, the vote of the individual members at the informal straw poll should have been made public in the minutes.” The City includes scans of the individual written ballots in its meeting minutes, which are approved by voice vote at a publicly noticed meeting.
Statement: Considering that the St. Augustine City Commission has been casting secret ballots “knowingly and intentionally” for years to fill advisory board vacancies, methinks City Hall needs to heed the long-held opinion of the state AG’s office — and quickly.
Answer: Incorrect. The St. Augustine City Commission has not cast secret ballots; it has been casting publicly available, written ballots in reliance on, and in conformity with, Attorney General Opinion 073-344.
Statement: Using secret ballots to determine advisory board appointments is, indeed, “a regular practice” of the city commission, and I believe it needs to end.
Answer: Incorrect. The City does not utilize secret ballots. The author is free to suggest other legally available methods as a matter of public policy.
Statement: Yes, commissioners sometimes affirm secret ballot tallies with unanimous courtesy voice votes, but the AG opinions seem clear on the point that the public is entitled to know — in real time, right then and there — who voted for whom.
Answer: Incorrect. The City does not utilize secret ballots. The characterization of the Attorney General Opinions (all of them) is not accurate. AGO 073-344 states that by taking the vote in public and making the written ballots available to the public, no violation of Sunshine occurs.
Statement: Accepting 3-2 or 4-1 secret votes without announcing who voted for whom — or merely storing ballots in a public file at City Hall — appears to me to be inconsistent with relevant AG opinions.
Answer: Incorrect. No secret votes are held. The procedures used by the City are consistent with the Attorney General opinions. Attorney General Opinion 073-344 specifically states: “Since the ballot is a public record as soon as it is “made” and since public records, by virtue of 119.011, F.S., are open for a personal inspection of any citizen of Florida “at all times,” it follows that the final decision cannot be withheld for any period of time. It should be noted that I see nothing wrong with the votes being recorded on the vote sheet so long as they are made openly at a public meeting and so long as the vote sheets are available for public inspection.” (emphasis added)
Statement: Also, I wonder about the validity of currently-seated advisory board members appointed by secret ballot — not to mention the votes they have rendered.
Answer: Incorrect. No secret ballot occurred, therefore the appointments are valid.
Statement: What would Attorney General Bondi say if she knew?
Answer: Presumably, she would read her predecessor’s opinion AGO 073-344 and find that the City procedures mirror those that the then Attorney General recommended:
“I recommend that the commission adopt the following procedures to insure that it complies with the letter and spirit of the Sunshine and Public Records Laws: Notices of commission meetings and agendas should be released to the news media and the public and posted in the lobby of the commission’s general offices sufficiently in advance of meetings to give reasonable notice to those who may wish to attend. Discussion of all matters involving public business on which foreseeable commission action may be taken, and all votes by the commissioners, should be at public meetings open to the news media and the public at all times. Vote sheets, final orders, and all other documents and materials, “made or received pursuant to law or ordinance or in connection with the transaction of official business” should be open for inspection by members of the news media and public generally at all reasonable times.”
Statement: Ouch!
Darn that pesky Sunshine Law.
Answer: No answer is necessary.
Isabelle C. Lopez
City Attorney
City of St. Augustine
75 King St.
P.O. Box 210
St. Augustine, FL 32085
(904) 825-1052 (office)
(904) 825-1096 (facsimile)
ilopez@citystaug.com
Board Certified in City, County & Local Government Law
Florida Supreme Court Qualified Arbitrator and Certified County & Circuit Civil Mediator
Rated AV Preeminent® by Martindale-Hubbell Peer Review
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