AG: McHenry County did not violate Open Meetings Act…..yet –

McHenry CO., IL. (ECWd) –

ISSUE: A “Voice Vote” during a public meeting – failing to record votes in meeting minutes.

I filed a Request for Review of an alleged Open Meetings Act (“OMA”) violation of the McHenry County Board during their September 19, 2017, county board meeting.

My allegation was that the board took “voice votes” on certain issues, which essentially prevented the public from knowing how each and every member of the board voted on those issues.

The Illinois Attorney General’s Public Access Counselor (“PAC”) determined that no further review was necessary because the board has not yet approved the meeting minutes, and therefore have not yet failed to include “a record of any votes taken”. Additionally, the PAC states the OMA does not specifically require a roll-call vote except for Section 2 when a vote of each member is required prior to entering into closed session.

It will be interesting tonight, when the McHenry County Board approves the meeting minutes from the September 19, 2017, meeting. How will they comply with the OMA’s requirement of providing in the written meeting minutes a “record of all votes taken” during the meeting?

I suspect this complaint will be refiled since it is impossible to annotate in the meeting minutes a “record of all votes taken” without knowing how many Yes and No votes we actually cast. There is a difference between the “final result of the vote” which would be an annotation that “Motion Passed” – “record of all votes taken” which in my opinion means “number of aye and nay votes” – and “roll call vote” which would be listing of all board members and how each one of them voted.

According to Section 1.02 of the Open Meetings Act, it clearly defines a “meeting” and gives the definition of a meeting and an example of a quorum of a 5-member public body, which includes that the “affirmative vote of 3 members is necessary to adopt any motion, resolution, or ordinance unless a greater number is otherwise required.”

Section 2.06(3) states that meeting minutes must include “a summary of the discussion on all matters proposed, deliberated, or decided, and a record of all votes taken.”

Section 2(a) requires that a “vote of each member” voting to enter closed session must be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.

The Counties Code requires certain votes to be ayes and nays and be recorded in the minutes of the meeting, however, this is not an OMA requirement and cannot be used as a basis to claim a violation of the OMA.

The premise that a public body can take action on items without the public knowing how each member of the public body voted flies in the face of a recent AG Binding Opinion (13-006) declaring Secret Ballots a violation of the Open Meetings Act. That Opinion cited WSDR, Inc v. Ogle County, 100 App. 3d1008, 1011 (2nd Dist. 1981) which reasoned that electing a chairman by secret ballot is “the antithesis of an open meeting even though the vote was conducted in presence of the public.” It further held that secret ballots violated the public policy of the State and OMA.

A similar case in 2013, HOWE v. RETIREMENT BD. OF FIREMEN’S ANNUITY, which cited the Ogle County case, overturned the circuit court and stated in part:

¶ 29 As to the Board’s other contention that the members need not publicly disclose their votes, we note that it has been long-established that secret ballots by public bodies violate the Open Meetings Act. WSDR, Inc. v. Ogle County, 100 Ill.App.3d 1008, 1011, 56 Ill.Dec. 408, 427 N.E.2d 603 (1981). We do not know if any member of the public was able to view the signing of the decision at issue here, and we realize that the signatures on the order are publicly available, but we know that no one was able to hear the Board members, assembled as a meeting, vote on it. The Board’s method of “voting” is just as “secret” as the balloting methodology invalidated in the WSDR case.

Is a secret ballot any different than a “secret voice vote” where a member of the public cannot witness and cannot determine how his or her representative on the county board voted on certain issues? The voice votes were conducted in the presence of the public. A “voice vote” is basically the equivalent of writing aye or nay on a piece of paper and turning it in for the final count – or even worse, there are no actual aye and nay votes to count, it was a declaration by the Chairman that a measure passed or failed – so it is even worse than a secret ballot.

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