Secret ballot raises legal concerns

July 29, 2005

DARRELL L. BREESE\Frontiersman reporter

WASILLA - Wasilla resident Connie Shuey sat with a stunned look as she watched the Wasilla City Council vote via a secret ballot Monday. The vote was held to select one candidate from the four who applied to fill a vacancy left on the council by the resignation of Noel Lowe in late June.

Her response was appropriate. The secret ballot used appears to be a "violation of the public's right to know how each member voted," as indicated in the Alaska Open Meetings Act (OMA), according to Anchorage attorney John McKay, an authority on the landmark legislation.

Council members used the anonymous secret ballot during their regular meeting, to rate the applicants to fill the vacancy, and failed to disclose the results of the vote during the meeting. City Clerk Kristie Smithers initially refused a request for copies of the ballots, stating that copies of the ballots would not be released. After the Frontiersman questioned the legality of keeping the records secret, they were released Tuesday afternoon.

"The law is clear," McKay said. "It states that all votes must be conducted in such a manner the public may know how each member of the body voted."

Once the ballots were reviewed, it was clear that there was no way of knowing which ballot was cast by which council member.

"The fundamental reasons for the open meetings act is for the public to be able to engage in every part of the deliberative process," McKay said. "The people have a right to know."

Legally, according to McKay, in addition to requiring that deliberations of a governing body be open to the public, the Open Meetings Act also requires that "the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote."

The city began using the current practice to streamline the appointment process.

"As I understand it, the council started using the secret ballot to eliminate the battle that erupted after Sarah Palin was elected mayor," said Verdie Bowen, who was appointed to the vacant seat during the meeting. "The council had to fill her seat, and it was a messy process then."

The council first used the secret ballot process after Dianne Keller was elected mayor in 2002. According to Smithers, then-Council Member Noel Lowe suggested the process as a way of eliminating the drawn-out battle that occurred in the past.

Each time the process was initiated, Smithers said she checked with city attorney Thomas Klinkner, who has represented the city since June 2000, to determine if the process was legal.

"Each time we've used this method, the attorney told me it was OK," Smithers said. "He never addressed any open meetings issues."

During the meeting Monday, when asked about the council's use of a secret ballot, Klinkner said, "It

is OK, there is nothing in

the law which specifically forbids it.

"Plus. it has been the practice of the body to proceed in this manner when appointing someone to fill a vacant seat on the council."

Keeping the ballot results secret also bothered some council members.

"This is one of the uncomfortable issues you have to deal with on council," Council Member Diana Straub said "But that is part of the process. Handling public issues in a public manner may not be comfortable, but that is why we were elected."

Straub didn't question the use of the secret ballot during the meeting because she believed the clerk was using the secret ballot because it was required by city code.

Alaska's Open Meetings Law expresses a strong policy in favor of opening all aspects of governmental meetings to the public. State policy says government actions should be taken openly and deliberations conducted openly; the people do not yield their sovereignty to government agencies; the people do not give public servants the right to decide what is good for the people to know and not good for them to know; and the right of the people to remain informed shall be protected so the people may retain control over the government.

According to McKay, while the OMA doesn't require that minutes be taken for public meetings, it does require that votes must be conducted and recorded in the record so the public may know the vote of each person entitled to vote during the meeting. He added that action taken at or as the result of meetings held or conducted in violation of the OMA may be voidable.

The clerk's efforts to keep the results of the vote confidential might have also resulted in a violation of the Alaska Public Record Act, which states that unless specifically provided otherwise, the public records of all public agencies are open for inspection by the public.

Marty Metiva, one of the four applicants for the vacant seat, indicated he was troubled by the secrecy of the council vote.

"I would like to see the ballots made available, because this is a democracy we live in." Metiva said. "I think if there is some question as to the legality of the process, that the current council needs to address the use of secret ballots and make the changes necessary and make the process transparent to the public."

Darrell Breese may be reached at 352-2250 or at darrell.breese@

frontiersman.com.