Telling secrets

Attorneys, legislators argue against confidential public votes


One of the lawyers on the losing side of last week’s court decision allowing public bodies to vote in secret says his legal team will ask the Colorado Supreme Court to review the ruling, and some state lawmakers are considering legislation that would reverse the decision.

The Colorado Court of Appeals ruled on Aug. 4 that the Fort Morgan City Council did not violate the state’s open meetings law when it took a vote by secret ballot. The court ruled that because the Colorado open meetings law doesn’t specifically exclude such votes, they are permitted. Critics say that constituents can’t properly hold their elected officials accountable if their votes aren’t public.

Steven Zansberg, a partner at Levine, Sullivan, Koch and Schulz in Denver, told Boulder Weekly that his firm’s client, Ronald Henderson, wants to file a petition asking the state Supreme Court to review the case, although the court has the discretion to decline the request.

Zansberg argues that secret votes are not consistent with the intent of the Colorado Sunshine Law.

“Our position is that the open meetings law, although it doesn’t expressly prohibit this type of voting procedure, does say it through clear implication,” he says. “It makes clear that meetings at which public business is discussed, and decisions are made, are to be open to the public, and no decision should be made outside of an open meeting. Our position is that means casting a secret ballot, whereby the public does not know who voted which way, is not a public meeting.”

As evidence, he cites a section of the state open meetings law that says “the formation of public policy is public business and may not be conducted in secret.”

“We believe that the formation of public policy includes voting,” Zansberg says.

He also quotes language in the law that says “no resolution, rule, regulation, ordinance or formal action of a state or local public body shall be valid unless taken or made at a meeting that meets the requirements [set forth in the law].”

“Our view is that what an open meeting means is that the public be allowed to observe the process by which a public body makes decisions, and passing notes that makes secret those decisions is not consistent with that legislative text,” Zansberg says.

Another strong argument that the intent of the law is to disallow secret votes is that while public bodies can engage in secret, executive sessions on specific topics like legal matters, personnel actions and real estate deals, they are required to re-emerge and take votes in public, he says.

Like other state legislators who have since weighed in on the issue, Rep. Claire Levy, D-Boulder, agrees.

“The whole point of saying you have to come out of executive session before you take the vote is so the public knows how its representatives actually voted,” she told Boulder Weekly. “I think [the ruling] is inconsistent with the law.”

Levy says she would likely support legislation making secret votes illegal, “but I’d want to hear from the local governments about why they feel they shouldn’t be.”

She adds that she’s never seen legislators attempt to conceal their vote on any matter.

“We go there to represent the people, and we ought to be proud of how we’re voting and confident that we can explain it to our constituents,” Levy says. “I thought the court decision didn’t make any sense, so I certainly would be willing to look at doing legislation that would reverse the outcome.”