Portland learns secret ballot violates sunshine law

The Portland City Council will be re-taking a vote to fill an empty council seat after a secret ballot vote by council members in January violated the state’s sunshine law, Portland’s mayor said.

“We’ve got no choice but to re-do the vote. I think we all just weren’t thinking,” said Portland Mayor Kenneth Wilber. “It was done in the open. We didn’t think we need to read the ballots. It was an honest mistake, no one was trying to do anything wrong.”

The council cast secret ballots in an unusual process that was apparently decided in “gentlemen agreements” before the meeting.

During the Jan. 7 meeting, according to The Portland Leader, each council member made a vote for one of the candidates and then passed his vote to the city recorder to tally. The person with the fewest votes was removed from the nominations list, the city recorder announced the remaining names, and voting continued this way, secretly, until a tie was eventually broken and Andrew Jennings was selected to fill the seat.

News media covered the meeting but it was one of the nominees who raised the issue after the meeting with Tennessee’s Office of Open Records Counsel, Elisha Hodge.

Hodge wrote a Feb. 3 letter to Wilber, informing him that, based on the information that was presented to her office, a violation appeared to have occurred.

She cited 8-44-104(b) of the state’s open records law, which states:

“(b) All votes of any such governmental body shall be by public vote or public ballot or public roll call. No secret votes, or secret ballots, or secret roll calls shall be allowed. As used in this chapter, ‘public vote’ means a vote in which the ‘aye’ faction vocally expresses its will in unison and in which the ‘nay’ faction, subsequently, vocally expresses its will in unison.”

Wilber said the re-vote is expected to take place on Tuesday, Feb. 18.

Sonya Thompson, editor for The Portland Leader for nearly 11 years, was not at the meeting, but noted questions surrounding how the vote took place.

You can read The Portland Leader’s stories here.

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