PAR Questions Secret Votes on Legislative Auditor Candidates

The voting procedure used to select legislative auditor candidates runs counter to the Open Meetings Law. On two separate occasions in the past week, the search committee used secret ballots. The law states that “Each public body shall be prohibited from utilizing any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of [the Open Meetings Law].” The law also requires that “All votes made by members of a public body shall be viva voce and shall be recorded in the minutes, journal, or other official, written proceedings of the body, which shall be a public document.”

To its credit, the Special Recommendation Commission, composed of six senators and six representatives, met and interviewed candidates in public. However, it allowed its members to keep their votes secret. While the Legislature is excepted from some Open Meetings Law provisions, it is not excused from the open voting requirements. The commission devised its own procedure assuming that its selection process did not constitute a formal vote. However, the courts have ruled to the contrary.

In a 1981 case [Brown v. East Baton Rouge Parish School Board, 405 So.2d 1148 (La. App. 1 Cir.1981)]involving a school superintendent search committee, an appellate court found that “writing down the names of favored applicants was a vote taken in closed sessions, which had the effect of a written, secret ballot and, even if not final, was in violation of the [Open Meetings Law].” This finding suggests that, while the legislative auditor vote was taken in an open meeting, it had the effect of a written, secret ballot.

In the current case, the secret voting was not designed to give comfort to losing candidates. The number of votes for each was made public. The secrecy did, however, disguise the positions of the twelve legislators making the decision. In this case, there is a larger public policy issue beyond the question of who supported which candidate. The leading candidates for the position, who tied for the nomination, seem to represent different philosophical approaches to operating the Legislative Auditor’s Office. The public should be able to determine the position its representatives are taking.

Because the entire winnowing process was flawed, the obvious recourse is for the commission to meet again and take a “viva voce” vote on all of the candidates.