Last month’s drama in West Virginia, where former state Superintendent Jorea Marple was fired twice by the state school board, was triggered in part by protests that the board did not advertise its first vote on Marple beforehand on its publicly available agenda.
A similar but perhaps less dramatic problem appears to have arisen in Utah, where the 15-member state board of education elected its new leadership team on Dec. 7. Both the previous board chairwoman (Debra Roberts) and the vice chairman (David Crandall) were re-elected. What’s the problem? According to Lisa Schencker, writing in the Salt Lake Tribune, the vote was conducted in the open, at least in the physical sense, but the actual process was done by secret ballot. A lawyer who spoke to the paper, Jeff Hunt, said he believes it is “very clear that secret ballots are not permitted under the Open Meetings Act.”
You can view a handy summary of the state’s Open Meetings Act (complete with clip art) and see for yourself the page where it says that the board may not “take final action” during a “closed meeting,” and that “final votes must be open and on the record.”
The summary of the law also says that closed meetings in Utah by official government groups like the state board can only be for certain reasons, and as you might expect, voting on the board’s leadership isn’t one of them.
What’s the board’s defense? Tradition and collegiality, Roberts told Schencker. The board chairwoman said that the board has “often voted by secret ballot in the past,” and that nobody made a fuss about the issue until now. Weighing in on the side of the board is state Senate President Wayne Niederhauser, a Republican, who said that the Senate majority votes for its leadership in a closed meeting and argued that in such situations, “I think that it’s important to avoid feelings and potential animosity.”
Schencker does write that the board’s bylaws don’t say whether board members have to identify themselves on the ballots they cast, although it’s hard to imagine a public official’s vote that’s “open” (as state law requires) but simultaneously anonymous. Even if somebody takes the board to court over the vote, Hunt said at most the board would have to vote again on its leadership.
Knowingly or intentionally violating the state’s Open Meetings Act through illegitimately closed meetings, by the way, is a class B misdemeanor in Utah. Other class B misdemeanors in the state include assault, DUI, shoplifting under $300 worth of goods, and “public nuisance.” In this case, of course, the action in question may not have been public enough.