Two Harbors questions use of ballots in open meetings

By Adelle Whitefoot

After the use of a secret ballot to fill a vacancy on the council, the city of Two Harbors is questioning the use of such a procedure.
On Oct. 13, the Two Harbors City Council accepted the resignation of former Ward 4 Councilman George Scheidt due to medical issues. The council decided to accept applications for the position and make an appointment to fill the vacancy for the remainder of the term. The city received two applications, one from Craig Jussila and one from Mike Borud.
On Nov. 5, the City Council held a special meeting to appoint a new councilor to the vacancy. The council held a secret ballot where each councilor wrote down who they thought should be appointed. The unsigned votes were tallied by then-interim administrator Patty Nordean, who then announced that Borud had the most votes. The council then made a motion to appoint Borud to the Ward 4 vacancy and the motion was approved unanimously.
It was brought to the attention of the News-Chronicle that the use of the secret ballot may have been a violation of the Minnesota Open Meeting Laws. When asked, Two Harbors City Administrator Dan Walker said he doesn’t believe the law was violated, but does agree that the process used to appoint a new councilor may not have been completely to protocol.
“(The results) are available to the public and was available to the public at the time, it just wasn’t questioned at the time what the results were,” Walker said. “Was any information held secretly? I don’t think that was the intent of what they were doing there.”
Minnesota State Statutes 13D.01, Subdivision 4, states, “the votes of the members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal kept for that purpose.” Subdivision 5 of the same statute states, “the journal must be open to the public during all normal business hours where records of the public body are kept.”
“There’s no question that the Open Meeting Law does not permit members of a public body to vote by secret ballot,” said Mark Anfinson, Minnesota Newspaper Association attorney and Open Meetings Law expert. “They can use it, just to be real clear, they can use paper ballots, there’s nothing wrong with that, but if they do, how each member voted has to be announced by, in this case, the administrator or whoever collects them and then they have to be saved.”
In 1997, the Minnesota Court of Appeals heard a case on Open Meetings Law and the use of a straw vote in the Mankato Free Press vs. City of North Mankato case. North Mankato used a straw vote by writing on a piece of paper the names of their top two candidate choices for city administrator and took action based on the straw vote. The straw vote result was not made public at the time, but was included in the council meeting minutes and made available only at a later date.
The court of appeals ruled that “a city council meeting is not really ‘open’ to the public if the council is conducting its voting in secret” and that “secret voting denies the public an opportunity to observe the decision-making process, to know the council members’ stance on issues, and to be fully informed about the council’s actions” and therefore, concluded that the straw vote taken then by North Mankato was a secret vote and violated the Open Meeting Law.
“There’s no doubt that the court of appeals said, and that was a city administrator selection, you can’t use a secret ballot,” said Anfinson, who represented Mankato Free Press in the case. “How each member votes has to be publicly disclosed.”
Walker said if the results were questioned at the time of the vote, the results would have been released.
“If the question would have been raised, they would have answered,” he said. “Frankly, the results were quite unanimous, so it wasn’t like there was something secretly done there, that’s just my opinion on that.”
The results of the vote were 6-1 for Borud, though the minutes don’t say for whom each councilor voted and the ballots obtained by the News-Chronicle are unsigned. The result is in the Nov. 5 meeting minutes. At the time of the meeting, Walker had been approved to become the next administrator, but wasn’t scheduled to take office until Nov. 11. Walker said being between staff could have also contributed to the mix up.
“The guidance that was occurring at that time probably wasn’t what it needed to be as well. We were sort of in between staff,” he said. “We’ve got record of our staff actually questioning the process and we were given guidance that we were following the correct procedure at the time. There’s really no one to fault and I don’t think that the intent was to somehow secretly hold back information.”
According to Walker, this issue will be addressed going forward.
“I would take that extremely seriously, and we need to do things to protocol,” he said. “It’s something that as the administrator that I’m going to be working on to assure that we’re doing the right thing by the public.”
Use of a secret ballot, or straw vote, by public bodies is something that has been questioned in the media and by the public in Minnesota recently. Owatonna People’s Press in Owatonna, Minn., reported in August of last year that the Medford city councilors used a secret ballot as part of the procedure in selecting a new member to their city council. The city quickly moved to rectify the mistake once it was brought to the city’s attention. More recently, the St. Paul Pioneer Press reported that on Dec. 15 that the Lakeville school board used a secret ballot during a board work session, not an official regular meeting, to elect new leadership for 2015, though no action was taken based on the votes.
“I sympathize with the reason they do it in cases like (in Two Harbors).” Anfinson said. “In a community like Two Harbors, both of the candidates for that position were probably pretty well known by most of the councilors and it gets uncomfortable because they are going to offend somebody by voting for the other person. But that’s just part of the reality of public office.”
Anfinson said he thinks that the reason public bodies continue to use secret ballots is because they just don’t know the law.
“I think the real reality is that you have a constant turnover on public bodies in Minnesota. There’s always new people coming on board and they don’t know the law,” he said. “They take some training and are given some materials, but they’re not always going to know everything that they are supposed to comply with, and so that’s why it keeps happening. They’re just not aware of the rule.”
The Two Harbors City Council held a special meeting on Monday to elect a new president and vice president. In the past, the city used a secret ballot to conduct this process, but decided not do so on Monday and made the appointments through motions as recommended by city attorney Steve Overom. Newly appointed council president Robin Glaser said she’s been on the council since 1991 and the city has always used the ballot procedure to appoint councilors as well as new leadership.
“I guess it’s never come up as an issue of violation of the Open Meeting Law and certainly I don’t think that was anybody’s intent,” Glaser said. “I know that it was a decision that was made (Monday) after a consultation with the city attorney that we do the process differently.”
According to Glaser, she believes the reason the council has used secret ballots in the past was to make it more comfortable for councilors to cast their vote.
“I think the new councilors were put in an uncomfortable position and that’s the only reason we’ve ever used it that way,” she said. “It certainly isn’t anything that we are trying to hide from the public.”
Glaser said the new process was different than what the council is used to, but perhaps it’s a better way to do things. The next Agenda/Finance Committee meeting, where some agenda items are discussed, is scheduled for 5 p.m. on Monday at the Two Harbors City Hall Council Chambers followed by the City Council regular meeting at 6:30 p.m.