Original Author: Hemsley, Sid
Date of Material: 04/05/1993
Open meetings--Laws and regulations
Reviewed Date: 07/20/2021
MTAS was asked whether the appointment of the mayor by board of commissioners can be made by secret ballot.
Your question is, can the appointment of the mayor by board of commissioners be made by secret ballot? The answer is no.
Tennessee Code Annotated, § 8-44-104 provides that:
(a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include, but not be limited to, a record of persons present, all motions, proposals, and resolutions offered, the results of any vote taken, and a record of individual votes in event of roll call.
(b) All votes of any such governmental body shall be by public vote or public ballot or public roll call. No secret ballots 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 expressed its will in unison.
That statute standing by itself clearly prohibits secret ballots on the part of municipal governing bodies for whatever purpose.
However, in the unreported case of Kennedy v. County Commission of McNairy County, (1988 WL 131547 (Tenn. App. 1988) the McNairy County Commission voted by secret ballot to fill the office of Superintendent of Education. The Tennessee Court of Appeals, Wester Section, declared the vote null and void because it violated Tennessee Code Annotated, § 8-44-104.
Kennedy should discourage any governmental body from voting by secret ballot to fill a public office because it contains some language that makes it questionable whether the acts of any such public official are valid. The Court wasn't directed to any action of the superintendent of education, and treated as a consent decree the fact that the plaintiffs didn't seek to nullify any of the actions taken by the superintendent. But it seems clear that had the Court been pointed to a specific action of the superintendent, and had that action been challenged by the plaintiffs, the Court would have declared it null and void under Tennessee Code Annotated, § 8-44-105, which provides that actions done in violation of the Open Meetings Law are null and void (except for commitments, otherwise legal, affecting the public debt).
Here is a copy of that case for your review.
Sidney D. Hemsley
Senior Law Consultant