Suppose a local public body voted by a close margin to do something controversial for example, to award a large no-bid contract, or to grant a large tax abatement to a new industry that would create jobs and also create a serious pollution problem. Or suppose that just one vote in the state House of Representatives made the difference between cutting expenses and raising taxes.
Now imagine that the constituents who elected those officials had no way of knowing which of them voted for the proposal and which voted against. The right to deny re-election to officials based on their voting record, and the right to recall them between elections, would be nearly worthless, because voters would not be able to identify which officials to target and which ones to support.
Thanks to the Colorado Court of Appeals, that possibility now exists.
The appeals court ruled last week that although the Colorado Open Meetings Law (§ 24-6-402, C.R.S.) requires the board of a governmental entity to vote in open session, the law contains no specific prohibition against secret ballots. In plain English, Coloradans have no legal right to know how their elected officials have voted on their behalf.
The ruling came in a case in which the Fort Morgan city council used secret ballots to fill vacant seats on the council. The potential for abuse is easy to see.
The idea of casting a secret ballot in a public meeting is bizarre. It is contrary to the intent of those who crafted the Open Meetings Law, and Colorados journalists can say that with confidence because they have ongoing access to those very people.
The text of the law doesnt leave much room for doubt: It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.
The temptation to resort to secret ballots (and to dodge the other requirements of the Open Meetings Law) is understandable. Elected officials are called on to make controversial decisions that disappoint some voters and anger others. Congress right now has an 80 percent disapproval rating. Hardly anyone is happy with the state of politics these days; everything a politician does seems to be wrong. But those politicians who value progress over re-election have to be willing to own up to their principles and be honest with their constituents.
Fortunately, remedies exist. The state Supreme Court could reverse the decision. Both Gov. John Hickenlooper and the Colorado Press Association have committed to pushing for a legislative clarification to the states sunshine law, which was intended to ensure that the publics business is conducted in full view of the public. Although politicians are famous (perhaps unfairly so) for exploiting loopholes, opposing such a law would be unpopular and politically unwise. We call on state Rep. J. Paul Brown (R-House District 59), state Rep. Don Coram (R-House District 58), and state Sen. Ellen Roberts (R-Senate District 6) to immediately commit their votes to a well-crafted measure to restore sunshine to the legislative process.
The Colorado General Assembly does not convene again until January. Between now and then, voters can demand every elected officials pledge not to act in secret. Make the consequences of voting by secret ballot the same as the consequences of voting wrong and replace such officials with candidates who have nothing to hide.
