October 23, 2014

Medina
Partly sunny
56°F

Experts: Water authority’s secret ballots broke law

LAGRANGE — The Rural Lorain County Water Authority board’s use of secret ballots in a vote Wednesday to remove Mark McConnell violated Ohio’s Sunshine Laws, according to an open meetings expert and a 2011 opinion issued by Ohio Attorney General Mike DeWine.

“You can’t vote on anything in secret,” Tim Smith, an attorney and professor emeritus of journalism at Kent State University, said.

Smith said DeWine’s opinion and the law were clear that secret ballots are a violation of open meetings laws.

“Voting by secret ballot is the antithesis of the definition of ‘open,’ ” DeWine wrote.

During Wednesday’s meeting, the 26-member board, comprised of representatives from the communities served by Rural Water, first held a roll call vote in which they voted 15 to 11 to decide McConnell’s fate in secret.

After the decision was made to vote in secret, board members placed their votes on a piece of paper and the results were tabulated and announced.

McConnell, who was accused of lobbying to convince various township officials not to reappoint other members of the board, was removed by a vote of 17 to 9. McConnell has denied wrongdoing.

Steve Magyar then was named as the new Rural Water board member from Pittsfield Township by a 15 to 10 vote that was also done by secret ballot.

Medina County members on the board include Bryan Rose, Homer Township; Barbara Grubb, Litchfield Township; and Don Kostecki, Spencer Township.

LaGrange Township Trustee Gary Burnett, who sits on the Rural Water board, said he favored voting out McConnell and keeping the votes secret.

He said he feared that people might “not vote their conscience because of everybody there.”

It was a concern echoed by Dennis O’Toole, one of Rural Water’s attorneys, who noted that many of the board members are elderly.

“I think what the board was worried about was the intimidation factor,” he said.

Jeff Weir, McConnell’s attorney, said he doesn’t think the vote to remove his client was valid because of the secrecy. He also said that making decisions in public is part of the job of public officials, no matter how old they are or how unpopular their decisions might be.

“For any public servant, you’re elected, or appointed in this case, to express the opinions of your constituents or your opinion,” Weir said.

In his 2011 opinion, DeWine wrote that while public bodies are allowed to discuss certain issues in executive session, officials cannot take action unless they are in an open meeting. Secret ballots are akin to public bodies voting to take action in executive session, DeWine wrote.

“If the votes of the individual members of a public body are denied public scrutiny, the public is unable to properly evaluate the decision-making of the public body and hold its members responsible for their decisions,” DeWine wrote.

But Matt Dooley, another Rural Water attorney, said the issue isn’t so clear cut. He said there’s nothing in the law that specifically bars secret ballots and that another opinion from the attorney general’s office, written in 1980, said that secret ballots were acceptable.

Dooley and O’Toole said attorney general opinions aren’t binding on public entities.

DeWine’s opinion also addressed the earlier opinion, noting that while there isn’t anything under Ohio law that states secret ballots are illegal, the spirit of the law and court decisions call for a liberal interpretation of open meetings law that runs counter to public officials hiding their votes by secret ballot.

Dooley also said that Rural Water’s bylaws allow secret ballots in the selection of officers. There is no such provision for secrecy in the process used to remove a board member.

He said attorneys for Rural Water are reviewing the law and will respond if a formal challenge is mounted against McConnell’s ouster.

“We have two competing attorney general opinions, both of which say opposite things about secret ballots,” Dooley said. “And (the) bylaws, which were approved in the 1970s by a Lorain County Common Pleas Court judge, discuss the use of secret ballots in certain procedures. No court of law in Ohio has taken a position one way or the other on the prohibition of secret ballots.”

Burnett said that even if the vote was improper, the board always could go back and simply revote to remove McConnell.

His fellow board member, Kipton Mayor Bob Meilander, said he has serious concerns about the removal of McConnell and how it was carried out.

“I kind of feel Mark got a raw deal and I wish it had been an open ballot,” he said.

One longtime board member, who asked for anonymity because of a fear of retaliation by those who voted out McConnell, shared Meilander’s concern.

The board member also thought it was inappropriate that the public and those members of the Rural Water board not called as witnesses for or against McConnell weren’t allowed to speak before the vote.

“I found it a very distressing meeting,” the member said. “I was sorry that people weren’t given a chance to have their opinions heard.”

Contact reporter Brad Dicken at (440) 329-7147 or bdicken@chroniclet.com.