63 Op. Att'y Gen. 569 (1974)
 
63 OAG 569  570  571  572  573

Wisconsin Attorney General Opinions

23 November 1974

County Board; Elections;

County Board may not utilize unidentified
paper ballot in voting to appoint County
Highway Commissioner, but may vote by ayes
and nays or show of hands at open session if
some member does not require vote to be taken
in such manner that the vote of each member
may be ascertained and recorded. Section
66.77(6), Stats.

 
63 OAG 569  570  571  572  573

LAWRENCE R. HEATH,
Corporation Counsel, Oneida County

You request my opinion on three questions
relative voting procedures to be utilized
by the County Board in selecting a County
Highway Commissioner.

Section 83.01(1), Stats., as amended by
Chapter 262, Laws of 1973, provides in part:

83.01(1) ELECTION.

     The county board shall elect a
     county highway commissioner, . . .

Although the term "elect" is used, the County
Board is really appointing such officer and
exercises its power by voting pursuant to
Section 59.02(2), Stats., 61 OAG 116 (1972).

1.   In view of the prohibition against the
     use of secret ballots contained in
     Section 66.77(6), Stats., can the County
     Board vote by unidentified paper ballots
     if submitted in writing and thereafter
     tallied with the totals for each
     candidate announced publicly?

In earlier times such method of voting was
permissible at public meetings where neither
statute nor charter required aye or nay vote
recording and no statute prohibited the use
of a secret ballot.

State ex rel. Burdick v. Tyrrell (1914),
158 Wis. 425,
149 N.W. 280.

However, I am of the opinion that such voting
procedure would be in violation of Section
66.77(6), Stats., as created by Chapter 297,
Laws of 1973, which provides:

66.77(6)  Unless otherwise specifically
          provided by statute, no secret
          ballot shall be utilized to
          determine any election or other
          decision of a governmental body at
          any meeting, and any member of such
          body may require that a vote be
          taken in such manner that the vote
          of each member may be ascertained
          and recorded.

In my opinion such ballots would be secret
ballots within the meaning of that section
and I am not aware of any specific statute
which would permit members of the
County Board to vote by secret ballot.

 
63 OAG 569  570  571  572  573

This section is applicable to both
open sessions and closed sessions
of governmental bodies.

It is my further opinion that the election
of a County Highway Commissioner could not
be accomplished at a closed session of the
County Board.

An argument can be made that the Board is
"considering employment" and that Section
66.77(4)(a), Stats., would be applicable.

However, it is my opinion that, even if
Section 66.77(4)(a), Stats., is applicable to
consideration, the vote of the County Board
is not an integral part of such consideration
and would therefore have to be taken at open
session.

See

60 OAG 9, 16 (1971):

State ex rel.
Cities Service Oil Co. v. Bd. of Appeals (1963),
21 Wis.2d 516,
124 N.W.2d 809,

and

Board of School Directors of
Milwaukee v. WERC (1969),
42 Wis.2d 637,
168 N.W.2d 92.

In addition to the requirements in
Section 66.77, Stats., county boards are
subject to Section 59.04(4), Stats.,
which provides in part:

59.04(4)  The board shall sit with open
          doors, and all persons conducting
          themselves in an orderly
          manner may attend. . . .

Also see Section 59.17(1), Stats., as to the
duty of the county clerk to

     . . . record the vote of each supervisor
     on any question submitted to the board,
     if required by any member present . . .

The term "secret ballot" is not defined in
Section 66.77, Stats., or Section 990.01,
Stats. The general rule of Section 990.01(1),
Stats., is applicable and provides:

990.01(1) GENERAL RULE.

     All words and phrases shall be construed
     according to common and approved usage;
     but technical words and phrases and
     others that have a peculiar meaning
     in the law shall be construed
     according to such meaning.

I am of the opinion that the term "secret
ballot" as used in Section 66.77(6), Stats.,
has the same peculiar meaning which it has
in the law where elections involving
electors are concerned.

In

State ex rel. Briesen v. Barden (1890),
77 Wis. 601, 606,
46 N.W. 899, it is stated:

     . . . The absolute secrecy of the vote
     is required, and to secure that it must
     be by ballot. . . . The paper called a
     ballot must not disclose for what or for
     whom it is voted, except by the name of
     the person voted for and the office on
     the face thereof.

 
63 OAG 569  570  571  572  573

The court went on to state that certain
printing or writing on the outside of a
ballot to make the voting of it possible
and practicable and not placed there for
the purpose of making it known for whom
the elector votes would not render
a ballot invalid.

My answer to your first question would
not preclude the use of identified
paper ballots by a County Board.

I am of the opinion that where a paper ballot
is utilized by a County Board to appoint a
County Highway Commissioner, such ballot must
contain the name or other identification of
the member voting, in addition to the name of
the person voted for, even where no member
has requested that the vote be taken in such
manner that the vote of each member may be
ascertained and recorded.

Use of such ballots would prevent following,
[fn1] but would permit other members and
members of the public to ascertain how
individual members voted.

The ballots themselves would be public
records within the meaning of Section
19.21(1), Stats., and inspection would
be permissible under Sections 19.21(2)
and 59.71(1), Stats.

A secret ballot is required under Article
III, Section 3, Wisconsin Constitution, and
by statute in any election, with exceptions,
where electors exercise rights of suffrage.

The Constitution does not require and the
legislature has not deemed it necessary to
provide for the use of a secret ballot in
matters to be determined by County Boards
of Supervisors.

Supervisors do not vote on matters before
the body as electors, but rather, as
representatives of their constituents.

A secret ballot would defeat the
accountability factor of individual members
of the governmental body.

2.   May a vote be taken by ayes and nays
     where some member has not requested that
     the vote be taken in such manner that
     the vote of each member may be
     ascertained  and recorded?

I am of the opinion that ayes and nays
or a showing of hands can be used.

Other members and members of the public in
attendance would have some chance of
ascertaining how individual members voted.

When construed as a whole, Section 66.77(6),
Stats., would seem to permit such manner of
voting where an individual member had not
required voting in such manner that the
vote of each member could be
ascertained and recorded.

 
63 OAG 569  570  571  572  573

3.   Can the Chairman of the County Board
     request individual candidates leave the
     meeting room at the time the vote is
     taken?  He can make such a request.

     Removal cannot be required if such
     persons are conducting themselves in an
     orderly manner.  Sections 59.04(4),
     66.77(1), (2) (d), (3), Stats.

VAM:RJV

[fn1]     The act of following the lead of
          earlier voters in a roll call vote.
 
 
63 OAG 569  570  571  572  573