Secret ballot may have broken state law

Chris Hunter / The Bulletin

Members of the Faculty Senate raise their hands in support of voting by secret ballot on the new general education proposal on Tuesday.

The Faculty Senate may have violated the Kansas Open Meetings Act when it voted by secret ballot on Tuesday to change the university’s General Education requirements.

The ballots were destroyed after the 17-10 vote was tallied.

“If the faculty senate is acting as an advisory board, by giving recommendations to an executive, then their actions should be subject to the open meetings law and the open records law,” said Adam Goldstein, an attorney advocate for the Student Press Law Center in Arlington, Va. “If they resort to a secret ballot, and then destroy the ballots, one or both of the following would seem to be true: they have violated the open records law by shredding the ballots, or they have violated the open meetings law by conducting a secret ballot in the first place. In any case, it certainly frustrates the purpose of the open government laws to attempt to circumvent public knowledge of votes, and someone's arbitrary rules of conduct are a poor replacement for the law.”

The senate voted to suspend its own constitution for the duration of the meeting to allow the secret ballot.

Kevin Coulson, associate professor of business administration and education, made a motion for the secret ballot. But Harvey Foyle, professor of instructional design and technology and president of the Faculty Senate, later said he had already been thinking about using a secret ballot.

“I’d been announcing we were going to be doing a secret ballot and then I found out that our constitution does not allow a secret ballot-- that’s what our parliamentarian informed me of,” Foyle said. “And so they, apart from me, they brought up the motion of a secret ballot. I had already planted that, that’s the way I wanted to do it…He [Kevin Coulson] did what he did to make it appropriate.”

The Kansas Open Meetings Act (KOMA) says that all public bodies and subdivisions “shall be open to the public and no binding action by such bodies shall be by secret ballot.”

The Senate voted 24-4 in favor of the secret ballot. The names of the four who voted against were not recorded in the senate minutes.

“We maintain the number of votes, pros, cons, abstentions,” said Amy Sage Webb, associate professor of English and first vice-president of the senate. “We don’t keep a tally of who voted. That’s not the way the senate is working. It’s not against the rules to do it one way or another.”

When asked if the senators believed they were under the jurisdiction of the KOMA and if they had discussed the Act, Webb replied yes.

“Kansas Open Meetings Law is something that we are always aware of by posting our agendas in advance so that people can know what’s on the agenda,” Webb said. “We post our meetings on the web and anybody can come to the senate. We feel that this is the way we are in compliance.”

At the time of the meeting, Gary Holcomb, associate professor of English, expressed concern over a having a secret ballot. Later, Holcomb said in an email “It was just a question about a point of order. I’ll probably ask the president about it. But it’s not an issue.”

Coulson said he did not consider the ballots used during the meeting as secretive.

“It’s not a secret,” Coulson said. “It’s a clearly allowed procedure…The idea came out in Senate Executive Committee. The concern was there was a minority group on campus pressuring the people to vote in the minority group’s interest to the disadvantage of everybody else on campus. To avoid that pressure… I came up with the idea.”

Coulson did not identify the minority groups.

“Any body that operates under a legislative body is usually under Robert’s Rules of Order in addition to the bylaws of their organization,” Coulson said.

Although Robert’s Rules of Order may apply to the senate, so might the Kansas Open Meetings Act said a representative of a state press group.

“They may choose to follow the Robert’s Rules of Order, but those don’t trump the Kansas Open Meetings Act statute,” said Mike Merriam, attorney for the Kansas Press Association.

The Bulletin contacted the Kansas Attorney General’s Office and was referred to the Lyon County prosecutor. John Marcus Goodman, the county prosecutor, said he planned on calling the attorney general’s office on Thursday to request more information.

“As to a Faculty Senate, I cannot find an opinion on point,” said Goodman. “It doesn’t mean it is not subject to it, but it also doesn’t mean it is subject to it either.”

Foyle did not know if the Faculty Senate was governed by KOMA. He did say, however, that all meetings were open by policy.

According to Foyle, the ballots were destroyed. When questioned about whether there was proof of the voting count, Foyle replied that the three people who observed the ballots were his proof. He also did not know if the Faculty Senate was governed by the Kansas Open Records Act.

“Under the rule and regulations of the Kansas Board of Regents which is governed by the State of Kansas, we follow the law and the regulations and the rules,” Foyle said. “Whatever those are, we follow them. If we violated them, we have to follow them.”

Foyle said he would need to ask the university lawyer if the senate was under KOMA. He also stated that the president and vice presidents of the university should also know if the senate was under KOMA.

University Counsel Tracy Greene declined an interview.

Through an assistant, Greene said she would only speak to The Bulletin if both the previous Faculty Senate president and a current member of the senate were spoken to first. It is the general policy of The Bulletin to not negotiate conditions for interviews.

“If we are in violation, which I can’t say we are…we will definitely re-hold the vote that’s to be in compliance,” Foyle said. “If we’re not in violation, then we won’t do anything different. If we are covered by the Open Meetings Act, this is not stated in our constitution, and I will ask our Faculty Senate Executive to draft a bill sometime to amend the constitution so it’s clearly stated there, so there’s no misunderstanding.”