If you could read my mind, love, What a tale my thoughts could tell….

Yesterday I did a seminar for librarians in the state on the sunshine law. One of the questions that came up was whether a vote by consensus in a closed meeting had to be recorded.

First, i think it’s important to note that all votes in a closed meeting “shall be taken by roll call” as is stated in Section 610.015. That goes with the section that states minutes shall be taken of all open and closed meetings (Section 610.020).

(And as an aside to the public governmental body this week that argued to a reporter that they only had to release “the vote” and not the “motion,” the exception are to be strictly construed to favor openness. When an exception says to release “the vote,” clearly that means all information relating to the motion and vote count, if you interpret the law broadly and the exception narrowly. The language there specifically says “any vote on a final decision … shall be made available.” It doesn’t say just “the vote,” but encompasses the “final decision” also. To be honest, this is one of those arguments that I think a judge would laugh someone out of court over!)

When a public body has a discussion in a closed session, and that discussion becomes what is called in these situations a “consensus,” that’s because each member of a body has stated or otherwise given an indication of the position of that member as to an issue. The reality is that such a statement or indication is a “vote.” Public bodies can only act by taking a vote and there is nothing in the state laws that authorizes public bodies to act by consensus. In fact, there is one decision where a court said that under a statute requiring authority for contracts executed by a municipality to be in writing, an employment agreement executed between a fire protection district and district employees was void, even though other evidence established actual consensus between the parties, where the district’s board neglected to duly appoint and authorize, in writing, the chairman to execute contract. Clearly, this is a case where a formal vote was not taken and the fire district contract failed because of it.

Acting by consensus has no wings to support an action. Get a motion and take a real vote.