Improper Closed Session Discussion under the Exception for Probable or Imminent Litigation
The Illinois Appellate Court for the 4th District (Court) considered an appeal from the Circuit Court of Sangamon County (Circuit Court), and held that the Bloomington City Council (City Council) improperly invoked the closed session exception for probable or imminent litigation under Section 2(c)(11) of the Open Meetings Act (OMA).
In 1986 the cities of Bloomington and Normal entered into an intergovernmental agreement for sharing revenue and expenses, and the agreement was effective until cancelled or revised by mutual agreement. In April 2014, a dispute arose between Bloomington and Normal about the agreement and Bloomington advised Normal that it intended to vote to terminate it. Normal responded that it was willing to discuss a termination plan. On February 20, 2017, the City Council entered closed session to discuss the agreement using OMA’s exception for probable or imminent litigation in Section 2(c)(11). Though the City Council’s attorney reminded the body that its discussion should be confined to options more or less likely to get the City in or out of litigation, the closed session discussion focused on the public relations aspect of terminating the agreement, possible approaches to terminating the agreement, and the economics involved. Neither city had filed suit at this time, and the City Council’s attorney thought litigation “could be plausible.” A week later, the McClean County State’s Attorney wrote to the Illinois Attorney General’s Public Access Counselor (PAC) asking it to review the closed session. On June 6, 2017, the PAC issued a binding opinion finding that the City Council violated OMA by improperly entering closed session without reasonable grounds to believe a lawsuit was more likely than not to be instituted or was close at hand.
The City Council appealed the PAC’s decision to the Circuit Court, which reversed the PAC’s binding opinion. The Illinois Attorney General then filed this appeal. Reviewing this matter, the Court found that because there was no litigation pending at the time of the meeting and City Council members didn’t reasonably believe litigation was probable or imminent, the City Council improperly invoked the Section 2(c)(11) closed session exception. The Court also held that even if the City Council had lawfully entered closed session, it violated OMA during closed session because their discussion did not focus on litigation. The Court reversed the Circuit Court’s judgment reversing the PAC’s binding opinion.