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Public Access Opinion 16-007

Improper Closed Session Discussion of Legal Matters Under Exception for Pending, Probable or Imminent Litigation

Administrator Contracts
Case: Public Access Opinion 16-007
Date: Tuesday, September 13, 2016

The public body violated Section 2(a) of OMA at its June 6, 2016 meeting by: 1) closing a portion of its meeting to discuss legal matters under the Section 2(c)(11) exception for pending, probable, or imminent litigation without recording or entering into the closed session minutes its basis for finding that litigation was probable or imminent; and 2) discussing the mere possibility of legal action related to a bond sale during closed session without reasonable grounds to believe that a lawsuit was more likely than not to be instituted or that such an occurrence was close at hand. At a previous meeting of the same public body on May 31, 2016, a member of the public addressed the public body regarding the bond sale issue and stated that the public body was “ignoring the residents” and thus “forcing a lawsuit.” Prior to moving into closed session at the June 6, 2016 meeting, however, the same member of the public again addressed the public body, this time to clarify that her group was “not proceeding with a lawsuit. So I wanted to make it clear that if this is in fact the pending or imminent litigation, there is none on our part.” Due to the absence of “reasonable, specifically identified grounds” to believe litigation related to the bond sale was close at hand, the PAC found the public body was not justified in entering closed session. The PAC ordered the public body to make publicly available the portion of the closed session verbatim recording of its June 6, 2016 meeting related to the bond sale issue.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.