Public Access Opinion 21-003

Improper Closed Session Discussion under the Exception for Probable or Imminent Litigation

Open Meetings Act - OMA
Case: Public Access Opinion 21-003
Date: Thursday, March 4, 2021

The City Council (City Council) of Hillsboro (City) violated Section 2(c)(11) of OMA by improperly using this closed session exception to discuss a matter that “could potentially give rise to litigation” instead of using it for “probable or imminent” litigation.

The Requestor alleged that the City Council improperly entered closed session during its November 24, 2020 meeting to discuss a City sewer main located on the Requestor’s property. The Requestor believed that the City did not have an easement under his parcel of residential property. Suspecting that a lawsuit over the matter was imminent, the City Council cited section 2(c)(11) of OMA to go into closed session to discuss it further.
Section 2(c)(11) of OMA states that a public body may hold closed session to consider any “probable or imminent” litigation against it. The PAC referenced several court cases and Attorney General opinions to define “probable or imminent.” The PAC concluded that if no litigation is pending, "there must be reasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such an occurrence is close at hand." The PAC noted that the closed session during the City Council’s meeting did not contain any discussion of “pending, probable, or imminent litigation.” In fact, Requestor’s comments during the open session of the meeting indicated that he wanted to continue to work with the City to resolve the issue.
As a result, the PAC determined the City improperly used Section 2(c)(11) and directed the City Council to release the closed session meeting minutes and the verbatim recording of the closed session.
This opinion is binding only to the parties involved and may be appealed pursuant to State law.