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City Council Improperly Invoked Probable or Imminent Litigation Exception to Enter Closed Session

By September 29, 2021October 4th, 2021News, The Extra Mile Newsletter

In City of Bloomington v. Raoul, an Illinois appellate court found that a city council improperly invoked the “probable or imminent” litigation exception under the Open Meetings Act when it entered closed session to discuss the possible termination of an intergovernmental agreement.  The closed session at issue lasted over an hour and focused on “how” the agreement between two neighboring communities should end and the possible consequences of such action.

The OMA permits a public body to close a meeting to the public when it finds that litigation is “probable or imminent,” provided that the basis for the finding is recorded and entered into the minutes of the closed meeting.

Although litigation was mentioned during the closed session, at the time of the meeting, no party had filed suit and the extent of the closed session discussion regarding litigation included only brief statements demonstrating that the council members believed that litigation was merely “plausible” and was a “minor issue.” The council members also discussed using the threat of litigation as a negotiating tactic in its future discussions.  Further, despite being cautioned by legal counsel to focus on discussing matters related to litigation, the council members instead discussed the possible approaches to termination of the agreement, the possible financial consequences of termination, and any potential public relations issues.

The appellate court found that the city council did not properly close the meeting because the council members did not did not reasonably believe that litigation was probable or imminent.  The court further found that even if the city council had properly closed the meeting, the city council violated the OMA by failing to confine its discussion to potential litigation.

This decision reinforces the strict interpretation that the PAC and the courts have taken when reviewing closed session exceptions under OMA. As we previously reported, the PAC used similar reasoning in a recent binding opinion finding that another city council improperly used the “probable or imminent” litigation exception. Based on the narrow interpretations, a public body should be sure that it has reasonable grounds to believe that litigation is probable or imminent, such reasons should be stated on the record, and then the public body must limit its closed session discussions.

If you have any questions regarding the OMA or the litigation exception, please contact Steve Richart or any of our attorneys in the Board Governance/Corporate practice group.

Source:  City of Bloomington v. Raoul, 2021 IL App (4th) 190539