In a binding opinion, the Illinois Attorney General’s Public Access Counselor (PAC) found that the City of Hillsboro violated the Open Meetings Act (OMA) when it entered closed session to discuss “possible or threatened” litigation. The City entered into closed session to discuss an issue regarding a sewer main that a resident had asked to be placed on the agenda for public discussion because it was located on property owned by the resident, but the City did not appear to have an easement for the sewer main. The Mayor, however, declined to place the item on the agenda. The City Council discussed the issue in closed session, prompting the resident to submit a Request for Review to the PAC. The City responded to the Request for Review by arguing that it properly entered closed session under the “probable or imminent” litigation exception to the OMA.

Section 2(c)(11) of the OMA provides that a public body may hold closed meetings to consider litigation “when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.”

Here, the PAC found that the City Council failed to make the required finding that litigation was “probable or imminent” prior to entering closed session and also failed to record the basis for that finding in the meeting minutes. In addition, the PAC found that there were inadequate grounds for the City Council to find that litigation was “probable or imminent.” The PAC reasoned that a public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or that such occurrence is close at hand. Here, the resident’s comments before closed session indicated his continued desire to work with the City towards a resolution. Even though the City Council asserted that it planned to send a letter to the resident that could result in him taking legal action, that did not mean litigation was probable or imminent. The PAC explained that the “probable or imminent” litigation exception to the OMA is not meant to allow for discussions in closed session of underlying decisions or courses of action simply because they could give rise to litigation.

This opinion is an important reminder of the limitations of the “probable or imminent” litigation exception to the OMA. Boards should always be sure there is sufficient justification to use this exception and must always remember to make a finding that an action is probable or imminent, and to record the basis for the finding into the minutes of the closed meeting.

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

Source: http://foia.ilattorneygeneral.net/pdf/opinions/2021/21-003.pdf