The Public Access Counselor has concluded that a City Council improperly went into closed session under the exception for probable or imminent litigation to discuss a matter that could involve litigation. The subject matter was sensitive and had become controversial. The Attorney General noted that the “litigation” exception under the Open Meetings Act does not authorize closed session discussion of an underlying decision or course of action that could potentially give rise to litigation because of public opposition or controversy.  The Attorney General emphasized that for litigation to be “probable or imminent”, warranting the closing of a meeting, 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.  Finally, once the litigation exception is properly invoked, the only matters which can properly be discussed in closed session are the strategies, posture, theories, and consequences of the litigation itself.  The Attorney General reminded the City that in relying on the closed session exception for litigation, a public body must make a determination or finding and then record in its closed session minutes that legal action concerning that matter was probable or imminent and the basis for such a finding, as required by section 2(c)( 11) of the Open Meetings Act.

PUBLIC ACCESS OPINION 21- 003 Request for Review 2020 PAC 65927 (March 4, 2021) Illinois Attorney General

A full copy of the decision of the Illinois Public Access Counselor is available at:

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

A more detailed summary of the decision is set forth herein.

 

 

SUMMARY OF BINDING DECISION

PUBLIC ACCESS OPINION 21- 003

Request for Review – 2020 PAC 65927 (March 4, 2021)

 

BACKGROUND

The City Council of the City of Hillsboro went into closed session to discuss a sewer issue impacting certain properties in the City.’ An area resident (“MB”) located a sanitary and storm sewer main running under a residential parcel upon which he proposed to construct a garage.  According to MB’s information, the City did not have any easement rights over the property for the sewer main. MB sought to meet with the City’s Commissioner of Public Utilities and the City’s attorney, but was unsuccessful.  Absent the meeting option, MB then sought to be placed on the next City Council agenda to raise issues regarding the sewer main which potentially impacted him and other homeowners.  

The day after MB emailed the Mayor about his sewer issues, seeking to be placed on the meeting agenda, he noted that the City Council’ s agenda listed a closed session to discuss ” possible litigation”.   

When MB sought certain responses from the Mayor regarding the sewer issues she responded the matter would not be resolved quickly and that: 

“We as a council will be discussing it with our attorney in closed session so there is no need to discuss during open meeting. I can not [ sic] guarantee there will be a decision after that. We too are working on this.”

The day after the City Council meeting the Mayor wrote to MB addressing possible and available options. The letter did not mention possible or pending legal action.  MB shared with the PAC that the only time he referred to the possibility of hiring an attorney was regarding the meeting scheduled with City officials and the City’ s attorney when he asked if he should bring an attorney (and received no response from the City).

In its response to the PAC request for review of its closed session, the City provided its verbatim recording and closed session minutes.  The City also contended that it had gone into closed session properly regarding the “property issue with which Mr. Bradley was concerned”, because it involved possible or threatened litigation.

 

 ANALYSIS

The PAC emphasized that the OMA exception allowing the discussion of litigation in closed sessions is limited to the following:

“when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or 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.”   5 ILCS 120/2(c)(11)

The PAC noted the following governing legal principles established by the Illinois Courts and prior opinions of the Attorney General to properly rely on the “litigation” exception to go into closed session:

• This exception cannot be relied upon to go into closed session to discuss potential or possible litigation without finding that litigation is ” probable” or imminent.” Henry v. Anderson, 356 Ill. App. 3d 952 (2005)
• Based on judicial definitions of the terms ” probable” and ” imminent,” the Attorney General concluded that “[ f]or litigation to be probable or imminent, warranting the closing of a meeting, 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.” Ill. Att’ y Gen. Op. No. 83- 026 (December 23, 1983).
• The exception does not permit a public body to enter closed session to discuss the possibility of litigation merely because it has taken action that generated public opposition. Att’ y Gen. Pub. Acc. Op. No. 16- 007, (September 13, 2016)
• The Attorney General has noted the limited scope of the contents of any closed session discussion held due to probable or imminent litigation, advising that “the litigation exception may not be utilized to conduct deliberations on the merits of a matter under consideration regardless of how sensitive or controversial the subject matter may be.” Ill. Att’ y Gen. Op. No. 83- 026, (December 23, 1983).
• Once the litigation exception is properly invoked, the only matters which can properly be discussed in closed session are the strategies, posture, theories, and consequences of the litigation itself, not a general discussion of the problem related to the litigation and how to address the problem with options or solutions other than litigation. Att’y Gen. Op. No. 83- 026. 
• If the possibility of a lawsuit over an issue influences the decision of a public body as to whether to take a certain action regarding a problem or circumstance, that matter should be discussed in an open meeting since it goes to the merits of the question rather than to the litigation itself.    Att’y Gen. Op. No. 83- 026
• Even if there are reasonable grounds to believe that litigation is probable or imminent, it is not permissible for a public body to use the closed session to discuss taking an action or to make a decision on the underlying issue that is likely to be the subject of the litigation. Att’y Gen. Pub. Acc. Op. No. 12- 013 (November 5, 2012)

 

INVESTIGATION AND CONCLUSIONS OF PUBLIC ACCESS COUNSELOR

The City claimed that it properly discussed “possible or threatened” litigation in closed session because M.B. ” had … previously told the Council in open session that he was going to retain an attorney if this was not resolved to his satisfaction.”  

The Mayor contended that at a prior meeting MB demanded responses to his questions about the sewers under his property.  The City wrote to MB but did not have solutions for the problem and concluded that on that basis MB may file a lawsuit.  The City explained that the closed session was needed to share with the City Council that sending a letter to MB regarding the lack of solution could result in litigation.  

The Attorney General noted that MB’s comments during public comment at the City Council meeting, before the City Council adjourned to closed session,  indicated the City had made no progress on resolving the sewer main issues in the months since they arose, and that the information from the City had been inadequate.  At public comment MB stated:

“I do understand the complexity of this problem probably more so than most, and that the solution will not happen overnight, which is why I am being so diligent. If a plan was put in place that would satisfy me as a homeowner, that would be acceptable, it would be progress.”

MB shared that he had not posted his concerns on social media because he was trying to follow the proper process by communicating directly with City officials.   MB asked how the Council could go into close session about this matter without a full public discussion about the sewer – related infrastructure and any technical solutions that might be feasible.  He specifically asked what the City had to hide by going into closed session. 

The Mayor Duncan and City Council commented to MB that there was no point discussing the issue in open session  since the Council would be discussing the process in closed session and that the problem could not be fixed quickly.  MB responded that he wanted to be kept informed throughout this process,  that the budget approval was still 6 months away and that he was not asking for an immediate solution,  he just wanted a plan.

Reviewing the circumstances of the meeting then, the Attorney General found that the only mention of litigation by either party during this exchange was MB’s question about whether residents of the City should be concerned that the City would take legal action against them. Prior to going into closed session, the Mayor read the meeting agenda item for closed session to discuss ” possible litigation”.   One member of the City Council asked about the basis for indicating he was not sure it is for possible litigation.

The City’ s attorney stated that the Open Meetings Act allowed the Council to go into closed session for  possible or threatened litigation,  and that the only matters that would be discussed would be issues relating to possible or threatened litigation.

After the City Council meeting and closed session, the Mayor wrote to MB noting the unique nature of the problem, multiple options considered, those being explored, likely costs, grant funding and that the City remained committed to attempting to find a resolution to not only this problem, but also similar problems throughout the City.  The Mayor thanked MB  for his anticipated cooperation and patience as the City worked through these issues and attempted to find a workable solution for all parties.  There was no reference in the letter to litigation being probable or imminent.   

The Attorney General then concluded that none of the information it reviewed regarding the City Council closed session indicate that the City Council had reason to believe that litigation concerning the issue involving MB was probable or imminent and that the possible or threatened litigation standard noted by the attorney for the City Council is not the applicable legal standard.   During its closed session, the City Council make a determination of or enter a finding that litigation concerning the sewer issue was probable or imminent.   The possibility of litigation at some point in the future if the efforts to find a solution did not succeed was an insufficient basis to go into closed session.  The City Council’ s explanation, that sending its letter to MB, following its closed session,  could have resulted in him taking legal action because the letter did not resolve his concerns, did not justify closing the meeting to the public.  The Open Meetings Act does not authorize closed session discussion of an underlying decision or course of action simply because it could potentially lead to litigation some time later.

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