HIGHLIGHTS:

  • Illinois Attorney General Lisa Madigan has issued a binding opinion concerning the City of Bloomington City Council, finding that the City Council violated the Open Meetings Act for discussing potential litigation in closed session when litigation was not probable or imminent.
  • The Illinois attorney general further limits its interpretation of the scope of the Open Meetings Act's "probable or imminent litigation" exception, holding that the exception allows discussion of litigation strategy and posture only, and not issues underlying the litigation threat.

Illinois Attorney General Lisa Madigan has issued a binding opinion concerning action taken by the City of Bloomington City Council. The binding opinion further limits the attorney general's interpretation of the Illinois Open Meetings Act (OMA) exception authorizing discussion of probable or imminent litigation in closed session.

Illinois Public Access Opinion 17-004

In Public Access Opinion 17-004, issued on June 6, 2017, the City of Bloomington City Council was accused of violating the OMA for going into closed session to consider terminating an intergovernmental agreement with the Town of Normal. Bloomington contended that it had a right to unilaterally terminate the agreement, but Normal claimed otherwise. Based on this disagreement, Bloomington's City Council entered closed session pursuant to Section 2(c)(11) of the OMA and made a finding that litigation was probable. Based on this finding, the City Council discussed in closed session whether the city should terminate the agreement in light of possible litigation.

Section 2(c)(11) of the OMA authorizes discussion in closed session of litigation when 1) 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 2) the public body finds that an action is probable or imminent. If there is no filed or pending litigation, Section 2(c)(11) requires the public body to record and enter the finding of why an action is probable or imminent in the minutes of the closed meeting.

Relying exclusively on a 1983 attorney general opinion – Ill. Att'y Gen. Op. No. 83-026 – interpreting a prior, but substantially similar version of Section 2(c)(11), the attorney general concluded that Bloomington's closed session discussion violated the OMA in two ways.

First, the attorney general found that the City Council did not have a reasonable basis for finding that litigation was probable or imminent. According to the attorney general, "[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." The fact, without more, that a public body may be named in litigation is not sufficient. The attorney general determined that it was not necessarily unreasonable for the City Council to believe that terminating the agreement could at some point result in litigation. However, the dispute between Bloomington and Normal had been going on for some time. The attorney general concluded that the City Council did not have reasonable grounds to believe that a lawsuit was more likely than not to be instituted or was otherwise close at hand.

Second, the attorney general faulted Bloomington's City Council for discussing the "City Council's course of action with respect to the Agreement" in closed session, and not only the litigation. The attorney general explained that Section 2(c)(11) permits public bodies to discuss in closed session only "strategies, posture, theories, and consequences" of the litigation itself, and not deliberation on the underlying issues that may result in litigation. The essence of the attorney general's opinion is that Section 2(c)(11) should be interpreted narrowly and cannot be used to move deliberations on controversial issues into closed session because there is a threat, however significant, of litigation. Accordingly, under the attorney general's interpretation, any discussion in closed session on the underlying issues must be necessary in order to analyze specific litigation strategies, postures, theories and consequences.

Absent from the attorney general's opinion is any discussion of the legislative history or case law interpreting Section 2(c)(11). Also absent is any recognition that there may be a significant public interest in allowing public bodies to discuss and deliberate in closed session on an issue that is likely to lead to litigation. An overly narrow interpretation of Section 2(c)(11) may remove important opportunities for local governments to avoid litigation.

Practical Implications

The attorney general opinion is binding only on the City of Bloomington. Nevertheless, this binding opinion shows how the attorney general will view the scope of the litigation closed session exception in similar circumstances. The attorney general will scrutinize a public body's findings that litigation is probable or imminent. According to the attorney general, the mere possibility that a matter may result in litigation or a threat of litigation by a hostile party cannot be used alone as a talisman to justify closed session. Public bodies should make sure before engaging in closed session deliberations pursuant to the probable or imminent litigation exception in the OMA that: 1) their findings are reasonable in light of the actual risk of litigation, and 2) their reasons for finding that litigation is more probable than not or close at hand are detailed in the closed session minutes and on the verbatim recordings.

More significantly, even in situations in which there is a justified finding of probable or imminent litigation, the attorney general's interpretation restricts the ability of public bodies to engage in confidential deliberations on issues underlying the threat of litigation.