Recently, the Public Access Counselor (PAC) issued a rare binding opinion finding that the City Council of Bloomington violated the Open Meetings Act when it held a closed meeting to discuss potential litigation that the PAC determined was not probable or imminent.

Section 2(c)11 of the Open Meetings Act (“OMA”) allows a closed meeting involving litigation, including, when a public body finds that an action is probable or imminent, in which case the basis for the finding must be recorded and entered into the minutes of the closed meeting.

Here, Bloomington went into closed session under the probable or imminent litigation exception to discuss possibly terminating an intergovernmental agreement it had with the Town of Normal; the City relied on this exception because it believed that litigation with Normal was probable if Bloomington terminated the agreement. Among other things, this belief was based on a threat made in 2014 by Normal’s mayor to sue if the intergovernmental agreement was terminated. Plus, there was ongoing debate between Normal and Bloomington in regard to whether or not the agreement could be terminated unilaterally. During the closed meeting, Bloomington discussed how to go about terminating the agreement, but apparently did not discuss strategies and consequences of the possible litigation.

Despite Bloomington’s contention that the closed meeting was legal, the PAC found that Bloomington’s closed meeting discussion was not authorized under the probable or imminent litigation exemption.

The PAC had two concerns with Bloomington’s actions. First, to utilize the probable or imminent litigation exception, a public body must establish that litigation is more likely to occur than not. The fact that litigation may ensue is not enough to use the probable or imminent litigation exception. The PAC emphasized that concerns about the agreement had been on-going for some time without litigation and Bloomington failed to establish that litigation was more likely than not.

Second, the closed meeting discussion did not focus on the strategies, posture, theories, and consequences of any probable litigation. Instead, the discussion focused on Bloomington’s course of action with respect to the Agreement. According to the PAC, if a public body utilizes the probable or imminent litigation exception, it only has the authority to talk about the probable or imminent litigation itself.

Based on this PAC opinion there are two key take-aways for public bodies: 1. to utilize the probable or imminent litigation exception, a public body must reasonably believe that litigation is more likely than not to occur and must include those reasons on the closed session verbatim recording and in the written minutes; and 2. the public body must focus the discussion on the implications and strategies for litigation, not on the matters that may lead to litigation.

Determining whether use of the probable or imminent litigation exception is legally appropriate, is not a simple analysis and is dependent primarily on the particular facts of the matter to be discussed. Therefore, prior to going into closed session to discuss probable or imminent litigation, a public body should seek advice from counsel.

*Thalia Pacheo will be a third-year law student at DePaul University this fall and is a Franczek Radelet LEADS Fellow.