Closed Session Discussions Violated the OMA Even Though Litigation Possible

[authors: Scott Metcalf and Brian Crowley]

The Public Access Counselor of the Illinois Attorney General’s Office (PAC) issued a binding opinion last week finding that the Washington County Board Finance Committee violated the Open Meetings Act (OMA).  The violation stemmed from the Finance Committee going into closed session to discuss an ordinance, as a result of a letter from a company to the County Board indicating that if the company's concerns about the ordinance were not addressed it would “proceed to file an appropriate legal action.”  The PAC found the letter did not provide a reasonable basis for finding litigation to be probable or imminent.  In addition, the PAC found that the Finance Committee also violated the OMA by taking final action in closed session. 

Under the OMA, a public body going into closed session to discuss litigation must make a finding immediately upon entering closed session that litigation is probable or imminent and the basis for that finding.  In addition, a public body may not take final action in closed session.

In finding the Finance Committee improperly closed its deliberations, the PAC looked at several facts.  First, the PAC considered it unreasonable to find litigation probable or imminent in this case because the letter raising the possibility of litigation was sent by the company’s president, not its lawyer, three months before the closed meeting.  The three month period convinced the PAC that litigation was not imminent.  The possibility of litigation was also dependent on the company not being able to reach an agreement with the County concerning the ordinance.  This was not enough in the PAC’s opinion to make the litigation probable.  But, even if it had been reasonable to find litigation probable or imminent, the Finance Committee’s discussions in closed session were improper.  The minutes of the closed session reflected that the Finance Committee discussed the merits of the proposed ordinance, not the potential litigation.  According to the PAC, once in closed session, only the strategy, posture, theory, and consequences of the litigation itself can be discussed.  The Finance Committee’s discussion went beyond those subjects.

The PAC’s binding opinion also addressed whether the Finance Committee took a final action in closed session in violation of the OMA.  The minutes indicated that the Finance Committee decided to recommend approval of the ordinance to the full County Board.  The PAC found that the Finance Committee informally agreed to either recommend adoption of the ordinance or at least not oppose adoption of the ordinance.  The PAC opinion states that the Finance Committe's consensus constituted a final action in violation of the OMA because it constituted the Finance Committee's recommendation to the full Board.  According the PAC, the Finance Committee should have voted on that recommendation in open session.

This ruling is troubling because it interprets these two components of the OMA in an extremely narrow manner.  Given the ruling, public bodies should be particularly careful when using the litigation exception to the Open Meetings Act or acting in any manner that could be construed as a final action.  When issues arise, public bodies should contact their attorneys to avoid violating the OMA.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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