Illinois Appellate Court Finds Improper Use of OMA Litigation Exemption

Franczek P.C.

Franczek P.C.

The Illinois Appellate Court recently issued an opinion providing additional guidance about the “probable or imminent” litigation exception to the Open Meetings Act (OMA) open meeting requirement. In City of Bloomington v. Raoulissued on April 26, 2021, the Court held that the city council improperly invoked the litigation exception to enter closed session and, even if it had entered closed session properly, exceeded the scope of the litigation exception during closed session. This case is an important reminder of the requirements for entering closed session through the “probable or imminent” litigation exception in the OMA.  

City of Bloomington centered on the city council’s decision to enter closed session to discuss termination of an agreement with a neighboring town, Normal. The city council cited Section 2(c)(11) of the OMA as its reason for entering closed session—the probable or imminent litigation exception. Following the meeting, the McLean County State’s Attorney asked the Public Access Counselor (PAC) to review the city council’s closed session meeting. The PAC issued a binding opinion, finding that the city council violated the OMA. The PAC reasoned that the city council entered closed session improperly because it did not have reasonable grounds to believe that litigation was probable or imminent. Additionally, the PAC found that the city council’s closed session focused on its course of action in terminating the agreement at issue, rather than strategies of probable litigation. The PAC’s decision was appealed, and the circuit court reversed the PAC’s decision. The case was then appealed to the Illinois Appellate Court.  

The Illinois Appellate Court ultimately reversed the circuit court’s decision and agreed with the PAC, finding the city council violated the OMA. The Court found that the city council improperly relied on the probable or imminent litigation exception because there was no pending litigation, and the city council could not reasonably believe that litigation was probable or imminent. In coming to this determination, the Court noted that the city council’s attorney did not know if Normal would have a valid claim if the city council terminated the agreement and Normal did not make any indication that litigation was forthcoming. Additionally, various city council members stated that there was “no clear cut road” to litigation and that potential litigation would be a “minor issue.” Ultimately, the Court found that most of the city council’s discussions during closed session did not reflect the belief that litigation was probable or imminent.  

Finally, the Court held that even if the city council properly entered closed session pursuant to the litigation exemption in the OMA, it failed to confine its discussions to probable or imminent litigation. Instead, the discussions focused on the public relations aspects of terminating the agreement, approaches for termination, and economic consequences of terminating the agreement. Here, the Appellate Court has continued the trend of narrowly interpreting the OMA and especially the probable or imminent litigation exception. In utilizing the probable or imminent litigation exception, public bodies must have reasonable grounds to believe litigation is in fact probable or imminent. Further, public bodies must limit closed session discussions to permissible closed session topics and must avoid straying off topic. 

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.

© Franczek P.C. | Attorney Advertising

Written by:

Franczek P.C.

Franczek P.C. on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.