Attorney General Finds Village Violated Open Meetings Act

September 15, 2016

On September 13, 2016, the Illinois Attorney General issued its seventh binding Public Access Opinion of 2016. In the opinion, the Attorney General found that a village violated the Open Meetings Act when it improperly conducted a closed session to discuss “Pending/Imminent Litigation.”

The case stemmed from a May 31, 2016, special meeting where village residents addressed the village board concerning a proposed resolution to issue new bonds for a sports complex. At the meeting, members of the public were informed that their backdoor referendum was inadequate. In response, one resident stated that the village was “forcing a lawsuit [from the residents].” Immediately thereafter, the village board voted and approved the resolution to issue bonds.

Subsequently, the agenda for the village board’s June 6, 2016, meeting listed “Pending/Imminent Litigation” for executive session. During the meeting, the same resident from the May 31, 2016, special meeting clarified that their group would not be proceeding with a lawsuit. Thereafter, the village board entered a closed session to discuss pending, imminent litigation. At no time did the board give any basis for determining that litigation was “pending” or “imminent.”

Section 2(c)(11) of the Open Meetings Act permits a public body to go into closed session to discuss “litigation . . . 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.” Further, and as a previous Illinois Attorney General already held, “[t]he fact that the public body may become a party to judicial proceedings because of the action it takes does not permit it to utilize the litigation exception to conduct its deliberations in closed sessions.”

As such, the Attorney General found that the village violated the Open Meetings Act by failing to give a basis for its belief that litigation was probable or imminent. Moreover, because the mere possibility that a lawsuit might be filed does not constitute probable or imminent litigation, the Attorney General also found that the Village violated the Open Meetings Act when it discussed the possibility of litigation in closed session. As a result, the village was directed to disclose and make publicly available that portion of the closed session’s verbatim recording related to the bond sale.

This opinion should serve to remind municipalities that caution is necessary when entering closed session to discuss pending litigation.