The newsletter of the ISBA’s Standing Committee on Government Lawyers
You can close the door, but…
When a public body meets, that meeting must be open to the public. We know, however, a public body may close its meeting to the public to discuss certain things. One of the subjects that may be discussed by a public body behind closed doors involves litigation. The Open Meetings Act provides, in part, that a public body may hold closed meetings to consider:
Litigation, when 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 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.
5 ILCS 120/2(c)(11).
There is generally no issue when a public body wishes to discuss litigation where an action has been filed with a court or tribunal against the public body, on behalf of the public body, or concerning the public body. In those instances, an action is pending. A pending matter is one that is begun, within traditional concepts of litigation involving “notice, pleading, trial and appeal.” People ex rel. Hopf v. Barger, 30 Ill.App.3d 525, 537 (1975) (litigation begun but not completed). If litigation has been filed and is pending, the public body need only announce that in the proposed closed meeting it will discuss litigation that is filed and pending. Henry v. Anderson, 356 Ill.App.3d 952, 956 (2005).
It bears noting that a public body may consult with its attorney at any time, and this consultation is not a meeting for the purpose of the Open Meetings Act. See People ex. rel. Hopf, 30 Ill.App.3d 538; Ill. Att’y Gen. Op. No. 83-026, issued December 23, 1983, at 7. Consultation may take place on prospective or foreseeable litigation, but may not be used to frustrate the right of the people to be informed as to the conduct of the people’s business. People ex. rel Hopf, 30 Ill.App.3d 538.
With the litigation exception, questions regarding the propriety of entering closed session under this provision usually arise when the public body seeks to close its meeting to the public to discuss “probable or imminent” legal action against, affecting, or on behalf of the public body. If litigation against, affecting, or on behalf of the public body has not yet been filed with a court or the tribunal, the public body must both find that: (1) the litigation is probable or imminent; and (2) record and enter into the minutes of the closed session the basis for that finding. Henry, 356 Ill.App.3d 956 - 57; 5 ILCS 120/2(c)(11).
For litigation to be “probable or imminent,” the public body must have reasonable grounds to believe that litigation is, more likely than not, to be commenced, or that such commencement is close at hand. Ill. Att’y Gen. Op. No. 83-026, at 10. For the public body to make the determination that litigation is probable or imminent, the surrounding circumstances must be examined in light of logic, experience, and reason. Id. A basis for finding litigation probable or imminent must be explicitly found and expressed. Henry, 356 Ill.App.3d 957.
In one case, a school board entertained a motion to go into Executive Session to discuss a “contested litigation matter.” Initially, the school board president characterized the litigation as “potential litigation.” The Illinois Appellate Court found that the board never explicitly found the litigation was probable or imminent or expressed any basis for such a finding. The court noted that in citing a “contested litigation matter” it was unclear whether “contested” modified “litigation” or “matter.” The court found that a violation of the Open Meetings Act had occurred because of the board’s failure to state on the record that litigation was probable or imminent and the basis for such a finding. Henry, 356 Ill.App.3d 954, 957.
In another instance, an attorney spoke in opposition to action by a city council on behalf of a client and even told the city council that litigation was not contemplated at the time. Nevertheless, the city council closed the meeting to “discuss pending, probable, or imminent litigation.” The Illinois Attorney General opined that there were insufficient grounds for the city council to believe litigation was probable or imminent. Ill. Att’y Gen. Op. No. 83-026, at 2-3, 11.
More recently, the finance committee of a county board met in closed session after receiving a letter in opposition to a proposed ordinance which stated, in part, “…[i]f we are unable to resolve this matter…[we] will proceed to file an appropriate legal action…” Based on that letter, the finance committee found litigation to be probable or imminent. The Illinois Attorney General, in a Public Access opinion, found no reasonable basis to believe a lawsuit was imminent or more likely than not to be filed. The opinion found it of note that the letter was sent by a non-attorney, three months prior to the meeting. Ill. Att’y Gen. PAC Op. No. 12-013, issued November 5, 2012, at 4-5.
Once the public body finds an action is probable or imminent and records and enters into its minutes the basis for that finding, the only matters it may discuss in closed session are the strategies, posture, theories, and consequences of the litigation itself. The public body cannot use the closed session to conduct deliberations on the merits of the matter under consideration, no matter how sensitive or controversial the subject matter, nor use the closed session to discuss taking an action or to make a decision on the underlying issue that is likely to be the subject of the litigation. Id at 4.
Public bodies can close the door to discuss litigation, but the procedure in 5 ILCS 120/2 must be followed, as the exceptions to having a meeting open to the public are strictly construed against closed meetings. 5 ILCS 120/1(2). ■