Illinois Attorney General Lisa Madigan has concluded city leaders in downstate Bloomington violated the state's Open Meetings Act in discussing potential litigation in closed session when litigation was not probable or imminent.
In the opinion, Madigan recommended the “imminent litigation” exception to the OMA be limited in its scope so as not to allow governmental bodies to exploit that provision by holding meetings in secret when they should be open to the public.
The Bloomington City Council was accused in June of violating the OMA by going into a closed session to consider terminating an intergovernmental agreement with neighboring community, the town of Normal. Bloomington officials said they had a right to terminate the agreement, but those in Normal disagreed. The Bloomington City Council made a finding that litigation in the matter was “probable” and then went into closed session to discuss it.
Peter Friedman, an attorney with the firm of Holland & Knight in Chicago, said a reporter had challenged Bloomington's use of the exception to the OMA.
“The attorney general’s opinion is only binding on the municipality involved,” Friedman told the Cook County Record. "It is not binding on any other public body. However, the opinion does provide guidance on how the AG interprets this important provision of the OMA.”
A section of the OMA states that a body may go into closed session when a legal action against it has been filed or when the body finds that a legal action is probable or imminent. An additional rule requires the body to disclose why a legal action is probable.
Madigan in her opinion found that Bloomington did not have a reasonable basis for a finding that legal action from the city of Normal was probable.
“The dispute between Bloomington and Normal had been going on for some time, and to close a meeting there must be reasonable grounds to believe a lawsuit is likely,” a communique from the attorney general’s office read.
The attorney general also faulted Bloomington for discussing in closed session a course of action concerning the agreement with Normal, and not just possible litigation.
Madigan’s action is a “binding opinion” designed to limit the scope of abuse by governmental bodies who misuse the “potential litigation” clause to hold closed meetings. Madigan added that her office would continue scrutinizing government meetings to make sure the OMA is used properly.
Friedman said he believed the public will not be served if the interpretation by the attorney general is too narrow.
“If the adoption of an ordinance triggers a threat of litigation, a public body should be allowed to discuss the threat in closed session,” he said.
Friedman added it is common for public bodies to use the “imminent litigation” exception to discuss matters in private.
“It’s used often,” he said. “It is important for local governments to be able to strategize about upcoming litigation confidentially.”