Opinion on Open Meetings Act

By Peter M. Murphy, Legal/Legislative Counsel

The Attorney General's office recently rendered an opinion on the litigation exception to the Open Meetings Act.

Members should find this opinion (Opinion No. 83-026) instructive when taking under consideration whether or not to go into closed session under the litigation exception to the Open Meetings Act. It should be emphasized that any exception utilized under the Act will be viewed and should be construed strictly in favor of open meetings. Section 2 of the Act (II. Rev. Stat. 1983, Ch. 102, Par. 42) provides:

"All meetings of public bodies shall be public meetings except for * * * (h) meetings held to discuss litigation when an action against or on behalf of the particular public body has been tiled and is pending in a court or administrative tribunal, or when the public body finds that such an action is probable or imminent, in which case the basis for such a finding shall be recorded and entered into the minutes of the closed meeting in accordance with Section 2.06."

The Act clearly requires, therefore, that if litigation is not pending, but rather only probable or imminent, the public body must make and record in its minutes of the open session a finding that the litigation is probable or imminent as a prerequisite to closing a meeting to the public under the above cited exception.

While the General Assembly has historically recognized the desirability of preserving confidentiality in matters of litigation, it has balanced this interest against the competing interest of open meetings. In fact, prior to the amendment of the Open Meetings Act in 1982 (Public Act 82-0378, effective January 1, 1982), the litigation exception was limited to discussion of litigation which was actually pending. Pending litigation has been defined in People ex rel. Hopf v. Barger as that which has "begun, but not yet completed" and in doing so the court held that "The question of litigation begins in terms of notice, pleadings, trial, and appeal."

In Williams vs. Walsh (1950), the court defined the term "probable" as follows: "(I) Having more evidence for than against; supported by evidence strong enough to establish presumption, but not proof, of its truth; ... (3) Likely to be or become true or real; such as logically or actually may be or may happen; reasonably, but not certainly, to be believed or expected. . . ."

In Illinois National Bank and Trust Co. of Chicago vs. United States (7th Circuit 1974) the court defined "imminent" as: "something which is threatening to happen at once, something close at hand, something to happen upon the instance, close although not yet touching, and on the point of happening."

The judicial definition of these terms provides local government with a definite standard in order to make a determination that litigation is probable or imminent. Obviously, the question of whether litigation is probable or imminent is a question of fact. The Opinion of the Attorney General's office regarding the action of the Springfield City Council found that "The presence of an attorney representing a client who opposes the contemplated action of the public body does not, in, and of itself, constitute a reasonable ground for belief that litigation is forthcoming."

When does the possibility of litigation affect the Open Meetings Act?

Legislative debate over Public Act 82-378 makes it clear that the fact that the public body may become a party of judicial proceedings because of action taken on its part does not allow it to avail itself of the litigation exception in order to conduct its deliberations in closed sessions.

Therefore, consultations between the public body and its attorney concerning the potential legal impact and the legal ramifications of an item under consideration must be done in public and that once the litigation exception is properly invoked, the only matters that may be discussed at the closed meeting are the strategies, posture, theories and consequences of the litigation itself.

Illinois Parks and Recreation 16 July/August 1984