Improper Closed Session Discussion of Legal Matters Under Exception for Pending, Probable or Imminent Litigation
A public body violated Section 2(a) of the Open Meetings Act when it improperly relied on Section 2(c)(11) to discuss in closed session matters related to an intergovernmental agreement at its February 20, 2017 meeting. Section 2(a) requires all meetings of public bodies to be open to the public unless the subject of the meeting is covered by one of the limited exceptions under 2(c). Section 2(c)(11) permits public bodies to close a portion of the meeting to discuss “[l]itigation, 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.” If there is no litigation pending, the public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or is close at hand.
The PAC found that during the closed session, the public body did not focus on litigation, but rather focused on its course of action with respect to the intergovernmental agreement, which is outside the scope of the exception. The PAC ordered the public body to make publicly available the closed session verbatim recording of the meeting and take necessary action as soon as practical to comply with the directives of the opinion or initiate administrative review under Section 7.5 of OMA.
This opinion is binding only to the parties involved and may be appealed pursuant to State law.
Cassandra Black, IASB Law Clerk