On March 4, 2021, the PAC issued a binding opinion finding a City Council in violation of the Open Meetings Act when it went into closed session under the “probable or imminent litigation” exception, Section 2(c)(11) of the OMA and the exact wording is as follows:

(11) 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.

The issue at hand is what exactly qualifies as the “probable or imminent “ litigation exception of the Open Meetings Act? In a prior PAC opinion, 17-004, the PAC stated that simply because a public body may be named in litigation is not sufficient grounds for a closed session and that Section 2(c)(11) permits public bodies to discuss in closed session only “strategies, posture, theories, and consequences” of the litigation itself, and not deliberation on the underlying issues that may result in litigation.

In this most recent opinion, PAC Opinion 21-003, the City moved into an executive session based upon the fact that a resident stated he was going to retain an attorney regarding a sewer issue and upon that statement, the City felt that litigation was “probable or imminent.” In this opinion, the PAC noted that “there must be reasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such an occurrence is close at hand” and therefore the PAC found that the threat of hiring a lawyer was not sufficient to justify going into closed session to discuss the sewer dispute. The PAC opinion also made clear that the exception does not authorize closed session discussion of an underlying decision or course of action merely because it could potentially give rise to litigation at some point in the future. The PAC also stated that the City Council also failed to determine or find that litigation was probable or imminent or record and enter into the closed session minutes the basis for such a finding, as required. As a result, the PAC found that the City did not meet the criteria required to go into closed session or make the necessary determination based upon Section 2(c)(11) of the OMA and had thereby violated the Open Meetings Act.

Make sure to consult your Tressler attorney if you have questions or need assistance with regard to and Open Meetings Act matters!

For more information about this article, please contact Erik Peck at epeck@tresslerllp.com.