Discussion of Legal Matters ° Under the Exception for Pending, Probable, or Imminent Litigation

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Dear Ms. Bartelli and Mayor Broda:

BACKGROUND | On June’ 14, 2016, Ms. Carolyn Bartell subimitted a Request for Review to the Pubiic Access Counselor alleging that the Board violated OMA during its June 6, 2016, meeting by improperly discussing certain subjects i in closed session pursuant to the exception for "Pending/Imminent Litigation.” Ms. Bartelli explained that after the Board's attorney.

announced at a May 31, 2016, special meeting that he had determined that “no valid petition had been submitted for a backdoor referendum[ ]"? concerning the sale of cértain bonds, "some citizens in the group who had circulated petitions [seeking a referendum on the bond issue] mentioned that the Village attorney had left the citizen group with no other choice but to file a lawsuit."> She stated, however, that the bond sale was cancelled before the June 6, 2016, meeting, and added:

At the June 6, 2016 meeting, | made it very clear that the group [which had circulated petitions seeking the referendum] would not be taking any legal action against the Village regarding the petition dispute as we did not want the residents of the village to foot the Village's additional legal costs when the Board could simply put the referendum on the ballot voluntarily.

With no known pending or imminent litigation, the Board still went into closed session. | am concerned that the discussion held in closed session was with regard to the bond sale and the validity of the petitions for a backdoor referendum and exceeded the scope of the exemption to the Open Meetings Act. :

On June 22, 2016, the Public Access Bureau sent a copy ‘of the Request for Review to the Village's Mayor and asked the Board to provide a written response to the allegation in the Request for Review together with copies of the verbatim recording of the closed session portion of the June 6, 2016, meeting and the meeting minutes or draft minutes.) Ina letter dated July 15, 2016, counsel for the Village of Lisle furnished those materials and asserted in his written response that the Board properly entered closed session to discuss a "possible injunction and other legal action that had been threatened to overturn the Village Board's decision to refinance certain bonds."* On July 20, 2016, this office sent a copy of that response to Ms. Bartelli.? On July 25, 2016, Ms. Barteili submitted a reply to the Village's response and contended that the Board was not authorized to enter closed session to discuss "possible" litigation that was not imminent or probable? :

On August 12, 2016, this office extended the time within which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA.”

ANALYSIS

OMaA is intended “to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1 (West 2014). Section 2(a) of OMA provides that "[a]il meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.” Such exceptions “are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope." (Emphasis added.)

5 ILCS 120/2(b) (West 2015 Supp.).

Section 2(c)(11) of OMA GILCS 120/2(e)(1 1) (West 2015 Supp.)) permits a public body to enter into closed session 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.” In Henry v. Anderson, 356 lll. App. 3d 952, 953 (4th Dist. 2005), the Illinois Appellate Court analyzed this exception in considering whether a school board viclated OMA by announcing that it was closing a meeting to discuss "potential" litigation without making a finding that litigation was "probable" or "imminent." During the meeting, the school board approved an agenda that referred to an executive session for "potential litigation,” but then cited "a contested litigation matter" in the subsequent motion to enter closed session. (Emphasis in original.) Henry, 356 Il. App. 3d at 954. The court characterized the section 2(c)(11) exception as "a forked path[:}" ' If the litigation has been filed and is pending, the public, body need only announce that in the proposed closed meeting, it will discuss litigation that has been filed and is pending. If the litigation has not yet been filed, the public body must (1) find that the litigation is probable or imminent and (2) record and enter into the minutes the basis for that finding. Evidently, the legislature intended ta prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public. (Emphasis added.) Henry, 356 Ill. App. 3d at 956-57.

The court then concluded that the school board violated OMA by entering closed session without clarifying whether the "litigation" to be discussed was pending or “by failing to state, on the record, (1) a finding that litigation was probable or imminent and (2) a basis for such a finding.” Henry, 356 Il. App. 3d at 957.

Attorney General Hartigan analyzed an earlier but substantively identical version of section 2(c)(11) of OMA in connection with a city council's closed session discussion related to the possibility of litigation 'in the event that a proposed annexation was approved. Ill. Att'y Gen. Op. No. 83-026, issued December 23, 1983.'° Based on judicial definitions of "probable"

and "imminent," he stated that "[flor litigation to be probable or imminent, warranting the ‘At the time of the issuance of opinion No. 83-026, section 2 of OMA excepted from the open closing of a meeting, 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." Ill. Att'y Gen. Op. No. 83- 026, at 10. Indeed, “{t]he fact that the public body may become a party to judicial proceedings because of the action it takes.does not permit it to utilize the litigation exception to conduct its deliberations in closed sessions." (Emphasis added.) Ill. Att'y Gen. Op. No. 83-026, at 12. Because it was undisputed that an attorney who represented annexation opponents declared that litigation was not being contemplated and because litigation over the annexation could not be probable or imminent until the city council approved the annexation, Attorney General Hartigan concluded that the city council improperly entered closed session under the litigation exception. Ill. Att'y Gen. Op. No. 83-026, at 11-13. Further, he opined that "if the possibility of a lawsuit over the annexation" influenced the city council's decision on whether to annex the property, that “matter should have been discussed in an open meeting since it goes to the merits of the question rather than to the litigation itself. * * * [T]he only matters which may lawfully be discussed at the closed meeting are the strategies, posture, theories, and consequences of the litigation itself." (Emphasis added.) Ill. Att'y Gen. Op. No. 83-026, at 13-14.

Here, the meeting at issue followed a May 31, 2016, special meeting during which several members of the public addressed the Board concerning a proposed resolution to issue new bonds for the Benedictine Sports Complex Facilities.'! After the Village attorney advised that a petition seeking a referendum on the bond issue was inadequate,'? Ms. Bartelli stated that the Board was "ignoring the residents who hoped to have a voice in the process[,]" and that "the Village is forcing a lawsuit and it may be the course of action they have to take." _The Board then held a roll call vote and approved the resolution to issue bonds.'* The agenda of the Board's June 6, 2016, regular meeting listed an executive session for "Pending/Imminent Litigation." During the public comment portion of that meeting, Ms. Bartelli addressed the Board to clarify that her group did not want the Village to incur additional icgal expenses that would have to be paid by Village taxpayers and therefore was "not proceeding with a lawsuit. So I wanted to make it clear that if this is in fact the pending or imminent litigation, there is-none on our part. "l6 Following public comment, the Board approved a motion to enter closed session "to discuss pending, imminent litigation. wa In her Request for Review, Ms. Bartelli contended that the Board entered into closed session despite "no known pending or imminent litigation[.]"'* The Board's response to this office stated, in pertinent part:

The Village Board's discussion in closed session was limited to a discussion of a possible injunction and other legal action that had been threatened to overturn the Village Board's decision to refinance certain bonds. The Village Board did not rely on threats made by the citizen's group at the May 31, 2016 meeting to go into closed session. Instead, the Village Board relied on the following to support its reasons for going into closed session:

potential for litigation over the referendum petitions was resolved. This was the topic for which we went into closed session, which was identified in the closed session and which was the primary subject of the closed session conversation. (Emphasis added.)

This office has reviewed the minutes and the verbatim recording of the Board's June 6, 2016, closed session discussion. In its closed session minutes, the Board used the generic term "Probable/Imminent Litigation” to reference the section 2(c)(11) exception. © The Board did not record or enter into the closed session minutes a specific basis for finding that litigation was probable or imminent, which is required by section 2(c)(11).

The majority of the closed session discussion concerned the possibility that litigation would be filed by opponents of the bond sale.?! In its response to this office, the Board described the closed session discussion as concerning "a possible injunction and other legal action that had been threatened to overturn the Village Board's decision to refinance certain bonds." Although Ms. Bartelli had suggested that such litigation might-be filed when she addressed the Board at its May 31, 2016, special meeting, she expressly stated during the public comment portion of the subsequent June 6, 2016, meeting ~ before the Board entered closed session — that litigation was not being contemplated and would not be filed. The Board's response to this office notes that "[d]uring the course of the closed session it was specifically commented upon that the Board was not there to consider any alleged threat made by Ms. Bartelli."”? Instead, the Board stated that it "had serious concerns about other challenges which might be brought formally against the Village to stop the sale of bonds to refinance certain Village debt." The Board alse stated that its bond counsel expressed concerns over “the potential for litigation over the referendum petitions."

Letter from Robert K. Bush, Ancel Glink Diamond Bush DiCianni & Krathefer, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau (July 15, 2016), at 2.

Without further detail, however, the Board has not identified any facts demonstrating that it had reasonable grounds to believe that litigation to stop the bond sale or over the referendum petitions was "probable" or "imminent" at the time of the June 6, 2016, meeting. Narrowly-construed, as OMA requires it to be, the section 2(c)(1 1) exception does not permit a public body to enter closed session to discuss the possibility of litigation merely because it has taken action that generated public opposition, such as a backdoor referendum effort. In the absence of reasonable, specifically identified grounds to believe that litigation was close at hand or more likely than not to ensue, the mere possibility that a lawsuit might be filed does not constitute "probable" or "imminent" litigation within the scope of section 2(c}(11) of OMA. Moreover, the minutes of the June 6, 2016, meeting indicate that although the bonds had been expected to be auctioned earlier in the day, the "sale did not happen, the Board and Bond Counsel have postponed the sale to ensure everything was in proper order."** The decision by bond counsel to hold off on approving the issuance of bonds until “potential” litigation was resolved does not change this analysis. Accordingly, this office concludes that the Board's closed session discussion concerning the possibility of future litigation violated section 2(a) of OMA. ‘

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the arguments presented, the. Public Access Counselor's review, and the applicable law, the Attorney General finds that:

; , i) On June 6, 2016, the Village of Lisle Board of Trustees closed a portion of its meeting to the public to discuss “Pending/Imminent Litigation."

2) On June 14, 2016, Ms. Carolyn Bartelli submitted a Request for Review to the Public Access Counselor alleging that the Board's June 6, 2016, closed session discussion was improper because the discussion did not involve either pending or imminent litigation. .

5) On July 20, 2016, this office sent a copy of that response to Ms. Bartelli. On July 25, 2016, Ms. Bartelli submitted a reply contending that the Board was not authorized to enter closed session to discuss "possible" litigation that was neither probable nor imminent.

6) On August 12, 2016, this office extended the time within which to issue a binding opinion by 21 business days, to September 13, 2016, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

7) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one of the limited exceptions enumerated in section 2(c). Section 2(c)(11} permits a public body to close a portion of a 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."

8) If there is no litigation pending, then a public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand in order to properly discuss a matier in a closed meeting pursuant to section 2(c)(11} of OMA.

9) At the time.of June 6, 2016, meeting, the Board did not have reasonable grounds to find that an injunction or other legal action related to the Board's decision to issue new bonds for the Benedictine Sports Complex Facilities was probable or imminent. Accordingly, the Board violated section 2(a) of OMA by discussing the mere possibility of _ litigation in a closed session, . ;

In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by disclosing to Ms. Bartelli arid making publicly available that portion of the closed session verbatim recording of its June 6,.2016, meeting related to the bond sale. The Board is also directed to conduct its future meetings in full compliance with OMA. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7. 5 (West 2014). .

This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial | review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Carolyn Bartelli as defendants. See 5 ILCS 120/7.5 (West 2014).

Very truly yours,

LISA MADIGAN

_ ATTORNEY GENERAL | By: lab Michael J. Luke Counsel to the Attorney General ce: Mr. Robert K. Bush . Ancel, Glink, Diamond, ' Bush, DiCianni & Krathefer, P.C.

copy of the foregoing Binding Opinion (Public Access Opinion 16-007) upon:

Ms. Carolyn Bartelli 5224 Riverview Drive Lisle, Illinois 60532 [email protected] The Honorable Joseph Broda Mayor Village of Lisle ; 925 Burlington Avenue ' Lisle, Illinois 60532 , [email protected] Mr. Robert K. Bush Ancel, Glink, Diamond, Bush, DiCianni & Krathefer, P.C. 140 South Dearborn Street, Suite 600 Chicago, [linois 60603 [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on September 13, 2016.

SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor