Elmhurst Park District violated OMA by discussing property sale in closed session

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Dear Mr. Pal and Mr. Spaeth:

purchase or lease of real property for the use of the District," which is the subject matter authorized by section 2( c)( 5) of OMA. 2 On May 26, 2021, this office forwarded a copy of the Request for Review to the Board and asked it to respond to Mr. Pal' s allegations and to provide copies of the minutes and the verbatim recording of the closed session in question. On June 7, 2021, the Board provided this office with a written response and copies of relevant meeting minutes. On June 8, 2021, this office sent a copy of the Board' s response to Mr. Pal with an opportunity to reply; he did not reply.

DETERMINATION

Time Limits for Requests for Review Section 3. 5( a) of OMA ( 5 ILCS 120/ 3. 5( a) ( West 2020)) provides, in pertinent part:

A person who believes that a violation of this Act by a public body has occurred may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later 60 days after the alleged OMA violation. If facts concerning the violation are not discovered within the 60- day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence, the request for review may be made within 60 days of the discovery of the alleged violation. The request for review must be in writing, must be signed by the requester, and must include a summary of the facts supporting the submitted this Request for Review to this office within 60 days after the discovery of facts concerning the alleged violations, and less than two years after the alleged violations. Accordingly, this Request for Review was filed within the time limits set out in section 3. 5( a) of OMA, and this office has authority to review Mr. Pal' s allegations concerning the August 12, 2019, meeting.

Closed Session Discussions OMA 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 2020). Section 2( a) of OMA 5 ILCS 120/ 2( a) ( West 2020)) provides that all meetings of a public body shall be open to the public unless the subject of the meeting falls within one of the exceptions set out in section 2( c) of OMA.

In its response to this office, the Board' s explained that at the closed session of the August 12, 2019, meeting, it discussed the District' s potential purchase of real estate located at 123 East St. Charles, Road, commonly referred to as the Redeemer Lutheran Church Center Redeemer property). The Board entered closed session pursuant to section 2( c)( 5) of OMA, which permits closed session discussion of:

5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.

In Galena Gazette Publications Inc., v. County ofJo Daviess, 375 Ill. App. 3d 338 2d Dist. 2007), the Illinois Appellate Court considered a closed session meeting held to discuss the possibility of leasing a specific property for its use. There, the plaintiff conceded that the public body could permissibly discuss the material terms of the lease in closed session, but argued that the scope of section 2( c)( 5) did not extend to "peripheral matters" that were raised, such as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at 344. The court disagreed, finding that nothing in the language of section 2( c)( 5) distinguishes material" matters from peripheral ones. Galena Gazette, 375 Ill. App. 3d at 344. Specifically, the court noted that one of the topics the public body discussed was the racking of promotional brochures within the leased property, and concluded:

Even when participants discussed the racking of promotional brochures at the Old Train Depot — past, present, or future —they did so only because it was pertinent to the terms, effects, or desirability of the proposed subleasing arrangement. The not be divorced from the remainder of the discussion regarding the Board] s decision on whether to finalize its agreement to purchase the Redeemer property without the potential for jeopardizing the District's] negotiating position. So before committing to the purchase of the Redeemer property, the [ Board] briefly discussed a willingness to sell the Abbey and reached an informal consensus to move forward with the concept. l41 The Board was unable to furnish a copy of the verbatim recording of the August 12, 2019, meeting for this office' s review, as the Board destroyed the recording prior to this office requesting a copy. The Board explained that it voted on April 12, 2021, to approve the release of the minutes of the August 12, 2019, closed session meeting and to approve the destruction of the verbatim recording of that meeting, along with several other meeting recordings. 5 The August 12, 2019, closed session meeting minutes indicate that the sale of the Abbey was discussed in the context of how the District would pay for the purchase of the Redeemer property: " As a component of the determination whether the Redeemer parcel should