Sugar Grove Board improperly entered closed session under litigation exception

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10 South Municipal Drive Sugar Grove, Illinois 60554 jkonen@sugargroveil. gov RE: OMA Request for Review — 2024 PAC 80076 Dear and Ms. Konen:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act OMA) (5 ILCS 120/ 3. 5( e) ( West 2022)). For the reasons that follow, the Public Access Bureau concludes that the Village of Sugar Grove ( Village) Board of Trustees ( Board) held an improper closed session discussion during its February 6, 2024, meeting.

On February 8, 2024, , who is a member of the Board, submitted a Request for Review concerning the closed session portion of the Board's February 6, 2024, meeting. The Village Board entered closed session under the exception —to the general requirement that public bodies conduct public business openly — in section 2( c)( 11) of OMA. I That exception authorizes public bodies to hold closed session discussions concerning litigation that is pending or " probable or imminent[.]" alleged that the Village President presented in closed session a resolution to request that the State's Attorney file a writ ofquo warranto toremove from the Board by declaring his office vacant. He asserted:

5 ILCS 120/ 2( c)( 11) ( West 2022), as amended by Public Act 103- 311, effective July 28, 2023.

could push her agenda to have me removed from office. The resolution should have been brought up under regular business, discussed if the board members wished to do so, then voted on.

Therefore, with no threat of litigation, no executive session should have been called and the resolution to pass the Writ of Quo Warranto should be invalidated due to the illegal executive session. l21 On February 13, 2024, this office sent a copy of the Request for Review to the Board and asked it provide copies of the open and closed session minutes and the closed session verbatim recording of the Boards February 6, 2024, meeting. This office also asked the Board to provide a written answer toallegation that the section 2( c)(11) exception did not authorize the Boards closed session discussion. On February 14, 2024, the Board responded and provided this office with the re uested materials. On February 20, 2024, this office forwarded the Board' s response to ; he replied on February 21, 2024. DETERMINATION 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 2022). Accordingly, OMA requires that all meetings of a public body remain open to the public unless an exception in section 2( c) of OMAis properly invoked. 5 ILCS 120/ 2(a), ( c) ( West 2022), as amendedby Public Act 103- 311, effective July 28, 2023. The section2( c) exceptions are to be "strictly construed, extending only to subjects clearly within their scope." 5 ILCS 120/ 2(b) ( West 2022), as amendedby Public Act 103-311, effective July 28, 2023. Section 2( c)(11) of OMA permits a public body to close a meeting to discuss: Litigation, when an action against, affecting or on behalf of the prevent public bodies from using the distant possibility of litigation as pretext for closing their meetings to the public." Henry, 356 Ill. App. at 956- 57. " 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." Ill. Att'y Gen. Pub. Acc. Op. No. 16- 007, issued September 13, 2016, at 8.

In its response to this office, the Board confirmed that it entered closed session to discuss a resolution to request a petition for a writ ofquo warranto declaring the office held by as Village Trustee to be vacant. The Board' s brief explanation stated that the Village Attorney advised the Board to enter closed session " under exception 2( c)( 11) to discuss probable litigation. A quo warranto action is a court proceeding. A quo warranto action must be taken or refused by the State's Attorney before an individual can take action. i3 In reply to that answer, ; disputed the Board' s claim that there was pending or probable litigation, asserting that no lawsuits, including any quo warranto action, had been filed at the time of the meeting. He further argued:

The code section that the Village quotes in their letter, 2( c)( 11) to discuss probable litigation requires that there be probable or imminent litigation. There was no probable or imminent litigation as required under the Open Meetings Act. Second, the Village President did not present any documents or statements that indicated litigation was probable. Therefore, there was no valid reason to go into executive session. t41 Following the closed session, the Board returned to open session and voted to Before the vote, the Village President read a statement asserting that vacated his office by entering into a deferred prosecution " agreement that calls for an admission under oath to the elements of a charge relating to forging public documents[.]" 5 On March 20, 2024, the State' s Attorney responded to the Board' s request. In a letter sent to the Village President, the State's Attorney rejected that interpretation of the Municipal Codeprovision and declined to file a petition for writ ofquo warranto: "[ T] he record reflects that did not plead guilty to any offense in open court before a judge, nor did he accept a guilty plea or the terms of any guilty plea agreement after appropriate admonishments. Without more, my office has no legal basis to bring a Quo Warranto action against at this time.i6 concludes that the Board improperly entered closed session pursuant to section 2( c)( 11) of OMA.

In accordance with the conclusions expressed in this determination, this office requests that the Board vote to make available for public inspection a copy of the verbatim recording and the minutes of the closed session portion of its February 6, 2024, meeting.' The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at matthew. goodman@ilag. gov.

Very truly yours, MATT GOODMAN Assistant Attorney General Public Access Bureau