BY JOHN KRAFT & KIRK ALLEN BLOOMINGTON, IL. (ECWd) – In an April 26, 2021, Opinion, the Appellate Court determined that the City of Bloomington violated the Open Meetings Act on February 20, 2017, when it went into closed session for one hour and twenty-seven minutes to discuss terminating an Intergovernmental Agreement with the City
BY JOHN KRAFT & KIRK ALLEN
BLOOMINGTON, IL. (ECWd) –
In an April 26, 2021, Opinion, the Appellate Court determined that the City of Bloomington violated the Open Meetings Act on February 20, 2017, when it went into closed session for one hour and twenty-seven minutes to discuss terminating an Intergovernmental Agreement with the City of Normal, while attempting to call it pending or probable litigation (which it was not).
The McLean County State’s Attorney, after hearing of the meeting, filed a Request For Review with the Illinois Attorney General’s Public Access Counselor alleging a violation.
Illinois Attorney General issued its Binding Opinion of the OMA violation by the City of Bloomington, but the city decided to appeal it to the circuit court.
The city appealed the AG’s Binding Opinion to the Circuit Court, who reversed the AG’s Binding Opinion. The AG then appealed that decision to the Appellate Court, who overturned the Circuit Court.
From the Appellate Opinion:
- We find that even if the City Council lawfully closed the meeting, the City Council violated the Act by failing to abide by the conditions that confined their discussion to probable or imminent litigation. Bloomington’s attorney advised the closed meeting attendees at the outset to limit their discussion to litigation, and reminded the group subsequently that it should not discuss the public relations aspect in closed session. Nevertheless, the group ignored these admonitions and instead discussed (1) Option A, Option B, and other options to terminate the agreement, none involving litigation; (2) the financial aspects of terminating; and (3) how to peddle the issues to their constituents. The language the council members utilized covered the gamut of terms evidencing the concern for how to best handle inquiries and criticism. They also discussed how to modify Options A and B, and whether there were better options.
- Further, the great majority of the council members participated in the discussion of these topics, as did their leadership and counsel. Absent from the closed session was any discussion of legal theories, defenses, claims, or possible approaches to litigation. The commentary that did concern litigation related to (1) concern about the uncertainty of any outcome, (2) how to best avoid a lawsuit, and (3) whether Bloomington or Normal had or could use the threat of litigation in the course of negotiation.
- On this record, we cannot conclude the City Council limited its discussion to topics within the scope of the litigation exception as required by the Act. The only court the group seemed concerned with was the court of public opinion. The AG correctly determined the City Council exceeded the scope of the litigation exception to the Act (see 5 ILCS 120/2(c)(11) (West 2016)), thereby violating the Act’s provisions.
- For the foregoing reasons, we reverse the circuit court’s judgment reversing the AG’s binding opinion.
Read the Appellate Court Opinion below, or download it HERE: