The Public Access Counselor of the Attorney General’s office (PAC) just issued its third binding opinion for 2021, finding a public body in violation of the Open Meetings Act when it went into closed session under the “probable litigation” exception. PAC Op. 21-003.

A City Council went into closed session at a regular meeting, citing the exception contained in 2(c)(11) of the OMA that allows a public body to discuss “probable or imminent litigation.” A resident filed a complaint with the PAC arguing that the Council improperly went into closed session under this exception. In his complaint to the PAC, the resident noted that the City Council had informed him that the Council would be discussing a City sewer main located on the resident’s property and which the resident claimed was not within a proper easement . The resident argued the closed session discussion was improper because there was no litigation threatened or pending to justify the closed session. In response, the City defended its decision to go into closed session, arguing that the discussions involved possible or threatened litigation.

The PAC first acknowledged that a public body is authorized to go into closed session to discuss litigation that has been filed and is pending and where litigation is “probable or imminent.” The PAC referred to various Attorney General opinions and cases discussing what “probable or imminent'” means, and 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.”

In this particular case, the City explained that it believed litigation was imminent after the resident stated he was going to retain an attorney. The PAC found that this was not sufficient to justify going into closed session to discuss the sewer dispute. The PAC also found that the 2(c)(11) 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. In sum, the PAC found the City Council in violation of OMA for going into closed session and ordered release of the closed session meeting minutes and the verbatim recording.