In 2021, the Illinois Attorney General’s Public Access Counselor issued 12 binding opinions, all of which are now published on the Attorney General’s website (earlier last year, the website was only partially functioning). Today, we will focus on the OMA binding opinions of 2021.

PAC Op. 21-003 (probable litigation exception for closed session)

In PAC Op. 21-003, the PAC found a public body in violation of the OMA when it went into closed session under the “probable litigation” exception. A resident filed a complaint with the PAC arguing that a City 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. The City argued 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. 

PAC Op. 21-006 (recordation of closed session) 

In PAC Op. 21-006, the PAC found a public body in violation of the OMA for failing to record its closed session. According to the PAC’s opinion, the district employee who usually took the minutes and kept the recordings for district meetings was not asked to attend this particular closed session, which included committee members and the district’s legal counsel. Following the meeting, the employee filed a request for review with the PAC alleging that she believed the committee failed to record its closed session and claiming that the committee discussed topics outside the scope of closed session. In the district’s response to the request for review, the district stated it had forgotten to turn on the recorder and would put practices in place to ensure compliance at future meetings. The PAC found the district in violation for failing to record the closed session but did not address the allegation that the discussions in closed session were outside the scope of permitted exceptions, finding that allegation speculative.

PAC Op. 21-009 (public comment in open session)

In PAC Op. 21-009, the PAC found a school board in violation of the OMA because it required members of the public to provide comments in closed session, and did not provide an opportunity for public comment in open session. A school board conducted a meeting where the only agenda topic was a closed session to consider a personnel matter. A significant number of members of the public attended the meeting and 10 people signed up to speak at the meeting. The board went into closed session shortly after opening the meeting, and the members of the public who signed up to speak were called into closed session one-by-one to provide their comments to the school board. The board did not allow comment in open session. The PAC found that the board violated the OMA by failing to allow the public to address the board in open session, and ordered the school board to provide an opportunity for public comment in open session at all future meetings.

PAC Op. 21-011 (remote meetings)

In PAC Op. 21-011, the PAC found no OMA violation where a public body conducted its meeting remotely via Zoom. The PAC rejected the complainant’s argument that the board’s justification for holding a remote meeting was a pretext to avoid members of the public attending the meeting and found the board complied with the OMA requirements for conducting a remote meeting during a health disaster. The PAC also noted that the board allowed public attendance and comment at the remote meeting through the Zoom platform and that the complainant had attended and spoke at the meeting. This opinion provides helpful guidance to public bodies in complying with section 7(e) of OMA that authorizes remote meetings while the Governor’s COVID-19 disaster proclamation is in effect.