Update on Recent Binding Opinions Issued by the Public Access Counselor Regarding the Open Meetings Act

The Public Access Counselor of the Illinois Attorney General’s Office (“PAC”) recently issued several binding opinions regarding the Illinois Open Meetings Act (“OMA”). While more in-depth summaries are included below, takeaways from these decisions are as follows:

• 26-003: A public body violates the OMA when it fails to publicly disclose and record in the meeting minutes the specific statutory exception that authorizes a closed session. The closed session litigation exception is narrowly construed and cannot be invoked based on speculative or preliminary discussions about potential legal action. Public bodies must have a reasonable basis to conclude that litigation is pending, probable, or imminent, must create a record on the verbatim recording of that determination.
• 26-004: The real estate exception under OMA is narrowly limited and does not extend to general discussions about existing property owned by the public body, even when those discussions are related to broader planning efforts. Public bodies must ensure that only discussions directly tied to the acquisition or lease of specific property occur in closed session, and they must carefully separate unrelated topics—such as the condition, renovation, or disposition of current facilities—which generally must be addressed in open session.
• 26-005: Public bodies must draft meeting agendas with sufficient specificity to inform the public of the general nature of any final action; vague references such as “personnel issues” are inadequate where the body intends to take concrete action, such as terminating an employee, and may result in a violation of the OMA and the need to redo the vote.

PAC Decision 26-003

The PAC concluded that the Village of Caseyville Board of Trustees violated the OMA by improperly entering closed session and discussing matters not authorized by any exception. The opinion highlights that public bodies must comply with both the procedural requirements for closing a meeting and the substantive limitations regarding what the public body may discuss once the meeting is closed.

The issue arose after a trustee alleged that the Board entered closed session under the guise of discussing “personnel,” but instead deliberated about delinquent Tax Increment Financing (“TIF”) loans. The Board later argued that the mayor had misspoken and that the discussion was justified under OMA’s litigation exception.

The PAC found that the Board violated OMA procedurally because it failed to publicly identify the specific statutory exception authorizing the closed session and did not properly record that basis in the meeting minutes, as required by Section 2(a) of the OMA. Substantively, the PAC determined that the litigation exception did not apply because no litigation was pending and the Board did not establish that litigation was “probable or imminent,” nor did it record such a finding during the meeting or in the meeting minutes. The closed session discussion instead reflected preliminary consideration and potential options, rather than focused litigation strategy. Accordingly, the PAC concluded that the Board violated OMA and ordered the public release of the closed session recording.

This decision serves as an important reminder that the litigation exception under the OMA is narrowly construed and a public body cannot use it based on speculative or exploratory discussions. Public bodies must clearly identify the applicable exception, make and document any required findings, and ensure that their discussion is limited to matters squarely within the exception or risk violating OMA and being required to disclose closed session materials.

PAC Decision 26-004

Here, the PAC concluded that the City of Lebanon City Council violated the OMA by improperly discussing certain matters in closed session meetings. The Council had entered closed session under the real estate exception in Section 2(c)(5), which permits discussion of the purchase or lease of property for public use; however, the PAC found that portions of the Council’s discussions went beyond that limited purpose.

The dispute arose from a complaint alleging that the Council improperly conducted closed session discussions about its future plans for the City Hall building without addressing those issues in open session. The PAC’s review of meeting minutes and recordings confirmed that while the Council did engage in permissible discussions about potential property acquisitions, it also separately deliberated about the condition and possible disposition of the existing City Hall building.

Although Section 2(c)(5) of the OMA allowed the Council to discuss the merits of particular properties it might acquire, the PAC determined that discussions concerning the existing City Hall were not covered by that exception. The opinion drew an important distinction between topics that are “intertwined” with permissible closed session discussions and those that are “separate and distinct.” Here, the PAC found that the Council’s discussion of the current building’s condition and its potential renovation or sale constituted a preliminary issue that could be addressed independently of the later discussion about acquiring new property. Because those topics were not sufficiently connected to the acquisition analysis, they were required to be discussed in open session. Discussion regarding the sale of property a public body owns are narrow and limited to discussions of price.

To remedy the violation, the PAC directed the City to disclose the portions of its closed session recordings and minutes that pertain to the existing City Hall building, while permitting redaction of discussions that fell within the valid real estate exception. This decision serves as a reminder that the real estate exception is also construed narrowly and does not extend to all property-related discussions, particularly those involving internal planning decisions about existing assets. Public bodies must carefully segregate topics during meetings to ensure that only those discussions directly related to statutory exceptions are conducted in closed session, or the public body runs the risk of violating OMA and being compelled to release confidential records.

PAC Decision 26-005

Finally, the PAC concluded that the Village of Okawville Board of Trustees violated the OMA by taking final action without providing adequate notice on its meeting agenda. Specifically, the Board voted to terminate a police officer’s employment at an open meeting, but the agenda listed only “Personnel issues” under a “Police & Liquor” heading, without indicating the nature of the action to be taken.

The PAC found that the Board’s agenda language did not satisfy Section 2.02(c) of the OMA, which requires agendas to state the “general subject matter” of any item on which final action may be taken. The opinion explained that broad or generic labels are not enough; the agenda must give the public adequate notice of the action being considered. Because the agenda did not identify the type of employee or the proposed personnel action, a reasonable member of the public would not have expected a vote to terminate employment.

Accordingly, the PAC found a violation of OMA and directed the Board to re-vote on the matter after posting an OMA compliant agenda. Public bodies must ensure their agendas provide sufficiently specific notice of anticipated final actions; vague references such as “personnel issues” are inadequate when an  employment decision is expected to be taken by the Board.

If there are any questions, please contact one of the authors of this article or any Franczek attorney.