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Wednesday, November 14, 2012

The PAC Strikes Again, Ruling Against the Public Body in Binding Opinion 13 of 2012

Last week, the Illinois Public Access Counselor issued a binding opinion finding that a county board committee violated the Open Meetings Act when it held a closed session to discuss a landfill siting ordinance.  PAC Opinion 12-013.  The committee had relied on the “probable or imminent litigation” exemption to go into closed session based on a letter from the landfill siting company stating that the company “may be left with no alternative except to file suit” if the county failed to address its concerns with the ordinance.
Notwithstanding the threat of litigation in the letter, the PAC found that the committee had no reasonable basis to believe that litigation was imminent or more likely than not to be filed. The PAC also determined that the committee failed to disclose the required finding that litigation was probable or imminent and to record it in the minutes.  Moreover, the committee failed to record the closed session as required by the OMA.  The PAC further determined that the closed session discussions went beyond the “strategies, posture, theories, and consequences of the litigation itself” in discussing the ordinance and hosting agreement. 
Finally, the PAC determined that the committee violated the OMA by taking final action in closed session – in this case, by recommending approval of the ordinance and hosting agreement to the full county board. The PAC's finding was in direct conflict with the State’s Attorney’s opinion that the committee had not taken any formal action.  According to the State’s Attorney, the committee had chosen not to oppose the ordinance and agreement by informal consensus and did not take any action in closed session.
According to the PAC, an informal consensus of the committee not to do something (i.e., not oppose the ordinance and hosting agreement) constituted final action that must be voted on in open session.  
Post Authored by Julie Tappendorf, Ancel Glink


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