City of Bloomington v. Raoul

2021 IL App (4th) 190539

• Court: Appellate Court of Illinois
• Decided: April 26, 2021
• Docket: 4-19-0539
• Status: Published

Opinion

2021 IL App (4th) 190539 FILED NO. 4-19-0539 April 26, 2021 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

THE CITY OF BLOOMINGTON, ILLINOIS; THE ) Appeal from the BLOOMINGTON CITY COUNCIL; and TARI ) Circuit Court of RENNER, in His Official Capacity as Mayor of the ) Sangamon County City of Bloomington, ) No. 17MR583 Plaintiffs-Appellees, ) v. ) KWAME RAOUL, in His Official Capacity as ) Attorney General of the State of Illinois; and JASON ) CHAMBERS, in His Official Capacity as McLean ) County State’s Attorney, ) Defendants ) Honorable (Kwame Raoul, in His Official Capacity as Attorney ) Ryan M. Cadagin, General of the State of Illinois, Defendant-Appellant). ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Holder White and Steigmann concurred in the judgment and opinion.

OPINION

¶1 The Bloomington City Council (City Council) held a closed session, citing the

litigation exception to the Open Meetings Act (Act) (5 ILCS 120/2(c)(11) (West 2016)), to discuss

the termination of an agreement with the Town of Normal (Normal). Defendant Jason Chambers,

in his official capacity as McLean County State’s Attorney, subsequent to the meeting, filed a

request for review with defendant Kwame Raoul, in his official capacity as Attorney General of

the State of Illinois (AG), questioning the City Council’s use of the litigation exception. The AG,

via a binding opinion, determined the City Council did not properly invoke the exception for

“probable or imminent” litigation. Further, the AG opined the City Council violated the Act by

engaging in discussion not focused on litigation but rather on other matters. Plaintiffs, the City of Bloomington, Illinois (Bloomington), the City Council, and Tari Renner, in his official capacity

as Mayor of the City of Bloomington (Mayor), filed a complaint for administrative review of the

AG’s decision. The circuit court of Sangamon County reversed the AG’s binding opinion. For the

reasons that follow, we reverse the judgment of the circuit court.

¶2 I. BACKGROUND

¶3 In 1986, the communities of Bloomington and Normal entered into an

intergovernmental agreement which provided for the sharing of revenue and expenses in an area

of the two communities. The agreement purported to bind the parties until cancelled or revised by

mutual agreement. In April 2014, Bloomington advised Normal the former objected to the

agreement and was paying its share “under protest.” In response, Normal asked Bloomington to

clarify its concerns.

¶4 In November 2016, Bloomington’s city manager wrote to Normal’s counterpart

that Bloomington thought the agreement “outdated *** and not legally binding.” The letter advised

Normal that the City Council intended to vote on termination of the agreement. The Bloomington

manager further expressed Bloomington’s desire to collaborate with Normal on termination, and

a replacement development program, noting, in the letter without further explanation, previous

reference to litigation over termination of the agreement. Shortly thereafter, Normal’s mayor

advised Bloomington’s mayor that Normal was “willing to discuss a termination plan.” As well

during this period, officials of both entities communicated with the public and each other relative

to termination of the agreement and how to accomplish that end.

¶5 On February 20, 2017, the City Council closed to the public a portion of its meeting

to discuss “probable litigation.” The closed session continued for 1 hour and 21 minutes, of which

the City Council made an audio recording, pursuant to the Act. The Mayor opened the closed

-2- session noting the question before the group was “how” the agreement at issue should end. During

this introduction of the meeting topic, and after the Mayor completed his comments,

Bloomington’s attorney reminded the City Council the body should not discuss in the closed

session the above-referenced “how” as noted by the Mayor, but rather confine the discussion to

“which option is more or less likely to get the City in or out of litigation.”

¶6 During the closed session, those attending focused their attention on three areas:

(1) the public relations aspects of terminating the agreement, (2) possible approaches to

terminating the agreement, and (3) the economics involved with various options and other

relationships with Normal.

¶7 As to public relations, six of the nine council members expressed concern about

how their actions would be perceived by the public. In addition, the Mayor, city manager, and

corporation counsel each expressed opinions about this subject. Notably, the city attorney not only

warned the group at the commencement of the meeting about discussion of matters other than

proper litigation topics, he interjected during the meeting to remind the members again. The

phraseology of those attending in discussing the various options included: “may result in better

public relations,” “Normal will savage the City,” “politically not palatable,” and “we have talking

points.” Near the end of the meeting, the group discussed timing, and an anticipated radio story.

¶8 An oft-discussed topic among the closed session participants as well was whether

“Option A” or “Option B,” a variation of one of these, or another course was preferable. Notably,

the options did not include litigation. Option A was a joint resolution with Normal, while Option

B was unilateral termination of the agreement by Bloomington. Throughout, the group discussed

some manner of communication with Normal’s board, and whether that could take the form of a

joint executive session or would have to take another form. Several individuals mentioned

-3- throughout the meeting that the entities regularly collaborated in many areas. Once again, at least

six of the nine council members offered comments on the options, in addition to the Mayor,

corporation counsel, and the city manager.

¶9 Lastly, the group discussed throughout the monetary aspects of the various options

and of other relationships with Normal. They discussed the suspension of payments pursuant to

the agreement, whether a suspension would cost Bloomington more in the future, the perceived

unequal payments Bloomington previously made under the agreement, whether the amount at issue

was significant, and which of the options described would be the most economical. Several council

members expressed their thoughts as did the mayor and corporation counsel.

¶ 10 As to litigation, neither party had filed suit at the time of the meeting. As for any

discussion of litigation, to the extent Bloomington’s council considered the issue, the comments

fell into three categories: (1) the uncertainty of what a court might do, (2) the options likely to

result in litigation, and (3) use by either Bloomington or Normal of the threat of a lawsuit as a

negotiating tactic. Compared to the aforementioned primary topics, those attending did not focus

much of their time or substance on these litigation related issues. One council member noted there

was “no clear cut road as to whether Normal will sue the City.” Another characterized any lawsuit

as a “minor issue.” Bloomington’s attorney thought litigation “could be plausible” but it was

difficult to determine “the validity of Normal’s claim until it has been put into writing.” Ultimately,

the meeting was bereft of any substantive discussion of possible legal claims, defenses, theories,

or postures.

¶ 11 The week after the closed session meeting, the McLean County State’s Attorney,

Jason Chambers, wrote the AG asking the Public Access Bureau to review Bloomington’s closed

council session. The AG corresponded further with Chambers, and solicited a written response

-4- from Bloomington along with the audio recording and meeting minutes from the closed session.

On June 6, 2017, the AG issued a binding opinion that the City Council violated the provisions of

the Act in two respects. First, the City Council illegally entered closed session as it did not have

“reasonable grounds to believe that a lawsuit was more likely than not to be instituted or was close

at hand.” Second, the closed session improperly “focused not on the ‘strategies, posture, theories,

and consequences’ of any probable litigation, but rather on the City Council’s course of action

with respect to the Agreement.” The opinion recognized as reasonable the City Council’s belief

litigation “could at some point result.” However, the AG found such belief is insufficient to invoke

the closed meeting provisions of the Act, and the AG determined the City Council violated section

2 of the Act by discussing matters outside the scope of the closed meeting exception.

¶ 12 Bloomington, the City Council, and the Mayor sought administrative review of the

AG’s opinion in the circuit court. After briefing and argument, the circuit court reversed the AG’s

binding opinion. The AG then appealed.

¶ 13 II. ANALYSIS

¶ 14 A. The Open Meetings Act

¶ 15 The policy of the Act is reflected in section 1:

“Policy. It is the public policy of this State that public bodies exist to aid in the

conduct of the people’s business and that the people have a right to be informed as

to the conduct of their business. In order that the people shall be informed, the

General Assembly finds and declares that it is the intent of this Act to ensure that

the actions of public bodies be taken openly and that their deliberations be

conducted openly.

-5- The General Assembly further declares it to be the public policy of this State

that its citizens shall be given advance notice of and the right to attend all meetings

at which any business of a public body is discussed or acted upon in any way.”

5 ILCS 120/1 (West 2016).

¶ 16 The Act provides for exceptions that permit a body to close a meeting to the public:

“The exceptions contained in subsection (c) are in derogation of the requirement

that public bodies meet in the open, and therefore, the exceptions are to be strictly

construed, extending only to subjects clearly within their scope.” 5 ILCS 120/2(b)

(West 2016).

¶ 17 The exception at issue permits excluding the public to discuss:

“Litigation, when an action against, affecting or on behalf of the particular public

body has been filed and is pending before a court or administrative tribunal, or

when the public body finds that an action is probable or imminent, in which case

the basis for the finding shall be recorded and entered into the minutes of the closed

meeting.” 5 ILCS 120/2(c)(11) (West 2016).

¶ 18 B. Standard of Review

¶ 19 This court previously discussed extensively the applicable standards of review in

cases on administrative review. See Board of Education of Springfield School District No. 186 v.

Attorney General, 2015 IL App (4th) 140941, ¶¶ 20-23. We follow that lead herein.

¶ 20 The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2016))

“requires this court to review all questions of law and fact presented by the record in relation to

the administrative agency’s decision and not the decision of the *** circuit court.” (Internal

quotation marks omitted.) Board of Education of Springfield, 2015 IL App (4th) 140941, ¶ 20. The

-6- proper standard of review “depends on whether the issue involves a question of fact, a question of

law, or a mixed question of law and fact.” Id.

¶ 21 This court has described these varying standards of review as follows:

“An agency’s findings and conclusions of fact are deemed prima facie true

and correct and will be overturned only if they are against the manifest weight of

the evidence. [Citation.] A determination is against the manifest weight of the

evidence if the opposite conclusion is clearly evident. [Citation.]

[W]here the historical facts are admitted or established, the controlling rule

of law is undisputed and the issue is whether the facts satisfy the statutory standard,

the case presents a mixed question of fact and law for which the standard of review

is clearly erroneous. [Citation.] An agency’s decision is clearly erroneous when the

reviewing court is left with a firm and definite conviction that the agency has

committed a mistake. [Citation.]” (Internal quotation marks omitted.) City of

Champaign v. Madigan, 2013 IL App (4th) 120662, ¶¶ 25-26.

¶ 22 The AG invites us to defer to his interpretation of the “probable or imminent”

litigation terminology of the exception at issue should we find those terms ambiguous, pursuant to

Board of Education of Springfield School District No. 186 v. Attorney General, 2017 IL 120343,

¶ 23, and the authorities therein. We do not find that these terms are ambiguous and decline that

invitation.

¶ 23 Given the plain language of the Act, and the established facts, our review is

de novo. Our supreme court directs us “that where the historical facts are admitted or established,

but a dispute exists as to whether the governing legal provisions were interpreted correctly by the

administrative body, the case presents a purely legal question for which [the] review is de novo.”

-7- (Internal quotation marks omitted.) Board of Education of Springfield, 2015 IL App (4th) 140941,

¶ 23. Therefore, we review independently the AG’s conclusion the City Council violated the Act.

Id.

¶ 24 The AG contends he correctly concluded the City Council failed to comply with

the Act’s provisions. Specifically, he argues (1) the City Council held a closed meeting without

sufficient grounds to do so pursuant to section 2(c)(11) of the Act, and (2) even if the City Council

properly entered a closed session, the City Council violated the Act by failing to discuss probable

or imminent litigation. We address these issues in turn.

¶ 25 C. The City Council Entered Closed Session Without Reasonable Grounds

to Believe Litigation Was Probable or Imminent

¶ 26 The Act requires public bodies to hold meetings open to the public subject to

enumerated exceptions. 5 ILCS 120/2(a) (West 2016). Such exceptions “are in derogation of the

requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly

construed, extending only to subjects clearly within their scope.” 5 ILCS 120/2(b) (West 2016).

The exception at issue permits the closing of a meeting to consider ongoing litigation “or when the

public body finds that an action is probable or imminent.” 5 ILCS 120/2(c)(11) (West 2016).

¶ 27 The AG cites in support of his argument Henry v. Anderson, 356 Ill. App. 3d 952

(2005). This court therein, where the president of a school board described litigation as “potential,”

noted as to the litigation exception: “Evidently, the legislature intended to prevent public bodies

from using the distant possibility of litigation as a pretext for closing their meetings to the public.”

Id. at 957. Because the Act requires “that the exceptions to the requirement of open meetings are

to be strictly construed,” the school board’s failure to specify the basis for invoking the litigation

-8- exception violated the Act. Id. at 956-58. In this court’s words, the school board invoked the

exception “without following through with the conditions attached to that exception.” Id. at 956.

¶ 28 The AG also relies on prior attorney general decisions interpreting the Act, and

argues those are entitled to deference as the office is the agency charged with enforcing the Act.

As noted above, we find the reliance on those decisions inappropriate, as such deference is only

due when the terms of the Act are ambiguous.

¶ 29 The AG’s interpretation of the statute is subject to de novo review. Board of

Education of Springfield, 2015 IL App (4th) 140941, ¶ 23.

¶ 30 There was no litigation pending for Bloomington to invoke at the time of the

meeting, and thus, that clause of the exception is inapplicable. Further, we find the council

members did not reasonably believe that litigation was probable or imminent. For example,

Bloomington’s attorney advised the group that litigation “could be plausible.” The attorney did

not know if Normal had a valid claim, as Normal had shared nothing with him. One council

member noted there was “no clear cut road” to litigation. Yet another member characterized any

possible litigation as a “minor issue.” More than one member surmised Normal’s threat of a lawsuit

could be a “negotiating tactic.” The Mayor told the press after the meeting he doubted Normal

would file suit. Finally, the gist of the City Council’s discussion described elsewhere herein was

not of a group that thought litigation was probable or imminent.

¶ 31 We conclude as proper the AG’s determination the City Council improperly

invoked the litigation exception to enter a closed session, as litigation was not probable or

imminent pursuant to section 2(c)(11) of the Act.

¶ 32 D. Even if the City Council Lawfully Entered Closed Session,

the City Council Violated the Act During the Closed Session

-9- as the Focus of the Discussion Was Not Litigation

¶ 33 The Act explicitly requires its exceptions to open meetings “be strictly construed

against closed meetings.” 5 ILCS 120/1(2) (West 2016). The process for closing a meeting directs

that “[o]nly topics specified in the vote to close under this Section may be considered during the

closed meeting.” 5 ILCS 120/2a (West 2016). And as noted above, when a public body invokes an

exception, “the exceptions are to be strictly construed,” and extend “only to subjects clearly within

their scope.” 5 ILCS 120/2(b) (West 2016).

¶ 34 The AG relies on Henry and a prior attorney general opinion, in support of his

second contention. For brevity, we do not repeat our discussion of these above, but the analysis

applies to this issue as well.

¶ 35 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.

¶ 36 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

- 10 - 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.

¶ 37 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.

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, we reverse the circuit court’s judgment reversing the

AG’s binding opinion.

¶ 40 Reversed.

- 11 -