GENEVA – The Geneva Library Board violated the Open Meetings Act last fall when it went into closed session under an exemption for pending litigation – when there wasn’t any, according to the Illinois Attorney General’s Public Access Counselor.
Assistant Attorney General Joshua Jones wrote in a decision issued April 2 that the library board must release the portion of the closed session minutes and verbatim recording pertaining to litigation in order to remedy the situation.
Geneva library attorney Roger Ritzman did not respond to a voicemail message seeking comment.
Board president Esther Steel said she had not seen the letter yet and could not comment on whether the board would challenge the pubic access counselor’s decision.
“I will read the letter, talk to Roger, read the minutes and listen to the tape,” Steel said. “If we have to make [the minutes and recording] available, we will release it without question.”
Board members Steel, Steve Andersson, Patricia Lord, Travis Ketterman and Mark Adams voted in favor of going into closed session at the Oct. 13 meeting. Board member Susan Shivers voted against going into closed session and Bob Shiffler was absent. Shivers did not respond to a request for comment about why she voted no.
The public access counselor was responding to a complaint filed by the Kane County Chronicle regarding the closed session of the board’s Oct. 24 meeting.
Jones wrote that a review of the closed session verbatim recording “reveals that the board merely discussed actions that could potentially result in litigation, which is an insufficient basis to close a meeting.”
The Open Meetings Law allows public bodies to close their deliberations from the public only in specific circumstances, such as personnel, land acquisition and pending litigation.
Jones’ letter states that when a public body closes a meeting to the public citing pending litigation, “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.”
The library board did not show there were any grounds to believe a lawsuit was imminent, he wrote.
Attorney General spokeswoman Natalie Bauer said the decision is advisory, but most public bodies comply.
The emphasis from the public access counselor is to seek informal mediation,” Bauer said. “We want to get … bring the two parties together. The release of public documents – that is our main goal.”
Donald Craven, a Springfield attorney who represents Illinois media, said the requirements of closing an open meeting for litigation “has been around since 1983.”
“Open government is good for everybody,” Craven said.
Craven said it was based on a Springfield case where a city attorney asked the attorney in a zoning matter if his client would sue if they turned him down.
“The lawyer said, ‘I have to talk to my client,’ and the city attorney used that to his advantage,” Craven
said. “ ‘That is probable litigation. We’re going into closed session.’ That doesn’t cut it.”
According to that decision, “the only matters which may lawfully be discussed at the closed meeting are the strategies posture, theories and consequences of the litigation itself.”