Wyman v. Schweighart

Filed 10/9/08 NO. 4-08-0117

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

RUTH E. WYMAN, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
GERALD SCHWEIGHART and THE CITY OF ) No. 06CF367
CHAMPAIGN, Champaign County, Illinois, )
a Municipal Corporation, ) Honorable
Defendants-Appellees. ) Charles McRae Leonhard,
) Judge Presiding.
____________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Plaintiff, Ruth E. Wyman, filed a complaint alleging

defendants, Mayor Gerald Schweighart and the City of Champaign,

violated the Open Meetings Act (5 ILCS 120/1 through 6 (West

2006)). Defendants filed a motion for summary judgment that the

trial court granted. Plaintiff appeals. We affirm.

I. BACKGROUND

On November 22, 2006, plaintiff filed a complaint for

injunctive and other relief alleging defendants violated the Open

Meetings Act (5 ILCS 120/1 through 6 (West 2006)). Plaintiff

claimed that on November 21, 2006, the Champaign city council

held a regularly scheduled meeting. The published agenda for the

meeting did not include any reference to defendants' intention to

hold proceedings behind closed doors. After the meeting of the

city council, a study session, and a meeting of the town board,

council members "and unknown staff who were not members of the
City Council went into [an] adjacent room to discuss the public's

business." (Emphasis in original.)

The complaint alleged the "secret meeting" violated the

Open Meetings Act in five ways: (1) while the public was ex-

cluded, noncouncil members attended the closed meeting and no

motion was made to permit their attendance; (2) defendants did

not publicly disclose each member's vote to convene in a closed

session; (3) defendants did not properly cite a specific excep-

tion in section 2a of the Open Meetings Act as the motion simply

asserted the session be entered into to discuss "land acquisi-

tion" and "litigation"; (4) defendants combined the motions on

whether to enter a closed session on two separate exceptions,

thereby evading requirements of a recorded vote and stating a

claimed exception; and (5) defendants failed to disclose on a

published or available agenda the closed session.

Defendants responded to the complaint with a motion for

summary judgment, or in the alternative, motion to dismiss under

section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

(West 2006)). Defendants responded (1) no provision of the Open

Meetings Act states that noncouncil members are not permitted to

attend closed sessions; (2) the voting procedure complied with

the requirements of the Open Meetings Act as the vote of each

member was publicly disclosed and duly recorded at the meeting

wherein the council voted on the closed session, was televised, a

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voice vote on the issue was taken, and the electronic videotape

recording of the meeting shows no negative votes were given; (3)

defendants publicly discussed that the subjects of the closed

session were "land acquisition" and "litigation," exceptions

covered respectively under section 2(c)(5) (5 ILCS 120/2(c)(5)

(West 2006)) and 2(c)(11) (5 ILCS 120/2(c)(11) (West 2006)) of

the Open Meetings Act; (4) the Open Meetings Act does not pro-

hibit voting on more than one exception in one motion; and (5)

the Open Meetings Act does not require the disclosing of a motion

to go into closed session to be listed on the published agenda.

The affidavit of Glenda Robertson, deputy city clerk of

the City of Champaign, stated that she attended the November 21,

2006, regular business meeting, study session meeting, and City

of Champaign Township meeting, and all of those meetings were

open to the public and televised on cable television as well as

rebroadcast 18 times during the following week. At the conclu-

sion of the study session, the city manager reminded the council

of the need to go into "Executive Session" for "pending litiga-

tion" and "land acquisition" after the township meeting. Council

member Gina Jackson motioned, and council member Marci Dodds

seconded the motion, to go into a closed session following the

township meeting to discuss "property acquisition" and "litiga-

tion." Council took a voice vote and all voted "yes." At the

conclusion of the township meeting, Jackson announced that the

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city council was adjourning to "Executive Session" to discuss

"land acquisition" and "litigation."

Plaintiff filed a motion for partial summary judgment.

On February 6, 2008, the trial court issued a well-

written and thorough memorandum of opinion and order. In it, the

court granted defendants' motion for summary judgment discussing

each of plaintiff's five claims. First, the court determined

that plaintiff's claim that defendants permitted persons who were

not members of the council to be present is not a legal require-

ment of the Open Meetings Act. Second, the record squarely

refutes plaintiff's contention that defendants failed to publicly

disclose the vote of each member as to whether council should

convene in closed session. Third, the record unambiguously

established that a closed session was expressly declared to

discuss "pending litigation" and "land acquisition," both proper

exceptions under the Open Meetings Act. Fourth, the Open Meet-

ings Act does not require separate votes on each of two or more

bases for holding a closed session. Finally, the plain text of

the Open Meetings Act refutes plaintiff's claim that defendants

were required to disclose on a published or available agenda the

closed session.

This appeal followed.

II. ANALYSIS

Plaintiff argues that the trial court erred in finding

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that defendants' conduct in going into closed session on November

21, 2006, did not violate the Open Meetings Act and in granting

defendants' motion for summary judgment while denying plaintiff's

motion for partial summary judgment. Specifically, plaintiff

argues the court erred in the following ways: (1) finding the

motion to go into closed session to discuss "pending litigation"

was explicitly made and defendants complied with the statutory

requirements; (2) ruling the Open Meetings Act does not require

the individual vote of "each member" to enter into closed ses-

sion; (3) holding the motion to go into closed session to discuss

"land acquisition" unambiguously referred to a specific statutory

exception; (4) determining the published agenda does not have to

disclose that the council will enter into "closed session"; and

(5) ruling the Open Meetings Act permits individuals who are not

members of the "public body" to attend closed session meetings

while excluding the public when no motion is made or approved to

permit attendance by any identified individuals.

Section 2 of the Open Meetings Act outlines the open-

ness policy and the exceptions that allow a public body to close

a meeting to the public:

"(a) Openness required. All meetings of

public bodies shall be open to the public

unless excepted in subsection (c) and closed

in accordance with Section 2a.

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 (b) Construction of exceptions. 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. The exceptions authorize but do

not require the holding of a closed meeting

to discuss a subject included within an enu-

merated exception.

(c) Exceptions. A public body may hold

closed meetings to consider the following

subjects:

* * *

(5) The purchase or lease of

real property for the use of the

public body, including meetings

held for the purpose of discussing

whether a particular parcel should

be acquired.

(6) The setting of a price for

sale or lease of property owned by

the public body.

* * *

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 (11) Litigation, when an ac-

tion against, affecting or on be-

half of the particular public body

has been filed and is pending be-

fore 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(a),

(b), (c), (c)(5), (c)(6), (c)(11)

(West 2006).

Section 2a of the Open Meetings Act sets forth the

procedure the public body must follow to close a meeting. 5 ILCS

120/2a (West 2006). Pursuant to section 2a, to close a meeting

or portion of a meeting, the public body must show that a major-

ity vote of the quorum present, "taken at a meeting open to the

public for which notice has been given as required by this Act,"

voted to hold the closed session. 5 ILCS 120/2a (West 2006).

Section 2a requires that "[t]he vote of each member on the

question of holding a meeting closed to the public and a citation

to the specific exception contained in [s]ection 2 of this Act

which authorizes the closing of the meeting to the public shall

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be publicly disclosed at the time of the vote and shall be

recorded and entered into the minutes of the meeting." 5 ILCS

120/2a (West 2006).

A. "Pending Litigation" Exception

Plaintiff claims defendants violated the Open Meetings

Act when they motioned to discuss only "litigation" without

referring to the type of litigation.

Defendants argue that the trial court properly found

that the city's motion to go into closed session cited exceptions

that were clearly stated, unambiguous, and well within the

statutory exceptions. Defendants agree that the council member

stated a "litigation" exception rather than a "pending litiga-

tion" exception when she motioned to go into closed session.

Further, defendants acknowledge this court deemed such an omis-

sion in a previous case insufficient to comply with the section

2(c)(11) requirements. See Henry v. Anderson, 356 Ill. App. 3d

952, 957, 827 N.E.2d 522, 525 (2005) (acknowledging the public

body invoked section 2(c)(11) by using the word "litigation" but

finding that because the body did not clarify that the litigation

was pending or imminent, the body violated the Open Meetings Act

because the requisite findings regarding potential litigation had

not been made). Defendants note, though, that unlike in Henry,

the trial court in this case found the record clearly showed an

express declaration of the intent to go into a closed session to

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discuss "pending litigation."

We agree that this case is distinguishable from Henry.

In Henry, this court determined that section 2a does not require

a specific citation to the statute as long as the public body

adequately identifies the exception. Henry, 356 Ill. App. 3d at

955, 827 N.E.2d at 524. While "[a]n additional citation to the

statutory subsection [may be] helpful," such citation is not

required by the act. Henry, 356 Ill. App. 3d at 955, 827 N.E.2d

at 524. We went on to determine, however, that a public body

invoking the "litigation" exception did not properly cite section

2(c)(11). Henry, 356 Ill. App. 3d at 956, 827 N.E.2d at 525.

According to our decision, the "litigation" exception as stated

in section 2(c)(11) is a "forked path" for the following reason:

"If the litigation has been filed and is

pending, the public body need only announce

that in the proposed closed meeting, it

will discuss litigation that has been filed

and is pending. If the litigation has not

yet been filed, the public body must (1) find

that the litigation is probable or imminent

and (2) record and enter into the minutes

the basis for that finding. Evidently, the

legislature intended to prevent public bodies

from using the distant possibility of litiga-

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 tion as a pretext for closing their meetings

to the public." Henry, 356 Ill. App. 3d at

956-57, 827 N.E.2d at 525.

In Henry, the record shows that the litigation was characterized

both as "potential" and as a "contested litigation matter," so it

was unclear to the public whether the litigation fell under (1)

the filed and pending portion of the exception or (2) the proba-

ble or imminent portion, which would have required a finding and

a basis for such a finding be made record. Henry, 356 Ill. App.

3d at 957, 827 N.E.2d at 525.

This case is distinguishable from Henry. The record

shows that during the open portion of the meeting and before the

motion to go into closed session was made, the city manager

issued a reminder that there had been a request for a closed

meeting to discuss "land acquisition and pending litigation."

Unlike in Henry, no other statements could have confused the

public as to type of litigation that was going to be discussed.

Henry acknowledged that "[i]f litigation has been filed and is

pending, the public body need only announce that in the proposed

closed meeting, it will discuss litigation that has been filed

and is pending." Henry, 356 Ill. App. 3d at 956, 827 N.E.2d at

525. In this case, the public body announced the litigation was

pending, and the council member's failure to reiterate that fact

when she made the motion does not constitute a violation of the

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Open Meetings Act.

B. "Vote Of Each Member" Requirement

Plaintiff claims that the reference to the vote of

"each member" in section 2a requires that the vote of each member

be recorded individually and that a voice vote fails to comply.

(Emphasis added.) 5 ILCS 120/2a (West 2006). Defendant argues

that the trial court was correct in finding that the vote of each

council member was publicly disclosed.

The affidavit of the city clerk indicates that a voice

vote was taken, she recorded the vote, the vote was taken during

the open meeting, and all members voted affirmatively. The video

recording of the meeting corroborates the city clerk's affidavit.

The trial court determined that the record "establishes with

certainty that every member of the council voted on the record in

favor" of the motion to go into closed session and that the Open

Meetings Act "required no more of defendants." Under the plain

language of the statute, "[t]he vote of each member *** shall be

publicly disclosed at the time of the vote and shall be re-

corded." 5 ILCS 120/2a (West 20006). The statute does not

require that each member's vote be taken individually and re-

corded individually. As long as the public is informed of each

member's vote, the requirement of the statute is met. In this

case, each member voted yes during a voice vote and that fact was

recorded.

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 C. Property Acquisition Exception

Plaintiff claims that the "property acquisition"

reference did not cite a particular exception, and it was ambigu-

ous as to whether the council would be discussing (1) whether to

sell or lease its own property (see 5 ILCS 120/2(c)(6) (West

2006)), (2) whether to acquire property for the public body's own

use (see 5 ILCS 120/2(c)(5) (West 2006)), or (3) whether to

acquire land for use by a third party (not an exception).

Defendant argues that the trial court did not err in

finding that the city council cited section 2(c)(5) as only that

section applies to acquiring land, and the council stated it

would be discussing "land acquisition." As discussed above,

generally calling attention to an exception is sufficient to meet

the requirement that the public body cite the "specific exception

contained in [s]ection 2 of [the] Act which authorizes the

closing of the meeting to the public." 5 ILCS 120/2a (West

2006); see McKee v. Board of Trustees of the Champaign Police

Pension Fund, 367 Ill. App. 3d 538, 547, 855 N.E.2d 571, 578

(2006) ("[i]t would have been better if the Board had explicitly

referred to this specific subsection, but generally calling

attention to the exception was sufficient").

As only one of the exceptions specifically deals with

acquiring land through purchase or lease, we agree that the

council unambiguously invoked section 2(c)(5) (5 ILCS

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120/2(c)(5)(West 2006)). The section 2(c)(6) exception is

limited to the sale or lease of property already owned by the

municipality, making it unlikely the public would confuse a

reference to land acquisition as invoking this section.

D. Publication Requirement

Plaintiff argues the trial court erred in ruling that

the published agenda for the regular open meeting does not have

to disclose that the council will enter into closed session or

disclose the exception under section 2(c). Section 2a states as

follows:

"At any open meeting of a public body

for which proper notice under this Act has

been given, the body may, without additional

notice under [s]ection 2.02, hold a closed

meeting in accordance with this Act. Only

topics specified in the vote to close under

this [s]ection may be considered during the

closed meeting." 5 ILCS 120/2a (West 2006).

Plaintiff does not argue that the council failed to give proper

notice for the open meeting. The plain language of section 2a

allows a public body to decide during a properly noticed open

meeting to go into closed session without any additional notice.

Defendants did not, therefore, need to put in the published

agenda for the open meeting its intention to go into a closed

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meeting or the topics to be discussed in the closed meeting.

E. Nonmember Attendance At Closed Session

Finally, plaintiff argues the trial court erred in

stating the following:

"The Open Meetings Act is both textually and

implicitly silent on the matter of whether

persons other than members of a public body

may be present at a meeting properly closed

under the Act. The Act is thus also silent

on the question of whether such presence must

be made the subject of a motion disposed of

in open session."

According to plaintiff, the Act states that a "public body" may

hold closed meetings (5 ILCS 120/2(c) (West 2006)), and "'[p]ub-

lic body' includes all legislative, executive, administrative[,]

or advisory bodies of the State, counties, townships, cities,

villages, incorporated towns, school districts[,] and all other

municipal corporations, boards, bureaus, committees[,] or commis-

sions of this State, and any subsidiary bodies of any of the

foregoing" (5 ILCS 120/1.02 (West 2006)). Plaintiff argues this

should ban anyone not a member of the public body from attending

the closed meeting.

Defendants counter that no statute or court decision

dictates who is permitted to attend a closed session and staff

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members of a public body are permitted to attend such sessions as

they are necessary to assist council. Defendants argue that a

public body cannot conduct its business in isolation and needs

staff to record the proceedings and assist the council with

discussion on the different subjects. For example, to discuss

pending litigation, the council would need to confer with the

city attorney. The council could not come to a decision if non-

members were excluded and council had no one to describe the

circumstances or status of the litigation or answer its ques-

tions.

The trial court concluded that because the Act was

silent on who could attend closed meetings, it was prohibited

from adopting plaintiff's position and elevating it to a provi-

sion of law. The court stated the following:

"Plaintiff's claim is thus better directed

to the General Assembly or to the City of

Champaign itself in an extralegal forum. In

the former case, the General Assembly is free

to amend the Act; in the latter, the City of

Champaign is free to interpret the Act as

plaintiff suggests as a matter of policy

and attendant discretion. In no event can

this or any trial court so order. This court

has no authority to rewrite the statute

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 according to plaintiff's view of what the

law might or should be. The court further

lacks the authority to dictate how the City

of Champaign construes the Act where, as

here, the construction it has chosen is

neither clearly erroneous nor contrary to

that of an Illinois court of review."

We agree with the trial court. Because the Open

Meetings Act neither delineates who is allowed to attend closed

session nor specifically prohibits a public body from inviting

nonmembers into the closed session, we cannot find defendants

violated the Act when they allowed nonmembers into the closed

session.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.

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