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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