AG: City of Benld Held Improper Closed Meeting; Asks City To Release Recording –

Benld, Ill. (ECWd) –

Nearly SIX years after a complaint was filed with the Illinois Attorney General’s Public Access Counselor (“PAC”) over an alleged violation of the Open Meetings Act by the City of Benld, Illinois, in Macoupin County, when they entered into closed session for an improper purpose, the PAC issued its determination that an OMA violation occurred.

From the determination:

On February 6, 2019, Mr. John Kraft submitted a Request for Review alleging that the City of Benld (City) City Council (Council) violated OMA during its January 21, 2019, meeting. Specifically, Mr. Kraft alleged that the Council improperly entered into an 80-minute closed session pursuant to section 2(c)(11) of OMA1 in order to “receive a briefing from Representatives of HMG on the results of a feasibility study referencing the City’s water supply and contracts/construction related to it.” He asserted that the Council cited a potential for ligation if the City cancelled its current contract with the City of Gillespie.

In its response to this office, the Council acknowledged that “[t]he suggestion of an Open Meetings violation * * * for a period of 80 minutes the City Council was in closed session and received information from representatives of HMG, is technically correct, however, that discussion was intertwined with the legal issues” related to the City’s water source for which it sought legal advice.

The Council’s attorney explained:

“Our office had been previously requested to review the Contract that had been entered into by the City of Benld with the City of Gillespie in April of 1984 that had a stated term of 40 years and therefore will not expire until 2024, unless agreed to be extended by the parties. That contract was an important factor in the City’s decision as to whether an alternate water source from the City of Gillespie needs to be considered and therefore our office was requested to provide an opinion as the effect of the 1984 water contract with the City of Gillespie. The other parties [in] attendance of the Executive Session were representatives of the engineering firm of HMG, who are the City’s designated engineers, who had put together a proposal as to possible alternate water sources and that * * * proposal was going to be affected by both the legal issue concerning the City of Gillespie and potential other legal issues related to alternate water sources including the KaHo Public Water District“

In reply to the Council’s June 10, 2019, answer, Mr. Kraft stated that the Council’s response did not demonstrate that the City faced any potential, threatened, or imminent litigation concerns.

There is no indication that litigation was probable or imminent at the time of the January 21, 2019, meeting. The Council, along with its attorneys and designated engineering firm, discussed the City’s current contractual obligations to the City of Gillespie and whether the City should seek out possible alternate water sources. Although the Council’s discussion partly involved legal issues concerning a contractual matter, the Council did not assert or demonstrate that at the time of the meeting, it was more likely than not, litigation would ensue. The Council’s response shows that the Council was still considering all its available options rather than anticipating a probable lawsuit. As the Council had not yet approved an action that would interfere with its contractual obligations to the City of Gillespie, there was, at most, a mere possibility of legal action affecting the City at the time of the meeting. Therefore, the section 2(c)(11) exception did not authorize the Council’s closed session discussion.

In accordance with the conclusions expressed in this determination, this office requests that the Council vote to make available for public inspection a copy of the verbatim recording and the minutes of the closed session portion of its January 21, 2019, meeting.

Read the determination below: