5 ILCS 120/2(c)(11)

How the Public Access Counselor has treated 5 ILCS 120/2(c)(11)

This exception allows a public body to hold a closed session to discuss pending litigation, or litigation that is probable or imminent. It is listed as 5 ILCS 120/2(c)(11) and is raised when a council, board, or committee closes a meeting to talk about lawsuits, threatened claims, or other legal disputes.

In these decisions, the PAC has applied the exception narrowly. It found violations where bodies discussed intergovernmental agreements, ordinances, permit merits, or salary matters in closed session without showing the discussion fit the litigation exception, and where bodies failed to state and record the basis for finding litigation probable or imminent. It found no violation where closed discussion involved a pending lawsuit, property tax appeal, or resolution tied to litigation, and closed other matters without further action on minute review or verbal citation issues.

At a glance: 18 documents from 2012 to 2024(5 binding opinions, 13 determination letters). Most often cited alongside: 5 ILCS 120/2(c)(1) (Employee/contractor appointment, discipline, or performance) (2); 5 ILCS 120/2(c)(2) (Collective negotiating matters / salary schedules) (1); 5 ILCS 120/2(c)(3) (Filling a public office / removing an office-holder) (1); 5 ILCS 120/2(c)(5) (Purchase or lease of real property) (1); 5 ILCS 120/2(c)(6) (Setting a sale/lease price for public body's own property) (1).

Recurring issues

• Whether closing a session to discuss an intergovernmental or revenue-sharing agreement is permitted under the litigation exception. (A city council's closed-session discussion of a revenue-sharing agreement, Closed session discussion of an intergovernmental agreement)
• Whether a public body must state and record its basis for finding litigation probable or imminent before entering closed session. (Unrecorded closed-session landfill ordinance discussion, Closed-session discussion of litigation without recording basis, Closed-session discussion of possible litigation)
• Whether closed discussion of a pending lawsuit, administrative property tax appeal, or related resolution falls within the exception. (A town council's closed-session discussion of litigation strategy, Closed-session discussion of litigation and a resolution, Closed-session discussion of a property tax appeal)
• Whether the actual closed discussion went beyond litigation to cover topics such as salary, permit merits, or ordinance language. (Unrecorded closed-session landfill ordinance discussion, Closed-session discussion of a mayor's salary, A city council's closed-session discussion of a conditional use permit)

Practical points

• A public body entering closed session for litigation should publicly identify the exception and record the basis for finding litigation pending, probable, or imminent.
• A public body should limit closed discussion to the litigation matter and not add unrelated topics such as salaries, agreements, or permit merits.
• A public body should create and preserve the required closed-session recording and avoid taking final action in closed session.

Summary drafted from the linked decisions and checked against them; read the decisions themselves before relying on it. Not legal advice.