Litigation

The Law

Meetings subject to the attorney-client privilege pertaining to threatened or pending litigation in which the public body is or may become a participant.

Commentary
This exception to the Act is intended to incorporate into the open meetings law the attorney-client privilege protecting confidential communications between attorneys and their public agency clients for the limited purpose of allowing a public body to meet in closed session with legal counsel to discuss threatened or pending litigation involving the public body. Public bodies, no less than private parties to litigation, are entitled to effective representation of counsel, including the opportunity to confer without disclosing the substance of the discussion. However, public bodies may invoke the attorney-client privilege to close a meeting only when the public body is involved in a lawsuit or faced with an actual or credible threat of litigation. Absent such a threat, the exception does not protect discussions about “possible” or “potential” litigation. 

Generally, the public body’s attorney should be present in the closed meeting, either in person or by telephone. In certain limited situations, it may be permissible for a public body to close a meeting to discuss legal advice about litigation that is given by letter or other written memorandum. In all cases, however, to legitimately invoke the pending litigation exception, the closed discussion must involve communications between the public body and its attorney. 

Example 57:
A local school board meets to discuss the award of a contract to one of several bidders. The board members would like to close the meeting pursuant to this exception on the theory that it is always possible that one of the unsuccessful bidders may threaten litigation. If there is no actual and credible threat of litigation by one of the bidders, this would be an unwarranted extension of the exception and the meeting may not be closed.

Example 58:
The city council is conducting a hearing on proposed zoning regulations. Several witnesses raise plausible questions about the legality of one of the proposed rules and state that they definitely would challenge the rules in court if adopted. At the hearing or at a later time, the council may meet in closed session with its attorney to evaluate the legality of the proposed rule and make the determination as to whether it could be defended in court.

Example 59:
The attorney for a licensing board feels that a recent Supreme Court decision may affect the validity of certain regulations adopted by the board. Absent a pending lawsuit on this issue in which the board may participate or an actual threat of litigation, the board and its attorney may not meet in closed session to discuss the impact of the court decision and whether it is necessary to amend the regulations to prevent a possible legal action from being filed against the board. 

Example 60:
A municipality and a rancher have both claimed ownership of a particular piece of property. They are attempting to negotiate a settlement of the dispute to avoid having to go to court. The governing body of the municipality properly meets in closed session with its attorney to determine how much they are willing to give up to reach a settlement. Later, at a subsequent meeting, the governing body may go into executive session to discuss a letter from the attorney setting forth the proposed settlement terms and her advice regarding acceptance of the terms. 

Example 61:
A teacher who was terminated by a school board has brought an action for breach of contract against the board. The lower court decided in favor of the teacher. The school board and its attorney may meet in closed session to determine whether or not to appeal to a higher court. 

Commentary
This exception does not apply only when a public body is sued or is threatened with litigation. It also may be used to close a meeting when the public body wants to consult with its attorney about a lawsuit the public body has initiated or is considering initiating against a defendant. 

Example 62:
The result of a lawsuit filed by an individual against another individual will substantially affect a licensing board’s ability to apply certain laws. The board, although not a party to that litigation, may meet in closed session with its attorney to discuss filing a brief as amicus curiae (friend of the court).

Commentary
It is important to note that this exception allows a public body to rely on the attorney-client privilege to close a meeting only when the public body is involved in pending or threatened litigation. There is no exception allowing a public body to rely generally on the attorney- client privilege to close a meeting. Aside from discussions with its attorney that are otherwise excepted from the Act, the public body will either have to hold discussions with its attorney in an open meeting or rely on other means to protect its communications with its attorney that do not violate the Act. For example, the attorney might communicate with each member of the public body individually through one-on-one conversations or letters. Keep in mind, however, that if the attorney’s advice is discussed among a quorum of the public body’s members–in person, by e-mail, by telephone or otherwise– the discussion must be conducted in accordance with the Act, including the requirements for a public meeting, unless it falls within one of the Act’s exceptions. 

Example 63:
A five-member state commission wants to make a gift of public money to a worthy charity. The commission’s attorney is concerned that the gift may violate the state constitution. She sends a letter to each individual commissioner voicing her concerns. The topic of the gift is placed on the agenda for the next commission meeting. The commissioners’ discussion of the gift at that meeting must occur in public, even if they discuss the attorney’s advice regarding the gift, because the topic is not covered by one of the Act’s exceptions.