OMA and Real Estate Deals


City of DeKalb just paid for an appraisal of the old Ducky’s/Otto’s building at Lincoln and First. I haven’t heard a peep otherwise, but mindful of possible next steps I’ve done a little homework.

The Open Meetings Act (OMA) has a couple things to say about what a local government can do in closed session when it comes to real estate deals.

[2(c)](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.

Exceptions to openness must be strictly construed, so we need to be clear on what’s not okay to talk about in closed session, and this isn’t always readily apparent (and/or has been more firmly established by case law instead of legislation). In this case, a publication from Ancel Glink called “304 Questions that Have Actual Answers” gives us examples.

Q: If you think you might want to sell some land on the north side of town, can the matter be discussed in closed session?

A: No. There is no exception for discussions of the possible sale of land. The ability to go into closed session does not occur unless or until the setting of a price is being discussed.

When our city council finally gets around to, say, the question of what to do about the DeKalb Municipal Annex, the discussion and vote on whether to sell must be public. Only the setting of the price can be secret.

Here’s another:

Q: Can a Board or Council go into closed session to discuss the possible acquisition of some future site for a public works garage?

A: No. At that early stage, the issue remains one of public policy, which must be discussed in open session. It is only when the discussion has moved to the acquisition of some specific parcel or parcels of land that the matter can be discussed in closed session.

So if your city council suddenly has an agenda item to vote on purchasing a particular property and this is the first you’ve heard of it, you’ve discovered a violation of the Open Meetings Act, in spirit if not in fact.