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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The Department administers and enforces the Act. 820 ILCS130/0.01 et seq. (West 1998). The Department, along with otherpublic bodies, determines prevailing wage classifications andrates and conducts compliance investigations. On June 1, 1998,the Department issued a prevailing wage determination for eachcounty in Illinois. Based on its survey, the Departmentidentified numerous wage classifications, including laborers,operating engineers, and truck drivers. The Departmentdetermined that the prevailing hourly wage for highway laborerswas $17.19 and for building laborers was $17.64. However, it didnot recognize separate classifications for landscape laborers,landscape equipment operators, or landscape truck drivers.

From 1994 until 1999, the Sterling Park District inWhiteside County established its own rates for the positions ofbasic landscape laborer and foreman laborer. In 1998, DougJacobs, the park district's superintendent of parks and planning,contacted three firms in the area to ascertain the rates theywere paying their employees. Jacobs learned that a generallaborer was paid from $5.75 to $7.00 per hour and a foreman waspaid from $7.50 to $9.00 per hour. Two of the companies provided pension and vacation plans while the third did not.

Based on Jacob's survey, Larry Schuldt, the executivedirector of the park district, drafted an ordinance detailing thepark district's findings regarding prevailing wages. On June 5,1998, the park district's board of commissioners passed the draftordinance as Ordinance 98-2. In the ordinance, the Sterling ParkDistrict adopted prevailing wage rates for construction work inWhiteside County as determined by the Department. However, theordinance contained an exception regarding landscape laborers. For that category, the park district adopted wages of $6.25 perhour for a basic landscape laborer and $8.38 per hour for alandscape foreman, with no pension or vacation benefits.

The Sterling Park District filed Ordinance 98-2 with theIllinois Secretary of State. Additionally, a notice of the parkdistrict's determination of the prevailing rate of wage waspublished on June 23, 1998, in a daily newspaper of generalcirculation in Sterling. No party filed an objection to the parkdistrict's determination.

In August 1998, the Sterling Park District solicitedproposals for the installation of an irrigation system at one ofits recreational facilities, the Emerald Hill Golf and LearningCenter ("Emerald Hill"). On August 17, 1998, Skoog designed anirrigation system to meet the Sterling Park District'sspecifications. On September 14, 1998, the park district andSkoog entered into a contract for the installation of theirrigation system. In the contract, Skoog agreed to pay theprevailing wage according to the schedule set forth in the parkdistrict's Ordinance 98-2.

Skoog began work on the Emerald Hill project in October 1998and completed it in November 1998. Skoog paid seven of itsemployees who were identified as laborers wages between $6.25 and$11.00 per hour. It paid its foreman $9.15 per hour.

A month after the Emerald Hill project was finished, Skoogreceived a letter from Enus Higgins, a labor conciliator with theDepartment. In the letter, Higgins informed Skoog that Skoog hadfailed to pay its employees in accordance with the prevailingwage rate and classification established by the Department forWhiteside County. Specifically, Higgins alleged that Skoog hadunderpaid its workers $11,156.08 on the Emerald Hill project. Higgins claimed that Skoog was liable to the Department forpenalties totaling $2,231.22. If the Department did not receivea check for the underpayment within 30 days, Higgins claimed thatSkoog would be liable for additional penalties of $44.62 permonth for each worker.

Skoog did not submit a check to the Department for theclaimed underpayment or penalties. Two months later, Higginsforwarded the case file to his manager with a request that it beturned over to the Attorney General's office for prosecution. Ten months later, the Attorney General's office, on behalf of theDepartment, filed a complaint against Skoog.

Skoog filed a motion for summary judgment. 735 ILCS 5/2--1005(c) (West 1998). In the motion, Skoog conceded that the Actapplied to its employees who performed work on the Emerald HillProject. However, Skoog maintained that the Sterling ParkDistrict had complied with the Act when it enacted Ordinance 98-2. Skoog also contended that the Department had the opportunityto challenge the park district's prevailing wage determination ina timely manner and it failed to do so. According to Skoog, theDepartment was barred from retroactively trying to impose its ownprevailing wage determination on public works contractors. Finally, Skoog contended that, by paying its employees inaccordance with the park district's prevailing wagedetermination, it had not violated the Act.

In response, the Department argued that the Sterling ParkDistrict's wage determination with respect to the landscapelaborer classification was invalid because it applied only to thepark district rather than all of Whiteside County. It alsocontended that the Sterling Park District conducted an inadequateinvestigation to ascertain the landscape laborer rate when itonly contacted three businesses and there was no evidence thatthose businesses installed irrigation systems.

At the conclusion of the hearing, the trial court grantedthe defendants' motion for summary judgment. It noted that thepark district had conducted an investigation, adopted aprevailing wage rate for landscape labor, filed its ordinancewith the Secretary of State's office, published a notice in thelocal newspaper, and had received no objections. The court didnot address the adequacy of the park district's investigation.

On appeal, the Department argues that the trial courterred in granting Skoog's motion for summary judgment. Specifically, it contends that the Sterling Park District'sprevailing wage determination was invalid for the followingreasons: (1) the survey was geographically flawed; (2) only three companies were surveyed; and (3) nothing in the recordindicates that the park district limited its inquiry to wagespaid on public works projects only. The Department also contendsin this appeal that it was appropriate to bring this action onbehalf of Skoog's employees under section eleven of the Act. 820ILCS 130/11 (West 1998).

A motion for summary judgment shall be granted "if thepleadings, depositions, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgmentas a matter of law." 735 ILCS 5/2--1005(c) (West 1998). Thiscourt will review the decision to grant a motion for summaryjudgment on a de novo basis. Second District West Suburban Bankv. Attorneys' Title Insurance Fund, Inc., 326 Ill. App. 3d 502,761 N.E.2d 346 (2001).

Under section nine of the Act a public body shall ascertainthe prevailing wage rate in June of each year, publish that rate,and file a certified copy thereof with the Illinois Secretary ofState. 820 ILCS 130/9 (West 1998). The Department is alsorequired each June to ascertain the prevailing rate of wages foreach county in the state. 820 ILCS 130/9 (West 1998). If apublic body does not investigate and ascertain the prevailingrate during June, then the rate which the Department has set forthe county in which the public body is located becomes theprevailing wage rate. 820 ILCS 130/9 (West 1998).

Section nine of the Act further provides that within 15 daysafter the rate determination has been published, any personaffected by the rates may object in writing to the public body orthe Department. 820 ILCS 130/9 (West 1998). It shall then bethe duty of the public body or the Department to set a date for ahearing on the objection after giving written notice to theobjectors at least 10 days before the date of the hearing. 820ILCS 130/9 (West 1998). Such a hearing shall be held within 20days after the objection is filed. 820 ILCS 130/9 (West 1998). At the conclusion of the hearing, either the public body or theDepartment makes a final determination which is subject toadministrative review. See 820 ILCS 130/9; 735 ILCS 5/3-101 etseq. (West 1998). If proceedings to judicially review the finaldetermination of the public body or the Department are notinstituted, such a determination shall be final and binding. 820ILCS 130/9 (West 1998).

"The finding of the public body awarding the contract orauthorizing the work or the Department of Labor ascertaining anddeclaring the general prevailing rate of hourly wages shall befinal for all purposes of the contract for public work then beingconsidered, unless reviewed under the provisions of this Act."820 ILCS 130/7 (West 1998).

Here, the trial court properly granted summary judgment forSkoog. It is undisputed that the Sterling Park Districtconducted a survey to ascertain and determine the prevailing wagerates for landscape laborers and landscape foremen. The parkdistrict complied with the mandates of the Act when it publishedthe rates in a local newspaper and filed its determination withthe Secretary of State.

On appeal, the Department attempts to point out severaldefects in the park district's prevailing wage determination. These alleged defects are irrelevant because the Department neverproperly challenged the park district's rate under the Act. See820 ILCS 130/9 (West 1998). It did not object to the rates untila month after the project was completed which was outside thetime limits mandated by the Act. See 820 ILCS 130/9 (West 1998). When there were no timely objections filed to the park district'spublished wage rates, those rates became final for "all purposesof the contract for public work then being considered." 820 ILCS130/7 (West 1998).

The Department contends that its enforcement authority isnot limited to objecting to the park district's prevailing wagedetermination under section nine of the Act. 820 ILCS 130/9(West 1998). It claims that it is also authorized to bring anaction against Skoog on behalf of its employees under sectioneleven of the Act. 820 ILCS 130/11 (West 1998).

Section eleven of the Act empowers the Department, asrepresented by the Attorney General, to sue for injunctive reliefagainst the awarding of any contract or the continuation of workunder any contract for public works at a time when the prevailingwage prerequisites have not been met. 820 ILCS 130/11 (West1998). It also gives the Department a right of action on behalfof any individual who has a right of action under section eleven. 830 ILCS 130/11 (West 1998).

Section eleven does not allow an untimely challenge to thepublic body's determination as asserted by the Department. Wehold that the Department could not properly bring an action undersection eleven of the Act in this case. The Attorney General hascited no case where the Department was permitted to challenge thevalidity of a public body's prevailing wage ordinance other thanin the manner set forth in section nine of the Act. 820 ILCS130/9 (West 1998). Section eleven of the Act only authorizes anaction by the Department where the contractor did not pay theprevailing wages as had been determined by the public body, orthe Department if the public body had made no determination. 820ILCS 130/11 (West 1998). Here, Skoog paid the prevailing wagesas determined by the park district.

The trial court properly granted Skoog's motion for summaryjudgment. The Department did not object in a timely manner tothe Sterling Park District's prevailing wage determination, andit had no authority to impose its own prevailing wagedetermination on the park district's contractors. The Departmentcould not properly pursue Skoog under section eleven of the Actbecause Skoog properly paid the Sterling Park District prevailingwage.

The judgment of the circuit court of Whiteside County isaffirmed.

Affirmed.

LYTTON, J., concurs.

JUSTICE HOLDRIDGE, specially concurring:

I agree with the majority's holding that the trial court'sgrant of summary judgment to Skoog must be affirmed. I writeseparately only to point out that the Park District clearlyfailed to calculate a proper prevailing wage. While thestatutory scheme for challenging the Park District's prevailingwage determination apparently anticipates the Department beingplaced on notice when the Secretary of State is notified, suchdid not happen in the instant case. One would think that theDepartment would have the authority to challenge the ParkDistrict's determination on behalf of the injured workers at thepoint when the sub-standard wage is paid. But, as the majoritypoints out, the statute does not allow the Department to takesuch action. If the Prevailing Wage Act is to have the effect itwas intended, in the future, either the Department will have tobe more vigilant, or the Act must be changed to give theDepartment the necessary tools to enforce the Act.