No. 3--01--0852

	________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

THE PEOPLE ex rel. THE 		)	Appeal from the Circuit Court

DEPARTMENT OF LABOR,		)    of the 14th Judicial Circuit

						)	Whiteside County, Illinois,

	Plaintiff-Appellant,	)

						)	

		    v.			)	No. 2000--AR--1 

						)	

SKOOG LANDSCAPE & DESIGN		)	Honorable

and C. ALAN SKOOG, 			)	Timothy J. Slavin,

						)	Judge Presiding.

	Defendants-Appellees.	)	

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________

	The Illinois Department of Labor ("Department") brought this

action against the defendants, Skoog Landscape & Design and its

owner, C. Alan Skoog (collectively "Skoog"), for allegedly

failing to pay prevailing wages to its employees while working on

a project for the Sterling Park District.  The Department alleged

that the failure to pay its prevailing wages was a violation of

the Prevailing Wage Act ("Act").  820 ILCS 130/0.01 et seq. (West 1998).  Skoog filed a motion for summary judgment, claiming that

the Department did not bring this suit in a timely manner under

the Act.  See 820 ILCS 130/0.01 et seq. (West 1998).  After a hearing, the trial court granted the motion for summary judgment. 

For the following reasons, we affirm.

	I.  FACTS

	A.  Background

	The Department administers and enforces the Act.  820 ILCS

130/0.01 et seq. (West 1998).  The Department, along with other public bodies, determines prevailing wage classifications and

rates and conducts compliance investigations.  On June 1, 1998,

the Department issued a prevailing wage determination for each

county in Illinois.  Based on its survey, the Department

identified numerous wage classifications, including laborers,

operating engineers, and truck drivers.  The Department

determined that the prevailing hourly wage for highway laborers

was $17.19 and for building laborers was $17.64.  However, it did

not recognize separate classifications for landscape laborers,

landscape equipment operators, or landscape truck drivers. 

	From 1994 until 1999, the Sterling Park District in

Whiteside County established its own rates for the positions of

basic landscape laborer and foreman laborer.  In 1998, Doug

Jacobs, the park district’s superintendent of parks and planning,

contacted three firms in the area to ascertain the rates they

were paying their employees.  Jacobs learned that a general

laborer was paid from $5.75 to $7.00 per hour and a foreman was

paid 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 executive

director of the park district, drafted an ordinance detailing the

park district’s findings regarding prevailing wages.  On June 5, 1998, the park district’s board of commissioners passed the draft

ordinance as Ordinance 98-2.  In the ordinance, the Sterling Park

District adopted prevailing wage rates for construction work in

Whiteside County as determined by the Department.  However, the

ordinance contained an exception regarding landscape laborers. 

For that category, the park district adopted wages of $6.25 per

hour for a basic landscape laborer and $8.38 per hour for a

landscape foreman, with no pension or vacation benefits.

	The Sterling Park District filed Ordinance 98-2 with the

Illinois Secretary of State.  Additionally, a notice of the park

district’s determination of the prevailing rate of wage was

published on June 23, 1998, in a daily newspaper of general

circulation in Sterling.  No party filed an objection to the park

district’s determination.

                                                   	B.  The Emerald Hill Irrigation Project

	In August 1998, the Sterling Park District solicited

proposals for the installation of an irrigation system at one of

its recreational facilities, the Emerald Hill Golf and Learning

Center ("Emerald Hill").  On August 17, 1998, Skoog designed an

irrigation system to meet the Sterling Park District’s

specifications.  On September 14, 1998, the park district and

Skoog entered into a contract for the installation of the

irrigation system.  In the contract, Skoog agreed to pay the

prevailing wage according to the schedule set forth in the park

district’s Ordinance 98-2.  

	Skoog began work on the Emerald Hill project in October 1998

and completed it in November 1998.  Skoog paid seven of its

employees 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, Skoog

received a letter from Enus Higgins, a labor conciliator with the

Department.  In the letter, Higgins informed Skoog that Skoog had

failed to pay its employees in accordance with the prevailing

wage rate and classification established by the Department for

Whiteside County.  Specifically, Higgins alleged that Skoog had

underpaid its workers $11,156.08 on the Emerald Hill project. 

Higgins claimed that Skoog was liable to the Department for

penalties totaling $2,231.22.  If the Department did not receive

a check for the underpayment within 30 days, Higgins claimed that

Skoog would be liable for additional penalties of $44.62 per

month for each worker.

	Skoog did not submit a check to the Department for the

claimed underpayment or penalties.  Two months later, Higgins

forwarded the case file to his manager with a request that it be

turned over to the Attorney General’s office for prosecution. 

Ten months later, the Attorney General’s office, on behalf of the

Department, filed a complaint against Skoog.  

	C.  Motion for summary judgment

	Skoog filed a motion for summary judgment.  735 ILCS 5/2--

1005(c) (West 1998).  In the motion, Skoog conceded that the Act

applied to its employees who performed work on the Emerald Hill Project.  However, Skoog maintained that the Sterling Park

District had complied with the Act when it enacted Ordinance 98-

2.  Skoog also contended that the Department had the opportunity

to challenge the park district’s prevailing wage determination in

a timely manner and it failed to do so.  According to Skoog, the

Department was barred from retroactively trying to impose its own

prevailing wage determination on public works contractors. 

Finally, Skoog contended that, by paying its employees in

accordance with the park district’s prevailing wage

determination, it had not violated the Act.  

	In response, the Department argued that the Sterling Park

District’s wage determination with respect to the landscape

laborer classification was invalid because it applied only to the

park district rather than all of Whiteside County.  It also

contended that the Sterling Park District conducted an inadequate

investigation to ascertain the landscape laborer rate when it

only contacted three businesses and there was no evidence that

those businesses installed irrigation systems.

	At the conclusion of the hearing, the trial court granted

the defendants’ motion for summary judgment.  It noted that the

park district had conducted an investigation, adopted a

prevailing wage rate for landscape labor, filed its ordinance

with the Secretary of State’s office, published a notice in the

local newspaper, and had received no objections.  The court did

not address the adequacy of the park district’s investigation.

	II.  ANALYSIS

	   On appeal, the Department argues that the trial court

erred in granting Skoog’s motion for summary judgment. 

Specifically, it contends that the Sterling Park District’s

prevailing wage determination was invalid for the following

reasons:  (1) the survey was geographically flawed; (2) only 

three companies were surveyed; and (3) nothing in the record

indicates that the park district limited its inquiry to wages

paid on public works projects only.  The Department also contends

in this appeal that it was appropriate to bring this action on

behalf of Skoog's employees under section eleven of the Act.  820

ILCS 130/11 (West 1998).  

	A motion for summary judgment shall be granted "if the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law."  735 ILCS 5/2--1005(c) (West 1998).  This

court will review the decision to grant a motion for summary

judgment on a de novo basis.  Second District West Suburban Bank v. Attorneys’ Title Insurance Fund, Inc., 326 Ill. App. 3d 502, 761 N.E.2d 346 (2001).

	A.  Section Nine of the Act

	Under section nine of the Act a public body shall ascertain

the prevailing wage rate in June of each year, publish that rate,

and file a certified copy thereof with the Illinois Secretary of

State.  820 ILCS 130/9 (West 1998).  The Department is also required each June to ascertain the prevailing rate of wages for

each county in the state.  820 ILCS 130/9 (West 1998).  If a

public body does not investigate and ascertain the prevailing

rate during June, then the rate which the Department has set for

the county in which the public body is located becomes the

prevailing wage rate.  820 ILCS 130/9 (West 1998).  

	Section nine of the Act further provides that within 15 days

after the rate determination has been published, any person

affected by the rates may object in writing to the public body or

the Department.  820 ILCS 130/9 (West 1998).  It shall then be

the duty of the public body or the Department to set a date for a

hearing on the objection after giving written notice to the

objectors at least 10 days before the date of the hearing.  820

ILCS 130/9 (West 1998).  Such a hearing shall be held within 20

days after the objection is filed.  820 ILCS 130/9 (West 1998). 

At the conclusion of the hearing, either the public body or the

Department makes a final determination which is subject to

administrative review.  See 820 ILCS 130/9; 735 ILCS 5/3–101 et seq. (West 1998).  If proceedings to judicially review the final determination of the public body or the Department are not

instituted, such a determination shall be final and binding.  820

ILCS 130/9 (West 1998).  

	"The finding of the public body awarding the contract or

authorizing the work or the Department of Labor ascertaining and

declaring the general prevailing rate of hourly wages shall be

final for all purposes of the contract for public work then being considered, unless reviewed under the provisions of this Act."

820 ILCS 130/7 (West 1998).

	Here, the trial court properly granted summary judgment for

Skoog.  It is undisputed that the Sterling Park District

conducted a survey to ascertain and determine the prevailing wage

rates for landscape laborers and landscape foremen.  The park

district complied with the mandates of the Act when it published

the rates in a local newspaper and filed its determination with

the Secretary of State.  

	On appeal, the Department attempts to point out several

defects in the park district’s prevailing wage determination. 

These alleged defects are irrelevant because the Department never

properly challenged the park district’s rate under the Act.  See

820 ILCS 130/9 (West 1998).  It did not object to the rates until

a month after the project was completed which was outside the

time limits mandated by the Act.  See 820 ILCS 130/9 (West 1998). 

When there were no timely objections filed to the park district’s

published wage rates, those rates became final for "all purposes

of the contract for public work then being considered."  820 ILCS

130/7 (West 1998).                                                

            	B.  Section Eleven of the Act

	The Department contends that its enforcement authority is

not limited to objecting to the park district’s prevailing wage

determination under section nine of the Act.  820 ILCS 130/9

(West 1998).  It claims that it is also authorized to bring an action against Skoog on behalf of its employees under section

eleven of the Act.  820 ILCS 130/11 (West 1998).     

	Section eleven of the Act empowers the Department, as

represented by the Attorney General, to sue for injunctive relief

against the awarding of any contract or the continuation of work

under any contract for public works at a time when the prevailing

wage prerequisites have not been met.  820 ILCS 130/11 (West

1998).  It also gives the Department a right of action on behalf

of 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 the

public body's determination as asserted by the Department.  We

hold that the Department could not properly bring an action under

section eleven of the Act in this case.  The Attorney General has

cited no case where the Department was permitted to challenge the

validity of a public body’s prevailing wage ordinance other than

in the manner set forth in section nine of the Act.  820 ILCS

130/9 (West 1998).  Section eleven of the Act only authorizes an

action by the Department where the contractor did not pay the

prevailing wages as had been determined by the public body, or

the Department if the public body had made no determination.  820

ILCS 130/11 (West 1998).  Here, Skoog paid the prevailing wages

as determined by the park district. 

	III.  CONCLUSION

	The trial court properly granted Skoog’s motion for summary

judgment.  The Department did not object in a timely manner to the Sterling Park District’s prevailing wage determination, and

it had no authority to impose its own prevailing wage

determination on the park district’s contractors.  The Department

could not properly pursue Skoog under section eleven of the Act

because Skoog properly paid the Sterling Park District prevailing

wage.

	The judgment of the circuit court of Whiteside County is

affirmed.

	Affirmed.

	LYTTON, J., concurs.

People ex rel. Dept. of Labor v. Skoog, No. 3--01--0852

JUSTICE HOLDRIDGE, specially concurring:

	I agree with the majority's holding that the trial court's

grant of summary judgment to Skoog must be affirmed.  I write

separately only to point out that the Park District clearly

failed to calculate a proper prevailing wage.  While the

statutory scheme for challenging the Park District's prevailing

wage determination apparently anticipates the Department being

placed on notice when the Secretary of State is notified, such

did not happen in the instant case. One would think that the

Department would have the authority to challenge the Park

District's determination on behalf of the injured workers at the

point when the sub-standard wage is paid.  But, as the majority

points out, the statute does not allow the Department to take

such action.  If the Prevailing Wage Act is to have the effect it

was intended, in the future, either the Department will have to be more vigilant, or the Act must be changed to give the

Department the necessary tools to enforce the Act.