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Chester Bross Constr. Co. v. Department of Transportation

Court of Appeals of Illinois, Fourth District

March 27, 2014

CHESTER BROSS CONSTRUCTION COMPANY, Plaintiff-Appellant,
v.
THE DEPARTMENT OF TRANSPORTATION, an Administrative Agency of the State of Illinois; ANNE L. SCHNEIDER, in Her Official Capacity as Secretary; BILL GRUNLOH, in His Official Capacity as Chief Procurement Officer; and THOMAS R. WETZLER, in His Official Capacity as Hearing Officer, Defendants-Appellees

As Corrected.

Appeal from Circuit Court of Sangamon County. No. 12MR895. Honorable John Schmidt, Judge Presiding.

Appeal dismissed.

SYLLABUS

A trial court has authority to review a discretionary administrative decision via a writ of certiorari if, in lieu of an express provision for review in the statute conferring power on the agency, the exercise of that discretion is arbitrary and capricious and if the statute contains meaningful standards by which the court can judge the agency's use of discretion; however, here the plaintiff construction company's case was moot, because its suspension resulting from the Illinois Department of Transportation's decision had expired and neither the collateral-consequences nor the public-interest exception to mootness was met.

Michael Resis, of SmithAmundsen LLC, of Chicago, and Jeffrey A. Risch, Ellen L. Green (argued), and Jonathon D. Hoag, all of SmithAmundsen LLC, of St. Charles, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Christopher M.R. Turner (argued), Assistant Attorney General, of counsel), for appellees.

JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Knecht concurred in the judgment and opinion.

OPINION

POPE, JUSTICE

Page 528

[¶1] On October 23, 2012, plaintiff, Chester Bross Construction Company (Chester Bross), filed a petition for writ of certiorari for administrative review against defendants, the Department of Transportation, often referred to as IDOT, IDOT Secretary Anne L. Schneider, IDOT chief procurement officer (CPO) Bill Grunloh, and IDOT hearing officer Thomas R. Wetzler. Plaintiff sought review of CPO Grunloh's decision to suspend plaintiff from participating on any contracts awarded by or requiring approval or concurrence of IDOT for two years. The period of plaintiff's interim suspension was deducted from the two-year suspension. On January 22, 2013, the trial court granted defendants' motion to quash plaintiff's writ of certiorari . Plaintiff appeals, making the

Page 529

following arguments: (1) the trial court erred in quashing its petition for writ of certiorari ; (2) defendants lacked adequate evidence of a material misrepresentation by plaintiff to support the suspension; and (3) defendants erred in suspending plaintiff based on rules that were not promulgated in accordance with the Illinois Administrative Procedure Act (5 ILCS 100/1-1 to 15-10 (West 2008)). Defendants argue plaintiff's appeal is moot because plaintiff's suspension has expired. We find the trial court erred in quashing the writ on the basis it had no authority to entertain the action, but we find the ultimate issue moot and dismiss this appeal.

[¶2] I. BACKGROUND

[¶3] In its petition for writ of certiorari for administrative review, plaintiff alleged it was the lowest responsible bidder on multiple IDOT projects. After two unions filed bid protests with IDOT alleging plaintiff was not in compliance with the apprenticeship mandate of the Illinois Procurement Code (Procurement Code) (see 30 ILCS 500/30-22(6) (West 2008)), plaintiff responded with evidence it participated in apprenticeship programs approved by the United States Department of Labor through its membership in Associated Builders and Contractors of Illinois (ABC). On July 6, 2010, IDOT denied the bid protests, stating, " Chester Bross participates in apprenticeship programs as a member of Associated Builders and Contractors."

[¶4] In August 2010, IDOT conducted an internal audit of plaintiff to determine whether plaintiff was in compliance with the apprenticeship mandate found in the Procurement Code (30 ILCS 500/30-22(6) (West 2008)). The audit noted a certified transcript of payroll created pursuant to the Prevailing Wage Act (820 ILCS 130/0.01 to 12 (West 2008)) for Adams County project No. 72D14 showed that three of plaintiff's workers were paid the prevailing wage for " laborer" during one of the pay periods on that project. Plaintiff had told IDOT it would not be using " laborers" on that project.

[¶5] Plaintiff alleged each of these three workers should have been classified as " operator" instead of " laborer." According to its petition, plaintiff discovered this " clerical error" in September 2010 and immediately corrected the mistake by revising the certified payroll report and paying the difference in wages to the three workers. Plaintiff alleged it did not become aware of the internal audit until June 8, 2011, when IDOT issued a notice of interim suspension to plaintiff. According to plaintiff, IDOT's interim suspension was based solely on the certified payroll report.

[¶6] On June 17, 2011, plaintiff requested a hearing and denied all the material allegations found in IDOT's notice. Plaintiff provided evidence the payroll report in question had been corrected by plaintiff before plaintiff knew IDOT had questions about the incorrect certified payroll report. IDOT then issued an amended notice indicating plaintiff did not have documentation referenced in the federal regulations to show actual participation in applicable apprenticeship and training programs approved by and registered with the United States Department of Labor's Bureau of Apprenticeship and Training.

[¶7] The hearing began on August 25, 2011, and took the " better part of seven days," finally concluding on October 14, 2011. Plaintiff alleged it was denied the opportunity to call " material witnesses" from the Illinois Department of Labor at the administrative hearing even though IDOT was relying on information related to the Prevailing Wage Act to support its allegation plaintiff did not comply with certain apprenticeship mandates found in the

Page 530

Procurement Code. Plaintiff also alleged it was denied the opportunity to call material witnesses from IDOT who were directly involved in issuing plaintiff the amended notice of ...


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