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Kampmann v. The Hillsboro Community School District No. 3 Board of Education

Court of Appeals of Illinois, Fifth District

October 25, 2019

SCOTT KAMPMANN, Plaintiff-Appellant,

          Appeal from the Circuit Court of Montgomery County. No. 17-CH-19 Honorable Amanda S. Ade-Harlow, Judge, presiding.

          Attorney for Appellant Thomas G. DeVore, DeVore Law Offices, Of Counsel to Silver Lake Group Ltd.

          Attorney for Appellee S. Jeff Funk, Miller, Tracy, Braun, Funk & Miller, Ltd.

          JUSTICE CATES delivered the judgment of the court, with opinion Presiding Justice Overstreet and Justice Moore concurred in the judgment and opinion.



         ¶ 1 Scott Kampmann filed a complaint for declaratory judgment against the Board of Education (Board) of the Hillsboro Community School District No. 3 (District) alleging the Board exceeded its statutory authority in entering into an energy services agreement and four change orders with Ameresco, Inc., related to construction projects on District property. The circuit court dismissed the complaint, finding that Kampmann's suit was barred by the doctrine of laches. Kampmann appeals, and we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 During the spring of 2013, the Board sought proposals for energy and operational cost savings measures for several District facilities. On April 25, 2013, the Board submitted these proposals for publication to the Capital Development Board Procurement Bulletin. Three energy services companies, M360, GRP Mechanical, and Ameresco, submitted proposals to the Board. Ameresco's proposal included $7, 445, 769 of proposed work for Hillsboro High School, Hillsboro Junior High School, Beckemeyer Elementary School, and Coffeen Elementary School.

         ¶ 4 On June 25, 2013, the Board's building and grounds committee (Committee) interviewed representatives of the three companies that had submitted proposals. On July 9, 2013, the Committee met again to discuss the merits of the proposals that had been submitted. As a result of their discussions, the Committee held a public hearing and voted to recommend that the Board pass a resolution authorizing a letter of intent to Ameresco for the upcoming project.

         ¶ 5 During a regularly scheduled meeting of the Board held later that same day, the Board considered the Committee's recommendation. The July 9, 2013, meeting was open to the public, and the agenda for that meeting indicated that one of the items to be discussed was the "Letter of Intent for Performance Contracting." The minutes from the meeting indicate that the District superintendent reported the Committee's recommendation that the Board issue a letter of intent to Ameresco for two projects. Those projects included bathroom renovations and roof work to the Hillsboro Junior High School, which had previously been approved by the Board for fiscal year 2014. The District superintendent concurred in the Committee's recommendation. After due consideration, the Board voted to approve a resolution authorizing that a letter of intent for the two projects at Hillsboro Junior High School be issued to Ameresco. On July 10, 2013, the superintendent issued the letter of intent to Ameresco on behalf of the District.

         ¶ 6 On September 17, 2013, during a regularly scheduled public meeting, the Board considered and approved the energy services agreement (Agreement) with Ameresco. Prior to that meeting, written notice of the Board's intention to enter into this Agreement had been posted in the public agenda, available to the community at large. In accordance with the Board's approval, the District entered into the Agreement with Ameresco on September 17, 2013. The next day, the District issued a notice to proceed to Ameresco. The scope of services encompassed within the Agreement included the renovation of the bathrooms and a roof sealer for the Hillsboro Junior High School for a price of $170, 982.

         ¶ 7 On March 14, 2014, the Board provided written notice of a public hearing to be conducted on April 8, 2014, regarding the District's proposal to sell bonds in the amount of $5, 395, 000 to finance future work to be performed by Ameresco. On April 8, 2014, the Board conducted the open hearing to receive public comments on the sale of the bonds. No public comments or questions were raised at the meeting. On May 13, 2014, during the following regularly scheduled meeting, the Board voted to pass a resolution to sell $5, 395, 000 in bonds to fund the Ameresco projects. The District issued the approved bonds on June 9, 2014.

         ¶ 8 Meanwhile, between April 1, 2014, and May 5, 2015, the Board approved, and the District entered into, four change orders to the Agreement with Ameresco, to wit: (1) on April 1, 2014, a change order in the amount of $108, 055; (2) on May 13, 2014, a change order in the amount of $4, 502, 597; (3) on July 24, 2014, a change order in the amount of $72, 932; and (4) on May 5, 2015, a change order in the amount of $745, 747. The work contracted for and performed under the Agreement and the change orders were all within the scope of Ameresco's original proposal and totaled $5, 600, 313.

         ¶ 9 The Agreement and change orders stipulated that a total of $7, 883, 627 in guaranteed energy and operational savings would be realized over a 20-year period by the District by implementing the measures contained therein. The Board, however, waived any audit, measurement, or recovery of all but $335, 018 of the taxpayers' guaranteed savings. The Board had no independent evaluation completed by an architect or an engineer to assess the likelihood of the District realizing the stipulated savings. The Board has never sought to audit, measure, or recover any of the guaranteed taxpayer savings that it did not waive. On December 15, 2015, with all ...

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