No. 3-09-0006
_________________________________________________________________ Filed June 9, 2010-CORRECTION IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE ex rel. THE ) Appeal from the Circuit Court DEPARTMENT OF LABOR, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellant, ) ) No. 08-L-57 v. ) ) SACKVILLE CONSTRUCTION, INC., ) Honorable ) F. Michael Meersman, Defendant-Appellee. ) Judge, Presiding. _________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court: _________________________________________________________________
The Department of Labor, filed a complaint against defendant
subcontractor Sackville Construction, Inc. (Sackville), alleging
that it violated the Prevailing Wage Act (Act) (820 ILCS 130/1 et
seq. (West 2006)). The trial court granted summary judgment to
defendant, finding that it was unfair to require Sackville to pay
the prevailing wage without adequate notice that the project was
covered by the statute. We reverse and remand for further
proceedings.
In February 2006, private developer Rock Island Industrial
Partners (RIIP) entered into a contract with Hy-Brand Contractors
(Hy-Brand) to build a 45,000-square-foot industrial complex on a vacant lot in downtown Rock Island (the project). Ten days later,
RIIP signed a contract with the City of Rock Island (City) to
construct the project. Under the terms of the agreement, RIIP
agreed to invest $1.5 million in the project. In return, the City
conveyed title of the project site to RIIP in consideration of $1.
The City also agreed to contribute $150,000 "for use in the
project." The funds were to be used for site construction and
dispersed in two equal payments, one when the building permit
issued and another when the certificate of occupancy issued. The
City also agreed to pay up to $57,000 for the cost of site
clearance and demolition.
In March 2006, Hy-Brand entered into an oral subcontract with
Sackville to provide laborers for the project. Hy-Brand did not
inform Sackville that the City had contributed funds to the project
or that the project was covered by the Prevailing Wage Act.
During construction, the Department of Labor received a
complaint that Sackville had failed to pay its laborers the correct
wage. The Department conducted an investigation and determined
that the construction project constituted a public works project
subject to the Prevailing Wage Act and that Sackville’s employees
had not been paid the prevailing wage. The Department calculated
an underpayment of $19,189.39 and demanded back wages from the
subcontractor. Sackville refused to pay its workers the prevailing
wage.
2 In December 2007, the Department filed a complaint against
Sackville, alleging a violation of the Act based on Sackville’s
failure to pay its laborers the prevailing wage for their work.
The Department sought back wages, plus penalties.
Sackville filed a motion for summary judgment, claiming that
the Act did not apply to the project because RIIP was not a public
body; thus, it was not required to pay the prevailing wage.
Sackville argued that the City served only as a "financing conduit"
and that the project was not actually funded by the City.
The Department filed a cross-motion for summary judgment,
arguing that RIIP met the requirements of a public body under the
Act because it received public funds from the City for the project.
The Department further maintained that because the Act applied to
both contractors and subcontractors, Sackville owed its workers the
prevailing wage and was required to pay a 20% penalty.
The trial court entered an order granting summary judgment in
favor of Sackville on the basis that it had no knowledge of the
agreement between the City and RIIP. The court found that public
funds were expended in support of the project and that the Act
applied, but concluded that it was "unfair to require payment of
prevailing wages when [Sackville] had no reason to believe the
project was covered by the Prevailing Wage Act."
STANDARD OF REVIEW
We review de novo a trial court’s grant of summary judgment.
3 Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2007). Summary
judgment is appropriate where the pleadings, depositions and
affidavits on file, viewed in a light most favorable to the
nonmovant, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Murray, 224 Ill. 2d at 228.
ANALYSIS
I. Prevailing Wage Act
The purpose of the Prevailing Wage Act is to encourage the
efficient and expeditious completion of public works by public
bodies by ensuring that workers receive a decent wage. Opportunity
Center of Southeastern Illinois, Inc. v. Bernardi, 204 Ill. App. 3d
945, 949-50 (1990). Section 1 of the Act states, in relevant part:
"It is the policy of the State of Illinois that a
wage of no less than the general prevailing hourly rate
as paid for work of a similar character in the locality
in which the work is performed, shall be paid to all
laborers, workers and mechanics employed by or on behalf
of any and all public bodies engaged in public works."
820 ILCS 130/1 (West 2006).
The primary rule of statutory interpretation and construction,
to which all other canons and rules are subordinate, is to
ascertain and give effect to the true intent and meaning of the
legislature. Maloney v. Bower, 113 Ill. 2d 473 (1986). In
4 interpreting a statute, courts must give the legislative language
its plain and ordinary meaning. Opportunity Center, 204 Ill. App.
3d 945. If the language of the statute is plain, clear and
unambiguous, it must prevail and will be given effect by the courts
without resorting to other aids for construction. Village of
Buffalo v. Illinois Commerce Comm’n, 180 Ill. App. 3d 591 (1989).
Each word, clause and sentence of a statute should be given
reasonable meaning and not rendered superfluous. Brucker v.
Mercola, 227 Ill. 2d 502 (2007). Courts must not read into statute
exceptions, limitation or conditions that the legislature did not
intend. People v. Roake, 334 Ill. App. 3d 504 (2002).
However, the proper interpretation of a statute and
determination of legislative intent cannot always be based upon
language alone. Where a statute is ambiguous and the legislative
intent cannot be ascertained from the plain and ordinary meaning of
its language, then the court is guided by the rules of statutory
construction and extrinsic aids. Rigney v. Edgar, 135 Ill. App. 3d
893 (1985). Generally, the interpretation of a statute must be
grounded on the nature and object of the statute as well as the
consequences which would result from construing it one way or
another. Legislative intent may be ascertained from the reason and
necessity for the act, the evils sought to be remedied and the
objects and purposes sought to be obtained. In re Marriage of
Antonich, 148 Ill. App. 3d 575 (1986).
5 When a statute is capable of more than one reasonable
interpretation, the statute will be deemed ambiguous, and the court
may consider extrinsic aids to construction, such as legislative
history. People v. Collins, 214 Ill. 2d 206 (2005). An amendment
to a statute is an appropriate source for determining the original
legislative intent of a statute. Where the statute is amended soon
after questions have arisen regarding its interpretation, it is
logical and reasonable to regard the amendment as a legislative
interpretation of the original statute. People v. Badoud, 122 Ill.
2d 50 (1988).
In this case, the Department contends that under the
Prevailing Wage Act, (1) RIIP constitutes a "public body" because
the project was supported by public funds, (2) the project
qualifies as a "public work" even though it was not financed
through one of the enumerated statutes, and (3) notice was not
essential to find Sackville liable.
II. Public Body
Section 2 of the Act defines a "public body" as "the State or
any officer, board or commission of the State or any political
subdivision or department thereof, or any institution supported in
whole or in part by public funds." 820 ILCS 130/2 (West 2006).
The statutory language of section 2 is clear and unambiguous. A
public body is any institution supported in whole or in part by
public funds. The terms used in the definition are broad and are
6 not limited to institutions wholly supported by public funds.
Sackville argues that the definition of a public body should
not be extended to engulf a private entity that operates
independently of public funding. However, we refuse to read into
the statute exceptions or limitations that the legislature did not
intend. Under a plain reading of the statute, RIIP’s status as a
private developer does not prevent it from being classified as a
"public body" under the Act. See People ex rel. Bernardi v. Illini
Community Hospital, 163 Ill. App. 3d 987 (1987) (although not-for-
profit nonsectarian hospital is not a public hospital for general
purposes, receipt of public tax funds qualified hospital as a
public body under Prevailing Wage Act).
In this case, and for this purpose, RIIP was a public body
because it was supported in part by public funds from the City.
Those public funds constituted 10% of RIIP’s development and
construction costs. Additionally, RIIP received public funds to
demolish and clear the site. It was also publicly supported by the
City’s agreement to deed the land to the developer for the nominal
consideration of $1. The parties do not dispute that the financial
support was significant. For these reasons, RIIP qualified as a
public body under the Prevailing Wage Act.
III. Public Works
We must next consider whether RIIP’s industrial construction
project is a "public works" project within the meaning of the Act.
7 Section 2 of the Act, in effect at the time of the project,
states:
"’Public works’ means all fixed works constructed by
any public body, other than work done directly by any
public utility company, whether or not done under public
supervision or direction, or paid for wholly or in part
out of public funds. ‘Public works’ as defined herein
includes all projects financed in whole or in part with
bonds issued under the Industrial Project Revenue Bond
Act (Article 11, Division 74 of the Illinois Municipal
Code), the Industrial Building Revenue Bond Act, the
Illinois Finance Authority Act, the Illinois Sports
Facilities Authority Act, or the Build Illinois Bond Act,
*** loans or other funds made available pursuant to the
Build Illinois Act, ‘Public Works’ also includes all
projects financed in whole or in part with funds from the
Fund for Illinois' Future under Section 6z-47 of the
State Finance Act, funds for school construction under
Section 5 of the General Obligation Bond Act, funds
authorized under Section 3 of the School Construction
Bond Act, funds for school infrastructure under Section
6z-45 of the State Finance Act, and funds for
transportation purposes under Section 4 of the General
Obligation Bond Act. ‘Public works’ also includes all
8 projects financed in whole or in part with funds from the
Department of Commerce and Economic Opportunity under the
Illinois Renewable Fuels Development Program Act for
which there is no project labor agreement. ‘Public
works’ also includes all projects at leased facility
property used for airport purposes under Section 35 of
the Local Government Facility Lease Act." 820 ILCS 130/2
(West 2006).
The question before us is whether a construction project contracted
by a nongovernmental entity that does not receive funds from one of
the listed financing statutes qualifies as a public work.
Sackville argues that a fixed work construction project
undertaken by a private entity must be funded solely by one of the
named financing statutes listed in section 2 to qualify as a
"public works" project. The Department argues that the enumerated
statutes are not exhaustive but are examples of projects that would
be classified as public works. The Department maintains that its
argument is supported by the legislative history of Public Act 96-
0058 (Pub. Act 96-0058, eff. January 1, 2010 (amending 820 ILCS
130/2 (West 2006))), which clarifies that the Act was not limited
to the projects listed in section 2.
Generally, the enumeration of specific items implies that the
legislature intended to exclude all others. Copley Press, Inc. v.
Administrative Office of the Courts, 271 Ill. App. 3d 548 (1995).
9 However, this rule of statutory construction is subordinate to the
primary rule that the intent of the legislature governs statutory
interpretation. "Thus, it can be overcome by a strong indication
of contrary legislative intent or policy." In re Detention of
Lieberman, 201 Ill. 2d 300, 319 (2002) quoting 2A N. Singer,
Sutherland on Statutory Construction §47.23, at 315 (6th ed. 2000).
An amendment to a statute is an appropriate source for
determining the original legislative intent of a statute. People
v. Parker, 123 Ill. 2d 204 (1988). Although a statutory amendment
is presumed to have been intended to change the law, the
legislative history may indicate that the amendment was intended
instead as a clarification. Parker, 123 Ill. 2d at 211-12. Where
the statute is amended soon after questions have arisen regarding
its interpretation, it is logical and reasonable to regard the
amendment as a legislative interpretation of the original statute.
Badoud, 122 Ill. 2d at 56.
The plain language of the first sentence defines public works
and does not reference the list of statutes contained in the
sentences that follow. The initial sentence characterizes "public
works" as "all fixed works constructed by any public body." 820
ILCS 130/2 (West 2006). It is undisputed that the project in this
case, real estate construction, is a fixed work within the meaning
of the Act. See Opportunity Center, 204 Ill. App. 3d at 950-51
(real estate construction is a fixed work). And, as we have
10 determined, RIIP is a public body. The project meets the
definition of a public work.
This definition of a public work is further buttressed by the
subsequent amendment of section 2. See Lieberman, 201 Ill. 2d at
322-23 (where legislative history indicates that an amendment is
intended as a clarification of existing law, it may be used to
interpret the original act). In April of 2009, the General
Assembly amended the second sentence of the "public works"
definition to read: "’Public works’ as defined herein includes all
projects financed in whole or in part with bonds, grants, loans, or
other funds made available through the State or any of its
political subdivisions, including but not limited to:" Pub. Act
96-0058, eff. January 1, 2010 (amending 820 ILCS 130/2 (West
2006)).
The legislative debates surrounding the passage of this bill
indicate that the General Assembly perceived a need to clarify,
rather than alter, the application of the Prevailing Wage Act. In
both House and Senate debates, members sponsoring the bill stated
that the amendment was a "clarification," not a change or an
expansion. 96th Ill. Gen. Assem., House Proceedings, April 28,
2009, at 27 (statement of Representative Miller); 96th Ill. Gen.
Assem., Senate Proceedings, April 2, 2009 (statement of Senator
Forby). Representative Miller explained that the amendment would
not have any new effect and was intended only to provide "clarity
11 that a project that receives public dollars does have to pay a
prevailing wage." 96th Ill. Gen. Assem., House Proceedings, April
28, 2009, at 27 (statement of Representative Miller). Similarly,
Senator Forby stated that "this bill is a clarification bill. It’s
not expanding prevailing wages; all this does is get the
clarification out to people that bids on jobs knows [sic] that this
job is a prevailing wage job[;] that might save the contractor a
lot of money down the road." 96th Ill. Gen. Assem., Senate
Proceedings, April 2, 2009 (statement of Senator Forby). Senator
Althoff added that "[i]t actually is clarifying a practice that is
already in existence." 96th Ill. Gen. Assem., Senate Proceedings,
April 2, 2009 (statement of Senator Althoff). Legislative history
clarifies that the Act was intended to apply to projects paid in
part by public funds regardless of the nature or statutory source
of those funds.
The statute’s plain language indicates that the Act applies to
all fixed works constructed by any public body paid for in whole or
in part by public funds. The pre-amended version of section 2 does
not limit the project in this case from being a public work. The
legislative history of the 2010 amendment supports that conclusion.
Accordingly, we find the Prevailing Wage Act applied to the
construction project undertaken by RIIP.
IV. Notice
Finally, the Department contends that notice to Sackville of
12 the prevailing wage contract was not required.
The Act provides that "a wage of no less than the general
prevailing hourly rate as paid for work of a similar character in
the locality in which the work is performed, shall be paid to all
laborers, workers and mechanics" employed by all public bodies.
820 ILCS 130/1 (West 2006). Section 4(a) states that a
subcontractor’s obligation to pay the prevailing wage is
"mandatory upon the contractor to whom the contract is
awarded and upon any subcontractor under him *** to pay
not less than the specified rates to all laborers,
workers and mechanics employed by them in the execution
of the contract ***. *** The public body awarding the
contract shall cause to be inserted in the project
specifications and the contract a stipulation to the
effect that not less than the prevailing rate of wages as
found by the public body or Department of Labor *** shall
be paid ***." 820 ILCS 130/4(a) (West 2006).
Section 4(a) indicates the legislature intended that
subcontractors like Sackville remain liable for back wages. The
term "notice" does not appear in section 2 or section 4(a). The
legislature’s intent is evident from its use of mandatory terms
such as "shall be paid," "shall be mandatory" and "upon any
subcontractor." The Act dictates that a subcontractor is obligated
to pay the prevailing hourly rate to its workers as determined by
13 the Department; the Department is not required to notify
subcontractors that the Act applies to their project. Indeed, the
plain language of sections 1 and 4 requires payment of back wages
at the prevailing rate regardless of any notice to the
subcontractor that the Act applies.
Although section 4(a) requires a public body to include the
prevailing rate in the project specifications and the contract, the
statute does not place a condition precedent on the contractor’s or
subcontractor’s duty to pay the proper wage. The contractors and
subcontractors are still liable to the laborers to pay the
prevailing wage. To read a notice requirement into section 4 would
defeat the purpose and intent of the Act and unfairly punish those
it was meant to protect, the laborers. See Brandt Construction Co.
v. Ludwig, 376 Ill. App. 3d 94 (2007); see also 820 ILCS 130/1
(West 2006) (Act’s intent is to provide laborers on public works a
decent wage). Accordingly, we find that Sackville’s lack of notice
of the application of the Act does not relieve Sackville from its
obligation to pay its workers the prevailing hourly rate.
V. Penalties
Since we have found that Sackville did not pay the prevailing
wage, it is liable to pay penalties under the Act. 820 ILCS 130/11
(West 2006) (contractors and subcontractors "liable to [Department]
for 20% of such underpayments"). We therefore reverse and remand
to the circuit court to calculate any penalties owed under the
14 statute and enter judgment accordingly.
CONCLUSION
The judgment of the circuit court of Rock Island County is
reversed, and the cause is remanded with instructions.
Reversed and remanded with instructions.
CARTER and WRIGHT, JJ., concur.