dissenting:
Unlike the majority, I would hold the trial court initially correctly decided to dismiss the declaratory action on two grounds. First, the complaint did not allege Brandt exhausted all administrative remedies, as required by our supreme court in Beahringer v. Page, 204 Ill. 2d 363, 378 (2003). Second, the trial court’s initial order correctly found the request for declarative relief was premature, consistent with this court’s decision in AEH Construction, Inc. v. Illinois Department of Labor, 318 Ill. App. 3d 1158 (2001).
AEH specifically held a single notice of violation was not sufficient to divest the administrative agency of jurisdiction created by the legislature. AEH, 318 Ill. App. 3d at 1163-64, citing People ex rel. Fahner v. American Telephone & Telegraph Co., 86 Ill. 2d 479 (1981). In AEH, this court discussed the fact that no action results from a first notice of violation and debarment consequences only follow a second notice. AEH, 318 Ill. App. 3d at 1164. As noted in AEH, the contractor may request a hearing after receiving a second notice of violation. AEH, 318 Ill. App. 3d at 1162. If the result of this hearing is unfavorable to Brandt, then the matter would be ripe for a request for injunctive relief and/or a request for a declaratory ruling. AEH, 318 Ill. App. 3d at 1164.
The following excerpt from the deposition of the corporate secretary for Brandt is illustrative. When asked the following question, Terrance L. Brandt responded:
“Q. Are you aware of any debarment proceedings that are taking place as to, or brought by the Illinois Department of Labor against Brandt Construction?
A. No.”
As the excerpt above demonstrates, debarment is not imminent in this case. Accordingly, I would vacate the trial court’s order granting summary judgment in favor of Brandt and reinstate the court’s original order granting the Department of Labor’s motion to dismiss.
Assuming, arguendo, the trial court correctly reconsidered its ruling, I would agree with the majority that trial court’s order for injunctive relief should be reversed because Brandt failed to establish irreparable harm. I would also agree with the majority that punitive damages, costs, and attorney fees for the underpaid workers are not automatic and arise in addition to the Department of Labor’s demand for payment. The trial court’s ruling precluding punitive damages as a result of this action correctly interpreted the Prevailing Wage Act (820 ILCS 130/1 et seq. (West 2004)).
I also wholeheartedly agree with the majority that strict construction of the Prevailing Wage Act requires payment of the current prevailing wages, regardless of notice. However, I respectfully submit that strict construction also mandates the statutory 20% penalty, regardless of notice in this case. In my opinion, based on statutory construction and the unique facts of this case, neither the wage rate nor the penalty for underpayment is statutorily dependent on notice.
The unique circumstances of this case include the fact that the prevailing wage rate adopted by ordinance for the City of Rock Island and the City of Moline was the rate set by annual review each June for the County of Rock Island by the Illinois Department of Labor. See 820 ILCS 130/9 (West 2004). The record is silent as to whether the Village of Milan had a similar ordinance.
Brandt does not deny it violated the Prevailing Wage Act by failing to pay the correct prevailing wages for each city project, which by city ordinance adopted the county rate. Interestingly, Brandt has not claimed it was unaware the Department of Labor raised the county rate as a result of the annual statutory review. However, based on a strict construction of section 4 of the Prevailing Wage Act, Brandt carefully argues the absence of “actual notice” dispatched from each city to Brandt excuses Brandt’s failure to pay the correct prevailing wages to laborers.
Section 4 of the Prevailing Wage Act provides, in relevant part:
“If the Department of Labor revises the prevailing rate of hourly wages to be paid by the public body, the revised rate shall apply to such contract, and the public body shall be responsible to notify the contractor and each subcontractor, of the revised rate.” 820 ILCS 130/4 (West 2004).
Strict statutory construction defeats Brandt’s argument regarding notice. Importantly, the County of Rock Island was not the public body applying the revised rate to these contracts. I believe the “public body” responsible for notice pursuant to section 4 of the Prevailing Wage Act refers to the public body that authorized each project and engages the labor forces; specifically, the City of Moline, the City of Rock Island, and the Village of Milan. Since the Department of Labor did not review or revise the city rates, the cities had no duty to notify.
In this case, the Department of Labor revised Rock Island County’s wage rate by annual review pursuant to statute. Neither the Department of Labor nor the cities took any action to adjust the prevailing wage ordinance for the cities of Moline or Rock Island, which automatically mirror the county rate. It is illogical to require each city to notify Brandt of a wage rate increase that statutorily applies only to projects for the County of Rock Island. I believe reliance on section 4 to require the cities to provide notice is misplaced but my voice is singular in this regard.
I next turn to the issue of the attendant penalties arising from an underpayment of prevailing wages. Section 11 of the Prevailing Wage Act provides, in relevant part, that, “Such contractor or subcontractor shall also be liable to the Department of Labor for 20% of such underpayments ***.” (Emphasis added.) 820 ILCS 130/11 (West 2004). Underpayment triggers swift and specific nondiscretionary penalties. Given Brandt’s undisputed underpayment to its workers in this case, the statute mandates payment of 20% to the Illinois Department of Labor. This is a finite amount set by statute.
I am not troubled that the 20% penalty automatically accrues when the Illinois Department of Labor reviews payroll records, finds the current prevailing wages were underpaid, and demands statutory compliance. The Prevailing Wage Act also requires the contractor to stay abreast of and post the current wage rates at the work site for the workers’ edification. 820 ILCS 130/4 (West 2004). A contractor’s failure to post the current prevailing wage rate is a violation of the Act, and this duty is not dependent upon notice from any public body. The legislature has built layers of opportunities for the current prevailing wage rate to be readily accessible to those wishing to stay informed, including a voluntary mailing list for interested employers and other persons.
Without the risk of automatic penalties, contractors can afford to gamble on a windfall occurring when any public body, preoccupied with the business of governing, overlooks notice to a contractor, who nonetheless may be very well aware of the revised prevailing wages from other sources of information or other current projects in the county. The record shows Rock Island County published the current prevailing wage monthly.
In this case, years later, Brandt admits its workers have yet to be fully paid according to the applicable prevailing wage rate. Brandt underpaid more than $23,000 in wages for laborers who worked on four separate public works projects, located in three separate municipalities, subject to four separate contracts signed over the course of six months. Significantly, Brandt was concerned other violations would be discovered. If the prevailing wage rate in this case had been revised downward, one questions whether Brandt would have delayed adjusting the payroll based on the absence of notice from each city.
Assuming, arguendo, that the majority is correct and a declaratory judgment action was appropriate at this juncture, I respectfully disagree with the determination that the 20% penalty is improper. However, I respectfully dissent primarily because I believe the trial court’s initial decision to dismiss the complaint was correct. I would, accordingly, vacate the order reconsidering the motion to dismiss and leave all other matters for our consideration, if necessary, after the administrative remedies have been exhausted.