Tarsitano v. The Board of Education of Township High School District 211 ( 2008 )

SECOND DIVISION
September 30, 2008
No. 1-07-2041
WILLIAM A. TARSITANO, On Behalf and )
For the Benefit of all Taxpayers of Township ) Appeal from the
High School District 211, ) Circuit Court of
Plaintiff-Appellant, ) Cook County,
)
v. )
)
THE BOARD OF EDUCATION OF TOWNSHIP )
HIGH SCHOOL DISTRICT 211, a Political ) Honorable
Body of the State of Illinois, ) Philip J. Bronstein,
) Judge Presiding.
Defendant- Appellee. )
JUSTICE SOUTH delivered the opinion of the court:
This appeal arises from the trial court’s grant of summary judgment in favor of
defendant, Board of Education of Township High School District 211 (the District), and against
plaintiff, William A. Tarsitano, holding that the District’s no-bid energy vendor contracts were
exempt from competitive bidding under the Illinois School Code (105 ILCS 5/1-1 et seq. (West
2006)).
Plaintiff, in his name and on behalf and for the benefit of all taxpayers of Township High
School District 211, filed a declaratory judgment action against the District seeking an injunction
to prohibit it from contracting with the Illinois Energy Consortium, Inc. (IEC), for the purchase
of electricity and natural gas outside of the competitive bidding requirements of the School
Code.
The facts as indicated in plaintiff’s declaratory judgment complaint are as follows:
1-07-2041
Plaintiff is a resident of the State of Illinois, a property owner and taxpayer within Township
High School District 211. The District is a political body of the State of Illinois, created by
statute. The District is responsible for awarding contracts for its purchase of supplies, materials
and/or work for the following high schools located within Township High School District 211:
Conant High School, Fremd High School, Hoffman Estates High School, Palatine High School,
and Schaumburg High School. Among the contracts controlled by the District are those for the
purchase of electricity and natural gas, which involve an annual expense of over $2 million.
According to plaintiff, until recently, the District purchased electricity from
Commonwealth Edison as a "Power Purchase Option" (PPO), which provided certain cost
benefits to it. The District purchased its natural gas from NICOR until very recently. In
February 2006, the District began to consider other suppliers of electricity and natural gas, and in
April 2006, the District began to meet privately with at least two vendors of electricity and
natural gas. The District subsequently met with a representative from the IEC, which describes
itself as a not-for-profit energy consortium. The governing members of the IEC include former
superintendents or administrators of school districts. Plaintiff alleged that as a public body, the
District was subject to the provisions of the School Code, which provided that all contracts for
the purchase of supplies, materials, or work that involved an expenditure in excess of $10,000
must be awarded after a competitive bidding process. See 105 ILCS 5/10-20.21 (West 2006).
Plaintiff further alleged that electricity and natural gas were commodities or materials or
supplies in that they were economically procurable from more than one supplier and/or
company, and their purchase must comply with the statute. According to plaintiff, the District
failed to comply with the competitive bidding requirements of section 10-20.21 and the
2
1-07-2041
subsequent three-year contract which the District entered into with the IEC violates applicable
law and is, therefore, void.
On January 10, 2007, plaintiff filed a motion for summary judgment on the grounds that
the District’s energy contracts with the IEC were void because the District failed to publicly bid
the contracts as required by the School Code and the exemption in section 10-20.21(a)(xiii) was
inapplicable since electricity and natural gas are now economically procurable from more than
one source.
The District filed a cross-motion for summary judgment on April 2, 2007, on the grounds
that subsection (xiii) of section 10-20.21(a) of the School Code exempts any contracts for
electricity and natural gas from the bidding process. 105 ILCS 5/10-20.21(a)(xiii) (West 2006).
The District further maintained it was undisputed that the IEC offered the lowest contract price.
After a hearing, the trial court denied plaintiff’s motion for summary judgment and
granted defendant’s motion for summary judgment on June 22, 2007, finding that competitive
bidding of the District’s energy contracts was not required.
Plaintiff has raised the following issue for consideration on appeal: whether the trial court
erred in granting the District’s motion for summary judgment on the basis that the District’s no-
bid vendor contracts are exempt from bidding pursuant to section 10-20.21(a)(xiii) of the School
Code (105 ILCS 5/10-20.21(a)(xiii) (West 2006)). Specifically, plaintiff contends that in order
to be exempt from competitive bidding, utility contracts must be considered goods or services
which are economically procurable from only one source.
Summary judgment should only be granted if the pleadings, depositions, and the
admissions on file, together with affidavits, if any, present no genuine issue of material fact and
3
1-07-2041
that the moving party is entitled to judgment as a matter of law. See 735 ILCS 5/2-1005(c)
(West 2006). The reviewing court takes all well-pleaded facts as true and interprets all well-
pleaded allegations in the light most favorable to the plaintiff. McMahon v. City of Chicago,
339 Ill. App. 3d 41, 45 (2003). While use of summary judgment is encouraged under Illinois
law to aid in the expeditious disposition of a lawsuit (Purtill v. Hess, 111 Ill. 2d 229, 240
(1986)), it is a drastic means of disposing of litigation and should be allowed only when the right
of the moving party is clear and free from doubt (Quality Lighting, Inc. v. Benjamin, 227 Ill.
App. 3d 880, 883-84 (1992)).
In appeals from summary judgment rulings, we conduct a de novo review. Atlantic
Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons, 315 Ill. App. 3d 552, 559
(2000). The reviewing court must construe all evidence strictly against the movant and liberally
in favor of the nonmoving party. Atlantic Mutual, 315 Ill. App. 3d at 559. Where the pleadings,
depositions, and affidavits show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law, summary judgment should be granted.
See 735 ILCS 5/2-1005(c) (West 2006).1 If reasonable persons could draw different inferences
from undisputed facts, summary judgment should be denied. Atlantic Mutual, 315 Ill. App. 3d
at 559.
The Board of Education has only such powers as are conferred upon it by the legislature.
1
We note that the standard for granting summary judgment is stated incorrectly in
Atlantic Mutual, where it states only that the moving party is entitled to judgment as a matter of
law where the pleadings, depositions and affidavits show that there is no genuine issue of
material fact.
4
1-07-2041
Premier Electrical Construction Co. v. Board of Education of the City of Chicago, 70 Ill. App.
3d 866, 870 (1979). The powers of the Board with reference to awarding contracts are codified
in section 10-20.21 of the School Code. 105 ILCS 5/10-20.21 (West 2006). The statute at issue
in the instant case states as follows, in pertinent part:
"(a) To award all contracts for purchase of supplies,
materials or work or contracts with public carriers for
transportation of pupils involving an expenditure in excess of
$10,000 to the lowest responsible bidder, considering the
conformity with specifications, terms of delivery, quality and
serviceability, after due advertisement, except the following: ***
(xiii) contracts for goods or services which are economically
procurable from only one source, such as for the purchase of
magazines, books, periodicals, pamphlets and reports, and for
utility services such as water, light, heat, telephone or telegraph;
***.” 105 ILCS 5/10-20.21(a)(xiii) (West 2006).
This court has found no Illinois cases to date which interpret this specific provision of the
School Code. " 'In construing a statutory provision not yet judicially interpreted, a court is
guided by both the plain meaning of the language in the statute as well as legislative intent.
[Citations.] The statutory language is the best indication of the drafters. [Citations.]' " Board of
Education of Rockford School District No. 205, Winnebago-Boone Counties v. Regional Board
of School Trustees of Boone and Winnebago Counties, 135 Ill. App. 3d 486, 489-90 (1985),
quoting Tisoncik v. Szczepankiewicz, 113 Ill. App. 3d 240, 245 (1983).
5
1-07-2041
Although both parties claim that the language of the statute is not ambiguous, their
arguments and reason for being in this court belie that fact. See Board of Education of Rockford,
135 Ill. App. 3d at 490. "Ambiguity" is defined as "the condition of admitting of two or more
meanings, of being understood in more than one way." Webster’s Third New International
Dictionary 66 (1981). Plaintiff contends that subsection (xiii) of the statute at issue exempts
single-source supply purchase contracts from competitive bidding, and the "illustrative 'such as'
language following the 'economically procurable from only one source' language includes a list
of distinct categories of contracts that may or may not be monopoly contracts depending on the
deregulated market realities in different parts of the State.” On the other hand, the District
contends that section 10-20.21(a)(xiii) "exempts utility contracts from the competitive bidding
requirements applicable to other school purchases of supplies and materials." Accordingly, the
rules of statutory construction are applicable here.
The interpretation of a statute is a question of law, subject to de novo review. Poullette v.
Silverstein, 328 Ill. App. 3d 791, 794 (2002). The fundamental principle of statutory
construction is to ascertain and give effect to the legislature’s intent. Poullette, 328 Ill. App. 3d
at 794. The language of the statute is the most reliable indicator of the legislature’s objectives in
enacting a particular law. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996).
Terms in a legislative enactment are to be given their ordinary meaning. Rushton v.
O’Malley, 89 Ill. App. 3d 103, 105 (1980). If the words of the statute are clear and
unambiguous, there should be no resort to extrinsic aids such as legislative history or other aids
unless to give effect to the plain meaning would be contrary to the obvious intent of the
legislature or lead to an absurd result. Rushton, 89 Ill. App. 3d at 105. The search for legislative
6
1-07-2041
intent must begin with the words of the statute itself, for the legislature is presumed to have
intended what it said. 2A N. Singer & J. Singer, Sutherland on Statutory Construction §46:4 (7th
ed. 2007). "Moreover, words and phrases should not be construed in isolation but must be
interpreted in light of other relevant provisions of the statute." Poullette, 328 Ill. App. 3d at 794-
95.
The specific language at issue is contained in subsection (xiii) of section 10-20.21(a) of
the School Code, which states that "contracts for goods or services which are economically
procurable from only one source, such as for the purchase of magazines, books, periodicals,
pamphlets and reports, and for utility services such as water, light, heat, telephone or telegraph"
are exempted from bidding. 105 ILCS 5/10-20.21(a)(xiii) (West 2006).
A basic canon of statutory construction is that words should be given their plain and
ordinary meaning. Advincula v. United Blood Services, 176 Ill. 2d 1, 17 (1996); see also Bruce
v. First Federal Savings & Loan Association of Conroe, Inc., 837 F.2d 712, 714 (5th Cir.1988).
Under the doctrine of the last antecedent, relative or qualifying words or phrases in a statute
serve only to modify words or phrases which are immediately preceding, not those which are
more remote. McMahan v. The Industrial Commission, 183 Ill. 2d 499, 511-12 (1998).
Following that doctrine, the term “such as for the purchase of magazines, books, periodicals,
pamphlets and reports” modifies the clause “contracts for goods or services which are
economically procurable from only one source.”
The word “and” joins the third clause “for utility services such as water, light, heat,
telephone or telegraph” to the first clause, “contracts for goods or services which are
economically procurable from only one source,” indicating the latter is to be added to or taken
7
1-07-2041
along with the first. Black’s Law Dictionary 86 (6th ed. 1990); Advincula, 176 Ill. 2d at 18.
Generally, principles of statutory construction interpret the term “and” as conjunctive rather than
disjunctive. The City of Carbondale v. Bower, 332 Ill. App. 3d 928, 933 (2002). “Conjunctive”
is defined as “a grammatical term for particles which serve for joining or connecting together.”
Black’s Law Dictionary 302 (6th ed. 1990). Therefore, it appears the legislature intended that
contracts for goods and services which are economically procurable from only one source and
those for utility services are to be exempt from the competitive bidding provision of the School
Code.
Accordingly, we affirm the trial court, finding that it properly granted the District’s
motion for summary judgment on the grounds that the District’s no-bid vendor contracts are
specifically exempt from the competitive bidding provision of the School Code under the plain
meaning of the language used in the statute.
Affirmed.
Karnezis, P.J., and Hall, J., concur.
8