author: JUSTICE EGAN

text:
    EVANSTON FIREFIGHTERS ASSOCIATION, Local 742, Petitioner-Appellant, v. ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (6th Division)
    No. 1—90—2208
    Opinion filed January 15,1993.

      Mark S. Stein and Daniel Keen, of Cornfield & Feldman, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    John T. Weise and Sigismund L. Sapinski, Jr., both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for respondent City of Evanston.
    Gregory J. Malovance and Steven E. Mitchel, both of Winston & Strawn, of Chicago, for amicus curiae Illinois Education Association.
    Asher, Gittler, Greenfield, Cohen & D’Alba, of Chicago, for amicus curiae Illinois State Federation of Labor and Congress of Industrial Organizations.
   JUSTICE EGAN

delivered the opinion of the court:

The petitioner, the Evanston Firefighters Association, Local 742 (the Union), appeals from a decision of the Illinois State Labor Relations Board (the Board) which held that the issuance to all city employees of a memorandum by the respondent, City of Evanston (the City), regarding restrictions on the political activity of city employees did not constitute an unfair labor practice under the Illinois Public Labor Relations Act (the Act). Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.

The City of Evanston had approximately 1,000 employees, 109 of whom were employed by the fire department. The City had a council-manager form of government, with a city manager, who was appointed by the city council, as the chief administrative officer. The city council was composed of 18 aldermen, who were elected in nine wards by popular vote within each ward.

The city manager managed the daily affairs of the City and served at the discretion of the city council. The city manager recruited and selected the administrative heads of the various departments, prepared and presented to the city council the City’s budget, and made all hiring and firing decisions with respect to the City’s employees. All department heads, including the fire chief, reported to the city manager. Nonsupervisory employees of the fire department were represented for the purposes of collective bargaining by the Union and formal collective bargaining had been conducted for the previous 20 years.

In early 1988, the members of the Union formed a political action committee (FIRE-PAC). The purpose of FIRE-PAC was to get the firefighters more involved in political issues that affected the terms and conditions of their employment. The Union’s president informed the Union members of the formation of FIRE-PAC and that its goal was to “meet the need for sound political education and action among the members of Local 742.” After pointing out several ways in which the committee could accomplish its objectives, the president advised the members that there were “some restrictions on political activity pertaining to the use of [their] positions with the [C]ity.” Accompanying the letter were excerpts from the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 1—27.1), the bylaws of the Union and the City’s personnel rules.

In 1988 and 1989, there were two issues of particular concern to FIRE-PAC. The first issue concerned the City’s adoption of the “jump company,” which was a new system for providing emergency medical assistance. The second issue involved the proposed closing of one of the City’s five fire stations.

The “jump company” system was adopted by the city council in August 1988 and provided that four-man crews be assigned to both an ambulance and an engine. There were three such crews, each of which was assigned to a different section of the City. Under this system, the City was to purchase a third ambulance and do away with the central ambulance location. When a call for emergency medical assistance was received, the four-man crew responded directly with the ambulance, and no engine was dispatched. When a fire call was received, the crew “jumped” to the engine and responded to the fire.

Before the implementation of the “jump company” system, the fire department had two ambulances, each manned by two emergency medical technicians. These ambulances were located at a fire station in the central part of the City. Each of the other five stations operated engines that were assigned to a specific geographic area. Before August 1988, when a call for emergency medical services was received, the fire department dispatched an engine from the nearest station as well as an ambulance from the central location. If the engine got to the scene first, the firefighters on the engine provided any necessary life support services until the ambulance arrived. Once the ambulance arrived, the medical technicians took charge of the situation, and the engine was free to respond to other calls.

The second issue of concern to FIRE-PAC was a proposal, adopted by the city council in June 1988, to consolidate two existing fire stations located in the northwestern section of the City into one newly created station, resulting in the loss of one fire station.

The members of FIRE-PAC were opposed to the implementation of the “jump company” system and to the closing of one of the fire stations. The members believed that the “jump company” system would cause a delay in responses to both medical emergencies and fires. The members also believed that the elimination of one of the fire stations could cause even longer delays in response times and might also result in a reduction in force for the fire department.

In January 1989, FIRE-PAC polled the candidates for mayor and for city alderman in the April 4, 1989, general election. This poll sought the candidates’ views on several issues, including the implementation of the “jump company” system and the consolidation of the two fire stations. Based upon personal interviews with the candidates and upon their responses to the poll, FIRE-PAC determined which candidates it would support in the April election. FIRE-PAC provided campaign contributions to those candidates who responded favorably to its poll.

FIRE-PAC decided to support candidate Richard Stillerman for alderman in the sixth ward and candidate Lester Anchenese for aider-man in the seventh ward.

On the two weekends before the election, FIRE-PAC members engaged in a door-to-door canvass of residents in the City’s seventh ward on behalf of Anchenese. The purpose of the door-to-door canvass was to hand out campaign literature on behalf of Anchenese and to inform the seventh ward residents of FIRE-PAC’s position on the “jump company” system and on the closing of the fire station. Members who participated in the canvass were divided into groups of two and were instructed that they were not to identify themselves as city employees, but were to say that they were members of a political action committee affiliated with the Evanston Firefighters Association. The members who participated in the canvass were not dressed in their firefighter uniforms.

Members conducted a telephone canvass of the residents in the sixth ward on behalf of Stillerman. The telephone canvass was intended to accomplish the same objectives as was the door-to-door canvass in the seventh ward. Members participating in the telephone canvass were also instructed not to identify themselves as City employees.

On March 29, 1989, Joel Asprooth, the Evanston city manager, received a telephone call from a citizen, complaining that an individual, who had identified himself as a City employee, came to the citizen’s home campaigning on behalf of a candidate for City office. The caller did not identify himself and could not name the individual who came to his door. Asprooth received another complaint that same day from an incumbent alderman, who stated that someone she knew had been approached by a City employee who came to his door.

Asprooth decided to issue a memorandum reminding all City employees that using their title or office during political activity was prohibited. On March 30, 1989, Asprooth sent a memorandum to all City employees along with their paychecks. The memorandum was as follows:

“This week I received a complaint that someone, who identified himself as a city employee, was calling on residents in their homes to encourage a vote for a particular aldermanic candidate. That person, if he is in fact a city employee, violated the Civil Service Ordinance, the Code of Ethics, and the Personnel Rules of the City of Evanston by using his official city office and title while engaging in political activity after working hours.
The Civil Service Ordinance and the Personnel Rules both contain the following provision:
‘No employee of the City shall engage in political activity during working hours or while on City premises in any city-connected function, or use their official city office or title while engaging in political activities [after] working hours.’
The Code of Ethics provides that:
‘No non-elective employee shall use the prestige of his position in behalf of any political party or for any political purpose.’
Each employee of the City is subject to these provisions. Violation of these restrictions on political activity is a very serious matter, and will result in disciplinary action. It is our obligation as public employees to avoid any appearance of political partisanship, and these ordinances and rules exist for that reason.”

The Union filed before the Board a complaint which asserted that the memorandum constituted an unfair labor practice under section 10(a)(1) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(1)) because it interfered with the City employees’ right to engage in “concerted activities not otherwise prohibited by law for *** mutual aid or protection” as guaranteed by section 6(a) of the Act. Ill. Rev. Stat. 1989, ch. 48, par. 1606(a).

The charge was investigated in accordance with section 11 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1611), and the executive director of the Board issued a complaint for hearing. Following an evidentiary hearing, the hearing officer issued a recommended decision in which he found that the distribution of Asprooth’s memorandum constituted an unfair labor practice in violation of section 10(a)(1) of the Act. Both parties filed exceptions to the hearing officer’s recommended decision. The Board issued a decision which was contrary to the conclusion reached by the hearing officer. The Board dismissed the petitioner’s complaint based upon its determination that the distribution of Asprooth’s memorandum did not violate section 10(a)(1) of the Act.

We confess to having difficulty in delineating the issues before us. Before the hearing officer, the Union argued:

(1) It was engaging in concerted activity for the purposes of collective bargaining or other mutual aid or protection under section 6 of the Act.

(2) The City interfered with the right given the Union under section 6 and therefore was guilty of an unfair labor practice under section 10 of the Act.

(3) The legislature granted certain rights to public employees under section 6 unless those rights are “otherwise prohibited by law.” The City’s ordinance, rule and Code of Ethics cannot be considered “laws” within the meaning of section 6.

(4) The City’s ordinance is contrary to the provisions of section 10 — 1—27.1 of the Municipal Code (which the Union now concedes is not applicable).

(5) The City’s ordinance is not consistent with the policies underlying the Federal Hatch Act, 5 U.S.C. §7321 et seq. (1988), and therefore violates the first amendment of the United States Constitution.

The City raised several arguments not raised here, e.g., the statute of limitations. The City did not answer the Union’s claim that the City’s ordinance was not a “law” within the meaning of section 6.

The hearing officer noted that the parties had raised in their briefs the issues of whether the City’s ordinance violated the Hatch Act, the Municipal Code and the United States Constitution. He said that those were not the issues as the case was presented at the hearing; he did not have jurisdiction to address such issues; and he would not consider them. He concluded that the Union’s political activities were protected within the meaning of the Act and that the City’s rule against the firefighters “using their City Office or title” encompassed their identifying themselves as a “City employee.” He further held that the validity of that restriction was not relevant because neither party alleged that such activity took place or that the members of the Union ever intended to identify themselves as “City employees” or “firefighters.” He also concluded that the provision of the Code of Ethics that no employee shall “use the prestige of his position” is ambiguous and might reasonably be interpreted as prohibiting the legitimate political activity of the members of FIRE-PAC. He held that such a broad restriction upon the political activity of a public employee can be reasonably interpreted to have a chilling effect upon the employee’s exercise of protected activity. His ultimate conclusion was that the risk of ambiguity must be held against the promulgator of the code and that the City violated section 10(a)(1) of the Act by “threatening its employees with discipline if they violated a vague prohibition against political activity.” Thus, the hearing officer decided in favor of the Union on a ground not urged by the Union.

Both parties filed before the Board exceptions to the hearing officer’s report. The Union maintained that the Board should make clear that there is no distinction between legitimate and illegitimate protected concerted political activity. The City took issue with several findings of the hearing officer and for the first time argued that its ordinance came within the exception to section 6 which grants certain rights to employees “unless otherwise prohibited by law.” The City identified the phrase “as the very crux of the case.”

The Board held that the firefighters did engage in protected political activity but that the City demonstrated an overriding interest in prohibiting the firefighters from identifying themselves as City employees. The Board did not address the question of whether the phrase, “prohibited by law,” included prohibitions by a municipal ordinance. Thus, the Board decided the case on a ground not raised by either party and did not pass on the principal ground that was raised by the City. The Board also passed on a question that was not before it with this observation:

“The Hearing Officer apparently reasoned that because the employees in this case identified themselves as members of the Union rather than City employees, the City had no interest in prohibiting the activity. However, as the City points out in its exceptions, the City’s interest remained the same whether the employees engage in political activity using the name of an organization of public employees or their official titles. See Wachsman v. City of Dallas, (5th Cir. 1983), 704 F.2d 160. We see no substantial difference between identifying oneself as a City employee and identifying oneself as a member of an association of City employees.”

We emphasize, as did the City, that the issue before the Board was whether the memorandum constituted an unfair labor practice. That is the same issue and only issue that is before us. The memorandum says nothing about employees identifying themselves as members of any organization. The hearing officer’s findings may not be reasonably interpreted to mean that the hearing officer reasoned as the Board said he “apparently” did. The hearing officer did say that an issue in the case was “whether the political activity engaged in by FIRE-PAC is protected by the Act.” But the hearing officer did not say that an individual’s identification of his membership in FIRE-PAC was an issue. The City did not say that its interests remain the same “whether the employees engage in political activity using the name of an organization of public employees or their official titles.” To the contrary, the City’s exceptions made it clear that the City was addressing only the activities and representations of City employees and not members of FIRE-PAC. One of the exceptions was as follows:

“The memo did not address activities related to FIRE-PAC— it was addressed to all employees concerning the use of their city title. Again, the City did not argue the broader question of the legality of activities of a FIRE-PAC.”

Asprooth testified that he had not decided whether it violated the rules for Evanston firefighters to identify themselves as members of the Evanston Firefighters Association.

We must take the case as it has been presented to us: The only prohibition before us is against individuals identifying themselves as City employees. City employees identifying themselves as members of any labor organization is not prohibited by the memorandum.

Some question has arisen over the applicability of the Municipal Code. The amicus curiae, Illinois State Federation of Labor and Congress of Industrial Organizations, which supports the Union’s position, maintains that the Board erroneously failed to consider section 10— 1 — 27.1 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10— 1 — 27.1), which provides as follows:

“No municipality covered under this Division 1 may make or enforce any rule or ordinance which will in any way inhibit or prohibit any employee from exercising his full political rights to engage in political activities, including the right to petition, make speeches, campaign door to door, and to run for public office, so long as the employee does not use his official position to coerce or influence others and does not engage in these activities while he is at work on duty.”

In its brief in this court, the City contended that the Union misinterpreted the Municipal Code. The City did not say that the Municipal Code was not applicable. It was the Board which maintained in its brief that the Municipal Code was not applicable because it had not been adopted by Evanston, a home rule unit. During oral argument in this court, both the City and the Union agreed that the Municipal Code is not binding on Evanston. The City maintains, however, that the ordinance in issue before us is the equivalent of section 10 — 1— 27.1 of the Municipal Code. Asprooth testified that the ordinance “exists in place of” the Code. The Board takes the same position: “The language of the [Municipal] Code which prohibits an employee from using ‘his official position *** to influence others' parallels the restrictions imposed by Evanston on its employees.”

We judge that the issues before us are whether the City’s ordinance violates section 6 of the Act, whether a City employee violates the ordinance’s prohibition against “using” a position or a title simply by identifying that position or title and, if so, whether a prohibition against identifying a position or title is justified by the overriding interest of the City.

The language which the City maintains is the “crux of this case” is contained in section 6 of the Act:

“Employees of the State and any political subdivision of the State *** may form, join or assist any labor organization, to bargain collectively through representatives of their own choosing *** and to engage in other concerted activities not otherwise prohibited by law for the purposes of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion.” Ill. Rev. Stat. 1989, ch. 48, par. 1606(a).

It is the position of the City that its own ordinance is a “law” which prohibits City employees from identifying themselves as City employees. It is the position of the Union that the phrase “except as prohibited by law” does not include municipal ordinances, citing City of Decatur v. Illinois State Labor Relations Board (1986), 149 Ill. App. 3d 319, 500 N.E.2d 573, rev’d on other grounds (1988), 122 Ill. 2d 353, 522 N.E.2d 1219.

The Union presents an outwardly appealing argument. To illustrate, the Act permits certain public employees to strike (Ill. Rev. Stat. 1989, ch. 48, par. 1617), and secondary boycotts are permitted under the Act. Could a home rule unit bar all employees from striking and from engaging in secondary boycotts? Respectable arguments could be made that a municipality does not have the unfettered right to enact ordinances which would restrict the rights of public employees given to them under the Act, including the right to strike and to engage in secondary boycotts. In City of Decatur v. Illinois State Labor Relations Board, the supreme court said:

“We do not believe that the legislature intended to make the broad duties imposed by the Act hostage to the myriad of State statutes and local ordinances pertaining to matters of public employment.” 122 Ill. 2d at 364.

We note that the supreme court expressly refrained from passing on the holding of the appellate court that a municipal ordinance is not a law within the meaning of section 7 of the Act. (City of Decatur, 122 Ill. 2d at 364, citing Ill. Rev. Stat. 1985, ch. 48, par. 1607.) The supreme court observed that both parties to the case have “assumed that ordinances are in fact laws within that context.” City of Decatur, 122 Ill. 2d at 367.

The Union has also cited American Federation of State, County & Municipal Employees, Council 31 v. County of Cook (1991), 145 Ill. 2d 475, 584 N.E.2d 116. Like City of Decatur, that case also was concerned with section 7 of the Act, which involves the duty of a municipality to bargain collectively. The Union argues that sections 6 and 7 should be construed consistently. First, we do not believe that County of Cook is a clear holding supporting the Union’s argument. Certainly, the opinion does not address the question expressly. Moreover, we see distinctions between sections 6 and 7 of the Act. In any event, we have determined that we need not discuss the distinctions between sections 6 and 7 and that we need not decide whether the ordinance involved in this case is a “law” within the meaning of section 6, because we have determined that the memorandum in issue before us cannot be justified under the ordinance even if we assume that the ordinance constituted a law within the meaning of section 6.

The City and the Board agree that the section of the City’s Personnel Code in issue before us is for all practical purposes the same as section 10 — 1—27.1 of the Municipal Code and that the terms of the ordinance are to be construed the same as section 10 — 1—27.1. A still-remaining question to be resolved, therefore, is whether the mere identification of their occupations by City employees while engaging in protected political activity constitutes the “use of [their] title or office to coerce or influence others.”

None of the parties has cited any case which has passed on the question of whether a public employee, while engaging in protected political activity, uses his city title or office to coerce or influence another person simply by the act of identifying his employment, regardless of the circumstances. It is our judgment that such a broad interpretation of the ordinance is not warranted.

The Board stated that, although City employees had a legitimate interest in getting their message to the voters, they could have accomplished that goal without identifying themselves as City employees. The Board noted that the City’s ordinance did not in any way limit the rights of employees to form FIRE-PAG or to participate in political activities as private individuals. The Board also acknowledged that City employees were free to campaign for particular candidates and to speak out on certain issues so long as they did not identify their connection to the City while doing so. Balancing the interests of the parties, the Board found that any interference with employee’s rights which resulted from the City’s ordinance was permissible. The remaining issue before us, therefore, is whether the City did establish an overriding interest in restricting the rights of City employees.

A brief discussion of the Hatch Act is appropriate because the City relies on it. The Hatch Act forbids a Federal employee from taking “formal positions in a political party,” from “playpng] substantial roles in partisan political campaigns, and [from] runnpng] for office on partisan political tickets.” United States Civil Service Comm’n v. National Association of Letter Carriers, A F L-C I O (1972), 413 U.S. 548, 565, 37 L. Ed. 2d 796, 809, 93 S. Ct. 2880, 2890.

We fail to see the applicability of the Hatch Act, because under the Evanston ordinance a City employee may hold a position in a political party, solicit funds for a political party or a candidate, make speeches for a political party or a candidate and may even run for office, including a party office. These are all activities barred by the Hatch Act.

The City has cited a number of cases upholding the right of a municipality to enact laws such as the Hatch Act. (Wachsman v. City of Dallas (5th Cir. 1983), 704 F.2d 160; Salt Lake City Firefighters Local 1645 v. Salt Lake City (1969), 22 Utah 2d 115, 449 P.2d 239; Purdy v. Kreisberg (1979), 47 N.Y.2d 354, 391 N.E.2d 1307, 418 N.Y.S.2d 329.) No one disputes the general principles enunciated in those cases. But Evanston has not passed such an ordinance. The only restriction imposed by the ordinance also contained in the Hatch Act or the ordinances involved in the other cases cited by the City is a prohibition against an employee from using his official position or title to coerce or influence another person. The Union does not dispute that Evanston had the absolute right to enact an ordinance which would prevent employees from using their positions or titles to coerce or influence other persons. But the ordinance does not say that City employees may not even identify themselves as City employees when engaging in protected political activity. We are asked to accept the City’s interpretation of the language. We repeat that the City’s interpretation is unwarranted.

In Letter Carriers, the Supreme Court reaffirmed its holding in United Public Workers of America (C.I.O.) v. Mitchell (1947), 330 U.S. 754, 91 L. Ed. 754, 67 S. Ct. 556, in which the Supreme Court upheld the constitutionality of the Hatch Act. In Letter Carriers, the Supreme Court held that the first amendment rights of a public employee may be limited by the government’s interest in maintaining an effective and impartial civil service system, and where the employees’ rights and the government’s interests conflict, a balancing test should be utilized. If the City’s interpretation of the language of the ordinance is correct, we do not believe the City has demonstrated an overriding interest to support a blanket prohibition of City employees merely identifying themselves as such when participating in admittedly protected political activity. Some hypothetical cases will illustrate the unreasonableness of the City’s position:

(1) The ordinance permits City employees to run for office; but they cannot tell the voters their occupations. Everyone but the candidates may utter or write the words identifying the candidates’ positions or titles.

(2) A firefighter canvassing voters door-to-door urges the election of a candidate who supports the firefighter’s views on “jump companies” and the closing of a particular station. That firefighter may not explain his source of expertise on the subject. (The attorney for the Board told us in oral argument that the firefighter could not identify his source of expertise, that is, he could not say he was a firefighter, unless he was asked his occupation by the voter.) Cf. Pickering v. Board of Education of Township High School District 205 (1968), 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (first amendment rights of teachers upheld to express views on proper allotment of school funds because they were most likely to have informed and definite opinions on the question).

(3) A City employee attends a political rally and is introduced as a speaker by another person, who identifies the employee’s position with the City. There is no violation of the ordinance, so long as the City employee himself does not identify his City position.

(4) City employees may identify themselves as members of a municipal union, e.g., FIRE-PAC or Federation of Police. But the same persons cannot identify themselves as municipal employees.

To summarize, we cannot accept the Board’s conclusion that the mere fact that a City employee identifies his position represents a use of his title or position to coerce or influence another person for political purposes. Moreover, if we accept the interpretation of the ordinance advanced by the Board, the Board has not established an overriding interest in prohibiting employees from identifying themselves under any circumstances when that interest is considered in the light of all the other political activities granted to City employees. There is, in short, no logical justification for prohibiting City employees from merely identifying themselves as such. We agree with the Union that the memorandum represented an unreasonable abridgement of the Union members’ first amendment rights and constituted an unfair labor practice.

We caution that our holding is a narrow one: a blanket proscription against all City employees identifying their positions, regardless of the circumstances, is not supported by the language of the City’s ordinance and is not justified by any overriding interest of the City. We do not hold that employees’ identification of their City positions under all circumstances may never be a violation of the ordinance that would subject the employees to disciplinary action.

For these reasons, the order of the Illinois State Labor Relations Board is reversed.

Order reversed.

McNAMARA, P.J., and RAKOWSKI, J., concur.

      The ordinance and rule are the same. The City says the language of the Code of Ethics is to be construed the same as the pertinent provisions of the ordinance and rule. Consequently, we will refer only to the ordinance in the rest of this opinion except when referring to the findings of the hearing officer.

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Daniel J. McNamara was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    SCHWANKE, SCHWANKE AND ASSOCIATES, Plaintiff-Appellant, v. GWEN R. MARTIN, Director, The Department of Labor, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—0485
    Opinion filed June 30, 1992.
    Rehearing denied March 25,1993.

      Lawrence X. Pusateri, Bruce N. Menkes, and Mark W. Daliere, all of Peterson & Ross, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff filed suit for declaratory judgment seeking a determination that it was not in violation of the Illinois Prevailing Wage Act (Ill. Rev. Stat. 1987, ch. 48, pars. 39s — 1 through 39s — 12 (the Act)). The trial court ruled that plaintiff’s complaint was premature and dismissed it with prejudice. Plaintiff appeals from this order.

Section 1 of the Act declared that it is the policy of the State “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.” (Ill. Rev. Stat. 1987, ch. 48, par. 39s — 1.) Section 11a provided that contractors “found to have disregarded their obligations to employees under this Act after receipt of a complaint of violation and consideration of the complaint at a hearing before the Department” were to be placed on a list debarring them from bidding on or receiving any public work contracts for a period of two years. Contractors were to be given adequate notice of and an opportunity to appear at the hearing. Ill. Rev. Stat. 1987, ch. 48, par. 39s — 11a.

On December 28, 1989, plaintiff, Schwanke, Schwanke & Associates, filed a complaint in the circuit court of Cook County seeking a declaration that it is a partnership and was not in violation of the Act. Named as defendant was Gwen R. Martin, Director of the Department of Labor (the Department), which is the agency charged with administration and enforcement of the Act.

Plaintiff’s complaint alleged that it was organized as a partnership pursuant to the Uniform Partnership Act (Ill. Rev. Stat. 1987, ch. IO6V2, par. 1 et seq.), and that it is engaged in the business of maintaining, repairing and constructing fences and repairing damage to guardrails resulting from motorist accidents and other causes on Illinois roadways. Plaintiff alleged that on various occasions during the preceding 21/2 years, the Department had contended that it was in violation of the Act, and that on each occasion, plaintiff responded to the Department that since its laborers were partners, rather than employees, it was not in violation of the Act.

Attached to the complaint was a copy of a partnership agreement and a 1987 letter from the Department which stated the Department investigator’s belief that several persons named as partners in the agreement were actually employees to whom plaintiff was bound to pay no less than the prevailing wage for their work on public projects. Also attached was a November 1989 letter advising plaintiff of the Department’s intention to initiate a debarment hearing to resolve whether plaintiff was in violation of the Act. Plaintiff alleged, and it is not disputed, that a hearing had not been initiated on December 28, 1989, the date its complaint was filed. Plaintiff further alleged that the version of the Act then in effect did not allow for a contractor to initiate or request such a hearing. Plaintiff thus requested the court to declare that it is a partnership and, therefore, not in violation of the Act.

On January 1, 1990, an amended version of the Act became effective. Section 11, as amended, provides for initiation of an administrative hearing by the contractor rather than the Department. Failure to request a hearing within 10 working days after receipt of notice of two separate violations of the Act results in automatic and immediate placement on the debarment list. Ill. Rev. Stat. 1991, ch. 48, par. 39s — 11a.

On February 2, 1990, in lieu of an answer, the Department filed a motion to dismiss the complaint on the ground that plaintiff had failed to exhaust its administrative remedies prior to seeking declaratory relief in the circuit court. The Department argued that plaintiff was attempting to circumvent the administrative hearing procedures set out in section 11a and section 9, which incorporate the provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), for challenging a determination that it had violated the Act.

On November 5, 1990, plaintiff moved for a preliminary injunction to enjoin the Department from placing it on the debarment list. Plaintiff based its request on its receipt of two violation notices sent by the Department in late October 1990, which were attached to the motion. The first notice identified the projects for which the violation notice was issued and advised plaintiff to comply with the requirements of the Act in the future. The second notice, sent the same day as the first, listed additional projects on which the Department determined plaintiff had violated the Act. The letter attached advised plaintiff of its right to request an administrative hearing within 10 business days, and that the failure to do so would result in plaintiff’s automatic and immediate placement on the two-year debarment list. Plaintiff argued that it was faced with the choice of being summarily debarred by failing to request a hearing, or participating in a hearing which, in light of the Department’s predetermination that it was not a partnership, would have the same outcome, i.e., debarment. Plaintiff maintained that unless the court issued a preliminary injunction it would suffer the irreparable harm of debarment which would, effectively, put it out of business, and that it had no adequate remedy at law.

In opposition to the preliminary injunction, the Department filed a memorandum in which it incorporated the bases for its motion to dismiss. The Department argued that plaintiff had not stated any ground for its belief that it was a “foregone conclusion” that the result of a hearing would be unfair debarment. The Department further argued that a belief that the outcome of an administrative hearing will be adverse is not adequate to avoid the exhaustion of remedies requirement.

Plaintiff then filed a response to the motion to dismiss. In it, plaintiff maintained that at the time it filed its complaint no administrative remedies were available to it because under the preamended version of the Act only the Department could initiate a hearing and that the Department had never done so. Plaintiff reiterated, however, that even assuming the availability of any remedies, it was relieved from pursuing them by the futility exception to the exhaustion of remedies doctrine.

In support of its positions, plaintiff attached three affidavits to its response, all of which were dated December 17, 1990. In the first, Dennis Schwanke stated that although the Department had repeatedly asserted that plaintiff was in violation of the Act, prior to October 1990, plaintiff had never received any notices of violations, nor, until December 1990, had plaintiff received notice that a hearing had been initiated by the Department. The affidavit of Scott Guido, then counsel for plaintiff, stated that Guido had attended meetings in July and August 1990 with Robert Barker, a labor facilitator of the Department, at which Barker stated that debarment proceedings had been initiated against plaintiff. In the third affidavit, Dennis Schwanke averred that the sum of approximately $2,000 for completed projects was owed to plaintiff for over 120 days, and that it was his belief that the delay in payment was due to the Department’s determination that plaintiff was in violation of the Act. Plaintiff also attached excerpts from a court reporter’s transcription of a November 1987 meeting among Dennis Schwanke, Patsy Schwanke, plaintiff’s counsel, plaintiff’s accountant and Bernard Griffeth of the Department at which Griffeth stated that the Department believed that plaintiff was not a partnership for the purpose of exemption from the Act and was in violation of it.

In its reply, the Department asserted that both versions of the Act provided the right to a hearing prior to placement of a contractor on the debarment list, the only modification being that the amended version required that the contractor rather than the Department request such a hearing following notification of two violations. The Department argued that plaintiff’s admission that no hearing had ever taken place established that the action was not ripe for judicial resolution and that, there being no “actual controversy” as required by statute (Ill. Rev. Stat. 1989, ch. 110, par. 2— 701), the complaint was premature and should be dismissed. The Department reiterated its arguments regarding the applicability of the exhaustion of remedies doctrine and repeated its request for dismissal.

Following arguments at a hearing on December 21, 1990, the court ruled that plaintiff’s complaint was premature and dismissed it without prejudice. The court ordered plaintiff to participate in the administrative hearing with leave to file a motion to stay the imposition of debarment sanctions in the event of an adverse outcome.

On January 14, 1991, plaintiff filed a motion for reconsideration, asserting that it had been unfairly prejudiced by the Depart-merit’s raising of the theory of ripeness for the first time in a reply memorandum filed the day before the hearing. Plaintiff maintained that it had not been afforded adequate time to respond to the Department’s argument. Plaintiff also argued that the case presented an actual controversy and requested that the court vacate its order of December 21 and deny the Department’s motion for dismissal. In the alternative, plaintiff requested that the dismissal be entered with prejudice and a finding of no just reason to delay its appeal. On February 6, 1991, the trial court denied plaintiff’s motion for reconsideration of the dismissal, but granted plaintiff’s request for dismissal with prejudice and a finding that the order was final and appealable. Plaintiff’s timely appeal followed.

We first address plaintiff’s argument that the Department improperly raised affirmative matters in a motion to dismiss under section 2 — 615, which is limited to challenges to the sufficiency of the complaint. Plaintiff argues that courts have held that where a dismissal is granted pursuant to a motion brought under the wrong section of the Code of Civil Procedure, with the result that the plaintiff is prejudiced, the dismissal should be vacated. Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.

The record discloses that the Department’s motion to dismiss was filed on February 2, 1990. The motion alleged that “plaintiff’s cause of action fails to state a claim upon which relief can be granted because it is barred by the exhaustion of remedies doctrine,” and its concluding paragraph requested dismissal under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Plaintiff filed a motion for a preliminary injunction on December 17, 1990, and, on the same date, a response to the motion to dismiss. In neither document did plaintiff argue that the Department improperly raised the affirmative matter of exhaustion of remedies in a section 2 — 615 motion. Indeed, plaintiff responded that no remedies were available to it and, in any event, pursuit of any such remedies would have been futile. Plaintiff also attached three affidavits, excerpts from a transcribed meeting, copies of the two notices of violations and letters from the Department.

In its reply to plaintiff’s response, the Department reiterated its argument regarding the exhaustion of remedies and further argued that, because there had been no administrative hearing, the complaint did not present a controversy ripe for judicial determination. Plaintiff made no objection at the hearing that the matters raised by the Department were improperly raised in a section 2 — 615 motion or that it was prejudiced by the Department’s argument concerning ripeness. It was not until February 6, 1991, in its motion for reconsideration, that plaintiff asserted that it had been prejudiced at the December hearing because it had not been afforded adequate time to respond to the ripeness theory and that the issue of ripeness went beyond the scope of a section 2 — 615 motion.

Since the purpose of a section 2 — 615 motion is solely to challenge the sufficiency of the complaint, affirmative matters which could defeat a claim should be presented by way of a section 2 — 619 motion. (Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 484 N.E.2d 823.) However, we find no prejudice to plaintiff, as is required for reversal. As demonstrated above, plaintiff, in its written and oral responses and by submission of affidavits and other documents, treated the motion as a hybrid motion when plaintiff argued both that the complaint stated a cause of action and that it was not barred by the exhaustion of remedies doctrine. Further, it is clear from the record that the court understood plaintiff’s position and considered the matters submitted by plaintiff in support of it. Thus, remandment of this case for reconsideration of matters which have already been presented to the trial court and briefed and argued in this court would not serve the interests of judicial economy and expediency. See Bescor v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 65, 446 N.E.2d 1209.

We turn then to the merits of the case. Plaintiff’s contentions on appeal are the same as those made in the trial court, i.e., that the court erroneously ruled that the complaint was premature; that there were no administrative remedies for plaintiff to pursue; and that, in any case, the exhaustion of remedies doctrine is inapplicable because pursuit of any such remedies would have been futile.

A complaint for declaratory judgment which recites in sufficient factual detail an actual and legal controversy between the parties and requests a declaration of rights is sufficient to state a cause of action (Outboard Marine Corp. v. James Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 478 N.E.2d 651; Goldberg v. Valve Corp. of America (1967), 89 Ill. App. 2d 383, 233 N.E.2d 85); and under section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701), a court may make a binding declaration of rights having the force of a final judgment in justiciable cases. However, in order to maintain an action for declaratory relief, it is essential that there be an “actual controversy” and that the party seeking the declaration have a tangible, legal interest in that controversy. Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298; see generally Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App. 3d 592, 488 N.E.2d 1040.

Plaintiff argues that its declaratory judgment action was not premature because there was an actual controversy concerning a legal status and a right capable of being affected by the trial court. Plaintiff reasons that its status as a partnership, and its right to bid and work on public projects, are the status and right which would be affected by a determination of the controversy between the parties, which, according to plaintiff, is whether it is a partnership.

Discussing the requirement of an “actual controversy,” the supreme court in Underground Contractors Association stated:

“ ‘Actual’ in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” (66 Ill. 2d at 375, 362 N.E.2d at 300.)

Applying this analysis, the supreme court in Underground Contractors Association found that the plaintiff, a trade association which sought a declaration that a minority bidding policy was illegal, had failed to allege facts showing injury or the threat of injury to its members as a result of the policy sufficient to allow it to maintain the action.

In Howlett v. Scott (1977), 69 Ill. 2d 135, 370 N.E.2d 1036, the Attorney General ordered an investigation to determine whether certain payments made to the plaintiff while he was in public office constituted a conflict of interest which would entitle the State to institute a civil suit to recover those funds. The completed investigative report identified a conflict of interest, but recommended that the Attorney General delay instituting legal action against Howlett pending the outcome of certain cases before the supreme court which were the basis of the report’s finding of a conflict. Two days after issuance of the report, the plaintiff filed a complaint for a declaratory judgment that there was no conflict of interest.

Relying on Underground Contractors Association, the supreme court ruled that no actual controversy existed when the complaint was filed and that the trial court should have, in its sound discretion, ordered dismissal of the complaint as being premature. The court reasoned that the rights plaintiff sought to be declared were dependent upon future events, i.e., the outcome of two undecided cases. The court also stated that plaintiff was seeking a declaration of nonliability for past conduct, which section 2 — 701 was not designed to provide.

Similarly, in Delano Law Offices, P.C. v. Choi (1987), 154 Ill. App. 3d 172, 506 N.E.2d 723, the plaintiffs sought a declaration that certain fees charged by the defendant were unreasonable. The plaintiffs had not paid the charges nor had the defendant instituted a collection action or other proceeding to enforce their payment. Citing Howlett and Underground Contractors Association, the appellate court affirmed the trial court’s dismissal of the complaint for failure to state a cause of action, stating that a complaint for declaratory judgment may be dismissed if the plaintiff is not entitled to the relief sought under the facts alleged in it. The Delano court found that the plaintiffs were seeking a judgment of nonliability for past conduct, which relief is not appropriate under the declaratory judgment statute; and that because the defendant had not instituted an action against plaintiff for the fees, declaratory judgment on the issue of their reasonableness would be premature.

In the instant case, plaintiff’s complaint alleged that at various times in the preceding two years, the Department had contended that plaintiff was in violation of the Act and had stated its intention to institute a debarment hearing but “has not to this date, initiated that hearing.” One of the letters attached in support of the the complaint was sent by the Department in 1987. In it the investigator enumerated various reasons for his belief that certain workers whom plaintiff characterized as partners were actually employees, invited plaintiff to respond with its reasons for believing the workers were actually partners, but advised plaintiff that in the interim it remained his belief that the workers were employees who should be paid the prevailing wage. In the second letter, dated November 1989, counsel for the Department stated that “the fairest and best way to resolve” whether plaintiff was in violation of the Act was “to set up a hearing for debarment *** [which] will allow [plaintiff] to present evidence and legal arguments.” Counsel indicated that the matter would be referred to outside counsel who would be in touch with plaintiff to determine when to schedule the hearing. Plaintiff filed its complaint prior to the institution of any administrative proceedings.

Although the complaint alleges a disagreement between the parties, in our view it fails to allege an actual, legal controversy as that requirement has been defined and applied by the courts. The complaint does not allege that the Department placed plaintiff on the debarment list; indeed, it affirmatively states that the Department had not even instituted debarment proceedings. As in Underground, Contractors Association, Howlett and Delano, the complaint requested both an advisory opinion on matters which would be at issue in the future, in the event the Department took actions to debar plaintiff for violation of the Act, and also requested a declaration of nonliability for past conduct.

Plaintiff argues, however, that the analysis of these cases is inapplicable to this case because, as established in the affidavit of Dennis Schwanke, the Department had already taken adverse action against it for its alleged violation of the Act by withholding payment for completed work. Plaintiff maintains that because the measures taken by the Department fell short of debarment, plaintiff had no right to an administrative hearing and, consequently, declaratory judgment was the only relief available to it.

Initially, we note that although plaintiff’s motion to reconsider refers to an affidavit from Schwanke in which he purportedly stated that the Department had taken various actions which were injurious to plaintiff, including directing the withholding of approximately $49,400 for completed projects, no such affidavit appears in the record. The only affidavit by Schwanke regarding withheld payments is dated December 17, 1990. In it, he merely states, without support, that he “believe[d]” that approximately $2,000 then owed by the State had been withheld because of the Department’s determination that plaintiff was in violation of the Act.

Further, an argument similar to plaintiff’s was made and rejected in Howlett. There, the plaintiff, a gubernatorial candidate, argued that declaratory judgment was necessary because the public release of the investigative report finding a conflict of interest caused substantial negative publicity, cast a suspicion over him and his campaign and endangered his candidacy for public office. The supreme court acknowledged the adverse ramifications of the investigation and report but nevertheless held that the declaratory judgment procedure was not the appropriate method of resolving the plaintiff’s dilemma.

Additionally, even assuming payments for completed work were withheld, for whatever reason, we do not agree that plaintiff had no remedy. While plaintiff may not have been able, at the time suit was filed, to demand an administrative hearing, it could have, as counsel for plaintiff reluctantly conceded, brought an action to recover back payments owed for work on completed projects. Plaintiff’s complaint, however, did not seek a monetary judgment; rather, it was, in essence, a challenge of the Department’s investigation into whether plaintiff was in violation of the Act. Plaintiff insists that a declaratory judgment action is more expedient because a declaration that it is a partnership and, therefore, not subject to the Act, would resolve all matters at issue between the parties. But that is precisely why the action was premature. As in the cases cited above, plaintiff’s action sought a declaration of nonliability for past conduct and legal advice which would foreclose the Department’s right to take formal action against plaintiff in the future. The declaratory judgment statute is not designed for such purposes.

A plaintiff seeking declaratory judgment must specify all facts necessary to justify the unusual relief sought. If the complaint does not state facts sufficient to show ripeness, dismissal is proper. (Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App. 3d 592, 488 N.E.2d 1040.) In this case, plaintiff’s complaint failed to allege or establish the existence of an actual controversy ripe for judicial determination. The trial court properly dismissed the complaint as being premature.

Although we find that plaintiff’s complaint was properly dismissed on the ground that it did not present a justiciable controversy, we believe that even if the issue of ripeness had not been raised or considered, dismissal of the complaint also would have been proper on the ground that it was barred by the exhaustion of remedies doctrine. The principles of ripeness and exhaustion of remedies are closely related in that both involve the general issue of the prematurity of the action.

It is well settled that parties who feel aggrieved by the action of an administrative agency ordinarily are precluded from seeking relief in the courts without first pursuing all administrative remedies available to them under the applicable statute. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437; People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 427 N.E.2d 1226.) The exhaustion doctrine applies where a claim is cognizable in the first instance by an administrative agency. If the agency is vested by the legislature with the authority to administer the statute, relief by way of declaratory judgment is not available; judicial interference must be withheld until the administrative process has run its course. (Fahner, 86 Ill. 2d at 485-86.) The supreme court in Castaneda explained that among the policy considerations underlying the exhaustion doctrine are that it allows the agency to fully develop and consider the facts of the cause and to utilize its expertise; it protects the agency processes from impairment by avoidable interruptions; it gives the aggrieved party the opportunity to succeed before the agency; and it allows the agency to correct its own errors, thus conserving valuable judicial time. Castenada, 132 Ill. 2d at 308.

In this case, plaintiff’s administrative remedies were not exhausted, and there has been no pursuit of the remedies provided by the Act. A hearing has not been held, as is prerequired for the filing of a suit.

Plaintiff maintains that when it filed suit, no remedies were available to it because only the Department could initiate the administrative hearing process. As discussed above, the reason a hearing was not available to plaintiff was because no formal steps had been taken to place plaintiff on the State’s debarment list. Notwithstanding plaintiff’s claims that the Department had caused certain payments for completed work to be withheld or delayed, which was denied in an affidavit submitted by the Department, debarment had not occurred. Thus, plaintiff’s complaint for a declaration that it was a partnership and not in violation of the Act was not filed in response to a debarment decision by the Department but, rather, in anticipation of such a decision.

Further, within days after plaintiff’s complaint was filed, the amended version of the Act took effect and provided that a contractor determined to be in violation of the Act had the right to request a hearing within 10 business days of notification by the Department of two violations. Until it issued such notifications and the time within which plaintiff had the right to request a hearing had expired, the Department could not debar plaintiff. Thus, under either version of the Act, plaintiff was entitled to a hearing prior to being placed on the debarment list.

The two required notices of violations were issued by the Department in October 1990. Plaintiff argues, however, that its action was already before the trial court by that time; that proceeding to an administrative hearing would have been futile because the Department had already concluded that it was in violation of the Act; and that its only alternative to being put out of business by debarment was to seek judicial intervention.

The facts before us are strikingly similar to those in Dock Club, Inc. v. Illinois Liquor Control Comm’n (1980), 83 Ill. App. 3d 1034, 404 N.E.2d 1050. In Dock Club, the plaintiff, a dramshop owner, occasionally held “ladies nights,” during which female patrons were allowed to purchase alcoholic beverages at reduced prices. In correspondence between the plaintiff and the Liquor Control Commission, plaintiff was informed that the Commission believed that holding ladies nights violated a provision of the Dramshop Act. Plaintiff disputed the Commission’s interpretation of the Act and requested that the Commission seek an opinion from the Attorney General as to the legality of ladies night promotions. The Commission declined and advised plaintiff that licensees which featured such promotions were subject to fines and/or suspension or revocation of their licenses. Plaintiff filed a declaratory judgment complaint seeking a declaration that its ladies nights did not violate the Dramshop Act and an injunction enjoining the Commission from initiating any enforcement proceedings against it. Shortly thereafter, the Commission issued a citation against plaintiff and notice of a hearing. The plaintiff moved for a temporary restraining order to prevent the Commission from pursuing the citation procedure. The court granted the motion, finding that the declaratory judgment action was pending at the time the citation proceeding was initiated, and that in light of the Commission’s stated position on the issue, proceeding before the Commission would be futile.

On appeal by the Commission, the plaintiff argued that declaratory judgment was the only relief available to it because there was no way to challenge the Commission’s interpretation of the Dram-shop Act “other than to wait for the axe to fall via a citation hearing,” and that such a hearing on the citation would be meaningless because the Commission had already concluded, as stated in its letter to the plaintiff, that ladies nights were illegal.

The appellate court rejected the plaintiff’s arguments and reversed the order of the trial court. The Dock Club court observed that notwithstanding the Commission’s letter stating that licensees would be subject to citation, it did not state that all citation proceedings would be resolved in favor of the Commission. The court reasoned that “[wjhile the tone [of the letter] is peremptory, it is no more so than that of any other administrative tribunal which sits as both prosecutor and trier of fact. At the citation proceeding, plaintiff can present all the same arguments which could have been presented to the circuit court and in the event of an unfavorable ruling by the Commission can present them again under the Administrative Review Act [citation] to the circuit court which is empowered to stay the administrative decision [citation].” 83 Ill. App. 3d at 1037.

Citing various supreme court decisions, the court in Dock Club also observed that the futility exception to the exhaustion of remedies doctrine is a limited one, and that even clear indications that the administrative agency will rule adversely are not sufficient to bypass or terminate the administrative process. The court observed that to adopt the plaintiff’s theories “would be to condone a race to the courthouse and to undermine severely the authority of the [administrative agency], a result quite clearly not intended by the legislature.” 83 Ill. App. 3d at 1038.

The reasoning and decision in Dock Club correctly expresses the views of our supreme court in decisions both preceding and following the Dock Club case. In Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 383 N.E.2d 964, the supreme court held that the exhaustion of remedies requirement cannot be avoided simply because relief may be, or even probably will be, denied by the agency. Accord Castenada, 132 Ill. 2d at 328.

In Fahner (86 Ill. 2d 479, 427 N.E.2d 1226), the supreme court also rejected the argument that a declaration by the circuit court as to whether or not AT&T was a taxpayer within the meaning of the tax statute prior to the institution of any administrative proceedings to determine whether AT&T was subject to certain taxation was appropriate because it would expedite those proceedings. The court acknowledged that a declaratory judgment might substantially shorten the administrative proceedings, but stated that it was not in a position to make that determination. The court further stated that as salutory as that result might seem, to allow circumvention of a statutorily created administrative proceeding would deprive the agency of the jurisdiction conferred upon it by the legislature. The Fahner court also noted that the same argument of expediency could be made by anyone against whom the agency threatened to take action.

The reasoning and holdings of these cases are directly applicable to the case before us. In the instant case, there would be no reason for an administrative debarment hearing if the Department did not believe that plaintiff, or any other contractor, violated the Act by failing to pay the prevailing wage to its employees. Institution of the process necessarily depends on a determination by the Department that a contractor disregarded its obligations under the Act. However, as the Act provides and the Department’s letters to plaintiff stated, plaintiff would have the opportunity at a hearing to present evidence and legal arguments in support of its assertion that its laborers were actually partners to whom plaintiff was not obliged to pay the prevailing wage. The Act also provides for administrative review of an adverse decision at the hearing and, ultimately, judicial review of the final administrative determination. The same arguments advanced by plaintiff to support its request for declaratory relief could be advanced by any contractor facing possible debarment by the Department.

Further, a declaration by the circuit court on the issue of whether plaintiff is a partnership, in which its laborers were partners rather than employees who were protected by the Act, would completely foreclose any further proceedings by the Department. Such overriding of the Department’s authority is contrary to the intent of the legislature, which has statutorily empowered the Department to exercise its expertise and make initial determinations concerning enforcement of the Act governing wages to be paid for work on public projects.

Finally, and parenthetically, we note that although the trial court dismissed plaintiff’s complaint as premature, the initial order of dismissal was without prejudice and with leave for plaintiff to move for a stay in the event of an adverse decision, i.e., debarment, by the Department. We question the propriety of such an order in view of the fact that plaintiff’s complaint did not present a justiciable controversy in the first instance, and that plaintiff would still be required to exhaust its administrative review remedies prior to being entitled to judicial review.

For the reasons stated, the order of the trial court dismissing plaintiff’s complaint is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.

       Attached to the Department’s response to plaintiff’s motion for reconsideration is an affidavit from a division manager, David Hayes, in which Hayes expressly denied that the Department directed the withholding of $49,400, or any other amount, from plaintiff, or that it prevented plaintiff from bidding on public works projects. It is not stated, however, whether Hayes’ affidavit was submitted in response to an affidavit by Schwanke or simply to the allegations in plaintiff’s memorandum in support of its motion to reconsider.


author: JUSTICE McCORMICK

text:
      In re APPLICATION OF EDWARD J. ROSEWELL, County Collector, for Judgment and Order of Sale Against Lands and Lots Returned Delinquent for the Year 1983 and Prior Years and for Judgment Determining the Correct Amount of Taxes Paid Under Protest (Charles Marotta, Objector-Appellant, v. Metropolitan Water Reclamation District, Respondent-Appellee).
    First District (2nd Division)
    No. 1—90—2583
    Opinion filed July 14, 1992.
    Rehearing denied October 6, 1992.

      S CARI ANO, J., dissenting.
    Keck, Mahin & Cate, of Chicago (Thomas J. McNulty and Maria E. Stangel, of counsel), for appellant.
    Allen S. Lavin, Michael G. Rosenberg, and James B. Murray, all of Chicago, for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Objector, Charles Marotta, appeals from an order of the circuit court dismissing his challenges to respondent’s 1983 tax levies.

In December 1984, Marotta and several other taxpayers filed an action in the circuit court challenging the 1983 appropriation ordinances and tax levies of several governmental entities and seeking refunds of taxes alleged to be illegal and void. This is an appeal by Marotta from a circuit court ruling upholding the taxes levied by one of those entities, the Metropolitan Water Reclamation District of Greater Chicago (District).

The objections to the District’s tax levies challenged the District’s appropriations for the corporate fund levy, the calculation of the bond and interest fund levy and annuity and benefit fund levy, and the District’s '4% reserve levy set up to cover uncollectible corporate fund and bond and interest fund taxes.

Prior to the hearing in this action, the parties entered into stipulations concerning most of the relevant facts. Attached to the stipulations as exhibits were copies of the District’s comprehensive annual financial report for the year ended December 31, 1982; its comprehensive annual financial report for the year ended December 31, 1983; and its 1983 budget.

After arguments, the trial court filed a memorandum opinion finding that the corporate fund levy was proper, that the method of calculating the bond and interest fund levy used by the county clerk could not be considered an abuse of discretion, that the annuity ánd benefit fund levy had been properly calculated, and that the reserve levy was valid.

In this appeal, we must determine whether the trial court properly upheld each of the levies in question.

CORPORATE FUND LEVY

Marotta raises four separate challenges to the corporate fund levy: (1) the District appropriated $6,300,000 for expenditures it knew would not be made; (2) the District overestimated expenditures from the corporate fund by appropriating for expenditures to be made in later years; (3) the District underestimated the amount of the corporate fund surplus available for appropriation; and (4) $8,711,350 in appropriations made by the District for the corporate fund were vague, rendering them illegal and void.

(1)

The 1983 District budget was adopted December 9, 1982, and amended December 16, 1982. The budget included appropriations for chlorination of effluent and for interest in the amount of $3,800,000 on tax anticipation notes to be issued in 1983.

On February 2, 1983, Public Act 82 — 1046 (Act) (Ill. Rev. Stat. 1983, ch. 42, par. 328b) went into effect. This Act authorized the District to increase its corporate working cash fund by the sale of long-term bonds. This eliminated the need for the sale of tax anticipation notes and the need for payment of $3,800,000 in interest on the notes.

On July 14, 1983, the Pollution Control Board granted the District a variance, allowing it to reduce the level of chlorination of effluent. This amounted to a savings to the District of $2,500,000 in chlorination costs.

In June 1984, the county clerk extended the tax levies for the 1983 budget. The levy for the corporate fund included the $3,800,000 for interest on tax anticipation notes and $2,500,000 in chlorination expenses. On appeal, Marotta argues that because these expenditures were no longer necessary, the District should have abated the levy by $6,300,000.

In arguing that the District acted improperly in allowing the $6,300,000 to be appropriated, Marotta relies on People ex rel. Brenza v. Fleetwood (1952), 413 Ill. 530, 109 N.E.2d 741. However, the facts in this case differ significantly from those in Fleetwood.

In Fleetwood, the objector successfully challenged the City of Chicago’s 1948 budget appropriation of $35,000 for its library maintenance fund. The objector showed that, in the years 1943 to 1947, $23,000 was appropriated for machinery and equipment, $54,500 for motor vehicles, and $34,000 for furniture and fixtures. However, only $1,616.26 of the amount appropriated for furniture and fixtures actually was spent and none of the money appropriated for machinery, equipment, or motor vehicles was used for those purposes. The Illinois Supreme Court sustained the objection to the 1948 appropriation, holding that a tax levy greatly in excess of the amount required for a particular purpose, made with the intention of creating a surplus to be used for another purpose, is not legal. Fleetwood, 413 Ill. at 551.

In the present case, unlike Fleetwood, Marotta has not shown a practice in year after year of appropriating amounts that were not expended for the designated purpose. Rather, the facts here show that sometime after the 1983 budget was adopted, it became apparent that one of the appropriations would be unnecessary and another would be less than originally expected. This does not require a finding that the appropriations were illegal. The estimation of expenditures is a matter left to the sound discretion of the taxing authority and should not be disturbed by a reviewing court unless there is a clear abuse of discretion. (People ex rel. Brenza v. Gebbie (1955), 5 Ill. 2d 565, 126 N.E.2d 657.) Here, we find that the District did not abuse its discretion in allowing the $6,300,000 to be appropriated.

Marotta cites no authority in support of his contention that the District had a duty to abate the levies in question after it became apparent that the expenditures had become unnecessary, and it appears there is no requirement that the District do so. In Fleetwood, the supreme court stated that an objection is not established merely by a showing of a difference between the estimation and the result. The court added that, “[b]y necessity[,] the estimates required by statute demand some speculation, and it is only reasonable to expect some error.” Fleetwood, 413 Ill. at 536-37.

(2)

In its 1983 budget, the District estimated its corporate fund expenditures at $148,653,000. During 1983, the District set aside $140,283,000 for goods and services, but the amount actually expended in 1983 totaled $130,340,000. The reason for the difference between the amount set aside and the amount spent is that the $140,283,000 included expenditures for goods and services contracted for in 1983 but not delivered until 1984 or later.

Marotta contends that the District’s overestimation of expenses constitutes an abuse of discretion, while the District argues that it properly exercised its discretion in estimating its expenditures.

In arguing that the District abused its discretion, Marotta relies solely on the fact that there is a difference between the amount expended in 1983 and the amount appropriated. This is insufficient to establish an abuse of discretion.

The burden of showing that a taxing authority has abused its discretion in making a levy is on the person objecting to the levy. (People ex rel. Bergan v. New York Central R.R. Co. (1946), 392 Ill. 525, 64 N.E.2d 895; People ex rel. Toman v. Edward Hines Lumber Co. (1944), 385 Ill. 366, 52 N.E.2d 720.) Such abuse is not shown by the mere fact that the taxing authority has levied a tax in a sum greater than the figure required to balance the amount of budgeted income with the amount of budgeted appropriations, or even by the fact that the tax levied will increase the available surplus and leave a larger cash balance on hand at the end of the fiscal year than was on hand at the beginning of the year. Bergan, 392 Ill. at 534.

In arguing that there was no abuse of discretion, the District relies on section 5.8 of the Sanitary District Act (Ill. Rev. Stat. 1983, ch. 42, par. 324r). Section 5.8 provides in part:

“No contract shall hereafter be made, or expense or liability incurred by the said board of trustees, or any member or committee thereof, or by any person or persons, for or in its behalf *** unless an appropriation therefor shall have been previously made by said board in the manner aforesaid. No officer, head of a department, or commission shall, during a budget year, expend or contract to expend any money or incur any liability, or enter into any contract, which, by its terms, involves the expenditure of money for any purposes for which provision is made in the appropriation ordinance in excess of the amounts appropriated in said ordinance. Any contract, verbal, or written, made in violation of this section shall be null and void as to the district, and no moneys shall be paid thereon; provided, however, that nothing herein contained shall prevent the making of contracts for the lawful purposes of said district, the terms of which contracts may be for periods of more than one year, but any contract so made shall be executory only for the amounts for which the said district is lawfully liable in succeeding budget years.” III. Rev. Stat. 1983, ch. 42, par. 324r.

We find that this language supports the District’s contention that it was required to include in its 1983 budget amounts for goods and services for which it contracted in that year, even though they were not delivered during the year.

(3)

In its 1983 appropriation ordinance, the District estimated the amount of corporate fund surplus available for appropriation in that year to be $16,082,360. The actual corporate fund balance at the end of 1982 was $27,467,000 under generally accepted accounting principles and $21,063,000 under a budgetary basis of accounting. Marotta contends that the District’s underestimation of the corporate fund surplus constitutes an abuse of discretion.

As with the previous objection, the sole basis for the challenge to the District’s action is the difference between its estimate and the actual amount available. As stated above, an objection is not established merely by showing that there is a difference between the estimate and the actual result. (Fleetwood, 413 Ill. at 536.) Thus, Marotta has failed to establish that the district’s underestimation of the corporate fund surplus amounted to an abuse of discretion.

(4)

Marotta next challenges the District’s estimate of approximately $8,711,350 of Corporate Fund appropriations. These include appropriations for items such as “Payment for Professional Services,” “Reprographic Services,” “Rental Charges,” and “Buildings.” Marotta claims that the District’s appropriations for these items should be held illegal and void because they are vague and insufficiently itemized.

Section 5.3 of the Sanitary District Act provides that appropriations shall specify the objects and functions for which they are made and the amount appropriated for each object and function. (Ill. Rev. Stat. 1983, ch. 42, par. 324m.) This requirement is based on the proposition that the taxpayer is entitled to know how his money is going to be used (People ex rel. Gill v. Schweitzer (1937), 366 Ill. 568, 10 N.E.2d 337), and it has been held to be mandatory (People ex rel. Brenza v. Gilbert (1951), 409 Ill. 29, 97 N.E.2d 793; People ex rel. Frendenberger v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1924), 314 Ill. 455, 145 N.E. 727).

However, it also has been held that specification of each item of expense for which a levy is made is not required; a single general purpose is sufficient to include' every appropriate expenditure required, although there may be many items. (People ex rel. Sweet v. Central Illinois Public Service Co. (1971), 48 Ill. 2d 145, 268 N.E.2d 404.) In addition, the Illinois Municipal Code authorizes corporate authorities such as the District to make itemizations in its annual budget and appropriation ordinances using general designations such as personal services, contractual services, travel, commodities, equipment, permanent improvements, land, and contingencies. (Ill. Rev. Stat. 1983, ch. 24, par. 8 — 2—4.) The designations used by the District are substantially similar to those approved by the statute and, therefore, we find that the appropriations are not illegal or void because of vagueness.

BOND AND INTEREST FUND LEVY ANNUITY AND BENEFIT FUND LEVY

Marotta argues that the county clerk improperly calculated the bond and interest fund and annuity and benefit fund levies. Marotta contends that in calculating the bond and interest fund levy, the county clerk was required by section 12 of the Revenue Sharing Act (Ill. Rev. Stat. 1983, ch. 85, par. 616) to give full credit to a bond interest abatement ordinance adopted November 3, 1983. According to Marotta, the method used by the county clerk to calculate the levy resulted in a credit of only 89.96% of the abatement. With respect to the annuity and benefit fund levy, Marotta contends that the county clerk again violated section 12 by failing to allow a credit for the receipt of replacement tax revenues.

The District responds to Marotta’s contention that the bond and interest fund levy was calculated improperly by arguing that the trial court correctly concluded that the difference between the amount reached by using the method of calculation espoused by Marotta and the method actually used by the clerk was so small that it could not be considered an abuse of discretion. However, the question is not whether the method used constituted an abuse of discretion, but whether it was in violation of the statute. Accordingly, we find that the trial court erred in dismissing this objection without first determining whether the calculation was proper under the applicable law.

A similar finding is required with respect to the annuity and benefit fund levy. In response to Marotta’s claim that this levy also was improperly calculated, the District argues that it followed the statute and that the levy was proper. As support for its position, the District relies on a computation sheet, included in its briefs before this court and the lower court, that purportedly shows the District’s 1983 budgeted net levy for its annuity and benefit fund. However, this sheet was not included in the parties’ stipulations, nor was it included in the hundreds of pages of documents attached thereto as exhibits. In addition, the District provides no explanation of how this information justifies the contested appropriation. In light of these facts, the trial court acted improperly in dismissing this objection.

RESERVE LEVY

Marotta’s only argument on this issue is that, to the extent that this court finds that any of the above discussed levies were incorrect, the pro rata proportion of the 4% levy for loss and costs also is invalid and should be refunded. Marotta’s argument is based on the supreme court’s finding in Fleetwood that the loss and costs estimates attributable to levies found to be illegal were void to the extent that they were based upon the illegal portion of the levies. Fleetwood, 413 i Ill. at 554.

Here, however, we have not found that any of the challenged levies were illegal. Accordingly, there is no basis for Marotta’s claim that j the reserve levy for loss and costs is void.

CONCLUSION

For the foregoing reasons, we sustain the trial court’s dismissal of Marotta’s challenges to the corporate fund and reserve levies. However, we reverse the dismissal of Marotta’s challenges to the bond and interest fund and annuity and benefit fund levies and we remand the cause for further proceedings.

The judgment of the circuit court of Cook County is affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

DiVITO, J., concurs.

JUSTICE SCARIANO,

dissenting:

I respectfully dissent from most of the majority’s holdings, for although the District has evidently succeeded thus far in the delicate political art of obtaining money from the taxpayer without disturbing the voter, I decline the offer to let the matter glide ever so blithely by this court.

The District’s budgeting process takes place prior to the budget year, and the levy of the tax is generally made 18 months later; accordingly, as the majority indicate, the District’s 1983 budget was adopted on December 9, 1982, and amended December 16, 1982, and its 1983 tax levy was extended by the county clerk in June 1984. The corporate fund levy included the amount of $3,800,000 for interest expense to be paid on tax anticipation warrants, to which the taxpayer objected on the ground that the District knew more than one year prior to the extension of the levy that the General Assembly made it unnecessary that there be any need for the expenditure of those funds for the purpose stated by the District. Public Act 82 — 1046, which rendered the levy unnecessary, became effective February 2, 1983, only six weeks after the 1983 budget was passed.

The Act amended section 9(b) to authorize the District to augment its corporate working cash fund through the sale of long-term bonds which eliminated the need for the issuance of annual tax anticipation notes. Such working cash bonds were issued in March 1983, shortly after the effective date of Public Act 82 — 1046, which reduced by $3,800,000 the amount of funds actually expended by the District out of the corporate fund for 1983, a reduction attributable to the interest saved by the District’s not having to mortgage its tax receipts.

Indeed, the reason offered to the General Assembly by its proponents for adopting the bill was the savings the District’s taxpayers would realize thereby. As Representative Terzich stated to the House:

“I am sure that many of you have received a letter from the president of the sanitary district as well as the ... news article from the Tribune which states that this is a good government Bill. The Bill would raise from 40 to 90% the amount of its levy that the district can put into its working cash fund. This would allow it to minimize borrowing *** and reduce interest costs which *** is bore by the taxpayers.” (82d Ill. Gen. Assem., House Proceedings, April 22, 1982, at 132 (comments of Representative Terzich).

On July 14, 1983, the Pollution Control Board, pursuant to a petition filed by the District, granted it a variance allowing it to reduce the level of chlorinating its effluent, which in turn reduced by $2,500,000 the amount of funds actually expended by the District from the corporate fund for chlorination purposes.

While neither of these events (the passage of Public Act 82 — 1046 and the granting of the variance by the Pollution Control Board) had formally transpired before the December 9, 1982, adoption of the budget and appropriation ordinance, it is equally clear that both matters transpired more than one year before the 1983 tax levy was extended in June 1984. Thus, for a period of more than one year, the District knew that these items for which expenditures had been appropriated were no longer necessary. The District, however, did not abate the corporate fund levy to take into account that the items were no longer required expenditures, even though they had an exceedingly long period of time to do so, and even though such a procedure was altogether possible. Indeed, $2,341,138 was abated by the District from the levy for the bond and interest fund with respect to pre-1979 bonds, which indicates quite clearly that the abatement process is neither a foreign nor even an esoteric one for the District to employ.

I have not the organs to perceive that the efforts of the General Assembly and the Pollution Control Board were intended by either of them to result in the disadvantage which has befallen the taxpayers of the District. On the contrary, Representative Terzich’s remarks and, indeed, the clarity of purpose inherent in Public Act 82 — 1046 and in the Pollution Board’s grant of a variance, leave no doubt that the aim of both agencies was to make it possible for the District to alleviate the tax burden of its constituents, who, not incidentally, are those of the legislature and the Board as well. And this is perhaps the most telling and ironic part of this whole affair: That the District would intensively lobby the legislature for the passage of Public Act 82 — 1046 as a “good government” measure, gain media support for it, and win an equally tax-saving variance from the Pollution Control Board, only to stand by stoically for months on end, despite the splendid opportunity it had to make a good-faith effort to fulfill the prophesy of the measures that endowed it with the capacity to act in the best interests of its taxpayers.

I disagree with the view the majority takes of the case of People ex rel. Brenza v. Fleetwood (1953), 413 Ill. 530, cited by the objector. There, an objection to the library fund was sustained where it was shown that for the preceding five-year period, appropriations for machinery and equipment totalled $23,000, yet no expenditures were made from that account. Accordingly, the current appropriation for the same expenditure was held illegal over the City’s contention that although the expenditure was intended to be made, war conditions prevented it. In the case at bar, however, the situation is far more compelling — the expenditure of $6,300,000 was not prevented by anything that even remotely resembled a force majeure; it was rendered wholly unnecessary. As the objector here notes, the District’s actions clearly fall within the rule that “[i]t is against the policy of the law to raise taxes faster than they are likely to be needed.” Matthews v. City of Chicago (1930), 342 Ill. 120, 139.

The District and the majority rely on People ex rel. Brenza v. Gebbie (1955), 5 Ill. 2d 565; yet Gebbie, as the majority acknowledge, dealt with estimates made by the District and the taxpayer was essentially questioning the accuracy of the estimate. The majority also acknowledge that in Fleetwood “the supreme court stated that an objection is not established merely by a showing of a difference between the estimation and the result.” (241 Ill. App. 3d at 756.) Yet, it is clear that the objector here challenges the $6,300,000 item relating to tax anticipation bonds and chlorination on the ground that they were not necessary — he raises no issue as to excessive estimates. Indeed, it is the stipulation of the parties in the instant case that the $6,300,000 appropriation was wholly unnecessary.

Moreover, section 5.3 provides, in pertinent part:

“Such appropriations shall specify the objects and functions (activities) for which they are made and the amount appropriated for each object or junction (activity) and shall include appropriations for (a) all current expenditures or charges to be made or incurred during such budget year ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 42, par. 324(m).

Thus, the District’s argument that the surplus of funds resulting from its admittedly unnecessary appropriations was carried over and was taken into account with the 1984 tax levies so that 1984 taxpayers would have been given credit for these amounts which were levied for 1983 but not spent ignores the fact that the budget process is an annual one so that only expenses for the current year are to be included in the levy. (Ill. Rev. Stat. 1987, ch. 42, par. 324(m).) Significantly, the District cites no authority for the proposition that levies can be either made or held for contingent purposes. In addition to violating section 5.3, the District’s conduct falls within the well-defined and well-settled principle of law which prohibits the unnecessary accumulation of moneys by taxing bodies. People ex rel. Clark v. Baltimore & Ohio Southwestern Ry. Co. (1933), 353 Ill. 492.

The objector argues that the District overestimated the amount of 1983 expenditures made from the corporate fund by some $18 million or 14% of the amount actually expended. As indicated above, $6,300,000 of this overestimate of expenditures was the result of the failure of the purpose for which those moneys were to be spent. The balance is simply the result of a significant overestimate of anticipated expenses. The principal difference between the parties as to this issue is that the District claims the right to estimate expenditures for services to be paid for in a later year, e.g., 1984. Yet, as indicated above, the budgeting process is annual in nature and section 5.3 plainly provides that estimates for expenses must be relative to expenses being incurred in the budget year.

The circuit court found the levy for expenses beyond the budget year to be justified by the provisions of section 5.8, which requires the District to create and maintain an appropriation record when it enters into a long-term contract calling for expenditures over a period of years. A plain reading of the statute, however, demonstrates that it does not give the District authority to levy for future expenses beyond the budget year.

The parties have stipulated that the District estimated the amount of corporate fund surplus available for appropriation for 1983 to be $16,082,360. The actual amount of surplus available for appropriation on a budgetary basis of accounting was $21,063,000. Under generally accepted accounting principles, the amount of surplus available was reported at $27,467,000. Accordingly, the corporate fund surplus was underestimated by approximately $11.4 million under generally accepted accounting principles, while the underestimate would have been almost $5 million on a budgetary basis of accounting. Even if we assume that the budgetary basis of accounting is the one to be used, the understatement of approximately $5 million constitutes a 30% disparity between the estimate and that which was actually on hand. Here the underestimate is significant enough to be violative of the rule in Gebbie. Moreover, the 1983 incident is not an isolated one; the objector shows that the District made a similar underestimate of approximately $12 million with respect to the corporate fund for the 1984 tax year. It goes without saying that the accumulation of unnecessary funds in the public treasury unnecessarily increases real estate taxes. If these are difficult times for taxing bodies, they are even more trying for the taxpayers of this country who are already required to devote, individually, several months of each work year to the payment of the myriad of taxes levied on them. We need not add to those rigors by looking the other way when taxing bodies take unwarranted liberties with their money. Surely, the legislature has manifested no such intent — anywhere.

I concur, however, in the majority’s rejection of the objector’s challenge to the District’s appropriation of $8,711,350 for various items in the 1983 budget referred to in paragraph 12 of the stipulation entered into by the parties herein which relates to the District’s allegedly stating only vaguely the purposes for which the amounts were appropriated. In the case of In re Application of Novak (1986), 142 Ill. App. 3d 1004, on which the objector relies, the alleged vagueness as to purpose went to such labels as “for the purposes set forth in the ‘Illinois Highway Code,’ as amended,” and “for the purposes set forth in ‘an Act to Revise the Law in Relation to Counties,’ as amended” (142 Ill. App. 3d at 1006), etc., which, although held invalid by the court, resulted only in a remand in order to give the taxing body an opportunity to amend the designations. I agree with the majority that the purposes here were validly stated.

I concur also in the majority’s holding that the trial court improperly dismissed the taxpayer’s objection relating to the bond and interest fund and the annuity and benefit fund levies; I would not agree, though, if a proper calculation of the bond and interest fund levy should result in an excess of $424,917, the figure the trial court had before it, that it should be held to be de minimis, as the trial court did, since the error would have affected the tax rate and the discrepancy is actionable.

To the extent that the levies were improperly made, I would hold that the pro rata proportion of the 4% levy for loss and costs in collection should be held to be equally invalid.

I would, therefore, hold that the trial court erred in overruling the taxpayer’s objections to the 1983 corporate fund levies, except the levy objected to as vague and those relating to the bond and interest and the annuity and benefit funds. Accordingly, I would reverse and remand this cause to the circuit court with instructions to sustain the taxpayer’s objections to the improper levies and order the treasurer, accordingly, to make a proper refund to the taxpayer of the taxes he paid under protest.

       The legislative history of the bill indicates that it was passed by the General Assembly on May 6, 1982, but returned by the Governor with an amendatory veto affecting other provisions of the bill on November 5, 1982. The legislature accepted the change on December 3, 1982 (six days before the budget was adopted), and the bill was certified by the Governor and simultaneously became law on February 2,1983.

       All statutory references are to Ill. Rev. Stat. 1989, ch. 42, unless otherwise indicated.