VILLAGE OF NORTH AURORA
COMMITTEE OF THE WHOLE MEETING
AUGUST 31, 2009
CALL TO ORDER – 7:35 p.m.
Mayor Berman called the meeting to order.
ROLL CALL
In attendance: Mayor Dale Berman, Trustee Mike Herlihy, Trustee Chris Faber, Trustee Mark Guethle, Trustee Bob Strusz, Trustee Mark Gaffino, Trustee Vince Mancini. Village Clerk Lori Murray.
Staff in attendance: Assistant to the Village Administrator Wes Kornowske, Finance Director Bill Hannah, Community Development Director Scott Buening, Public Works Superintendent Mike Glock, Water Superintendent Paul Young, Village Attorney Kevin Drendel, Police Chief Tom Fetzer, Fire District Representative Ryan Lambert.
PUBLIC HEARING
1. Annexation of part of the Burlington Northern Santa Fe (BNSF) Railroad north of State Street
Mayor Berman opened the meeting. There were no comments from Staff or the public. Mayor Berman then closed the public hearing.
DISCUSSION
1. Discussion on the annexation of part of the BNSF Railroad north of State Street – There was no discussion on behalf of the Village Board. Consent Agenda.
2. Discussion of the Responsible Bidder Ordinance – Mike Macellaio, director of governmental affairs for the Chicago Area Laborers – Employers Cooperation and Education Trust was present to discuss the Responsible Bidder Ordinance. Mr. Macellaio’s labor management firm represents contractors and the laborers they employ. The responsible bidder ordinance ensures compliance of the prevailing wages act. Macellaio said that there is one law that the Village may not follow which is that the contractors participate in the United States Department of Labor Apprenticeship program. Macellaio said these programs focus on quality, safety, and increases efficiency on the job site and added that if the Village passes the ordinance, this will ensure that taxpayers in the community are being given contractors that provide training for the workforce.
Trustee Guethle said that the Development Committee met with Mike Macellaio and agreed with the responsible bidder ordinance with a $5,000 threshhold. If a job is $5,000 or less, the ordinance would not affect the job, but contractors would still be required to pay prevailing wage.
Mascellaio said that the ordinance has passed in various taxing bodies. Trustee Herlihy asked for the website listing the taxing bodies. Mascellaio said that information would be found at website www.responsiblebidding.com.
Guethle said that the ordinance would be positive for the Village since it would protect the Village against contractors who don’t pay the prevailing rate. Trustee Guethle suggested this item be placed on the Consent Agenda.
Trustee Mancini said that his only issue is that the ordinance is applicative to everything the Village currently does other than an apprenticeship and training program. Mancini said he was concerned that it may limit the bidders available to a small community such as the Village of North Aurora. Mancini said he recognized the need for training but did not believe it necessary for every single contractor that the Village may employee on every single project. Trustee Herlihy said that items 1, 2, 4 and 6 of the ordinance are state law. Herlihy said the Village is a non home-ruled community so the state writes most of the rules for the Village. Herlihy asked why this is not part of the state prevailing wage act when every other part of it is. In the case of prevailing wage work, apprentice program aside, a contractor is not permitted to pay an apprentice wage to anyone on that project unless it is a registered program. Without this ordinance, any contractor that bid the job would have to represent all of these attributes. He just wouldn’t be able to participate in any apprenticeship wage differential on the project. He would actually have to pay more. Guethle said that was correct, but he would still participate in an apprenticeship program. Guethle said that the training is being paid for under the act, so why not have someone trained. Herlihy said but they are not registered with the Department of Labor. Guethle said most are. Herlihy asked why this wouldn’t be part of the State Prevailing Wage Act. Guethle said that all of it is except for the apprenticeship program. Herlihy asked why the apprenticeship program is not, as well. Mascellaio said that there has been legislation pertaining to the training requirements. Mascellaio noted that this is not a union or non-union issue, and that there are non-union contractors that have apprenticeship programs. Mascellaio added that the training is being paid as part of the prevailing wage, currently. Herlihy said he is looking at this from an administrative policy position at the Village’s level as opposed to at the state level where the State Department of Labor is the entity that has to enforce this. Herlihy asked how the Village would enforce a situation where a contractor or someone appears to be a non-responsible bidder. Mascellaio said the Village would enforce a provision that the contractors that are bidding on a project in North Aurora have an active apprenticeship program with the Department of Labor.
Herlihy said that if this represents good public policy, it is best to pass it at the state level rather than at 400 different political subdivisions, one at a time.
Guethle said that the Finishing Contractors Association of Aurora is in support of the adoption of this ordinance. Trustee Mancini said this is not a bad rule, but did not feel that this should be applied at a municipal level.
Mascellaio said they are going to present their case to the General Assembly that this is a good government contract.
Mancini said that this process is using local municipalities to convince the state government as to what the state policy is. Mancini said he did not feel this was appropriate and said it is close to separation of powers violations. Mancini said his concern is if the state does not pass this and the Village of North Aurora is stuck with this ordinance when neighboring communities are not. Mancini said this is similar to the Prevailing Wage Act and should be passed statewide. Mancini said that if the State wants to do this that is fine, but did not know how the Village would enforce this on a municipal level.
Herlihy said that being the only non-home rule community, asked if this is a type of item the Village can adopt without authority granted from the State. Atty. Drendel said the Village would not be precluded from adopting this kind of an ordinance. Any municipality could determine the general criteria that they want to use to define who is a responsible bidder. It is not a home rule or non-home rule issue.
Guethle requested the issue be placed under New Business for the next meeting.
Atty. Drendel said that he had some issues if the Village was going to pass the ordinance. It relates to the administration of the ordinance and what information the Village collects. If the Village is requiring people to demonstrate their compliance with the laws, what is the Village gathering? If it is a corporation, the Village would be getting a certificate of good standing from the Secretary of State or an LLC, but if it is a partnership, what does the Village get to prove that they are in compliance?
Atty. Drendel said that in reference to prevailing wages, if the Village is requiring the contractors to demonstrate that they comply, the Village can get a certification from them but it could be a self-serving certification. Atty. Drendel asked if the Village would be requiring them to provide the Village with a schedule of their employees and what they are paid. Trustee Guethle said that would be the certified payroll. Trustee Herlihy said that when the contractor bids the job, what does a responsible bidder have to demonstrate and what information is the Village going to have to review because if the Village doesn’t act, by default, they become responsible. Trustee Herlihy said the Village doesn’t know and can’t know if a contractor didn’t pay prevailing wages on a prior job unless they were debarred. Trustee Guethle said that a contractor has two chances. If a contractor does not pay prevailing wage and gets caught, the state issues a first violation notice. If the business is caught twice within five years, the business is then debarred.
Atty. Drendel asked if there would be anything additional up front when the bid packages are received. Trustee Guethle said that the only additional item would be the certification of apprenticeship program.
Atty. Drendel said he would not want to pass an ordinance that would put the Village in a situation in terms of defining what a responsible bidder is that would lock the Village into taking a low bidder even though they may do sloppy work. Some ordinances have a catch-all. Atty. Drendel suggested making sure the Village has a catch-all in the ordinance.
Trustee Guethle asked Atty. Drendel to review the ordinance and make changes that he felt was necessary and bring it back to the Board for review. Trustee Mancini said it is not that easy because there is no statewide policy and case law to help Atty. Drendel do that.
Trustee Herlihy said the question is how the Village would implement and enforce this ordinance. Trustee Guethle said this ordinance is for the contractor to prove they do these things and if they lie they will get caught by the state. Trustee Herlihy said that maybe this is better as a state policy. Trustee Mancini said that if the Village is going to adopt this ordinance and take on the burden, which Trustee Mancini said he had no problem with, the Village has to have a methodology for enforcing it and sticking to it. Mancini said, “To say it is great and we want apprenticeships for all of our contractors, is great but meaningless and hollow if the Village does not have the teeth to back it up either by checking it ahead of time, barring the ones that are dishonest or having a staff member investigate it on a regular basis before the bidding period expires.” Trustee Guethle said this is an ordinance to ensure that contractors that come into the Village are responsible and follow the state criteria. Trustee Guethle suggested this be placed on New Business for the next meeting.
Trustee Herlihy said that Atty. Drendel wants to put this into a form that fits the Village’s ordinance format, but there also has to be a consequence to not complying. Trustee Guethle said there is no fine or debarment from the Village.
Trustee Gaffino said he looked at the ordinance as a screening tool and another way to get rid of companies that may not do a good job for the Village. Trustee Herlihy said he did not disagree with this being a screening tool, but is curious in the case that the Village does not believe a company has a properly registered apprenticeship training program. How does the Village find this out and what does the Village do with it? Does the Village throw out the bid? Is the penalty only the rejection of a bid? Trustee Faber asked if Trustee Herlihy wanted it to be more. Trustee Mancini asked what would happen if the contractor has already been awarded the bid and the Village finds out after this point.
Trustee Guethle noted that Trustee Herlihy’s company was cited with a notice for violation of prevailing wage. Trustee Herlihy said that the matter is still under contest. Trustee Mancini questioned the relevance of this information and said that Trustee Guethle was just bringing up dirt. Trustee Herlihy asked what the point of the information was to the discussion. Trustee Guethle asked if Trustee Herlihy believed in paying prevailing wage. Trustee Herlihy said yes and that this particular matter that was brought up was a matter under contest with the State Department of Labor and the Attorney General’s office. Trustee Guethle said it is important for the Village to abide by all the rules and laws of the state.
Mayor Berman said the ordinance needed to be in a form that can be voted on. New Business.
3. Discussion on an ordinance approving stop signs at the intersection of Pine Creek Dr. and Doral Lane – Consent Agenda
4. Discussion on the 2009 Crack Sealing IDOT Approval of Change in Plans and Final Payment estimate in the amount of $75,887.45 to Freehill Asphalt Inc. – Consent Agenda.
5. Discussion of the Refunding of the 2001 General Obligation Library Bonds
Bill Hannah said that the Village issued some debt to fund the new library back in 2001. The Finance Committee looked at a couple of options as how to structure the remaining debt service. There was discussion about doing a level debt service. There was also discussion about the pros and cons of doing the competitive sale. Hannah said that consensus at the Finance Committee meeting was to go with a competitive sale in October. Further discussion and information from Kevin McKenna will be at the October 5th meeting.
TRUSTEE COMMENTS – None
EXECUTIVE SESSION
Motion to adjourn to Executive Session for the purpose of discussing labor negotiations made by Trustee Gaffino and seconded by Trustee Herlihy. All in favor. Motion approved.
(return from Executive Session)
ADJOURNMENT
Motion made by Trustee Strusz and seconded by Trustee Mancini to adjourn the meeting. All in favor. Motion approved.
Respectfully Submitted,
Lori J. Murray
Village Clerk
