Elliott v. Morgan
| Decision Date | 31 July 1997 |
| Docket Number | No. 15,D,No. 96-1904,15,96-1904 |
| Citation | 214 Wis.2d 253,571 N.W.2d 866 |
| Parties | James N. ELLIOTT and Milwaukee Building and Construction Trades Council, Plaintiffs-Appellants, d v. Michael L. MORGAN, the City of Milwaukee, Milwaukee Riverwalk District, Inc. and Business Improvement Districtefendants-Respondents. . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Matthew R. Robbins and Frederick C. Miner of Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C. of Milwaukee. There was oral argument by Matthew R. Robbins.
On behalf of the defendants-respondents Michael L. Morgan and the City of Milwaukee, the cause was submitted on the brief of Grant F. Langley, City Attorney and Linda Uliss Burke, Assistant City Attorney. There was oral argument by Linda Uliss Burke.
On behalf of the defendants-respondents Milwaukee Riverwalk District, Inc. and Business Improvement District No. 15, the cause was submitted on the brief of Kathleen S. Donius and Daniel J. LaFave of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C. of Milwaukee. There was oral argument by Kathleen S. Donius.
Before WEDEMEYER, P.J., SCHUDSON, J., and DANIEL L. LaROCQUE, Reserve Judge.
James N. Elliott and the Milwaukee Building and Construction Trades Council appeal from a judgment entered after the trial court granted Michael L. Morgan, the City of Milwaukee, the Milwaukee Riverwalk District, Inc., (MRD) and the Business Improvement District No. 15's (BID) motion for summary judgment. Elliott claims the trial court erred when it concluded that portions of the construction of the Riverwalk project were not a "public work" subject to the requirements of § 66.293, STATS. (1993-94). 1 Because the Riverwalk project does not constitute a public work, we affirm.
This case involves the Riverwalk development project in downtown Milwaukee, which consists of a system of sidewalks, decorative lighting, and landscaping along the Milwaukee River, extending from Clybourn Street at its southern boundary to Pleasant Street at the north. The City entered into agreements to provide grant money to the two entities who are developing the Riverwalk project: the Business Improvement District No. 15 and the Milwaukee Riverwalk District, Inc.
The pertinent undisputed facts are as follows. A "BID" is governed by a board of directors, appointed by the municipality's "chief executive officer," here the mayor, and confirmed by the municipality's legislative body, here the Common Council. Section 66.608(3)(a), STATS. Id. A BID board is authorized to "have all powers necessary or convenient to implement the operating plan, including the power to contract," if those powers are "specified in the operating plan as adopted, or amended and approved" pursuant to § 66.608, STATS. Section 66.608(3)(d), STATS. The agreement for the Riverwalk project gives the board of BID the authority to obtain property in connection with the project and to construct, as well as "[c]ontrol or own, operate and maintain or cause to be operated and maintained," the project segments that are not designated for control by the City. Private property owners petitioned for the creation of the BID. The creation of the BID was approved by the Milwaukee Common Council in March 1994. The BID is funded by $8,537,000 in grant funds from the City of Milwaukee, and by $1,945,000 from special assessments on private property within the district.
The MRD is a non-profit Wisconsin corporation. It is funded by $759,000 in a grant from the City of Milwaukee and by $100,000 from Midwest Express. The MRD agreed to "further[ ] Riverwalk construction and development along certain segments of the Milwaukee River."
None of the improvements which are the subject matter of this lawsuit will be owned, leased or operated by the City of Milwaukee. The project segments that are to be owned by the City are governed by the wage-rate laws of § 66.293, STATS., and are not at issue here.
Elliott filed a complaint against Morgan and the City, seeking injunctive relief on the basis that the entire Riverwalk Project is subject to the wage-rate laws of § 66.293, STATS., because the project is a "public work." The Honorable George A. Burns, Jr., denied the request for injunctive relief, and dismissed the complaint on the basis that the portions of the project that are privately owned are not public works and therefore are not subject to the wage-rate laws. We affirmed the dismissal on the grounds that Elliott failed to join indispensable parties, namely the BID and MRD. Elliott v. Morgan, No. 95-0759, unpublished slip op. at 2, 1995 WL 649399 (Wis.Ct.App.1995). Elliott filed a new complaint adding BID and MRD as defendants. Both sides filed motions for summary judgment. The trial court granted the defendants' motion, ruling that the project does not constitute a public work because that term applies only to "public improvements performed upon premises owned by the City." 2 Elliott now appeals.
Elliott argues that the Riverwalk project is a public work because: (1) it is work done by contract for the City; (2) it is of a public nature and character; and (3) the City provided funding for the project and is exhibiting pervasive control over the project. The City, BID and MRD counter that although the project assumes a public purpose, it is not a public work because: (1) the project involves improvements to privately owned property; (2) the City will not be using or maintaining the Riverwalk; (3) neither public financing nor use by the public at large will transform a private construction project into a public work; and (4) the City is not undertaking the work covered by the project. The trial court agreed with the City.
This case involves the interpretation of statutes to undisputed facts, which is a question of law that we review independently. See Golden Valley Supply Co. v. American Ins. Co., 195 Wis.2d 866, 866, 537 N.W.2d 58, 59 (Ct.App.1995). In addition, this case comes to us following a grant of summary judgment. In reviewing a grant of summary judgment, we employ the same methodology utilized by the trial court. See Grotelueschen v. American Family Mut. Ins. Co., 171 Wis.2d 437, 446-47, 492 N.W.2d 131, 134 (1992). On this basis, again, our review is de novo. See id.
The statute at issue in this case is § 66.293(3), STATS. (1993-94), which provides in pertinent part:
Every municipality, before making a contract by direct negotiation or soliciting bids on a contract, for any project of public works shall apply to the department of industry, labor and human relations to ascertain the prevailing wage rate, hours of labor and hourly basic pay rates in all trades and occupations required in the work contemplated. If any contract for a project of public works is entered into, the wage rates and hours determined by the department shall be incorporated into and made a part of the contract. No laborer, worker or mechanic employed directly upon the site of the project may be paid less than the prevailing wage rate in the same or most similar trade or occupation .
The issue presented, therefore, is whether the City has made or entered into a contract for public works. If so, it is subject to § 66.293(3), STATS., and MILWAUKEE ORDINANCE § 309-25, 3 and should be required to incorporate the prevailing wage rate into the contract. 4 Fors 66.293(3) to apply, we must conclude that: (1) the City must have entered into the contract; and (2) the contract involved a public work. Elliott concedes that the City itself did not enter into a contract with companies actually performing the work. Instead, he argues that the grant agreements that the City entered into with BID and MRD act as "the contract." He suggests that the City cannot subvert the requirements of the statute by entering into an agreement with BID and MRD, that in turn actually contracted with the construction companies who performed the work. Elliot also argues that BID is actually an alter ego of the City because it is created by the City. The authorities he cites in support of this proposition, however, are non-persuasive foreign case law. Each case cited by Elliott on this point is distinguishable, either factually or legally because the Wisconsin statute differs from the statute at issue in the foreign cases. 5 Moreover, the agreements that Elliott labels "the City contract" are simply agreements that detail the requirements for obtaining the grant money. The City did not solicit bids, negotiate or enter into any construction contracts for the work in question.
In examining our statute, the legislative policy underlying the statute, and the governing law, we conclude that the portions of the Riverwalk project at issue (the non-City owned segments) do not constitute public works. The interpretation that Elliott attempts to give the statute is consonant with his interest in promoting individual workers' desire to be paid the prevailing wage. This interest, though laudable and wholesome, cannot be reached on the basis of the current statute. As noted in footnote 5, many other jurisdictions, similarly mindful of promoting the prevailing wage rate, have more fully defined this purpose by enacting a statute that more broadly defines a public work. We presume that our legislature, in its wisdom, is familiar with this growing body of foreign legislation, which broadly defines a public work to include any project that is funded in part by public money. For reasons unknown, however, our legislature has not taken the same expansive steps to broaden the definition...
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... ... 3d at 1067-68 (holding that hospital construction was not a public work contract because the hospital was constructed on private property); Elliott v. Morgan, 214 Wis.2d 253, 571 N.W.2d 866, 870-71 (Ct.App.1997) (holding that improvements to a city river walk did not constitute a public work ... ...
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