ILLINOIS POLLUTION CONTROL BOARD
August 24, 1995
DOROTHY L. HOFFMAN,
)
Complainant,
v.
)
PCB 94—146
(Enforcement—Noise)
CITY OF COLUMBIA,
)
a municipal corporation,
)
)
Respondent.
ORDER OF THE BOARD (by J. Yi):
This matter is before the Board pursuant to a motion to
enforce settlement agreement filed by the complainant on May 19,
1995. On May 5, 1994 Dorothy L. Hoffman filed this citizen’s
enforcement complaint before the Board against respondent, the
City of Columbia (City). The complaint alleges that respondent
violated 415 ILCS 5/23 and 5/24 of the Environmental Protection
Act
(Act)
and 35 Ill. Adm. Code 900.102, in its operation of the
city’s trucks at its Public Works Department facility, resulting
in noise pollution. On June 2, 1994 the Board found this matter
was not frivolous or duplicitous and sent it to hearing.
On October 25, 1994 a hearing was held at the offices of
Columbia City Hall, Columbia, Illinois. At the hearing the
parties entered opening statements and discussed a settlement
agreement. At the close of the settlement agreement discussion,
the hearing officer continued the cause and directed both parties
to file the settlement papers by November 30, 1994.
On May 19, 1995 complainant filed a motion to enforce
settlement and a memorandum in support of the motion to enforce
settlement. In the motion to enforce, complainant states that at
the hearing, after opening statements, “a) brief recess, lasting
approximately 2 1/2 hours, was taken wherein the parties entered
into negotiations to settle the controversy.” (Not. at 2.)’
Complainant posits that at the close of those negotiations an
settlement agreement was reached and approved by four alderman
present through their attorneys, Mayor Schneider and herself.
(Mot. at 2.) Complainant states that after the discussions, the
‘The complainant’s motion to enforce settlement will be
referenced as “Mot. at
“;
the complainant’s memorandum in support
of the motion will be referenced as “Mem. at
“;
the respondent’s
response will be referred to as “Resp. at
“;
and the respondent’s
memorandum in support of denial of the motion to enforce will be
referred to as “Hem. at.
“.
2
settlement agreement was read into the hearing record.
Complainant asserts that on or about December 6, 1994, attorneys
for the City notified her that the City would not sign the
settlement agreement. (Mot. at 3.) It is this settlement
agreement which complainant requests the Board to find and
enforce against respondent.
In support of its position, complainant argues that an oral
settlement agreement was entered into by the parties. Citing to
Brewer v. National Railroad Passenger Corp., 256 Iii. App.3d
1083, 194 Ill.Dec. 834, 628 N.E.2d 331, 335 (1st Dist. 1994),
complainant asserts that an oral agreement to settle will be
enforced if there is an offer and an acceptance of the terms and
a meeting of the minds. (Mem. at 2.) Complainant asserts that
the record of the hearing clearly establishes that there was an
oral settlement agreement and that the City is avoiding the
settlement agreement because it subsequently discovered it would
be more costly than first expected. (Mem. at 2.) Complainant
argues that the City’s mistake is not a legal reason for the
Board not to find that the oral agreement should not bind the
City and cites to Brewer. (Mem. at 3.) Complainant requests the
Board to enter an order finding the existence of a settlement
agreement and to retain jurisdiction to enforce this settlement
agreement. (Mem. at 3.)
On May 31, 1995 respondent filed a response to the motion to
enforce. In the response it states that present during the
hearing and the negotiations were the City Attorneys, Mayor, City
Engineer, and three alderman and that the City Council consists
of eight (8) members and one mayor. (Resp. at 1.) Respondent,
citing to pages 29-33 of the transcript, also states that the
Board’s hearing officer made several comments in the record that
the Columbia City Council needed to approve the settlement
agreement. (Resp. at 2.) The respondent asserts that the
complainant “...acknowledged the necessity of passing ordinances
reflecting the Columbia City Council’s approval of the settlement
agreement prior to the City’s formal execution...” citing to
pages 30 and 33 of the record. (Resp. at 2.) The City also
argues that since the Board is an administrative agency and part
of the executive branch of the State, it “...does not have
jurisdiction to determine issues related to the formation,
existence, and non—existence of a contract or the respective
rights of parties to a contract.” (Resp. at 3.) In addition the
respondent argue that Section 3-11—17 of the Illinois Municipal
Code (65 ILCS 5/3-11-17 (1994)), and case precedent provides that
in order for the City to incur a “...liability or expend or
appropriate it funds” an ordinance must be passed by a majority
of the City council members. (Resp. at 3.)
The City also filed a motion for an extension of time to
file a memorandum in support of its response to the motion to
enforce on June 12, 1995. The City filed its memorandum in
3
support on June 30, 1995. No responses to the motion or the
filing of the memorandum were filed by complainant as of the date
of this order. The Board grants the motion and accepts the
memorandum in support of complainant’s response. In the
memorandum the complainant states certain facts stated above and
argues once again that the Board does not have jurisdiction to
enforce the settlement agreement and that the mayor, aldermen,
and the City attorney’s could not bind the City without securing
approval from the City council.
In its memorandum, the City argues that, pursuant to the
separation of powers doctrine and supporting case law, the Board
“...is not authorized to apply law and make a judicial
determination of contract rights or to adjudicate disputed rights
arising from such contracts.” (Men. at 3) Citing to Toledo,
Peoria and Western Railroad v. Brown, 375 Ill. 438, 31 N.E.2d 767
(1941) and Mitchell v. Ill. Central Railroad Company, 317
Il1.App. 501, 47 N.E.2d 115 (3rd Dist. 1943), the City states the
Supreme Court has held that “...the Commerce Commission, an
administrative agency of the executive branch, did not have
jurisdiction to adjudicate disputed rights or effects of a
contract.” (Mem. at 4.) The City asserts, citing to Fahner v.
Colorado City Lot Owners and Taxpayers Association, 108
Ill.App.3d 266, 438 N.E.2d 1273, 63 I11.Dec. 910 (1st Dist.
1992), that the settlement agreement is a contract and subject to
the rules applicable to general contracts. The City states that
the Act does not specifically give the Board authority to
determine contractual rights of the litigants. (Mem. at 4—5.)
Accordingly, the City concludes that the Board is analogous to
the Commerce Commission and does not have the authority to grant
the motion to enforce because the Board lacks jurisdiction.
(Mem. at 5.)
Additionally, the City argues that the representatives of
the City at the hearing could not legally bind the City to the
settlement agreement. The City argues that, if a process by
which an agent or representative may bind a corporation exists
that process must be followed. (Wacker—Wabash Corporation v.
City of Chicago, 350 Ill.App. 343, 112 N.E.2d 903 (1st Dist.
1953).) The City then cites to the following cases for the
proposition that a city may only contract by ordinance approving
the same, and that a agent or representative without prior
approval or specific grant of authority can not bind that city to
a contract. Bank of Pawnee v Joslin, 166 Ill.App.3d 927, 521
N.E.2d 1177, 118 Ill.Dec. 484 (4th Dist. 1988); Schwartz v. City
of Chicago, 221 Ill.App. 328 (1st Dist. 1921); D.C. Consulting
Engineers, Inc. v. Batavia Park District, 143 111.App.3d 60, 492
N.E2d 1000, 97 Ill.Dec. 341 (2nd Dist. 1986); Chicago Food
Management. Inc.
V.
City of Chicago, 163 Ill.App.3d 638, 516
N.E.2d 880, 114 Ill.Dec. 725 (1st Dist. 1987); Page v. City of
Hickory Hills, 10 I11.App.3d 1072, 295 N.E.2d 518 (1st Dist.
1973); and Galion Iron Works and Manufacturing Company v. City of
4
Georgetown, 322 Ill.App. 498, 54 N.E.2d 601 (3rd Dist. 1944)
(Mem. at 6—10.) Applying this to the present circumstances, the
City asserts that it must adopt an ordinance approving any
settlement agreement that was reached at the hearing by its
representatives before it can be bound. (Mem. at 10.)
Finally the City argues in rebuttal to the complainant’s
reasoning that an oral settlement agreement had been reached.
The City asserts that the complainant is correct in that an oral
settlement agreement is enforceable as long as there is an offer,
an acceptance and a meeting of the minds. (Mem. at 11.) The
City, however, argues that there has been no acceptance by the
City and the there was no meeting of the minds. (Meiu. at 11.)
The City states that, after the hearing, the complainant
requested changes to the settlement agreement in a letter dated
November 28, 1994, which the City asserts as evidence to
demonstrate that there was no meeting of the minds. (Mem. at
12.) The City requests the Board to deny the complainant’s
motion to enforce the settlement for the reasons stated in its
response to the motion and its memorandum in support.
Discussion
The courts have held that the Board and the circuit courts
have concurrent jurisdiction under the Act. (See Janson v.
Illinois Pollution Control Board, 69 Ill.App.3d 324, 387 N.E.2d
404, 25 Ill.Dec. 748 (3rd Dist. 1979).) In Janson the court
states “t)he Pollution Control Board and the circuit court do
have some concurrent jurisdiction.” (Id. at 407.) Furthermore
the courts have said “...where there is an express grant of
authority there is likewise the clear and express grant of power
to do all that is reasonably necessary to execute the power to
perform the duty specifically conferred.” (Chemetco, Inc. v.
Illinois Pollution Control Board, 140 Ill.App.3d 283, 488 N.E.2d
639, at 643.) The Chemetco court further stated that the Board
in adopting 35 Ill. Adm. Code 103.180 pursuant to its authority
under the enforcement provisions of the Act “...it is undeniable
that settlements are of the Board’s own making and comport with
the purposes of the Act.” ~ at 643.) Additionally, the Court
stated that the Board has the authority to accept or reject the
proposed agreement, suggest revisions and even direct further
hearings. (~ at 643.) The Board has been given the express
authority to rule in enforcement proceedings and the power to
perform that duty. Therefore, we find that the Board does have
the jurisdiction to decide if a oral settlement agreement has
been reached and enter it as a Board order which could be
enforceable by the Board or court of competent jurisdiction.
In this case it is clear from the record of the hearing that
the parties reached a
tentative
settlement agreement but did not
5
reach a settlement agreement which is enforceable.2 (Transcript
29-34.) As correctly stated, by the hearing officer, the Board’s
procedural rules generally do not allow for oral settlement
agreements. (Tr. at 31.) The procedural rules require that the
parties enter into the record a written settlement agreement
signed by the parties that meets certain information requirements
set forth at 35 Ill. Adm. Code 103.180. The Board may reject an
oral settlement agreement between the parties and request that an
agreement be made in writing.
Here, it is evident from the record that both the
complainant and the respondent were in agreement that it was
necessary for the City Council to adopt an ordinance or otherwise
approve any settlement agreement before there was any acceptance
on the part of the City. No evidence of such acceptance is
contained in the record. We find that the parties did not enter
into an enforceable oral settlement agreement but instead agreed
to a tentative settlement agreement pending the approval of the
City. Since there is no valid settlement agreement to enforce
the complainants’ motion is accordingly denied. We direct the
parties to proceed with the hearing in this matter.
2At the hearing the following is an example of the discussion
that took place at the hearing.
(BY HEARING OFFICER HUDSPETH): When we previously had
said that the settlement papers would be filed within 30
days, I don’t know if that still holds true considering
your need for ordinance
——
(BY MR. ADAMS): This will be taken care of the first
meeting in November, which is the first Monday in
November, whatever
-—
I guess maybe I better lengthen
that a little bit and say hopefully the second meeting,
but they meet on the first and third Monday of each
month, so
——
(BY HEARING OFFICER HUDSPETH): I’m going to direct that
the parties have all of the documentation prepared,
signed, and in the mail by November 30.
(BY MR. ADAMS): That should not be a problem for us.
(BY HEARING OFFICER HUDSPETH): Does Petitioner find that
acceptable?
(BY MR. MARLEN): That is fine.
(Transcript page 33.)
6
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby~certifythat the above order was adopted on the ~
day of
__________________
,
1995, by a vote of
7—~
Dorothy M. ~unn, Clerk
Illinois Pollution Control Board