Fri, Nov 20 2009
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Published September 30, 2009 01:16 am - The immediate future of the Wade Avenue Elementary Schools project is in the hands of Ashtabula County Common Pleas Court Judge Alfred Mackey. Judge hears injunction request Wade Avenue elementary school project bid opening is delayed by six days By CARL E. FEATHER - Staff Writer - cfeather@starbeacon.com Star Beacon JEFFERSON — The immediate future of the Wade Avenue Elementary Schools project is in the hands of Ashtabula County Common Pleas Court Judge Alfred Mackey.
Tuesday morning, Mackey heard arguments regarding the preliminary-injunction request filed by Ross, Brittain and Schonberg on behalf of Enertech Electrical of Lowellville and two builders and contractors’ trade groups Sept. 24. Attorney Allan G. Ross sought a temporary restraining order (TRO) against the Ashtabula Area City Schools Board of Education (BOE), which added a prevailing-wage requirement to its bid specification package. Judge Ronald Vettel met with attorneys from both sides the day the motions were file, but would not rule on the TRO request. In the interim, the bid opening date has been pushed back to Oct. 8 from Friday, delaying the start of construction by at least four more working days. The school board’s counsel, working with the construction manager and staff, drafted additional language, which was tacked onto the bid specification package over the weekend. At issue is whether the school board is within its legal right to require contractors to pay prevailing wages, as determined by the Ohio Department of Commerce. Ross argues that the Ohio Revised Code (ORC) exempts school boards from prevailing-wage laws and that it was illegal for Ashtabula’s board to add the language. However, the school board and Ohio Schools Facilities Commission (OSFC) assert the board’s decision to add the provision is allowed by law. School Board President Janine Trebuchon-Wertz said last week that the board added the prevailing-wage provision after BOE heard from area union representatives concerned about school construction jobs going to workers from outside the area. Ross argued Tuesday that the board’s action would eliminate interest in the project from contractors who do not pay prevailing wages and, thus, would be denied the opportunity to save taxpayers money. At first, Mackey questioned whether companies that have not even bid on the project have any standing in court, but Ross offered Enertech’s Chief Executive Officer Gregory T. Haren as a witness. Haren planned to bid but was discouraged from doing so by the prevailing-wage requirement. Ross argued that it is more expedient to resolve the issue now, before bids are awarded, than to deal with the aftermath in court. Ross said Enertech is a union contractor but pays Electrical Construction Workers Union rates, not those of the International Brotherhood of Electrical Workers (IBEW). In Ashtabula County, the prevailing wage is based upon those paid by IBEW and related construction unions. When pressed by Mackey for details, Ross said the difference in the Electrical Construction Workers and IBEW rates could be $10 to $11 per hour. He argued that a report prepared by the Ohio Legislature’s Legislative Services Committee showed that using prevailing wage labor resulted in price tags 10.7 percent higher. Samuel Wampler of Bricker & Eckler, the law firm representing the school board, cited the same report and said, on new construction, the difference was only an estimated 1.2 percent, and that could not be attributed conclusively to prevailing-wage factors. He said on the Ashtabula project, 1.2 percent of the labor costs would translate to about $300,000 at most, which he claims is “statistically insignificant.” Ross, however, represents the savings as being closer to $4 million on the project, estimated to cost $38 million, including materials. The attorneys also split on how to interpret the BOE’s statutory requirement to accept the “lowest and most responsible” bidders for the job. Ross argued that paying prevailing wages is not one of the legal tests for being a “responsible” contractor. “There is no relationship between what you pay an employee, that makes a contractor more or less responsible,” Ross said. “It doesn’t bear any reasonable relationship to what makes a bidder responsible.” Language that the board added to the bid specifications Monday address responsible-bidder require-ments. Because the job will not be regulated by the Ohio Department of Commerce, responsibility for failing to pay prevailing wages would, under the addendum, be a matter of contractual responsibility monitored by the construction manager and school district treasurer. The language includes an enforcement mechanism that allows an employee who is not paid prevailing wage the right to file a lien. Mackey, in opening his hearing on the matter, said the heart of it comes down to interpreting ORC Chapter 4115.04(b)(3). Attorneys presented him with legal precedents from both sides of the argument, and Jon C. Walden, assistant Ohio attorney general representing OSFC, said a similar but post-bid challenge in Barberton went to the Ohio Supreme Court, which ruled in favor of the schools. The case is being appealed. Walden estimates that 17 OSFC projects have had prevailing-wage contractual language and Barberton and Ashtabula are the only ones facing legal challenges. Mackey said at the beginning of the hearing it is his desire to make a ruling on the matter today. The judge could not be reached for further comment Tuesday afternoon. 
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