IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION ANTHONY CHRONIS and PLAYER ; SPORTS, 3 No. 17 CH 7426 Plaintiis, } Calendar 13 v. } Judge Anna H, Demacopoulos BOARD OF EDUCATION OF THE CITY } OF CHICAGO, LESLIE NORGEN, 5 CHIEF PROCUREMENT/PURCHASING 5 OFFICER AND ALFONSO DE HOYOS ACOSTA, CHIEF ADMINISTRATIVE ) OFFICER, ) Defendants. > MEMORANDUM OPINION AND ORDER This matter comes before the Court for judicial review of the April 26, 2017 final administrative decision permanently debarring Plaintiffs Anthony Chronis and Player Sports from doing any business with the Board of Education of the City of Chicago (“CBOE” or the “Board”). Having reviewed the Second Amended Complaint for Common Law Writ of Certiorari, the Memorandum in Support of Petitioner’s Writ of Certiorari, the Board’s Response, Plaintiffs’ Reply and the administrative record,! and heard arguments of counsel on January 9, 2018, for the reasons discussed below the Court reverses and remand this matter to the Board for further proceedings consistent with this order. BACKGROUND Plaintiff Anthony Chronis is the owner of Player Sports, which provided gym and sports uniforms, among other sports gear, to Lane Tech High School (“Lane Tech”). (BOE 0002). On April 23, 2013, the Office of the Inspector General of the CBOE (“OIG”) completed an i Citations to administrative record entitled Report of Debarment Proceedings filed July 14, 2017 shall. appear as “BOE 00__”Investigative Summary involving Player Sports and Chronis, as well as former principal Antoinette LoBosco (retired 6/30/12) and Physical Education teacher Carla Serantoni (the “OIG Report”). (BOE 00023). The OIG Report states that an investigation was initiated after the OIG received a complaint alleging that Player Sports sells in excess of $50,000 of sports apparel to Lane ‘Tech each year. (Id). The Inspector General found that Lane Tech made purchases from Player Sports of over $59,000 in fiscal year 2010, over $89,000 in fiscal year 2011, and over $95,000 in fiscal year 2012, (/d.). Purchases were “regularly and deliberately kept below $10,000 to avoid competitive budding requirements.” (BOE 000024). PE Teacher Serantoni placed the orders and told the OIG that she kept two purchase orders created on September 14, 2011 under $10,000 at the suggestion of Chronis. (Jd). During her interview with the OIG, Principal LoBosco stated that she was informed spending limits do not apply to internal accounts. (Id) On November 10, 2016, a Notice of Proposed Debarment (“Notice”) was mailed to Player Sports/Chronis, which immediately suspended them from performing under any Board contract. (BOE 0001 ~ 0006). The Notice charged that Plaintiffs “deliberately kept the purchases below $10,000 to avoid the bidding requirements” and “did not create purchase orders for individual deliveries[;] they invoiced Lane Tech after a month or two of deliveries.” (BOE (00005-00006). These practices allegedly constituted prohibited “stringing.” (BOE 00006). In accordance with the Board’s procedures, written responsive submissions, ineluding swom statements, were filed by Player Sports/Chronis via counsel to which the Board replied. No in-person hearing was held. On April 26, 2017, the Chief Administrative Officer issued a recommendation that the Board permanently debar Player Sports and Anthony Chronis from doing business with the Board, (BOE 00137). This recommendation was adopted by the Board on the same day. The brief three-paragraph final administrative decision states in relevant part: 2 Hl i i |Following the Officer of the Inspector General’s recommendations in Report 12- 00039, the Board’s Chief Procurement Officer served Respondents with a Not of Proposed Debarment on November 10, 2016, initiating a debarment proceeding against them, based upon Respondents’ stringing purchases to avoid the $10,000 per year per vendor limit, in violation of Board Rules 7-2 and 7-12, section 401.6(2)(¢) of the Board’s Policy Manual, the Lllinois School Code (105 ILCS 5/34-8.1) and the Lllinois Criminal Code (720 ILCS 5/33E-18), and failing to engage in the bidding process in violation of Board Rule 7-2. The Chief Administrative Officer has reviewed the record (as defined in section 4.5(10) of the Policy) and recommends permanent debarment. Based upon the facts set forth in the record as defined in section 4.5(10) of the Policy the Chief Administrative Officer recommends that the Board adopt the findings of the Inspector General and permanently debar Respondents from doing any business with the Board effective immediately. All existing contracts amongst the Board and Respondents are terminated. Respondents are also ineligible to act as subcontractors or suppliers to any existing or future Board contracts. (BOE 00137). Chronis/Player Sport timely sought administrative review in the Circuit Court. ANALYSIS A. Standard of Review “A common law writ of certiorari is a general method of obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law and provides for no other form of review.” Hanrahan v. Williams, 174 Wl. 24 268, 272 (1996). The standards of review under a common law writ of certiorari are essentially the same as those under the Administrative Review Law. Pedersen v. Village of Hoffman Estates, 2014 IL App (st) 123402, 4] 48. ‘The Administrative Review Law provides that “the findings and conclusions of an administrative agency on questions of fact shall be held to be prima facie true and correct.” 735 TLCS 5/3-110. An administrative agency's findings of fact are not reversed unless they are “against the manifest weight of the evidence.” Lyon v. Dep't of Children & Family Servs., 209 Ill. 2d 264, 271 (2004). An agency's conclusion on a question of law is reviewed de novo. AFM 3Messenger Service, Inc. v. Dep't of Employment Security, 198 Ill. 2d 380, 390 (2001). As such, the “reviewing court is not bound by an agency's interpretation of a statute, but the agency's interpretation remains relevant where there is a reasonable debate about the meaning of the statute.” Comprehensive Cmty. Solutions, Inc. v. Rockford Sch. Dist. No. 205, 216 Ill. 2d 455, 471 (2005)(internal citations omitted). “[A]gency decisions involving mixed questions of fact and law are reviewed under a “clearly erroneous standard.” Lyon, 209 Hl. 2d at 271. In this case, the issues presented in this petition for writ of certiorari are ones of mixed fact and law to which the clearly erroneous standard review applies. “A mixed question of law and fact asks the legal effect of a given set of facts.” Comprehensive, 216 Ill. 2d at 472. Put another way, “in resolving a mixed question of law and fact, a reviewing court must determine whether established facts satisfy applicable legal rules.” Jd Under this standard, an agency's conclusion is reviewed for clear error. Jd, “Such review is significantly deferential to an agency's experience in construing and applying the statutes that it administers” Jd “Under a clearly erroneous standard, the Board's conclusion will not be reversed unless, after review of the entire record, we are left with the definite and firm conviction that a mistake has been committed.” Kinsella v, Bd. of Bue. of City of Chicago, 2015 IL App (Ist) 132694, $23 (Ist Dist. 2015). B. Discussion In this case, as the actions taken by or related to Chronis and Player Sports are generally undisputed, the issue is whether such actions violated the Board’s rules or applicable law, and if so, whether permanent debarment is an appropriate sanction. However, due to the extreme brovity of the Board’s final administrative decision and convoluted record, this Court is unable to completely perform its duties of judicial review and resolve both questions. As discussed below, the Board on remand must correct a key misstatement of law contained in its final administrativedecision, reconsider its decision to the extent such error was a factor, and then fully articulate the basis for the conclusion reached. 1. No $10,000 per year per vendor limit exists. ‘The final administrative decision states that the Board initiated debarment proceeding against Chronis and Player Sports “based upon Respondents’ stringing purchases to avoid the $10,000 per year per vendor limit.” (emphasis added). A careful review of the Illinois School Code and Board Rules plainly indicates no annual limit per vendor exists. Rather, each purchase or contract must comply with the rules. During oral argument before this Court, counsel for the Board argued that the $10,000 per year per vendor limit can be inferred when applicable law and rules are read together. This argument too is unavailing. ‘The final administrative decision charges Chronis and Player Sports with violation of the Board Rules 7-2 and 7-12, section 401.6(2)(e) of the Board’s Policy Manual, the Ilinois School Code (105 ILCS 5/34-8.1) and the Illinois Criminal Code (720 ILCS $/33E-18), which are set forth in relevant part below: 1) Board Rule 7-2 provides: Procurement Policy for Biddable and Non-Biddable Items . All purchases for Biddable Items and Non-biddable Items shall be awarded pursuant to a competitive process in accordance with the following procedures. Biddable Items are defined as those goods, services and transportation purchases and contracts required to be awarded through a competitively bid solicitation process pursuant o 105 ILCS 5/10- 20.21. 3, Level Three: All purchases of Biddable Items between $10,001 and $75,000 must. be approved by the Chief Purchasing Officer. All purchases of Biddable Items in excess of $75,000 must be approved by the Board. All purchases of Biddable Items in excess of $10,000 shall be awarded pursuant to a duly advertised bid solicitation issued by the Chief Purchasing Officer, in accordance with the precepts of formal 7 ‘The Notice of Proposed Debarment recites a portion of Board Rule 7-2(b)(1), Level One, which pertains to Non-Biddable Items. A close reading 105 ILCS $/10-20.21 indicates that the sort of goods sold by Player Sports are Biddable Items to which 7-2(b)(3) applies. 5sealed bids to the lowest, responsive, responsible bidder(s), considering conformity with specifications and terms of delivery, quality and serviceability. A good faith competitive solicitation in lieu of a bid for the purchase of Biddable Items between $10,001 and $25,000 may be deemed to satisfy the procurement process requirements of this section at the discretion of the Chief Purchasing Officer. . . 2) Board Rule 7-12 provides: Prohibition Against Stringing. "Stringing" is dividing or planning any procurement program, activity, transaction, invoice, purchase order or agreement involving the Board or any of its operational elements (including offices, departments, bureaus, programs, units and schools) to avoid either: (a) any of the competitive procurement processes set forth in Board Rule 7-2; or (b) any of the limitations on delegated authority set forth in Board Rule 7-15 or 105 ILCS 5/34-8.1. Stringing is prohibited. 3) The Chicago Public Schools Policy Manual, Section 401.6 Debarment Policy provides: The Board may debar a Respondent for— see (©) Engaging or participating in bid-tigging or stringing, or facilitating the bid-rigging or stringing of any Vendor or entity or individual. 4) Illinois School Code 105 ILCS 5/34-8.1 provides, in relevant part: Notwithstanding any other provision of this Article, each principal may approve contracts, binding on the board, in the amount of no more than $10,000, if the contract is endorsed by the Local School Council. 5) Illinois Criminal Code, 720 ILCS 5/33E-18, provides: (@) A person commits unlawful stringing of bids when he or she, with the intent to evade the bidding requirements of any unit of local government or school district, knowingly strings or assists in stringing or attempts to string any contract or job order with the unit of local government or school district. The foregoing rules indicate that while no “$10,000 per year per vendor” limit exists, individual contracts for biddable items authorized by a school principal cannot exceed $10,000 without complying with competitive bidding requirements. No limit as to the total value of separate contracts a particular vendor may have with a school is indicated by the rules cited by the Board or that the Court's own research has found.2. ‘The Board has failed in its an obligation to make a complete record to permit judicial review of its decision. Itis well-settled that a court's review on a writ of certiorari is “essentially the same” as judicial review of a petition filed under the Administrative Review Law. Porter v. The Ill. State Ba. of Ediac., 2014 IL App (Ist) 122891, 25 (quoting Outcom, Inc. v. The Ill. Dep't of Transp., 233 Ill, 2d 324, 337 (2009)). An administrative agency has the obligation to make and present a record to permit judicial review of its decision whether that judicial review takes place under a ‘common-law writ of certiorari or pursuant to the Administrative Review Law. Miles v. Housing Authority, 2015 IL App (1st) 141292, 4 23. Under the Administrative Review Law, there is an express duty to “present the court of review with the entire record of proceedings, including the evidence it considered.” 735 ILCS 5/3-108(b). This duty upon the agency exists “so that the trial court may properly perform its judicial review function.” Miles, 2015 IL App (Ist) 141292, $23. Our Appellate Court has held that it “see[s] no reason for demanding anything less in the context of a certiorari petition.” Jd. at §24. Put simply, it is not “asking too much of an administrative body whose decision is subject to judicial review to provide an adequate record for the court, so that the judiciary can perform its task of ensuring that the administrative body complied with due process and supported its decision with competent evidence.” 1d. Providing an adequate record for a reviewing court requires that a decision by an administrative agency must contain findings to make possible a judicial review of the agency's decision, Reinhardt v. Board of Education, 61 Ul. 24 101, 103 (1975). The “orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” Id. (quoting SEC. v. Chenery Corp., 318 US. 80, 94 (1942)). In other words, the agency must articulate its reasoning for the decision reached, including any findings of factIn this case, the Board’s final decision makes no findings of fact. While the decision states that the Chief Administrator Officer recommends that the Board “adopt the findings of the Inspector General,” it fails to specify, even generally, which findings that may include. (BOE 00137). The OIG report dated April 23, 2013—over three and a half years prior to the commencement of debarment proceedings against Chronis/Player Sports on November 10, 2016—made numerous findings against Chronis which were not charged in the Notice of Proposed Debarment. This included alleged conduct by Chronis related to Lane Tech’s hiring of his nephew and the school Football Booster Club. (BOE 00023 - 00025). The OIG Report further listed among its finding that “Lane Tech made purchases from Chronis and Player Sports of over ‘$59,000 in Fiscal Year 2010, over $89,000 in Fiscal Year 2011, and over $95,000 in Fiscal Year 2012.” (BOE 000023), As discussed above, there is no proscribed total amount of purchases which can be made from a vendor during a fiscal year so long as contracts in excess of $10,000 are subject to the appropriate competitive bidding requirements. ‘The Notice of Proposed Debarment also identifies another OIG finding that Plaintiffs invoiced Lane Tech for items supplied to the school store rather than the store management completing purchase orders. (BOE 00005 - 00006). However, in its brief administrative decision, the Board only references “stringing purchases to avoid the $10,000 per year per vendor limit,” a restriction that does not exist under the Board’s Rules or applicable law. The Board's failure to mention the alleged wrongdoing conceming the schoo! store in its final decision may suggest the Chief Procurement Officer did not sustain her burden of proof on this issue. Because the Board has failed to provide an adequate administrative record from which the Court can discern the Board’s basis for the issued sanction, the Court is unable to perform its duty of ensuring that the administrative body complied with due process and supported its decision with competent evidence. Therefore, the Court finds it appropriate to remand this matter to the Board to clearly articulate findings and reasoning for its final decision. To the extent the 8Board applied a “$10,000 per year per vendor” rule and found Plaintiffs to be in violation thereof, that decision is reversed. IL IS HEREBY ORDERED: ‘The April 26, 2017 final administrative decision by the Board of Education of the City of Chicago against Anthony Chronis and Player Sports is reversed and remanded for actions consistent with this opinion. In any final decision issued on remand, the Board must fully articulate the basis for its conclusions. ENTERED: Judge Anna H, Demacopoulos Anna Hel “eegedime een MAR. y 2018 CiouitCourt-2002