Opinion

Starfish Transportation, Inc. v. Board Of Education Of The City Of Chicago

Court
District Court, N.D. Illinois
Filed
Jul 19, 2023
Cited by
0 cases
Authority
More cited than 21.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STARFISH TRANSPORTATION,

INC., an Illinois

Corporation; and STEVEN

CORDELL, an Individual,

Plaintiffs,

Case No. 22 C 6501

v.

Judge Harry D. Leinenweber

THE BOARD OF EDUCTION OF THE

CITY OF CHICAGO; PATRICIA

HERNANDEZ, in her position

as Acting Chief Procurement

Officer; and CHARLES

MAYFIELD, in his position as

Chief Operating Officer,

Defendants.

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff Starfish Transportation, Inc.’s (“Starfish”) owner,

Steven Cordell (“Cordell”) is a convicted felon and fraudster. He

pled guilty to a 2007 indictment charging him with fraudulently

obtaining $2 million of Chicago Public Schools (“CPS”) checks made

payable to his employer and converting them to his own use. He

also pled guilty to a 2008 indictment in which he was charged with

check kiting involving more than $220,000. Furthermore, Cordell

failed to appear as required for each of these criminal proceedings

and was charged with the crime of bond jumping. He eventually

reached a plea agreement with the State of Illinois and pled guilty

to the 2007 case and was sentenced to four (4) years in prison of

which he served approximately one half. The record does not

mention any restitution.

Prior and after his conviction Cordell has been involved in

the “yellow bus” transportation business for private secular and

parochial schools. He also has provided limited service to CPS

for such things as field trips and after school programs but never

for regular school busing. Starfish post-conviction continued to

bid on CPS transportation contracts but has never been successful.

In March 2017, Starfish filed an unsuccessful bid protest with

CPS. At no time between 2016 and 2022 did CPS commence debarment

proceedings against Starfish.

In 2022, the CPS requested proposals for student

transportation services for a period of 1 year with two option

periods of 1 year each. On April 25, 2022, Starfish submitted a

proposal. In May 2022, CPS responded by letter to Starfish

describing Starfish as a “qualified prospective contractor” and

requested additional information about the number of buses it owned

and of ability to utilize radio and GPS. Starfish timely

responded.

In July 2022, CPS’s Assistant General Counsel sent a proposed

contract to Starfish requesting that it sign a PDF version. A

week later Starfish returned the signed contract to CPS. However,

on July 12, 2022, CPS informed Starfish that it would not be moving

forward with the contract. On July 26, 2022, Starfish filed a

bid protest with CPS.

On September 20, 2022, CPS’s acting Chief Procurement Officer

(“CPO”) executed and mailed to Starfish a Notice of Proposed

Debarment (“NPD”) which would prevent Starfish from being eligible

to bid on CPS transportation matters. While CPS was considering

debarment, it sought interim constraints which would terminate all

existing contracts with Starfish and would bar it from being hired

or employed by CPS. On September 30, 2022, Starfish timely filed

a brief accompanied by exhibits opposing the NPD, which it

supplemented on November 14, 2022, with an additional brief and

argument.

On October 12, 2022, the CPO had a telephone conference with

Starfish’s attorney explaining the CPS’s reasoning for the interim

restraints and proposed debarment: the fraud conviction and

Cordell’s bond jumping. “The bottom line” as described by the CPO

was that “he [Cordell] defrauded us.”

On November 18, 2022, CPS instituted interim debarment

measures which included prohibiting Starfish from “working on CPS

property.” Starfish contends that the prohibition on working on

CPS premises prevented it from fulfilling its charter school busing

contracts and would have the effect of putting Starfish out of

business.

II. DISCUSSION

In response to the imposition of the interim restraints and

contract withdrawal, Starfish filed this five-count civil

complaint alleging violations of Section 1983. To wit, 42 U.S.C.

§ 1983 provides as follows:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity,

or other proper proceeding for redress . . .

Count I claims that preventing Starfish from entering CPS property

to carry out its private contracts, constitutes a procedural due

process violation because it deprives Starfish of a property

interest. Count II claims that the alleged rescinding of the 2022

busing contract constituted a procedural due process violation.

Count III claims that the interim restrictions and the attempted

debarment were in retaliation for Starfish’s 2017 bid protest,

violating Starfish’s First Amendment rights. Counts IV and V claim

that CPS has no statutory or other authority to debar Starfish or

to impose the interim measures to barring Starfish from servicing

third parties. The CPS has moved to dismiss each of the counts.

A. Count I

Plaintiff contends that it has been denied procedural due

process because its contracts with third parties require it to

enter onto CPS property, presumably to pick up and drop of

students. The Seventh Circuit has said that to demonstrate a

procedural due process violation of a property interest, a

plaintiff must have a protected property interest of which he is

deprived. The problem with Starfish’s claim is that it has no

claim of right to the entry onto CPS’s premises, and without a

claim of right there can be no property interest. Plaintiff cites

a fragmented opinion of the Supreme Court holding that an employer

had a property interest arising from a collective bargaining

agreement giving it the right to discharge an employee for cause.

The Court held in Brock v. Roadway Express, 481 U.S.252 (1987),

that this interest prevented the Secretary of Labor from ordering

a reinstatement of the discharged employee under a federal law

protecting whistleblowers, without providing notice and the right

to a hearing. Thus, a federal agency used a federal law that

affected private contractual rights. Here as Plaintiff concedes,

it has no contractual or legal right to enter onto CPS property.

Instead, it cites what it calls “incidental” right to access. Such

would not be a property right protected by the right to due

process.

In any event Plaintiff was granted procedural due process in

the CPS debarment process. The Chief Procurement Officer gave

Starfish notice of the proposed interim constraints and gave

Starfish the right to comment. Starfish took full advantage and

filed multiple written legal briefs that included letters of

recommendation from Plaintiff’s clients. These procedures thus

included notice and an opportunity to be heard which is all of the

process that is due. Blackout Sealcoating, Inc., v. Peterson, 733

F3d 688,691 (7th Cir. 2018). The Motion to Dismiss Count I is

granted.

B. Count II

Count II is based on Plaintiff’s allegation that CPS “rewarded

and then revoked” its busing contract with Starfish. Because the

contract had been awarded to Starfish, a protectable interest was

created that could not be revoked without due process. However,

Starfish was not awarded a contract by CPS. CPS sent it a proposed

contract for review and signature that was to be returned to CPS

for acceptance. It was withdrawn by CPS prior to acceptance. As

CPS argues there is no constitutional right to receive a public

contract, except under specific statutory directives not present

here. Without a constitutional right to receive a contract there

is no prospective property interest. Kim Construction Co. v.

Village of Mundelein, 14 F.3d 1243 (7th Cir. 1994). There being

no property interest in a contract prior to award, the Motion to

Dismiss Count II is granted.

C. Count III

Count III alleges a claim of retaliation for the exercise of

First Amendment rights. Specifically, Starfish, in 2017, filed a

bid protest for CPS’s refusal to award it a busing contract.

However, a First Amendment retaliation claim must involve “a matter

of public interest.” Rather, in making a bid protest to CPS,

Starfish was expressing a private grievance. Starfish felt that

it should have been awarded a public contract. A bid protest is

not public speech because Starfish’s motive was to obtain a

contract that was awarded to someone else. There are no allegations

that the CPS was accepting bribes or committing other wrongful

conduct in awarding the contract. The bid protest was not

successful. The Supreme Court has defined a matter of public

interest or concern as something “newsworthy,” i.e., a matter of

general interest and of value and concern to the public at the

time of publication. City of San Diego v. Roe, 543 U.S. 77, 83-

84 (2004). A protest about a lost bid is not such a matter of

public interest. Since the bid protest did not involve a matter

of public interest, there is no need to decide whether the proposed

debarring was in retaliation. Therefore, the Motion to Dismiss

Count III is granted.

D. Counts IV and V

These two counts are related. CPS filed debarment proceedings

against Starfish to prevent it from bidding on future CPS contracts

(Count IV) and adopted interim restraints, which among other

things, interfered with Starfish’s ability to meet its other

contractual obligations (Count V). Starfish contends that both of

these actions were done without authorization of state law. These

two claims are therefore brought pursuant to the Court’s

supplemental jurisdiction. However, as this Court previously

held in denying a preliminary injunction:

CPS also has the right to control access to its

property. Various portions of the school code allow the

board to restrict access to students, employees, or

other individuals. 105 ILCS 5/10-22.6, 105 ILCS 5/10-

20.83, 105 ILCS 5/11-9.3. Plaintiffs admit that CPS may

restrict who enters its property but argue that when

schools are open to the public, select individuals

cannot be singled out for exclusion without a rational

reason. The Seventh Circuit has recognized that the

general rule is that members of the public have no

constitutional right of access to public schools.

Vukadinovich v. Board of School Trustees of Michigan

City Area Schools, 978 F.2d 403, 409 (7th Cir. 1992).

Further, here, the board has provided a rational reason

to bar Plaintiffs entry. Plaintiff Cordell is a

convicted felon.

Oral ruling February 22, 2023.

The Court has also found that the CPS has the right to control

access to its property. 105 ILCS 5/10-22.6, 5/10-20.83, and 5/11-

9.3. Plaintiff claims however that CPS must have a rational reason

to prevent access to it. Starfish’s owner is a convicted felon

and one of his victims was the CPS. This is a rational reason to

exclude Starfish as a CPS contractor. For these reasons Counts IV

and V are dismissed.

III. CONCLUSION

Starfish (Cordell) points out that his crimes were committed

more than five years prior to the withdrawal of the busing contract

and the imposition of the interim restraints and that he has not

been in trouble since and has proved that he is rehabilitated. He

contends that the debarment harms the public by removing a

competitive bidder from the bidding process and will have the

unfortunate effect of putting Starfish out of business. He points

out the callousness of the CPS when its procurement officer stated

that the CPS did not dispute or care that Plaintiff had been

rehabilitated but since he defrauded the CPS, he would never do

business with it again. While there is some merit in Starfish’s

position regarding competition and reason to question CPS’s

position on rehabilitation, neither one offends the Constitution.

For the reasons stated herein, Defendants’ Motion to Dismiss

Counts I, II, III, IV, and V is granted.

IT IS SO ORDERED. ~ )

«Harry D. Leinenweber, Judge

United States District Court

Dated: 7/19/2023

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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