{ "id": 2481477, "name": "MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. JACKSON, Director, Department of Employment Security, Defendant-Appellee; MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. WARD, Director, Department of Employment Security, et al., Defendants-Appellees", "name_abbreviation": "Placko v. Jackson", "decision_date": "1990-04-25", "docket_number": "Nos. 2\u201489\u20140819, 2\u201489\u20140882 cons.", "first_page": "138", "last_page": "147", "citations": [ { "type": "official", "cite": "197 Ill. App. 3d 138" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "74 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3266824 ], "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0667-01" ] }, { "cite": "96 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12135304 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0482-01" ] }, { "cite": "187 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2669522 ], "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0328-01" ] }, { "cite": "177 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621188 ], "year": 1989, "pin_cites": [ { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0915-01" ] }, { "cite": "76 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279721 ], "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0090-01" ] }, { "cite": "58 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5627027 ], "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0050-01" ] } ], "analysis": { "cardinality": 753, "char_count": 22682, "ocr_confidence": 0.759, "pagerank": { "raw": 5.767998294065762e-08, "percentile": 0.36042719092889197 }, "sha256": "1310c7b205553e80b9726ab3d97f8d60287e4ecf432b65b9b3e23ab5f8cfb414", "simhash": "1:5fe3c0d7a0d3b4c8", "word_count": 3664 }, "last_updated": "2023-07-14T17:08:36.740176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. JACKSON, Director, Department of Employment Security, DefendantAppellee.\u2014MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. WARD, Director, Department of Employment Security, et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nIn cause No. 2 \u2014 89\u20140882, plaintiff, Marilyn Placko, doing business as Maids on Time, appeals from the trial court\u2019s order in an administrative review hearing held in the circuit court of Du Page County, affirming the decision of the Board of Review of the Department of Employment Security (the Department) in favor of defendant, Laura Trejo. The Board\u2019s decision affirmed the earlier decision by a hearing referee for the Department. The referee had dismissed plaintiff\u2019s appeal from a claims adjudicator\u2019s determination that Trejo was entitled to the payment of unemployment benefits from plaintiff. The referee\u2019s dismissal resulted from plaintiff\u2019s failure to appear at a hearing on her appeal.\nA review of the record reveals the following facts. Plaintiff owns and operates a maid cleaning referral service, Maids on Time. Defendant, Laura Trejo, had performed cleaning services for customers referred by plaintiff. On or about January 24, 1987, Trejo filed a claim for unemployment benefits with the Department pursuant to section 700 of \u201cAn Act in relation to a system of unemployment insurance\u201d (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 450), alleging that she was employed by plaintiff and that she had received wages from plaintiff.\nOn or about January 31, 1987, plaintiff protested the payment of unemployment benefits to Trejo on the basis that Trejo was never an employee of plaintiff and, therefore, not eligible for benefits. On February 4, 1987, the Department acknowledged receipt of plaintiff\u2019s protest and found it to be sufficient. On February 13, 1987, a claims adjudicator for the Department found that Trejo was entitled to benefits because (1) plaintiff, as employer, supplied the work for Trejo, and (2) Trejo was under plaintiff\u2019s control. Plaintiff filed an appeal from the adjudicator\u2019s decision. According to plaintiff, she received no further communication from the Department until she received the April 3, 1987, decision of the referee hearing plaintiff\u2019s appeal.\nThe record contains a notice of a telephone hearing accompanied by a sheet of instructions regarding the hearing. Both documents direct the recipient of the notice to contact the hearing referee and to provide him with the telephone number at which the recipient can be reached at 3 p.m. on March 3, 1987, the scheduled time for the hearing. Plaintiff did not provide the referee with a telephone number. The record also contains a copy of a certificate of mailing, dated February 20, 1987, and stamped signed by the hearing referee, James Tolone. In the space on the certificate designed for the insertion of an addressee, no name or address appears. Rather, the words \u201cTrejo\u201d and \u201cMaids\u201d are handwritten in the space. Based on plaintiff\u2019s failure to appear at the scheduled telephone hearing, the referee affirmed the adjudicator\u2019s prior decision in favor of Trejo. After receiving the referee\u2019s decision, plaintiff filed an appeal with the Department\u2019s Board of Review (the Board) on April 29, 1987.\nOn June 12, 1987, plaintiff\u2019s attorney requested a copy of the transcript of proceedings before the referee. On July 7, 1987, plaintiff received a letter from the executive director of the Board informing her that the Board \u201cwill review the case record and issue its decision based on the merits of the case.\u201d Additionally, plaintiff was informed that she could submit additional evidence or written arguments within the following 30 days. In response, plaintiff filed an affidavit stating, in essence, that she was a private employment agency and that Trejo was an independent contractor and not plaintiff\u2019s employee.\nOn October 16, 1987, plaintiff received the Board\u2019s decision affirming the hearing referee\u2019s dismissal of plaintiff\u2019s appeal. The Board found that plaintiff had received notice of the March 3, 1987, telephone hearing but had failed to supply a telephone number at which she could be reached for the hearing. Because plaintiff had not made use of the opportunity to present evidence at the scheduled hearing and had not shown any acceptable reason for her failure to do so, the Board concluded it had no basis for setting aside the decision of the referee.\nOn November 18, 1987, plaintiff filed a complaint for administrative review in the circuit court of Du Page County. In her complaint plaintiff stated that judicial review of the Board\u2019s decision was necessary because she had never received a \u201cfull and fair opportunity to be heard.\u201d Additionally, plaintiff asserted that she had been misled by the representation made by the Board\u2019s executive director that additional evidence would be considered in deciding the case \u201con the merits,\u201d that the Board\u2019s decision was contrary to the manifest weight of the evidence, and that the Department should be enjoined from seeking contributions for unemployment insurance from plaintiff since the Department of Labor had previously determined and required that plaintiff be licensed as a \u201cprivate employment agency.\u201d\nOn December 14, 1989, the cause came before the trial court for hearing. By preliminary motions, defendant, Laura Trejo, was adjudicated to be in default, and the complaint was confessed against her. Defendant, Gwen R. Martin, Director of the Department of Labor, was dismissed as an unnecessary party. The court then heard argument of counsel and ruled in favor of the remaining defendants, the Board and Sally A. Ward, Director of the Department.\nPlaintiff filed a motion for rehearing and to vacate the judgment. Additionally, plaintiff filed a motion for findings of fact and conclusions of law. Both motions were denied on July 18, 1989. This appeal ensued.\nPlaintiff subsequently moved to consolidate the instant case, No. 2 \u2014 89\u20140882 (Placko I), with No. 2 \u2014 89\u20140819 (Placko II). In Placko II, plaintiff appeals from the trial court\u2019s order in another administrative review hearing held before the same judge in the circuit court of Du Page County, affirming the decision of defendant, Sally A. Jackson (formerly Sally A. Ward), Director of the Department.\nIn Placko II plaintiff had received notice on August 3, 1987, of her contribution rate, as an employer, for unemployment insurance benefits under the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 576.1.) Plaintiff immediately submitted a protest to the Department based on the fact she was not liable for any contributions, or payments for benefits, since she was not an \u201cemployer\u201d as defined by the Act.\nOn November 16, 1987, an order was issued by the Director of the Department denying plaintiffs application for revision of \u201cbenefit wages.\u201d Referring to the fact that it had been previously determined at the April 3, 1987, administrative hearing in Placko I that Laura Trejo\u2019s remuneration constituted wages, the adjudicator found the wage charge (based on the wages subject to contribution) in Placko II to be valid. On November 25, 1987, plaintiff protested this order and requested a hearing.\nAs a part of her protest, plaintiff enclosed a copy of the complaint for administrative review in Placko I and her affidavit. On March 2, 1988, a representative of the Director of the Department issued a report finding that plaintiff had an appeal pending in the circuit court of Du Page County from the decision made by the Department\u2019s Board of Review in Placko I and that no relief could be granted plaintiff in Placko II until a decision was rendered from the pending appeal in Placko I. The representative stated that if the decision in Placko I was favorable to plaintiff, appropriate action would be taken to adjust plaintiff\u2019s statement of benefit wages. Additionally, the representative found plaintiff\u2019s petition for relief to be \u201cinsufficient.\u201d The representative recommended that the November 16, 1987, order, denying plaintiff\u2019s application for revision of benefit wages, should be affirmed.\nIn timely fashion, plaintiff filed her objections to the representative\u2019s report and attached the complaint for administrative review in Placko I and her affidavit. On April 29, 1988, the Department\u2019s Director issued her decision, affirming the representative\u2019s report and the adjudicator\u2019s order. In her decision, the Director stated that plaintiff could not be granted relief from the benefit wage charges unless the finding of wages under appeal in Placko I was set aside.\nOn June 2, 1988, plaintiff filed her complaint for administrative review in the circuit court of Du Page County, seeking relief from the Director\u2019s decision and enjoining the Department from pursuing the collection of contributions for unemployment insurance from plaintiff. On July 18,1989, the circuit court affirmed the Director\u2019s decision.\nOn appeal, plaintiff raises identical issues in Placko I and Placko II. Plaintiff contends: (1) that she is not an \u201cemployer\u201d or \u201cemploying unit\u201d under the Act; (2) that she need not prove inclusion within the independent contractor\u2019s provision of the Act to be excluded from the Act; (3) that defendants should be estopped from seeking the payment of unemployment contributions from her; and (4) that she was denied due process.\nWe address ourselves to the issue which we believe is determinative here, i.e., that plaintiff was denied due process. Specifically, plaintiff maintains that she never received notice of the telephone hearing and, therefore, did not receive an opportunity to be heard. Consequently, the Board\u2019s decision against her, based on her failure to appear at the hearing before the referee, constitutes an abuse of discretion.\nIn Placko I defendant Laura Trejo filed a claim for unemployment benefits with the Department pursuant to section 700 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 450), alleging that she was employed by plaintiff and had received wages from plaintiff. Plaintiff protested payment of unemployment benefits to Trejo on the basis that Trejo was not plaintiff\u2019s employee and, therefore, not entitled to benefits. A claims adjudicator for the Department acknowledged receipt of plaintiff\u2019s protest and deemed it to be sufficient. Subsequently, the adjudicator made a finding that Trejo was entitled to unemployment benefits. On the date of that decision, plaintiff filed an appeal of the adjudicator\u2019s decision.\nPlaintiff contends that she received no further communication from the Department until she received the Department\u2019s April 3, 1987, decision from the hearing referee. That decision in favor of Trejo and against plaintiff was based on plaintiff\u2019s failure to appear at a telephone hearing held on March 3, 1987. The decision stated that section 801 of the Act provided:\n\u201cThe failure of the claimant or other party to appear at a hearing, unless he is the appellant, shall not preclude a decision in his favor if, on the basis of all the information in the record, he is entitled to such decision.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 471.)\nUnder the terms of this section, the failure of plaintiff, as appellant, to appear at the hearing before the referee precluded any decision in her favor. Plaintiff, however, maintains that she never received notice of the telephone hearing before the referee.\nAs its answer to plaintiff\u2019s complaint for administrative review, defendants filed a certified copy of the administrative proceedings sought to be reviewed, including evidence and the findings and decisions made by the defendants. Included as part of defendants\u2019 answer was a copy of a \u201cCertificate of Mailing\u201d and a copy of the \u201cNOTICE OF A TELEPHONE HEARING.\u201d Defendants rely on the certificate and the notice to argue that plaintiff did receive notice of the telephone hearing. Although mailing of the notice may be some evidence that it was received a few days later by the individual to whom it was mailed (Angelo v. Board of Review, Department of Labor (1978), 58 Ill. App. 3d 50, 52), we believe the record is insufficient to prove that the notice was mailed to plaintiff.\nThe certificate of mailing in question which appears on page 9 of defendants\u2019 answer states:\n\u201cI hereby certify that the original document, of which the attached is a true and correct copy, was placed in a postage paid envelope addressed to: ***.\u201d\nIn the space designated for the name and address of the addressee there appears only the cryptic notations, \u201cTrejo\u201d and \u201cMaids.\u201d No address appears for either party. The date of mailing is stamped in the appropriate space as \u201cFEB 20 1987.\u201d The signature of the party who signed the certificate is also stamped in and reads \u201cJames Tolone.\u201d No document to which this certificate would refer appears directly before or after the certificate. Rather, the only document to which the certificate could possibly refer, because of the fact it also is stamped with the name \u201cJames Tolone,\u201d is the \u201cNOTICE OF A TELEPHONE HEARING,\u201d which appears on page 24 of defendants\u2019 answer. However, no date of issuance appears in the space provided at the bottom of the notice so as to substantiate that the notice was issued on February 20, 1987, the date that appears on the certificate of mailing.\nIn contrast, in the record of the administrative proceedings filed by defendants as their answer in Placko II, there appear two certificates of mailing. On each, plaintiff\u2019s name and that of her attorney and the attorney\u2019s address are clearly typed in the space designated for that of the addressee. Additionally, each certificate is directly preceded by the document to which the certificate refers as is evident from the dates on the documents and their accompanying certificates. The date on the one certificate, \u201cApril 29, 1988,\u201d is identical to that of its preceding document, while the date on the other certificate, \u201cMarch 3, 1988, \u201d is only one day later than that which appears on its preceding document.\nOn the notice of the telephone hearing in Placko I, specific directions set forth the procedures the recipient of the notice was to follow to take part in the hearing, including that the recipient was to phone the Department to provide it with a telephone number at which the recipient could be reached on the date and at the time of the hearing. Accompanying this notice was a sheet of instructions which stated: \u201cWARNING-FAILURE TO READ THESE INSTRUCTIONS MAY RESULT IN DENIAL OF YOUR APPEAL.\u201d Included within these instructions was a portion of section 801 of the Act warning that failure on the part of the appellant to appear at the hearing would preclude a decision in the appellant\u2019s favor. Ill. Rev. Stat. 1985, ch. 48, par. 450.\nWe find it highly unlikely that plaintiff, who had immediately protested Trejo\u2019s claim for unemployment benefits and who had also, on the same date of the claims adjudicator\u2019s decision, filed an appeal of that decision, would have ignored the instructions on the notice of the telephone hearing and on the accompanying sheet containing the warning. Plaintiff had much at stake here. If she allowed Trejo to prevail on her claim that plaintiff paid her wages and was her employer, plaintiff would be estopped from denying in any proceeding whatsoever that the wages paid by her for services rendered for her by any individual under circumstances substantially the same as those under which Trejo\u2019s services were performed were wages for insured work. (See Ill. Rev. Stat. 1985, ch. 48, par. 455.) As a result, plaintiff would be required to make contributions for unemployment insurance benefits for every cleaning woman with whom she dealt. We, therefore, do not believe plaintiff would have failed to act upon the notice once she had received it.\nUpon immediately receiving notice from the hearing referee that she had not prevailed against Trejo because of her failure to appear at the telephone hearing, plaintiff filed a request to the Department\u2019s Board of Review for a rehearing. Relying on section 2720.255 of the Department regulations governing the appeals process (56 Ill. Adm. Code \u00a72720.255 (1985)), defendants argue that plaintiff failed to request a rehearing pursuant to the regulations dealing with a party\u2019s failure to appear at a scheduled hearing. Section 2720.255(c)(1) provides in pertinent part:\n\u201cRequests to rehear the appeal must be filed no later than 10 days after the hearing or the date the party first received notice of the scheduled hearing, whichever is later but in no event beyond the time for filing a timely appeal to the Board of Review pursuant to Section 2720.300(a) of this Part. Such requests must state the facts showing that failure to appear at the scheduled hearing was caused by reasons outside the control of the party and by circumstances that could not have been foreseen and avoided.\u201d (Emphasis added.) 56 Ill. Adm. Code \u00a72720.255(c)(l) (1985).\nSection 2720.300(a) provides: \u201cThe appeal must be filed within 30 days after the Referee\u2019s decision has been mailed to the parties.\u201d (56 Ill. Adm. Code \u00a72720.300(a) (1985).) In the instant case, the referee\u2019s decision was mailed on April 3, 1987. On April 29, 1987, plaintiff filed a notice requesting a rehearing, stating as her first basis for appeal:\n\u201c1. Marilyn Placko did not receive an opportunity to be heard. No telephone conference was conducted by the Referee. Marilyn Placko was not given a time or telephone number to contact the Hearing Referee.\u201d\nAdditionally, plaintiff stated that she \u201cwas not an employer and claimant [Trejo] did not perform \u2018employment\u2019 service.\u201d In support of this statement, plaintiff attached to her request for rehearing a written summary of the relationship between plaintiff and Trejo. Plaintiff requested that the entire case be remanded to the hearing referee or claims adjudicator so she would have an opportunity to be heard and put forth evidence.\nOn July 2, 1987, the executive director of the Board responded, stating that \u201c[t]he Referee\u2019s decision has been appealed to the Board of Review which will review the case record and issue its decision based on the merits of the case.\u201d (Emphasis added.) The Board further stated that plaintiff could submit additional evidence or written arguments, if she so desired. Plaintiff asserts that, based on the executive director\u2019s correspondence, she presented no evidence on the question of notice but instead submitted her affidavit which pertained to the \u201cmerits\u201d of the case since she presumed the Board meant what it said about deciding the case \u201con the merits.\u201d\nAs plaintiff correctly points out to this court, the term \u201con the merits\u201d has a specific meaning to members of the legal community and, as a legal term, refers to the \u201cstrict legal rights of the part[y].\u201d (Black\u2019s Law Dictionary 892 (5th ed. 1979).) Given a lawyer\u2019s understanding of the term \u201cmerits,\u201d the executive director\u2019s statement that the Board would review the case record and issue a decision based on the merits of the case, and the director\u2019s invitation to submit additional evidence, which plaintiff understandably presumed meant evidence applying to the merits, we conclude that the director\u2019s letter lulled plaintiff into the mistaken belief that the Board was going to go ahead and decide the instant case on its merits. Instead, the Board issued its decision based upon plaintiff\u2019s failure to appear at the telephone hearing.\nAn administrative proceeding must conform to the fundamental principles of justice and due process of law. (Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 95.) Where an administrative order is against the manifest weight of the evidence or where an agency has acted arbitrarily or capriciously, a court of review should not hesitate to intervene. (Pierce v. Board of Trustees of the Police Pension Fund (1988), 177 Ill. App. 3d 915, 917.) If it appears the agency\u2019s findings are not supported by substantial evidence, they will be reversed. Rias v. Department of Employment Security (1989), 187 Ill. App. 3d 328, 330.\nHere, the Board\u2019s act of deciding plaintiff\u2019s case on the issue of notice after having misled plaintiff into believing it would be decided on the merits was capricious and denied plaintiff a fair hearing on the notice issue. Additionally, an examination of the record convinces us that the Board\u2019s decision that plaintiff had notice of the hearing before the referee was without substantial support. The only documents pertaining to the notice issue, primarily, the certificate of mailing, suggest an opposite conclusion from that reached by the Board.\nAdministrative proceedings must conform to the constitutional requirements of due process of law (Wendl v. Moline Police Pension Board (1981), 96 Ill. App. 3d 482, 486), and due process mandates adequate notice of the matter under consideration. (Flores v. Board of Review, Illinois Department of Labor (1979), 74 Ill. App. 3d 667, 670.) It is unclear whether adequate notice was given in the instant case, and, therefore, plaintiff is entitled to an evidentiary hearing before the Board as to whether she received notice of the telephone hearing. If, upon remand to the Board, the Board finds that adequate notice was given, the claims adjudicator\u2019s decision as to Trejo\u2019s eligibility for unemployment benefits stands. This outcome would be determinative of the issues in Placko II, making plaintiff liable, as an \u201cemployer,\u201d for contributions for benefits pursuant to the Act. If, however, the Board finds that no notice was given, the case should be remanded to the hearing referee for a determination on the merits.\nThe judgment of the circuit court of Du Page County in Placko I is reversed and the cause remanded with directions to the court to reverse the finding of the Board and to direct the Board to allow plaintiff to present evidence on the question of notice. Further, the judgment of the circuit court in Placko II is remanded with directions to enter a result that is in accordance with the findings and result reached after a hearing and decision in Placko I.\nReversed and remanded with directions.\nGEIGER and WOODWARD, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE UNVERZAGT" } ], "attorneys": [ "Law Office of Glenn R. Gaffney, of Glendale Heights (Glenn R. Gaffney, of counsel), for appellant.", "Neil F. Hartigan, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, and Colleen M. McLaughlin, Assistant State\u2019s Attorney, of Wheaton, of counsel), for appellees." ], "corrections": "", "head_matter": "MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. JACKSON, Director, Department of Employment Security, DefendantAppellee.\u2014MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. WARD, Director, Department of Employment Security, et al., Defendants-Appellees.\nSecond District\nNos. 2\u201489\u20140819, 2\u201489\u20140882 cons.\nOpinion filed April 25, 1990.\nLaw Office of Glenn R. Gaffney, of Glendale Heights (Glenn R. Gaffney, of counsel), for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, and Colleen M. McLaughlin, Assistant State\u2019s Attorney, of Wheaton, of counsel), for appellees." }, "file_name": "0138-01", "first_page_order": 160, "last_page_order": 169 }