Sudzus v. Department of Employment Sec.

• Decision Date: 24 July 2009
• Docket Number: No. 1-08-2255.,1-08-2255.
• Citation: 393 Ill. App. 3d 814,914 N.E.2d 208
• Parties: Michael SUDZUS, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency of the State of Illinois, The Board of Review, an Administrative Agency of the State of Illinois, Director of Employment Security, and Butterfield Electric, Inc., an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

914 N.E.2d 208

393 Ill. App. 3d 814

Michael SUDZUS, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency of the State of Illinois, The Board of Review, an Administrative Agency of the State of Illinois, Director of Employment Security, and Butterfield Electric, Inc., an Illinois Corporation, Defendants-Appellees.

No. 1-08-2255.

Appellate Court of Illinois, First District, Fifth Division.

July 24, 2009.

Rehearing Denied September 4, 2009.

Lisa Madigan, Attorney General, State of Illinois (Michael A. Scodro, Solicitor General, and Rachel Murphy, Assistant Attorney General, Chicago, of counsel), for Defendants-Appellees.

Lonny Ben Ogus, Chicago, IL, for Plaintiff-Appellant.

Justice TOOMIN delivered the opinion of the court:

In this appeal, we confront the question of whether a nonattorney's representation of an employer at an unemployment benefits hearing constitutes the unauthorized practice of law. Plaintiff, Michael A. Sudzus, appeals from the circuit court's judgment affirming the decision of the Board of Review of the Illinois Department of Employment Security, which denied Sudzus' claim for unemployment compensation benefits. On appeal, Sudzus asserts that (1) his former employer, Butterfield Electric, Inc. (Butterfield), engaged in the unauthorized practice of law by participating in the referee's hearing; (2) the hearing did not provide Sudzus with a full and fair opportunity to present his case; and (3) the Board erred in its determination that Sudzus committed disqualifying statutory misconduct. For the following reasons, we affirm the judgment of the circuit court.

BACKGROUND

Sudzus was employed as an apprentice electrician at Butterfield, from December 2005 through September 2007. His termination stemmed from the dismantling and theft of heating, ventilation, and air conditioning (HVAC) units on the roof of Butterfield's customer, Industrial Kinetics. On September 24, Sudzus returned from a week-long vacation and received a voice message from Butterfield's owner, Larry Austin, stating that Sudzus should not return to work but should instead contact him.

On September 30, 2007, Sudzus filed a claim for unemployment benefits with the Illinois Department of Employment Security (IDES) wherein he stated the reason for separation was lack of work. In response to Butterfield's protest, the claims adjudicator determined that Sudzus was discharged because of misconduct relating to the air conditioning units and was therefore not eligible for benefits. In turn, Sudzus sought further review by the IDES Appeals Division.

On December 3, 2007, a telephonic hearing was conducted by a hearing officer who received testimony and relevant exhibits. At the hearing, the referee took statements from Larry Austin, Bob Manley, the superintendent of Five Star Mechanical, Tony Crocilla, Sudzus' supervisor, and Sudzus.

Larry Austin testified that his company was hired by Industrial Kinetics to disconnect the electrical service from 11 rooftop HVAC units. Although those units were to be removed entirely, two additional units were to remain intact to continue servicing offices. Because a separate contractor, Five Star Mechanical, was hired to physically remove the units, there was no reason for Butterfield electricians to be on the roof. Nevertheless, according to Austin, Bob Manley confronted Sudzus dismantling HVAC units on the roof. Once dismantled, copper parts from the units could be sold.

Austin acknowledged that he had not contacted the police and was not aware of anyone at Industrial Kinetics doing so. Efforts were made to resolve this issue with the customer and it was Austin's understanding that Butterfield would be paying for the damage done to the "totally dismantled" units. At the time of the hearing, Butterfield had not paid for any repairs but "the customer ball parked it around $8,000." At the conclusion of Austin's testimony, Sudzus declined the opportunity to ask questions.

Bob Manley confirmed that he discovered Sudzus dismantling a rooftop HVAC unit. Manley testified that his company, Five Star Mechanical, had been hired to remove the rooftop units and dispose of them. Manley told Sudzus that two of the units were to remain intact, but that the remaining ones could be dismantled. Although Manley did not see Sudzus specifically remove parts from the two units which were to remain intact, he later discovered that they were entirely dismantled. Again, Sudzus had no questions at the end of Manley's testimony.

Sudzus' supervisor, Tony Crocilla, testified that there was no reason for a Butterfield electrician to be on the roof at the time Sudzus was found there or, for that matter, at any time. At the end of Crocilla's testimony, Sudzus attempted to question him but was unable to form a coherent question. The referee then asked Crocilla a clarifying question, but Austin interjected, testifying that on an earlier project Butterfield electricians had worked on the rooftop but that job did not involve any dismantling. Sudzus offered that this was not an answer to his question and then began his own testimony.

Sudzus confirmed that he did indeed dismantle and remove parts from some of the rooftop HVAC units. However, Sudzus testified that Crocilla informed him that all of the units were garbage and that parts could be removed. Sudzus also testified that others participated in removing parts from the units. Although he reiterated that he "was told everything on the roof was junk," he nonetheless acknowledged that Manley had approached him about not dismantling two of the units. While Sudzus was unsure which two units were to remain intact, he made no effort to ask Manley their identity. Sudzus clarified that all the units were dismantled but denied seeing anybody else on the roof. Although Sudzus again admitted removing parts from two or three of the units, he was unable to identify the particular units.

In response to the referee's inquiry of whether he had anything further to state Sudzus noted that he had never been informed of when he was actually fired. Sudzus then referenced materials he purportedly had faxed to the referee that morning. Because Sudzus sent them to the wrong number the referee had not received them and asked Sudzus to explain the content of those documents. Following Sudzus' testimony concerning the time line of his firing, the referee allowed Austin to question him.

In turn, the referee put additional questions to Austin, Crocilla, and Sudzus, and also allowed them to ask questions of each other. Austin and Crocilla again stated that Butterfield electricians were not to touch any of the rooftop units because their only assignment was to disconnect the units from inside the building. Sudzus repeated that Crocilla informed him it was permissible to dismantle units and take parts home. Sudzus reiterated that numerous other people, including Crocilla, removed parts from HVAC units. Crocilla denied that he had removed parts from the units but conceded that part of the earlier job was to disconnect and remove the pipes and wires attached to the units.

The referee's decision affirming the claim adjudicator's rejection of benefits was mailed the next day. Among her findings of fact, the referee observed:

"Claimant was aware that eleven of the units were to be junked. However, two of the units were supposed to remain intact because the client planned to use them again. Claimant went to the roof during time when [he] was supposed to be working inside with his crew. He took copper and other parts from some or all of the units. In so doing, he disabled the two units the client planned to keep. His employer had to take financial responsibility for that damage."

The referee found Crocilla's explanation of Sudzus' actual duties on the jobsite and Manley's account of finding Sudzus on the roof dismantling units to be credible. She therefore determined that "the evidence supports a conclusion that it was in fact claimant [Sudzus] who took the parts, apparently to be sold for their value as scrap" and that he was discharged for misconduct. Accordingly, Sudzus was disqualified for unemployment compensation benefits.

Sudzus appealed the referee's decision to the Board, which in turn affirmed the findings and conclusions of the referee. In so doing, the Board stated, the "actions of the claimant placed the employer at risk of a lawsuit from the client." The Board rejected Sudzus' claims that at the telephonic hearing: (1) Butterfield Electric engaged in the unauthorized practice of law; (2) Sudzus did not have the full opportunity to present his case; (3) all of the employer's testimony was hearsay; and (4) "the decision was incorrect as a matter of the evidence and law." The Board thus concluded that Sudzus was discharged for misconduct connected with work and was subject to disqualification of benefits under section 602(A) of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2006)). In turn, Sudzus sought judicial review of the Board's decision under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006)). The circuit court affirmed the decision of the Board and Sudzus now appeals.

ANALYSIS

It is well settled that in an appeal from a decision denying unemployment compensation benefits, it is the duty of this court to review the decision of the Board rather than the circuit court. Czajka v. Department of Employment Security, 387 Ill.App.3d 168, 172, 327 Ill.Dec. 108, 901 N.E.2d 436, 442 (2008); Richardson Brothers v. Board of Review of Department of Employment Security, 198 Ill.App.3d 422, 428-29, 144 Ill.Dec. 607, 555 N.E.2d 1126, 1130 (1990). The scope of judicial review of an administrative agency's decision extends to all questions of law and fact presented in the record. 735 ILCS 5/3-110 (West 2006).

The standard of review applicable to the agency's decision depends on whether the question presented is one of fact,...