Ronald F. Ettinger v. State of Illinois

OPINION

BIRNBAUM, CJ.

Claimant, Ronald F. Ettinger, brings this action against the State of Illinois for alleged pay due the Claimant for his work as a Board Member on the Illinois Education Labor Relations Board (hereinafter referred to as “IELRB”). A hearing was held by Commissioner Reid on April 19, 2017 in Springfield, Illinois. The evidence record consists of the pleadings, the testimony of the Claimant, Ronald F. Ettinger, IELRB personnel, Susan Willenborg and Victor Blackwell, the Stipulation of Parties regarding the testimony of Lynne Sered (IELRB) and Bonnie Ettinger (the Claimant’s spouse), Exhibits attached to the Amended Complaint and Respondent’s Departmental Report and Supplemental Departmental Report.

FACTS

Claimant’s Testimony

Claimant was a professor at University of Illinois Springfield (“UIS”) until his retirement in 2001. In 2004, he was appointed to the IELRB by then Governor Rod Blagojevich. After Claimant’s initial appointment to the IELRB, he was reappointed and spent approximately ten years as a Board member. When he was reappointed in 2014 by then Governor Pat Quinn, he was not confirmed by the Senate. Governor Pat Quinn lost the election to Bruce Rauner in November 2014. Claimant submitted an online application to the Rauner transition team on January 2, 2015. Governor Rauner was sworn into office on January 12, 2015. Claimant had an email exchange with IELRB Chairman Sered in which Claimant acknowledged that his “days were numbered” after the Governor takes office “unless he decides to reappoint me.”

As a Board member, the Claimant reviewed cases and case files that had been appealed from an administrative law judge or some other action and made decisions concerning these matters at the Board’s monthly meetings. At the monthly meeting, it was usual to have a first reading of a case followed by a decision on that particular case in a subsequent month. The IELRB meetings typically occurred on the third Thursday of the month. On a monthly basis, the Claimant would receive electronically transmitted information as well as a packet of information regarding the files through the mail. Once Claimant received the materials, the Claimant would not return them. The amount of time in a month that the Claimant spent working for the IELRB varied, however, it ranged from 25 to 35 hours per month spent reading files and consulting with IELRB staff. Claimant would keep track of the time he worked for the IELRB through the use of [*197] a timesheet he created entitled “Illinois Educational Labor Relations Board Activity Record”. The timesheet would only reflect that month’s work. Claimant would typically submit one timesheet a month. He does not recall if he submitted his March 2015 timesheet. However, Claimant testified that he would have been paid even if he did not submit his timesheet, read any of the materials, or attend the monthly meetings. The time when Claimant started preparing for that month’s IELRB meeting varied. Claimant attended the IELRB’s January and February meetings. Prior to the meetings in January and February, Claimant received materials in advance, reviewed those materials and worked through them prior to the IELRB meeting.

Claimant received an email dated March 2, 2015 from IELRB Chairman Sered on March 3, 2015 from Morgan Kreitner of the Office of Governor Bruce Rauner. He does not recall the time of day he received it. The email notified the Claimant that his “term” with the Illinois Education Labor Relations Board will not be renewed effective March 2, 2015. Claimant does not recall if he received the email prior to, during, or after the six hours he allegedly worked on March 3rd. While Claimant had a State email address during his early years on the Board, it did not work, so Claimant used his personal email while working for the Board. Claimant said he did not understand Ms. Kreitner’s email so he sent a reply email to her asking questions concerning the nonrenewal as he did not understand what she meant by using the term “renewed” in her email. Claimant assumed that he would continue working until someone else replaced him on the IELRB. Claimant did not receive a response back from Ms. Kreitner or anyone else from the Governor’s Office. Claimant was not given notice that he was being removed from the IELRB for cause, for misconduct, or for not doing his job.

From March 2nd through March 12th, Claimant performed the job duties he normally would have performed in this position that included reading and studying. Claimant’s work for March was fairly close to the same amount of work he had done in previous months. However, Claimant could not recall when he started work and ended work for each day. Claimant’s time for March 4th encompassed him sending a reply email to Ms. Kreitner’s email and reviewing the Illinois Educational Labor Relations Act along with the Illinois Government Ethics Act. Claimant does not recall what files he read on March 5th, 6th, 10th, and 11th. The evidence shows that no one from the IELRB directed or ordered Claimant to perform the work reflected in his March timesheet - Exhibit F (attached to the Amended Complaint).

Claimant did not attend the March IELRB meeting. Claimant received emails from IELRB staff person, Susan Willenborg, on March 9th and 12th that pertained to the upcoming March meeting. The evidence shows that no one told Claimant he should or should not review the materials in preparation for the March 19th meeting, but he thought it would be appropriate to be prepared. Claimant would typically review a draft Board opinion for grammar errors. While the March meeting occurred, no actions were taken since there was no quorum as only two Board members were present.

Susan Willenborg’s Testimony

Ms. Willenborg works for the IELRB and has done so since December 1984. In 2015, Ms. Willenborg was the Associate General Counsel for the IELRB. She had no involvement in how or when members were appointed or whether or not members were reappointed to the [*198] IELRB. Ms. Willenborg also would not have been informed through the Governor’s office whether or not Claimant was being retained on the IELRB. Ms. Willenborg was responsible for sending out meeting materials to the IELRB members. She would send out the meeting materials via email and by Fed Express. Meeting materials could include any or all of the following: draft agenda, final order cases, new case packets, draft Board Opinions, memorandums, minutes from the prior IELRB meeting, and a litigation report. Ms. Willenborg would routinely send meeting materials to IELRB members, including those Board members whose terms were lapsing and would continue to do so until it was known whether or not the Board member was not going to be reappointed. Ms. Willenborg would also call IELRB members prior to the monthly meeting to ensure they had received the meeting materials. When she sent out the March 9th and 12th emails to Claimant, she had not been told whether or not he was going to remain a member of the IELRB. Chairman Sered did not make her aware of the March 2nd email.

Victor Blackwell Testimony

Mr. Blackwell works for the IELRB and has done so since 1996 when he was appointed as its Executive Director. In 2015, the IELRB was comprised of five members appointed by the Governor. The number of IELRB members and the quorum requirement are promulgated by statute. As the Executive Director for the IELRB, Mr. Blackwell did not supervise Board members, Board members did not report to him, and he would not receive notification of an appointment of a Board member contemporaneously to the appointment. In 2015, Mr. Blackwell would not have had any involvement in how or when members were appointed or reappointed to the IELRB. Mr. Blackwell did not keep track of whether or not IELRB members had been confirmed by the Senate. Mr. Blackwell did not direct Claimant to perform any work for the IELRB. The February 2015 IELRB meeting focused on a Chicago Teachers Union case. Attorney Willenborg was directed to draft a decision. The final decision would have been subject to the current IELRB members’ vote. If the IELRB lacks a quorum, votes cannot be taken on any fundamental decisions regarding its work and any cases that it would have intended to hear that would have been subject to vote would have to be tabled until such time as a quorum was present to vote on those particular issues. Usually those matters are tabled to the next month’s IELRB meeting. During Mr. Blackwell’s tenure as Executive Director, there have been one or two other times in which a quorum was not present.

Claimant’s Admitted Exhibits

Claimant’s Amended Complaint includes Exhibits A through F. Exhibit A is a letter from the Claimant requesting compensation for work in March 2015. Exhibit B is a May 2, 2014 letter temporarily appointing Claimant to the IELRB effective June 2, 2014. Exhibit C is the March 2, 2015 email from Morgan Kreitner to Claimant and courtesy copied to Lynne Sered. Exhibit D is a group of email exchanges, including a March 4, 2015 email Claimant sent to Morgan Kreitner in response to her March 2nd email. Exhibit E references the documents Claimant received for the March meeting. Exhibit F is Claimant’s March 2015 timesheet.

Claimant’s Exhibit 1 is an email exchange between Claimant and Lynne Sered in November 2014 in which Public Acts 97-719 and 97-582 were mentioned and Claimant states that in his view his position would be vacated 60 days after the new governor takes office, unless [*199] he is reappointed. Claimant also notes that had he been previously aware of the ethics law, he would have pursued Senate confirmation more vigorously.

Claimant’s Exhibit 2 is an email Claimant sent on January 21, 2015 to Lynne Sered. In this email, the Claimant states that if he is not reappointed, he believes his last day as an IELRB member would be March 12th. Further, the Claimant asks for Ms. Sered to consider moving the meeting date to March 12th and the Claimant asks if she had heard anything from the new administration.

Stipulations

The IELRB is the state agency administering the Illinois Educational Labor Relations Act. That statute establishes the right of educational employees to organize and bargain collectively. Some of the methods the IELRB employs to protect these rights are conducting secret ballot elections to ascertain educational employees’ preferences regarding union representation, certifying and clarifying bargaining units, investigating, hearing and remedying unfair labor practices by educational employers and unions and assisting parties engaged in mediation and arbitration. The IELRB is comprised of members who are appointed by the Governor with the advice and consent of the Senate. By statute, the IELRB members must be residents of Illinois and have a minimum of five years of direct experience in labor and employment relations. IELRB members are prohibited from holding other offices or from engaging in any other business, employment or vocation for profit.

Governor Bruce Rauner was sworn in as the 42nd Governor of Illinois on January 12, 2015. The IELRB conducted a meeting on March 19, 2015. Claimant did not attend or participate in the March 19, 2015 meeting.

Ms. Lynne Sered was the Chairperson of the IELRB during the relevant time frame and had been serving in that capacity since June 2004. During Claimant’s appointment to the IELRB, Ms. Sered had the opportunity to work with him on numerous issues. On March 2, 2015, an email was sent to Claimant from the Office of Governor Bruce Rauner notifying Claimant that his term with the IELRB would not be renewed effective March 2, 2015. Ms. Sered was courtesy copied on the aforementioned March 2, 2015 email. Ms. Sered recalls having discussions with Claimant prior to March 2, 2015, concerning the possibility that he would not be reappointed to the IELRB. At the hearing. Ms. Sered had no independent knowledge of whether or not Claimant performed any work from March 2 to March 12, 2015. Ms. Sered recalls Claimant informing her via email that he had read all the materials for the March 2015 meeting and was willing to meet with the IELRB for the meeting. Ms. Sered also recalls Claimant informing her via email that he had not received a response from the Rauner Administration concerning his request to continue working until March 12, 2015. At the hearing, Ms. Sered had no independent recollection of having any telephone conversations with Claimant from March 2 to March 12, 2015. As the Chairperson of the IELRB, Ms. Sered lacked authority to authorize Claimant’s request to work an additional ten (10) days until March 12, 2015.

[*200] Respondent’s Admitted Exhibits

Respondent’s Exhibits are the Departmental Report filed on January 13, 2016, and the Supplemental Departmental Report filed April 4, 2017. The Departmental Report contains the March 2nd email in question, payroll information, IELRB agendas and minutes from December 2014 to March 2015, and Claimant’s appointment letters. The Supplemental Departmental Report contains the March 9th and 12th, 2015 emails sent by Susan Willenborg concerning the March 2015 IELRB meeting.

ANALYSIS

WHETHER CLAIMANT IS ENTITLED TO PAYMENT FOR WORK

PERFORMED AS A BOARD MEMBER IN MARCH 2015 EVEN

THOUGH HIS REAPPOINTMENT WAS NEVER CONFIRMED BY THE

SENATE AND THE CLAIMANT WAS INFORMED THROUGH A

MARCH 2, 2015 EMAIL THAT HIS TERM WOULD NOT BE RENEWED.

This case involves the rules of statutory construction and application of these principles to the statute and administrative code. There are no factual issues. The statute creating and governing the IELRB states the following:

Beginning on July 1, 2003 or when all of the new members to be initially

appointed under this amendatory Act of the 93rd General Assembly have been

appointed by the Governor, whichever occurs later, the Illinois Educational Labor

Relations Board shall consist of 5 members appointed by the Governor with the

advice and consent of the Senate.

115 ILCS 5/5(b) (emphasis added). Additionally, any member of IELRB may be removed by the Governor, for neglect of duty or malfeasance in office, but for no other cause. 115 ILCS 515(e).

Under the Illinois Governmental Ethics Act (“Act”), Article 3A concerns governmental appointees. 5 ILCS 420/3A-5 et. seq. It was enacted through Public Act 93-615 and became effective November 19, 2003. The Act defines a “late term appointee” as:

a person who is appointed to an office by a Governor who does not succeed

himself or herself as Governor, whose appointment requires the advice and

consent of the Senate, and whose appointment is confirmed by the Senate 90 or

fewer days before the end of the appointing Governor’s term.

5 ILCS 420/3A-5 (emphasis added). A “succeeding Governor” is defined as “the Governor in office immediately after a Governor who appoints a late term appointee.” A late term appointee shall serve no longer than the sixtieth day (emphasis added) of the term of office of the succeeding Governor. 5 ILCS 420/3A-10. There appear to be no cases interpreting either of these statutes. However, when the General Assembly specifically defines a term in a statute, that definition is authoritative evidence of legislative intent and should be given controlling effect.

[*201] Caterpillar Finance Corp. v. Ryan, 266 Ill.App.3d 312, 318, 640 N.E.2d 672, 676 (3rd Dist. 1994).

Claimant was temporarily appointed to the IELRB in 2004 by then Governor Rod Blagojevich. Claimant’s appointment letter from Governor Blagojevich states that “[u]pon confirmation by the Senate, Ronald J. Ettinger becomes a member of the Illinois Educational Labor Relations Board.” After Claimant’s initial appointment to the IELRB, he was reappointed in 2014 by then Governor Pat Quinn. Claimant’s appointment letter from Governor Quinn states that “[u]pon confirmation by the Senate, the following person becomes the holder of the office indicated.” Claimant has admitted and stipulated that he was never confirmed by the Senate after his 2014 appointment by Governor Quinn.

Because Claimant was never confirmed by the Senate, he never became a member of the IELRB as contemplated by 115 ILCS 515(b) and his letter of appointment. Additionally, as a non-Senate confirmed member, Claimant was not entitled to the appointment termination protections specified in 115 ILCS 5/5(e) of only being removed by the Governor, upon notice, for neglect of duty or malfeasance in office, but for no other cause. As such, Claimant could be terminated from the IELRB at any time and for any reason. Therefore, Claimant’s request for payment for 28.5 hours of work he allegedly performed in March 2015 must be denied as he received notice on March 3rd that his appointment was not being renewed effective March 2, 2015.

Likewise, the lack of Senate confirmation also means that Claimant was not a “late term appointee,” as defined by the Act, at the time the March 2nd email was sent. The March 2nd email in question states the following:

Dear Mr. Ettinger,

This letter is to notify you that your term with the Illinois Education Labor

Relations Board will not be renewed effective March 2, 2015….

In this case, it is clear the legislature intended for a “late term appointee” to have been confirmed by the Senate. Claimant has admitted and stipulated that he was never confirmed by the Senate. Because Claimant was never confirmed by the Senate, he does not meet the definition of a “late term appointee” and could not serve until the sixtieth day of the term of office of the succeeding Governor, Governor Rauner. Therefore, when the March 2nd email was sent informing Claimant that his term with the IELRB was not being renewed effective March 2, 2015, his term of service concluded on March 2, 2015. Therefore, his request for payment must be denied.

Additionally, even if this Court were to conclude Claimant was a “late term appointee” the non-renewal of Claimant’s term with the IELRB effective March 2, 2015, complied with the Act. The Act states that said appointee shall serve no longer than the sixtieth day of the term of office of the succeeding Governor. 5 ILCS 420/3A-10 (emphasis added). Governor Rauner was sworn in as the 42nd Governor of Illinois on January 12, 2015. (Stipulation of the Parties ¶ 15). Sixty days from January 12, 2015, was March 12, 2015. The March 2nd email informing [*202] Claimant that his term with the IELRB was not renewed effective March 2, 2015, was within the 60-day timeline described in 5 ILCS 420/3A-10. Under 5 ILCS 420/3A-10, the maximum amount of time a “late term appointee” could serve would be 60 days after the succeeding Governor was sworn in. Likewise, the language used in 5 ILCS 420/3A-10 contemplates that a “late term appointee” could serve less than the 60 days mentioned therein. Therefore, there is no automatic right under 5 ILCS 420/3A-10 to serve the complete 60 days mentioned therein. In this case, the March 2, 2015 effective date of non-renewal was within the 60-day timeline, i.e., January 12, 2015 to March 12, 2015 provided for in 5 ILCS 420/3A-10. Because Claimant’s term of service ended within the timeline provided for in 5 ILCS 420/3A-10, Claimant is not entitled to compensation in this matter and his claim must be denied.

CONCLUSION

It is hereby ordered that based on the foregoing, the claim is denied.