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Monday, August 19, 2019

AG Madigan and personal assistant appear to have changed positions on employment status

By Ann Maher | Nov 17, 2015


A personal assistant who seeks status as a state employee in two pending work comp claims, was a plaintiff in a recent high profile labor class action arguing for non- state employee status.

The work comp claims brought by Stephanie Yencer-Price of Springfield are now central to a brewing legal and political battle between state leaders.

On Friday, Central Management Services (CMS) director Thomas Tyrell filed suit against state Attorney General Lisa Madigan, saying she has refused to provide a "complete legal defense" in two work comp claims brought by personal assistants such as Yencer-Price. Personal assistants provide care to individuals with severe disabilities so they can remain in their homes and be as independent as possible as part of the state's Home Services Program.

Tyrell claims that millions of dollars have improperly flowed through the CMS to pay "hundreds" of caregivers who are not state employees, thereby depleting resources for legitimate claims and over-burdening taxpayers.

He argues that CMS reached its decision that Yencer-Price was not a state employee by relying on state law and controlling precedent, including the U.S. Supreme Court decision in Harris v. Quinn reached in June 2014.

In Harris v. Quinn, the court ruled that personal assistants are state employees for one purpose only - "collective bargaining over wages - and that for all other purposes Personal Assistants are private-sector employees," according to Tyrell's suit.

A spokesperson for CMS explained in a posting at the Capitol Fax blog that not only was Yencer-Price a plaintiff in the Harris case, advocating for non-employee status, but that Madigan also did an about-face on the issue after a Republican governor took office.

"During previous Administrations, the AG took the view that the personal assistants are not state workers," wrote Meredith Krantz, deputy director and public information officer at CMS.

Krantz described in detail positions taken by the Attorney General's office in work comp claims brought by personal assistants, but that the AG's position changed shortly after Republican Bruce Rauner was sworn in as governor.

She notes that on Jan. 20, eight days after Rauner took office, assistant Attorney General Kmett reversed course in Yencer-Price's case and said the office was withdrawing its motion to dismiss the work comp case because they had “determined” that the Supreme Court ruling in Harris does not “apply to whether or not personal assistants were employees for workers’ compensation purposes.”

On Monday afternoon, Annie Thompson, deputy press secretary for Madigan, responded to the lawsuit with this stateement: "We strongly disagree with CMS' allegations and will be responding in court."

Krantz wrote the following as background, which was posted at the Capitol Fax blog on Monday:

"Personal Assistants are hired by individuals, not by the State, to provide in-home care. One such Personal Assistant, Stephanie Yencer-Price was allegedly injured while performing services to her employer. She then filed a claim for Workers’ Compensation benefits.

"Yencer-Price was one of the plaintiffs in the class action lawsuit that reached the Supreme Court and where Yencer-Price argued and the Supreme Court decided in the Harris v. Quinn decision on 6/30/14 that Yencer-Price and other personal assistants are not state employees.

"On July 18, 2014, an attorney in the Attorney General’s Office, Amy Oxley, sent an email in response to a worker’s compensation claim by another personal assistant that the Attorney General’s Office would dispute all such claims because of the Supreme Court ruling 'that indicates that Personal Assistants, like the petitioner, are not employees of the State of Illinois.'

"On July 28, 2014, the Workers Compensation Bureau Chief in the Attorney General’s Office, Jill Ottee, sent an emails directing that all attorneys file Motions to Dismiss in each of their personal assistant cases because the Supreme Court had ruled that personal assistants are not state employees.

"On August 6, 2014, Assistant Attorney General Amy Oxley filed a motion to dismiss in Yencer-Price’s workers’ compensation case and stated that the Supreme Court had 'analyzed the same factors and evidence that the Commission reviewed in past cases involving personal assistants and determined that as a matter of law, personal assistants are employees of the customers and are private employees' (emphasis in brief). She added 'the Supreme Court’s legal determination of the employment status of personal assistants is now controlling authority on the issue.'

"On January 20, 2015, in a separate subrogation case pending in Sangamon County involving Yencer-Price, Assistant Attorney General Kmett reversed course and said they were withdrawing their motion to dismiss in the workers’ compensation case because they had 'determined' that the Supreme Court ruling in Harris does not 'apply to whether or not personal assistants were employees for workers’ compensation purposes.'

"On April 20, 2015, the Sangamon County Circuit Court rejected the Attorney General’s argument in the subrogation case and found that 'there was no employer/employee relationship between the State of Illinois and Ms. Stephanie Yencer-Price on the date of the accident.' The Attorney General did not file an appeal.

"CMS directed the Attorney General to assert this defense in Yencer-Price’s pending Workers’ Compensation case or requested if the AG would not assert such a defense, that they allow CMS to retain its own outside counsel. On August 24, 2015, the Assistant Attorney General refused to allow CMS to be separately represented and refused to raise the defense in Yencer-Price’s case.

"On November 3, 2015, Assistant Attorney General Oxley sent an e-mail to CMS saying that Yencer-Price’s workers compensation hearing had been requested and further stated that 'the Office of the Attorney General will not be raising the defense of no employer/employee relationship at trial.'

"CMS, therefore, was compelled to file this lawsuit against the Attorney General seeking to have its own representation so that it can assert this defense that has previously been recognized against this very same personal assistant.

"In analyzing this issue, CMS and Director Tyrrell consulted numerous legal sources, all of which clearly support the determination that Personal Assistants are not employees of the State. Among these sources are (1) the United States Supreme Court decision in Harris v. Quinn, in which the Court explained that Illinois Personal Assistants are not state employees for purposes of Workers’ Compensation program; (2) recent decisions from Illinois courts confirming that Personal Assistants are not state employees; (3) the Attorney General’s own successful arguments in prior cases that Personal Assistants are not state employees; and (4) numerous statutory and administrative references confirming the same. The overwhelming weight of authority place beyond doubt the correctness of CMS and Director Tyrrell’s determination.

"Pointing to the obvious ethical conflict that would make it impossible for the Attorney General to serve as CMS’s lawyer before the Commission, CMS requested that the Commission appoint separate counsel to represent CMS before the Commission. This is standard practice in cases when the Attorney General has an ethical conflict that makes it impossible for her to render adequate representation to her client. The Attorney General opposed the request to appoint separate counsel for CMS, insisting that the Attorney General be allowed to represent CMS even though she is refusing to defend CMS’s decision to deny benefits to the Personal Assistant.

"By filing this lawsuit, Director Tyrrell is asking for nothing more than what appellate courts in Illinois have already agreed is a government official’s right in cases of clear conflicts with the Attorney General. Just earlier this year, the Fifth District appellate court, relying on precedent from the First District court of appeals, concluded that the Comptroller may speak in court through her own counsel in a case where the Attorney General refused to represent the Comptroller’s position. Director Tyrrell is only asking for the ability to articulate to the Commission how and why he reached the conclusion that the Personal Assistant’s claim for Workers’ Compensation benefits should be denied because she is not an employee of the State of Illinois.

"What Director Tyrrell cannot do is stand idly by while the Attorney General is misrepresenting his interest in court. That is especially here, where the Attorney General’s position would mean paying out Workers’ Compensation benefits in situations where the State is not the responsible party. Illinois taxpayers cannot afford to spend money the State does not have on claims that the State is not legally obligated to pay."

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