BRAD LIEBERMAN v. THE STATE OF ILLINOIS (2002)

OPINION

This cause is before the Court on Claimant Brad Lieberman's Complaint against Respondent State of Illinois seeking a minimum of $19,136 in compensation for labor that he has provided to the Department of Human Services (DHS). Claimant is a civilian detainee pursuant to the Sexually Violent Persons Act (the SVP Act). 725 ILCS 207/1 et seq. (2000). Claimant alleges that his situation is governed by the Federal Minimum Wage Law and Title 59 of the Illinois Administrative code, Section 299.33(c), A hearing was conducted in this matter at which Claimant appeared and testified. Claimant does not allege a jurisdictional basis for this case. One might allege that jurisdiction arises pursuant to Section 8(a) or (b) of the Court of Claims Act, however, this issue will be discussed below. 705 ILCS 505/8(a)(b) (2000).

Claimant has requested additional opportunities to present further facts to prove his claim and to establish damages. The Court views the issues to be more of a legal nature and less reliant on the additional facts which Claimant desires to establish. The Court has reviewed the transcript, and record, and has determined that there are sufficient facts to decide whether as a matter of law Claimant is entitled to proceed with this claim, or in the alternative to compensation.

Claimant's requests for an additional hearing, for issuance of subpoenas and his renewed motion for a copy of the transcript are denied. Respondent's Motion to Strike Affidavits filed subsequent to the hearing is granted.

At the conclusion of the hearing, the Commissioner encouraged the parties to file memorandum addressing the issue whether as mater of law, Claimant would be entitled to compensation for any of the work or activities identified in the record. Respondent filed a Post-Trial Brief, however, Claimant has not filed a memorandum or provide any additional support.

REGULATION CITED: TITLE 59 OF ADMINISTRATIVE CODE

Section 299.330' of Title 59 of the Illinois Administrative Code provides:

A resident may perform labor to which he consents, if the professional responsible for overseeing the implementation of services plan for the resident determines that the labor would be consistent with the plan. A resident who performs labor which is of any consequential economic benefit to the Department shall be adequately compensated commensurate with the value of the work performed, in accordance with the applicable federal and State statues and regulations. A resident may be required to perform tasks of a personal housekeeping nature without compensation. (emphasis added)

59. Ill.Adm.Code 299.330(c).

THE FACTS

Mr. Lieberman testified that in January 2000, after serving 20 years in prison, he was the subject of a petition by the State for commitment pursuant to the SVP Act. He stated that he is a civilian detainee because he has not had his probable cause hearing to determine whether he was qualified for placement in the DHS facility. He claims that he should be paid the minimum wage for a job that is above and beyond what is required in the responsible living program. He contends that he is not in treatment, or a service plan, because he has not had his probable cause hearing.

Claimant was first sent to the SVP facility at Sheridan Illinois. He stated that he was assigned a job in the laundry room. He said he washed 30 to 35 loads of laundry a day, on four or five days a week. The tasks included washing, drying, folding and returning the laundry to the appropriate resident. Only one washer and one dryer were operable and the washer took 40 to 50 minutes per cycle. He believes that DHS would have had to pay an outside employee more than the $5.50 minimum wage and therefore DHS received consequential economic benefit.

He was transferred to the Joliet facility. Captain Marx and Security Director Glotz asked him to oversee, clean, and basically instruct in the proper use of cardiovascular machines, according to Claimant. A universal weight system was subsequently installed. He said he was to make sure no one was injured; teach proper usage of equipment; and note and report malfunctions in the equipment. He stated that the weight room was not to be opened until he was present. He would clean the equipment and hand out the pins, together with two other workers. He gave specific examples of some of this activities. He believes that DHS would have to pay at least the minimum wage to an employee hired to do the work he is performing in the weight room. He argues that he was compensated in the same manner as a resident who did not have any job assignments.

On cross-examination, Claimant acknowledged that he earns five points a week pursuant to the Responsible Living Program, and some points have been withheld in certain time periods because of behavioral problems.

Respondent presented Director Timothy Budz, who testified that he was responsible for the operations of the Joliet facility. He provided the following explanation of the SVP Act. The Department of Corrections (DOC) screens inmates that have a history of sexual of fenses. DOC determines risk and makes a recommendation of the Illinois Attorney General whether the person should be commitment under the SVP Act. At the time an inmate is scheduled for discharge or parole from DOC, the person is transferred to DHS as a detainee. The detainee then faces a separate trial to determine whether he should be committed under the SVP Act. The detainees, or residents as they are referred to, are not free to leave the premises and there is no unescorted movement of residents within the facility.

Director Budz described the Responsible Living Program (RLP), which is not created by the Administrative Code but by the facility's own initiative. DHS uses a token economy system similar to the other behavioral programs in mental health and SVP programs across the country. It requires the resident to perform certain responsibilities that may include cleaning their room, following facility and security therapy aide (staff) directives, and assist in the operation of the therapeutic community. If the resident performs all responsibilities successfully, he is given additional privileges, such as a later curfew or access to different areas of the building. There is a reward system that ranges from one to five points per week for the successful performance of responsibilities. The points may be redeemed for certain products, i.e. coffee, tobacco, shampoo and deodorant.

Director Budz explained further that DHS conducts a sex offender specific cognitive behavioral treatment program with emphasis on relapse prevention. Residents take on responsibilities to demonstrate their ability to reintegrate safely into the community. The tasks may involve two or three hours of work a week, but never more than three hours. Examples are floor care, cleaning, emptying trash cans or dining room service. He indicated that these assignments, including the assignment to the weight room, are classified as responsible living tasks. If the resident does not perform the assigned tasks, he loses points. The RLP, first implemented at Sheridan, has different levels in which the resident can gain more points by moving up through the levels.

Director Budz stated that none of the residents at the facility are employed by the facility. He denied that Claimant was ever assigned to do laundry at Sheridan continuously from 7:30 a.m. to 10:30 p.m. He denied that Claimant was assigned to work in the weight room over four hours. It is possible that he signed up from access to the weight room and therefore was in the room for numerous hours during the week.

On cross-examination, Director Budz acknowledged that claimant was not in a treatment plan, but indicated that it does not effect his participation in the RLP up until the point of participation in therapeutic communities. The first four levels of the RLP apply regardless of treatment status. Even though residents perform tasks such as unloading trucks and stripping, cleaning and re-waxing floors, the Director did not believe that any of the assigned tasks provided any consequential value to DHS.

The Departmental Report includes a description of the five different levels of the RLP, in which the responsibilities and rewards increase as one moves up from Level 1 to Level 5. The Report includes a spread sheet of Claimant's account showing the points earned and expended by him. It shows that on most weeks he earned five points and the points were lowered to three points one week and one point for four weeks. The report contains a listing of responsible living assignments at the facility and shows Claimant being assigned to make sure the weight room was clean and the machines were in working order.

Both Claimant and the Director agreed that the term state pay was the slang phrase for the points and/or rewards provided by the RLP.

EXHAUSTION OF REMIDIES

Claimant contended that he filed several Grievances on the pay matter, however, no responses were received. Claimant testified that Dr. David Keegle told him that he processed his Grievance. A therapist, Carol Crouch, also told him that she processed his Grievance on the State pay He indicated that he filed a Grievance because the DHS did not act on his Grievances. Copies of four Grievances were attached to the Complaint.

Respondent did not raise the failure to exhaust administrative remedies as an affirmative defense. At the hearing, Respondent was informed by the Commissioner that should the defense be raised, Claimant's motion to compel the testimony of the two therapists identified by Claimant would be granted. Respondent indicated that it was waiving the defense. In light of the Director's testimony disagreeing with the relief sought in the instant case, it is apparent that he would have denied the Grievance. The Bureau Chief is the final level of appeal, however, due to Respondent's denial of the allegations of the complaint, it is also likely that the Chief would agree with the denial. The Court will not, on its own violation, deny the claim for failure to exhaust administrative remedies.

Claimant was allowed to call Tanya Claimont, a Security Therapy Aide, who testified that Claimant worked in the laundry room at Sheridan. At first, the procedure was for him to begin at 7:15 a.m., but later the time was changed to 8:30 a.m. She indicated that most residents would still be back there doing laundry at 2:30 p.m. She also indicated that on occasion, when she worked the late shift, she would see Claimant doing laundry between 3:00 and 11:00 p.m. She said that at times one of the two washers was not operational. She estimated that Claimant would bring 10 to 12 laundry bags in the morning. She estimated that there were 15 to 18 residents in the hall. She agreed that the Claimant received the same number of points as a resident that did not have an assignment.

Ms. Clairmont stated that the Joliet facility, Claimant was assigned to the weight room, but was not able to provide any specifics on the times or days we was in the weight room. She did see him when the weight room was open and she passed by it. She believed he was usually in the room. She thought he was responsible for the six pins that were used on the universal machine. On cross-examination, Ms. Clairmont stated that she believed Claimant worked in the laundry approximately two days a week.

Claimant called Max Marx, a Security Therapy Aid, who testified that he understood Claimant's responsibilities in the weight room included ensuring that the equipment is not abused and reporting problems. He did not understand that the responsibilities included instructing residents on the proper use of the equipment. Mr. Marx stated that Claimant requested to be assigned to the weight room. He also agreed that residents assigned tasks received the same points as residents that did not have any assignments. On cross-examination, he stated that he saw Claimant working out in weight room at different times.

Claimant was granted leave to submit interrogatories to Respondent subsequent to the hearings for two witnesses to answer. In relation to interrogatories posed to Robert Glotz, Security Director, the information indicates that Glotz believed that Claimant worked in the laundry room at Sheridan a couple hours on the days he worked. Other residents worked in the laundry and most of the time both washers and dryers were operational. In relation to the Joliet facility, Glotz said that Claimant volunteered to go the the weight room and did not have any duties assigned to him. He was expected to not violate any rules and was not responsible for instructing other residents. The pins were given to whichever inmate arrived first.

In relation to interrogatories served on Carol Buccalo, a Security Therapy Aid, she did not observe Claimant in the laundry room for several hours during the evening shift. She disputed Claimant's claim that he was in the laundry room at Sheridan more than three hours a week, addition that, we were lucky if he was in there an hour.

THE LAW

In his Complaint, Claimant alleges that he was employed by DHS to work in the laundry and weight room from January 15, 2000, until he was disciplined in June of 2001. He specifically alleges that he worked 30 hour a week in the laundry at Sheridan (however, he later alleges he worked at least 49 hours per week) and worked 4 to 6 hours a day, seven days a week, in the weight room at Joliet (however, he later alleges that he was working 7 hour days).

Claimant relies primarily on section 299.330(c) of Title 59 of the Illinois Administrative Code. 59 Ill.Adm.Code 299.330(c) (2000). The operative language of the section specifies that: A resident who performs labor which is of any consequential economic benefit to the Department shall be adequately compensated commensurate with the value of the work performed, in accordance with the applicable federal and State statutes and regulations.

Respondent, citing White v. State (1997), 49 Ill.Ct.Cl. 187, argues in its Brief that the Court lacks jurisdiction to review or interfere with the exercise of administrative discretion by various Illinois agencies. Respondent asserts that the Responsible Living Tasks System (referred to at the hearing as Responsible Living Program and referred to herein as RLP) is an administrative policy that falls beyond the Court's authority to review. Additionally, Respondent argues, without citation, that the Court does not have the jurisdiction to entertain Claimant's federal claim that he is entitled to the minimum wage pursuant to the Fair labor Standards Act. 29 USC 206 (2001).

Respondent further argues that Claimant's assignment of tasks pursuant to the RLP does not transform him into an employee. Opinion by the Illinois Attorney General, file no. 217, February 6, 1962; and Moore v. State (1951), 21 Ill.Ct.Cl.288. Respondent argues that Claimant is not providing consequential economic benefits to DHS, he is performing assignments pursuant to the RLP. Assuming there is an economic benefit to DHS, Respondent contends that claimant is being adequately compensated through the points received through the RLP.

In relation to the jurisdiction issue, the Court in White v. State stated:

The Court of Claims does not have jurisdiction to review the disciplinary and administrative policies and decisions of the Illinois Department of Corrections. The disciplinary procedures in place and their application to the Claimant in this case are matters within the administrative discretion of the facility. The Court of Claims does not have the authority to interfere in a matter of administrative discretion of the institution. The court of Claims does not have jurisdiction to consider such a claim. [citations omitted]

49.Ill.Ct.Cl.187 (1997). In White, the Claimant inmate was disputing the imposition of discipline.

The Court has determined that the decision to require inmates to obtain a pass or permission to move between buildings is within the administrative discretion of a correctional facility. Complaints challenging this administrative discretion fails to state a claim upon which relief can be granted by the Court. Hassen v. State (1997), 49 Ill.Ct.Cl. 134.

Respondent's jurisdictional argument has merit for the development of policies or rules clearly within the discretion of a State agency. The RLP was developed by DHS. The complete text of the RLP is found on four pages, JO2-JO5, in the Departmental Report. Director Budz stated that the RLP is not specified in, or created by, the Illinois Administrative Code. He indicated that the program was a facility initiative modeled after other states programs. Respondent does not cite any statute or regulation that gives the facility the authority to create the RLP, nor does Claimant refer to any that would indicate the facility lacked the authority to develop it.

Director Budz described the RLP as a cognitive behavioral treatment program designed to allow a resident to demonstrate an ability to reintegrate safely in to the community. Section 40(b)(2) of the SVP Act provides, in part, that DHS, shall arrange for control, care and treatment of person in the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order.

The parties have focused their arguments on the fact that a resident receives points for performing tasks, or for not performing tasks. The RLP does increase points for higher levels. It appears that one of the major distinction in responsibilities between Level II (1 point awarded) and Level III (2 points) is that the lower level does not require performance of responsible living tasks, while the higher level requires performance of up to two hours per week of on-unit responsible living tasks as assigned or requested. Level IV (5 points) requires up to three hours of such tasks.

What is overlooked by the parties are the references to privileges that a resident receives at each level. The extent of privileges increase as one moves up the levels. It is not just a matter of points, tradable for merchandise and thereby having some value, but also privileges. The privileges may be intangible but it can not be said they do not have some value. Examples are a later curfew or the right to attend special events or the possession of a VCR tape.

The most revealing part of this record in relation to the RLP is the testimony of Claimant and the Director that there is no method or practice in place to monitor a resident's compliance with, or performance of, the assigned tasks. Sign in sheets are not used. The RLP seems to operate more to detect nonperformance of tasks and noncompliance of rules and then deprive a resident of points or privileges. In fact, Claimant was subject to this very detection system. He received less points, and apparently was removed from his assigned tasks for some period of time for noncompliance with the rules because of a behavioral problem, e.g. false information to staff.

The record shows that the Joliet facility has developed a program which provides rewards for proper behavior and withholds points and privileges for improper behavior. The testimony of Director Budz establishes that the program is linked to the treatment of resident with the purpose being to gauge when a resident may be able to reintegrate safely into the community. His testimony indicates that the program is similar to other programs used across the country. There appears to be statutory authority, if not a mandate, for DHS to arrange control, care and treatment of residents. The RLP appears to address control, care and treatment.

Although there is no evidence that Claimant is subject to a commitment order or a treatment plan, and in fact the opposite is apparent based upon evidence of cases pending in the U.S. District Court wherein Claimant disputes DHS authority to hold him, Director Budz did testify that a resident's status as to a specific treatment plan was not material to the application of the RLP, except when the RLP would allow a resident to participate in the therapeutic communities (apparently off-site).

The court holds that the development and operation of the RLP is within the administrative discretion of DHS, and its Joliet facility. For the reasons stated above, the Court does not have the jurisdiction to review administrative policies of DHS. The allegations that the RLP may be operated or interpreted by DHS in an illogical or inconsistent manner, is also beyond the jurisdiction of the Court. Decisions as to what level to a resident should be place at, or the amount points or type of privileges to be awarded, are within the discretion of DHS. The Court notes that acceptance of an assigned task is voluntary. Assuming Claimant's contention that he could receive the same points even if he did not participate to be true, then it his choice whether to accept an assigned task and he accepts it knowing the conditions that are in place.

The record is devoid of any indication that there is an employee-employer relationship between Claimant and DHS. As to the regulation cited by Claimant, there is no indication what is meant by consequential economic benefit or adequately compensated. In light of the development and operation of the RLP, the Court holds that it can not determine that the type of labor contemplated by the regulation extends to the performances of assigned tasks pursuant to the RLP.

The Court does not have the jurisdiction to hear this claim. For foregoing reasons, this claim is hereby dismissed.

RAUCCI, J.