Was it Partisan Politics for Gov. Quinn to Fire all the Arbitrators?

Thursday, September 11, 2014 | 0

We recently saw a Chicago Sun-Times poll confirming what all of our readers should know — Gov. Quinn has completely discarded any hope of being a “reform” candidate with a goal of giving an independent and nonpartisan approach to Illinois taxpayers. If you aren’t sure, Gov. Quinn has been bought and paid for by state government unions, administrators, judges/justices and legislators who want to keep their “post-employment income” or what Illinoisans also call “pensions.” We assure our readers these “post-employment income” programs aren’t truly pensions as the vast majority of their money isn’t coming from contributions by the workers, matching money from government coffers and investment income.

The vast majority of the money for these post-employment income programs are coming from multi-billion-dollar borrowing that has to be paid by you and me and your kids and grandkids and probably great-great grandkids from our taxes/tolls and fees. In the same vein, all state government “pensioners” will now mooch free lifetime medical care from you and me — the Illinois Supreme Court just made that expensive multibillion-dollar benefit untouchable by the Legislature. Believe it or not, the free-loading pensioners fought and won so they don’t have to contribute even 2% of their pensions to share the cost of their health care with current taxpayers!

We truly feel they have changed from “public servants” to make taxpayers their “private servants” as we now irrevocably owe Illinois government workers lifetime post-employment income and full health care coverage for the rest of their lives.

The media outlets have been looking at the complete and embarrassing mess that was made by the Quinn administration of a State of Illinois anti-violence program where lots of the administrators took the money that was supposed to go to neighborhoods to stop murders, mayhem and other violence. The other source of political bamboozling is the Illinois Dept. of Transportation where lots of folks were given positions as “administrative aides” to allow them to get wholly political appointments for routine jobs in violation of the Shakman order, which dictates only high-level jobs are supposed to be political.
 
How did Partisan Politics Hit the Illinois Workers’ Compensation Commission?
 
Well, when the Quinn Administration took over from Blago’s troops, there were a couple of interesting things happening at the good ole Illinois Workers' Compensation Commission that started to make the news.
 
First, we had perhaps the worst arbitrator in the history of Illinois arbitrators in Jennifer Teague, now Jennifer Carril. Former Arbitrator Carril was sending blunt emails critical of other arbitrators and attorneys. She tried to hide or keep secret a hearing in a controversial claim by a former Illinois state trooper who was basically joy-riding at 138 mph and texting his girlfriend when he blew a light and killed two innocent young girls. It seems fairly obvious the assistant attorney general assigned to defend that claim blew the whistle about the planned “secret hearing.”
 
Perhaps the oddest thing former Arbitrator Carril did was to file a workers’ compensation claim for benefits for herself. What she learned is the state of Illinois has a silly, unnecessary and unwritten “rule” requiring injured state employees to wait six months after settling a workers’ comp claim before getting paid. We assume some misguided state administrator made this “rule” up to push some of the settlements from this year into the next fiscal year. When former Arbitrator Carril learned of the six-month wait, she caused a ruckus and tried to use her influence to have the “rule” waived.
 
The commotion over a wait of 180 days for this one arbitrator made lots of folks look to see several sitting arbitrators had filed workers’ compensation claims and had either received settlements or were waiting out the six-month period. In our view, this put all Illinois arbitrators under a microscope. Some folks also learned the state adjusters at Central Management Services had also filed claims and gotten settlements. For some reason, the foul odor only settled on the sitting arbitrators, and the CMS adjusters got a pass and kept their jobs.
 
As we indicate above, the arbitrators came into the cross-hairs of the secret-powers-that-be that run the Commission, and before we knew it, the Governor’s Office created a plan to not only fire all of them but strip out their civil service protection in the process! While our former arbitrators would be allowed to “re-apply” for their jobs, it was clear an enormous and political house-cleaning was ongoing. Step one was to strip out civil service protections afforded the arbitrators for several decades. This staggering and seminal change to the jobs of our arbitrators was unprecedented and wholly unnecessary.

The reason we say this is 11 or as many as 12 arbitrators lost their jobs simply as political scapegoats — other than former Arbitrator Carril, no one has ever indicated why that many arbitrators were suddenly ousted.
 
You Show Us Your Political Patron and We Will Show You Ours
 
Having fired all arbitrators in a swift and unexpected fashion, what Gov. Quinn’s folks then did is perhaps the worst thing they could have done from the perspective of decent and good government — we were advised Gov. Quinn’s staff forced every former arbitrator who wanted to get their job back do a secret and slimy “patronage-check.” To our understanding, the folks who could demonstrate they had active and continuing political patrons who strongly supported Gov. Quinn or were solidly protected by the other side were allowed to return to their posts. For example, one former arbitrator we knew had a political patron that had passed away a year or two before the controversy arose — that former arbitrator lost his position.
 
Another immediate disqualifying factor was any arbitrator who, like former Arbitrator Carril had a pending or prior Illinois workers' comp claim or settlement. Basically, Gov. Quinn’s troops reached the conclusion retaliatory discharge for filing a workers' comp claim that is prohibited in the Kelsay v. Motorola ruling didn’t apply to what were now political posts. To our understanding, all the former arbitrators with pending or prior workers' comp claims were put in the “do-not-rehire” pile.
 
What happened next is several of the terminated former arbitrators filed lawsuits and sued the governor for their obvious mistreatment and those suits are all wending their way through our courts. One appellate ruling was just issued in the claim brought by former Arbitrator Peter Akemann and, without much surprise to anyone, denied him reinstatement to his position. In our view, former Arbitrator Akemann was a quiet, honest and decent man who did his job for both sides and worked hard for our state. His brother David Akemann is a sitting Circuit Court judge. We consider both of them to be above reproach and great jurists. We feel the mistreatment of former Arbitrator Akemann by the current administration to be the worst sort of partisan politics.
 
What Was the Biggest Problem with these “Deforms??”
 
The concerns we raise in response to these decisions are two-fold.
 
First, we want our readers to understand our view Illinois workers' comp arbitrators can’t and should never be political appointees, but under Gov. Quinn, they now are. Instead of reforming the positions, he has politicized them. The reason arbitrators had civil service protections was to insure they wouldn’t be subject to the whims of the party in power. One of the worst things an arbitrator faces is listening to and considering the evidence and making a determination for one side or the other and then getting summarily fired because their honest and fair decision upset a powerful lawyer or union boss. Arbitrators aren’t supposed to work at the whim of their parties' litigants.
 
Please also note the Illinois workers' compensation system has an administrative appeal process that allows the arbitrator’s ruling to quickly be brought before an openly political group — the three-member commission panel reviews the arbitrator’s decision in a “de novo” appeal. The Commission panel is composed of a member of Illinois labor, management and one member that is supposed to represent “the public.” We feel this is a strong system for adjudicating questionable WC issues.

Second, the other problem with the humiliating challenge and sudden ouster of many of our former arbitrators targeted the wrong people. We assure our readers, the problem wasn’t with the arbitrator staff — the issue should have been the mismanagement of claims by the Central Management Services state agency who was charged with actual management of all Illinois state workers’ comp claims. We understand lots of state claims adjusters also brought claims to get settlements for themselves — unlike the arbitrators, the adjusters weren’t summarily canned.
 
The CMS agency has been criticized by Attorney General Lisa Madigan and State Auditor William Holland. The agency has not gotten any better under Governor Quinn. It remains something of a hilarious mess — for one example, a large state institution in Chicago is still being “defended” or represented by a prominent plaintiff attorney. That defense work hasn’t been put out to bid for more than a decade.
 
We were also advised at one point, CMS had about 25,000 pending workers' compensation claims with only a handful of adjusters to keep watch over your money in paying out workers' comp benefits to state workers. The analogy we draw to that mismanagement model is a prison with 10,000 prisoners and three guards — the managers can proudly confirm how much they are saving on payroll and benefits for the guards, but the real costs are stopping the hundreds of jailbreaks and hunting down all the prisoners who are escaping. In the same way, state government workers and their legal counsels were making zillions of dollars on questionable claims because of the cacophony and confusion caused by this understaffed agency.
 
That group was and still is misspending $150 million or more a year on Illinois state workers with workers' comp claims in a comical fashion. We feel no state dumps as much money into workers comp benefits than our state on a pro rata basis. For another example, we assure our readers there may be over a thousand state workers who have been adjudicated “odd-lot” total and permanent disability recipients — all of them could be returned to work, if the state would simply locate jobs in other agencies for them. In our view, the mismanagement of state claims by this agency poisoned many claims arising in the private sector. Another hilarious part of the mishandling of your tax dollars by CMS was their WC claims computer database was hilariously out of date and was 30-40 years old. Basically, if you asked the adjuster for any data or information about what they were doing or spending, you would be advised they didn’t have the staff to go through all the paperwork to figure out how to answer you.

What the Quinn administration did to “deform” this issue was quickly and quietly issue a request for proposal to obtain an outside claim service to come in and try to make sense of the tens of thousands of pending and questionable workers' comp claims. Rather than select an Illinois claims management company, Quinn’s folks selected TriStar Risk Management out of California. To our understanding, TriStar is doing their best with the onerous task they have been given. Another issue is sometimes they have money to pay vendors and claims and sometimes they don’t. Finally, to heighten the level of mismanagement of Illinois state government workers' comp claims handling, the state didn’t terminate the CMS adjusters who previously handled the claims when they were replaced by TriStar, There is now an ongoing tug-of-war over who is in charge of the whole mess.
 
We do feel the Quinn administration did make the Illinois Workers' Compensation Commission more professional and things have gotten dramatically fairer for all sides. We don’t feel the arbitrators who were let go were given a fair chance and we hope sitting arbitrators are allowed to do their jobs as they see fit. We also hope someone again takes a long, hard and open look at CMS and TriStar to see if that combination is working and much more effectively handling workers' comp claims by state workers.

Gene Keefe is a founding partner of the Keefe, Campbell & Biery workers' compensation defense law firm in Chicago. This column was reprinted with his permission from the firm's weekly client newsletter.