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Donald R. Tracy v. Unemployment Compensation Board of Review

June 21, 2011

DONALD R. TRACY, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW,
RESPONDENT



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge

SUBMITTED: February 11, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY

PRESIDENT JUDGE LEADBETTER

Donald R. Tracy petitions this court for review of the order of the Unemployment Compensation Board of Review which affirmed the referee's determination that Claimant, Richard Barrett, was not rendered ineligible for unemployment compensation benefits by Section 402(h) of the Unemployment Compensation Law (Law).*fn1 The issue before us is whether the Board erred in finding that Claimant was not an independent contractor. After review, we reverse.

Tracy was the unsuccessful candidate for Lieutenant Governor of Illinois in the February 2, 2010, election. Claimant was hired by Tracy as his campaign manager for a one-month period from January 3, 2010, until February 2, 2010. Under the contract signed by the parties, Claimant was to be paid $3000 plus a stipend for a cell phone. After Tracy's unsuccessful bid for office, Claimant filed for benefits with the Erie Unemployment Compensation Service Center, which granted benefits for the week ending January 9, 2010, and January 16 through February 6, 2010.*fn2 Tracy appealed and a hearing was held before the referee on June 12, 2010, at which Claimant appeared and testified. Tracy and Tracy's witness, Glen Hodas, testified via telephone.

Tracy testified that he is an attorney with a private practice in Illinois and that he ran for Lieutenant Governor of Illinois in 2010. His campaign committee was "Tracy for Illinois" and was registered in Illinois and properly filed with the State Board of Elections. Tracy testified that Tracy for Illinois had no employees, just several volunteers as well as ten to fifteen independent contractors or consultants. Toward the end of his campaign, Tracy realized that he needed a campaign manager to organize the young volunteers. Claimant was recommended for the position. Tracy testified that Glen Hodas, a media consultant contractor with the campaign, interviewed Claimant over the phone and that Tracy later drew up a contract for Claimant. Tracy testified that Claimant was hired as a 30-day consultant for $3000 a month, along with a stipend for a cell phone. Claimant signed the contract on January 3, 2010, in Tracy's office in Illinois. Tracy further explained that he saw Claimant one to two times a week, that they spoke by phone four to five times a week and that while they did not have regular meetings, he would see Claimant either at the campaign office or his law office. After some of his campaign volunteers complained that Claimant was not doing any work, Tracy had Claimant make some political appearances for him, but he never gave Claimant a list of specific assignments or directions on how to perform his job. Tracy testified that Claimant was hired because he had both the life experience and political experience to organize and manage the rookie volunteers. Finally, Tracy testified that, win or lose, Claimant's position ended on February 2, 2010, the date of the election.

Glen Hodas testified that he used his network of political associates to find a campaign manager for Tracy for Illinois. Hodas testified that they needed a mature person with life experience, who also had communication and press experience, and that Claimant's resume and Linked-In page indicated that he had previous experience on a political campaign in Pittsburgh with the Harris for Mayor campaign. Hodas testified that he did not supervise Claimant, nor was Claimant required to work any specific hours or attend regular meetings. Hodas stated that he did not tell Claimant how to do his job and only gave advice if he was asked. Hodas testified that it was a typical arrangement in the business to have an independent contractor as a campaign manager.

Claimant testified that he spent six years as a political reporter in Illinois and knew that Tracy for Illinois needed someone who could network. He testified that the campaign supplied him with whatever he needed and that he was reimbursed for any supplies he bought and that the only thing he was not reimbursed for was his gas mileage. Claimant testified that he worked between ten and fourteen hours a day for Tracy and that they communicated on a daily basis. Claimant also testified that he followed the guidance provided by Tracy and Hodas with respect to certain aspects of his job that he was unfamiliar with, since most of his previous experience had been as a political reporter. Claimant stated that while he did work on the Harris campaign in Pittsburgh, it was an unpaid volunteer position and that the only other campaign he worked on as a paid employee was Mark Critz for Congress subsequent to Tracy's campaign.

The referee found that Claimant was hired as a campaign manager by Tracy and that he did not have a business or company for which he provided these services on a regular basis. Concluding that Claimant was not ineligible for benefits under Section 402(h) of the Law, the referee granted benefits.

Tracy appealed to the Board, which made the following findings of fact:

4. The claimant was hired as [Tracy's] campaign manager.

5. The claimant regularly met with [Tracy].

6. [Tracy] paid the claimant's ...


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