APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
518 N.E.2d 768, 165 Ill. App. 3d 83, 116 Ill. Dec. 146 1988.IL.24
Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Director of the Illinois Department of Employment Security (Director), appeals from the judgment of the circuit court which reversed, as against the manifest weight of the evidence, an administrative decision which found the plaintiff, Legal Process Service, Inc. , an employer as defined by section 205 of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 300 et seq.) (Act), and assessed contributions and penalties due from LPS in the amount of $10,306.85 plus interest. On appeal, the defendant contends that the circuit court erred when it reversed the Director's original decision and determined that the individual legal process servers engaged by LPS are independent contractors under the three-part test outlined in the Act. For the reasons set forth below we reverse.
The following facts form the basis of this appeal. On February 8, 1984, the Illinois Department of Employment Security determined that LPS was an employer as defined by section 205 of the Act and assessed the amount of contributions and penalties due from LPS to be $12,164.38 plus interest. After LPS filed a protest, several hearings were held.
At the administrative hearing held on July 11, 1985, the president of LPS, Chapin Wood, testified that the plaintiff is a corporation engaged in the business of procuring legal papers for service of process and in this capacity mainly works for lawyers. In addition to serving process, he testified that LPS also does "skip tracing," which involves locating witnesses or litigants for lawyers. Wood explained that he solicits lawyers to obtain business and he is responsible for the daily operation of the business. He also stated that although the fees that LPS charges its customers are set by contract, LPS bases that rate on the statutory rate applicable to service by the sheriff. LPS does charge more than the statutory rate, however, when a particular service demands more work. To qualify as a process server, an individual must be of legal age and not a party to the suit for which he is serving process. In addition, a process server must be court-appointed.
Wood further testified that after he chooses the individual he wishes to engage as a process server, he matches that individual to the customer/attorney for assignment. Wood stated that it remains the customer's responsibility, however, to insure that the individual is appointed by the court. Once the court appoints the process server, LPS then contacts the individual and turns over the papers, either at the LPS office or through the mail. Wood also testified that he did not control or direct the process servers' activities in serving papers. Wood explained that remuneration paid to the process server is set by agreement between the individual and LPS, with payment contingent on proper service. Wood stated that occasionally a process server refuses to perform an assignment. Wood added that the process servers often contact LPS if they wish additional assignments. Finally, Wood stated that LPS issued paychecks monthly to individual process servers but does not withhold any deductions from the checks.
Several individual process servers who serve papers for LPS also testified. Richard Thomas, a high school principal, stated that he began serving papers to supplement his income four years ago. He stated that LPS does not require him to serve a set number of papers and he has rejected assignments as well as requested additional assignments. Thomas stated that, given the due date on the papers, he alone determines the specific time and method of service. Like all the other individual process servers who testified, Thomas stated that he never used LPS's offices in the performance of his service assignments.
Steve Randazzo, a State records analyst, testified that he began serving papers for LPS in 1980. He stated that he serves between 5 and 30 per week and receives his assignments through the mail. Robert Wright, another process server, stated that he is employed at a newspaper and also has a seasonal rototilling business. He stated that LPS has no control over the method by which he serves his papers. Peter Liou, the fourth process server, testified similarly. Finally, Ross Green, a licensed private investigator and an LPS process server, stated that he chooses when and how to carry out his assignments.
On May 7, 1986, the Director issued a final administrative decision which affirmed the representative's finding that the process servers were not exempt as independent contractors under the Act. Specifically, the Director noted that while the process servers are similar in some respects to cab drivers or outside salesmen in that they receive payment in the form of a commission, they have no customer contact and they, in that respect, are similar to home workers or installers, positions which the Act considers "employment." The Director also found that as it is LPS which (1) interacts with the customer/attorney and (2) jobs out the work and pays remuneration, this remuneration is considered "wages." Finally, the Director determined that where the process servers used LPS as their sole source of process serving assignment work, the Act had not been complied with and the additional fact that these process servers all had other unrelated employment was irrelevant. On administrative review the circuit court reversed this decision as against the manifest weight of the evidence.
The sole issue in this appeal is whether the Director's decision, that the individual process servers engaged by LPS are employees, is against the manifest weight of the evidence. The trial court is empowered to review the decisions of the Director of employment security subject to the provisions of the Administrative Review Law of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) The findings and Conclusions of administrative agencies on questions of fact are considered prima facie true and correct, and, therefore, a reviewing court's determinations are limited to whether those findings are contrary to the manifest weight of the evidence. (Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 389.) It is not the function of the court of review to reweigh the evidence before the administrative body or to make an independent determination of facts; rather, the reviewing court's sole function is to ascertain whether the final decision of the administrative agency is just and reasonable in view of the evidence presented. (Markowski v. Edgar (1986), 151 Ill. App. 3d 176, 180.) Wide latitude must be given to an administrative agency's exercise of discretion. (Neff v. Miller (1986), 146 Ill. App. 3d 395, 403.) However, if the administrative agency's findings lack evidentiary support in the record, the court of review must set them aside. Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 245.
On appeal the defendant contends that the circuit court erred when it reversed the Director's decision in that Legal Process Services, Inc., failed to establish that the administrative agency's decision was contrary to the manifest weight of the evidence. Specifically, the defendant maintains that the Director correctly determined that process servers are employees and not ...