No. 3--05--0014 Filed April 6, 2006.

_________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2006 LARRY E. NYKAZA, )Appeal from the Circuit Court ) of the 21st Judicial Circuit, Plaintiff-Appellant, ) Iroquois County, Illinois, ) ) v. ) ) THE DEPARTMENT OF EMPLOYMENT ) SECURITY, an administrative ) agency of the State of ) No. 04--MR--33 Illinois; DIRECTOR OF THE ) DEPARTMENT OF EMPLOYMENT ) SECURITY BOARD OF REVIEW, an ) administrative agency in the ) State of Illinois; & ASPLUNDH ) TREE EXPERT CORPORATION, ) employer; ) Honorable ) Gordon L. Lustfeldt, Defendants-Appellees. ) Judge, Presiding.

_________________________________________________________________ JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________ The plaintiff, Larry E. Nykaza, applied to th e Illinois Department of Employment Security (IDES) to recover unemployment insurance benefits . The claims adjudicator denied the claim pursuant to section 601(A) of the Unemployment Insurance Act (Act) (820 ILCS 405/601(A) (West 2002)). Section 601(A) generally states that one is ineligible for unemployment benefits when one leaves work voluntarily and without good cause attributable to the employer. The plaintiff's appeal2 of that decision to the referee was also unsuccessful. In his appeal to the IDES Board of Review (Board), the plaintiff attempted to raise a new argument, namely, that he was entitled to benefits under se ction 601(B)(2) of the Act (820 ILCS 405/601(B)(2) (West 2002)). Secti on 601(B)(2) provides that section 601(A) does not apply to someone who leaves wo rk voluntarily to accept other bona fide work. The Board affirmed the denial of benefits without making refer ence to plaintiff's section 601(B)(2) argument. The plaintiff sought adminis trative review in the circuit court, which affirmed the Board's decision. We reverse and remand with directions to order the Board to consider the plaintiff's section 601(B)(2) argument. FACTS The plaintiff worked as a tree trimme r for Asplundh Tree Expert Corporation (Asplundh) for approximately 2 2 years when he quit his job on February 11, 2003. He applied for unemployment insurance benefit s on December 11, 2003, claiming that increased transportation distances and their asso ciated costs caused him to quit his job. Asplundh filed a protest to the plai ntiff's claim, claiming that the plaintiff voluntarily quit to start his own business. An IDES claims adjudicator interviewed t he plaintiff on December 23, 2003. The plaintiff told the claims adjudicator that he quit his job to start his own business due to increased transportation distances and their associ ated costs. He also said that he was self-employed from around March or April of 2003 to November 28, 2003 , but that the work was seasonal and he would not be resuming it unt il March or April of 2004. Basing her decision on section 601(A), the claims adjudicator found that (1) the plaintiff voluntarily quit3 to start his own business; (2) his leaving wa s not attributable to Asplundh; and (3) his leaving did not constitute "good cause" under section 601(A). Accordingly, the claims adjudicator denied the plaintiff's claim. The plaintiff timely filed an appeal to a refer ee, stating that he wa s forced to quit "to try my own tree business." The referee held a telephonic h earing on January 27, 2004. The referee stated that the i ssue at the hearing was whether the plaintiff left his job for good cause attributable to the em ployer under section 601(A). The plaintiff did not raise his section 601(B)(2) claim during the hearing, and the only comment the plaintiff made that could relate to such a claim was, "I was spendin [sic] ahh like a third of my paycheck for transportation and that's why I tried my own busi ness." In his written decision, the referee found that the plaintiff yielded to the increased transportation distances by remaining in the position for two more years. The referee affi rmed the claims adjudicato r's decision, stating that the plaintiff was ineligib le for benefits under section 601(A). On February 5, 2004, the plaint iff mailed a letter to the Board in which the plaintiff requested to enter evidence into his file for furt her appeal. The plaintiff stated that his selfemployment was not discussed bef ore the referee and that he migh t be eligible for benefits under section 601(B)(2). The Board re ceived the letter on February 9, 2004. On February 26, 2004, the plaintiff mailed a second letter to the Board in which he stated his intent to appeal the referee's decisi on. He also requested a transcript of the telephonic hearing. The plaintiff claimed that the increased transportation distances did constitute good cause attributable to Asplundh and that he remained in the position for two more years to save money to start his ow n business. Once he had enough money, he quit to start his own business. The Boar d received the letter on February 27, 2004.4 On March 26, 2004, the Board mailed a lette r to the plaintiff in which the Board acknowledged the plaintiff's transcript request. On April 5, 2004, the Board sent a second letter to the plaintiff saying, among other things , that any written argum ents that the plaintiff wanted the Board to consider must be postmarked by April 26, 2004. The Board mailed its written decision on May 19, 2004. In full, the Board's decision stated the following: "This is an appeal by the claimant fr om a Referee's decision dated January 28, 2004. We have reviewed the entire reco rd, including the claimant's application for benefits and the transcript of the Referee's hearing. We find it adequate and the further taking of evidence unnecessary. We also find, after due consideration, that the Referee's decision is supported by t he record and the law. We, therefore, incorporate it as part of our decision and affirm the denial of benefits as stated therein. The employer is a party to these proceedings." The plaintiff filed a complaint for administrat ive review with the ci rcuit court. At the hearing on the complaint, plaintiff argued that he was entitled to benefits under section 601(B)(2). The court denied the plaintiff's claim. ANALYSIS Plaintiff argues that the agency erred when it failed to grant him benefits under the "bona fide work" exception listed in section 601(B)(2). 1 The defendants' sole response to the plaintiff' s section 601(B)(2) ar gument is that he waived the issue because he failed to rais e it before the administrative agency.

1 On appeal, the plaintiff has abandoned his section 601(A) "good cause" claim.5 It is well-settled that if an argument is not presented in an administrative hearing, the argument is waived and may not be raised for the fi rst time on appeal. Hafele & Associates v. Department of Employment Security , 308 Ill. App. 3d 983, 721 N.E.2d 782 (1999). The question that arises in this case is whether the plaintiff in fact raised his section 601(B)(2) argument before the admin istrative agency when his first request to present the argument was in his appeal to the Board. We are unaware of any Illinois precedent that establishes a standard for adequately raising an issue before the administrative agency. The United States Court of Appeals for t he Federal Circuit has held that the "standard for assessing whether an issue was adequately raised before the administrative agency is that 'the issue must be raised with sufficient specificity and clarity that the tribunal is aware that it must decide the issue, and in sufficient time that the agency can do so.' [Citation.]" Conant v. Office of Personnel Management , 255 F.3d 1371, 1375 (Fed. cir., 2001); see also Wells v. Portland Yacht Club , 771 A.2d 371, 373 (2001) ("An issue is considered raised and preserved for appeal 'if there is sufficient basis in the record to alert the court and any opposing party to the existence of that issue.' [Citat ion.]"); Citizens for Mount Vernon v. Cit y of Mount Vernon , 133 Wash. 2d 861, 869, 947 P.2d 1208, 1213 (1997) ("In order for an issue to be properly raised before an administrative agency, there must be more than simply a hint or a slight reference to the issue in the record."). In this case, the record shows that the plai ntiff quit his position with Asplundh to start his own business. Asplundh's protes t stated that the plaintiff volu ntarily quit to start his own business. When interviewed by the claims adjudi cator, the plaintiff said that he was selfemployed from around March or April of 2003 to November 28, 2003, but that the work was seasonal and he would not be re suming it until March or April of 2004. The claims6 adjudicator's determination indicat ed that the plaintiff quit to start his own business. While the plaintiff did not raise his section 601(B)(2) argument at the telephonic hearing, the plaintiff did subsequently send two letters to t he Board stating that he wanted the Board to consider a section 601(B)(2) claim. These lette rs were sent long befor e the Board's cut-off date for the plaintiff to file wri tten arguments. Based on these facts, we find that the plaintiff raised the issue with sufficient specificity and clar ity that the Board was aware that it must decide the plaintiff's secti on 601(B)(2) argument. See Conant , 255 F.3d 1371. Because the Board is the agency's trier of fact (Hor ton v. Department of Employment Security , 335 Ill. App. 3d 537, 781 N.E.2d 545 ( 2002)), we find that the plaintiff raised the issue in sufficient time for the agency to decide it. Finally, we note the mandatory language of section 601(B) (820 ILCS 405/601(B) (West 2002)), which states that "[t]he provisi ons of [section 601(A)] shall not apply to an individual who has left work vo luntarily" under some excused si tuation, such as the "bona fide work" exception in section 601(B)(2). U nder these circumstances, we decline to hold that the plaintiff waived his 601(B)(2) argument. The judgment of the circuit court of Iroquois County is reversed, and the case is remanded with directions to order the IDES Boar d of Review to consider the plaintiff's section 601(B)(2) argument. Reversed and remanded with directions. BARRY and O'BRIEN, JJ., concurring.