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6. Central Wisconsin Inspection Services of Custer, Wisconsin claims $1,049,057.00 for lost profits related to termination of tank inspection contracts with the Department of Commerce and its predecessor, the Department of Industry, Labor and Human Relations. Since July 1994 DILHR and Commerce have failed to award several bid inspection contracts under Bid #JK-1604 in jurisdictions where the claimant was the low bidder, in alleged breach of an agreement with Terry Bauer, one of the owners of the claimant company. As part of this agreement, DILHR agreed not to discriminate against the claimant in any manner regarding its contracts. On October 24, 1996, the claimant states that it first became aware of a significant defect in the bid awarding process conducted by DILHR and Commerce, in that DILHR and Commerce failed to identify a particular category of tanks, which should have been bid on and paid for. As a result, the claimant claims it was not awarded additional bid inspection contracts under Bid #JK-1604 where the claimant was or would have been the low bidder. Prior to October 1994, the claimant and other contractors had been charging a fee for the supervision of the removal of underground storage tanks. Thereafter a Cease and Desist Order regarding the charging of such fees was issued by DILHR. Subsequently, several appeals were filed by the claimant and others regarding said Cease and Desist Order, which continues to date. In July 1996 the claimant was notified that its contracts were being terminated effective October 30, 1996. The claimant alleges that this termination is the culmination of a pattern of disparate and discriminatory treatment of the claimant by various DILHR and Commerce employes, based on personal animosities against Terry Bauer and also in retaliation for the filing of a separate lawsuit by the claimant against DILHR. Further, the claimant alleges that by such actions, the state has breached the claimant's contracts with the Department of Commerce and have interfered with the claimant's contracts with DILHR. The claimant states that the loss of the contracts will render the business defunct, which will in turn, result in the loss of livelihood for the shareholders and employes of the claimant. The claimant seeks monetary compensation for all losses resulting from the alleged wrongful termination of its contracts. The Department recommends denial of the claim. The claimant's theory of breach of contract is that Commerce was required to retroactively reassess the impact of subsequent changes in the number of tanks registered within a certain category of tanks on bids that had been submitted one or more years before, and then to readjust the jurisdictions accordingly. Nothing within the resignation agreement or any other binding contract supports this interpretation of Commerce's obligation under the agreement. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
7. Paul B. Cogswell of Gurnee, Illinois claims $2,678.76 for income taxes incorrectly submitted to the Wisconsin DOR by his employer. The claimant last lived in Wisconsin in 1986 and has since lived in Illinois. In 1989, the claimant's employer, Marshall Field's, made an error pursuant to a change in their payroll system and submitted the claimant's withheld taxes to Wisconsin. In 1991, the State of Illinois requested the 1989 taxes, which they had not received. The claimant paid the taxes to Illinois, however, he was not able to discover where his withholdings had gone because Marshall Field's was sold into new ownership and the needed records could not be located. The claimant had not been a Wisconsin resident since 1986 and, therefore, never thought that Wisconsin had received his withholdings. The claimant understands that section 71.75(2), Wis. Stats., states that a claim for refund must be made within four years, however, he points to the fact that these funds were not paid by a resident nor pursuant to the filing of a tax return by a legal resident of the state. The claimant therefore believes the funds should be considered escheatable property and remain in trust in perpetuity by Wisconsin pursuant to a request being made by the rightful owner for the return of the property. The Department of Revenue
recommends denial of this claim. Section
71.75(2), Wis. Stats., provides that a claim for refund must be made within four years of the unextended due date of the return. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. The Board further concludes this claim would be more appropriately pursued against Marshall Fields, or its assigns.
8. Robert Wilkes of Elcho, Wisconsin claims $5,429.11 for return of a levy against his account as well as a 1991 Homestead tax credit. The claimant's financial records were misplaced when he was hospitalized. He was again hospitalized in 1994 during which time his home was sold and his records put in storage. The Department of Revenue issued assessments for the claimant's 1991 and 1992 income taxes in October 1994. In 1996 the Department levied $4,269.11 from the claimant's bank account. The claimant filed his 1991 and 1992 returns in February 1997, he did not owe any taxes but was denied his $1,160.00 homestead credit for 1991 because the return was filed four years after the original due date. The claimant filed his taxes as soon as he was able and requests that he be reimbursed for his overpayment and homestead credit. The Department of Revenue recommends the claim be denied. Section
71.75(5), Stats., prohibits the Department from refunding money that was applied to the original assessments for 1991 and 1992 since no refund was claimed within the prescribed two-year time period. The Board concludes the claim should be paid in the reduced amount of $2,100 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Claims Board appropriation s.
20.505 (4)(d), Stats.
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9. The Bank of Homewood of Homewood, Illinois claims $178,548.40 for payment of waste tire reimbursement grant money. The claimant files this claim on behalf of National Tire Services (NTS). NTS has filed for bankruptcy and the claimant is a secured creditor of NTS. From 1992 through 1995, NTS participated in the DNR's grant program for processors of waste tires. Under this program, certified processors were eligible for specified payments for waste tires picked up in Wisconsin and delivered to acceptable end users. NTS filed an application to receive payment for waste tires picked up between 1992 and 1994. The claimant states that the application and information contained in DNR's records established NTS' entitlement to a payment of not less than $178,548.40. Furthermore, NTS picked up additional tires in 1995 and delivered these tires to appropriate end users. While NTS did not file and application for these tires, NTS should be entitled to payment for all qualifying tires picked up in 1995. The claimant contends that NTS' application is complete when supplemented with certifications received from WP&L and other information contained in DNR's records. Based on its pre-bankruptcy loan documents and/or the financing orders approved by the bankruptcy court, the claimant has a first priority security interest in the monies owed to NTS by DNR. Finally, the claimant asserts that the state's setoff claim predicated on NTS' alleged failure to pay withholding and employment taxes is impermissible under bankruptcy law (11 USC s. 553). The Department of Natural Resources recommends denial of this claim. First, the original grant application received from NTS in February 1995 was deficient and the amount requested unsubstantiated. Second, liens and other acknowledged claims, including setoffs to the state for unpaid taxes have not been satisfied. Third, monies appropriated by the Legislature for the waste tire program have been exhausted and the remaining monies collected have reverted to the General Fund. Finally, payment of this claim might be viewed as precedent by the 25 other businesses that did not receive full grant funding for 1995 because of the reversion of monies to the General Fund. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. (Member Main not participating.)
10. Vera J. Cross of Beloit, Wisconsin claims $190.73 for medical bills and new eyeglasses. On May 1, 1997, while visiting the Executive Residence in Madison, the claimant tripped and fell and broke her glasses. She alleges that the cause of her fall was broken concrete in the driveway of the residence. The claimant had to have her eyes examined before she could get new glasses. She requests reimbursement for the eye exam and her new glasses. The Department of Administration recommends denial of this claim. The officer on duty at the Executive Residence on the day of the accident has stated that the fall took place outside the fence of the residence. He also indicated that the cause of the fall was the difference between the Maple Bluff road and the lawn adjacent to the road. The claim that this was caused by concrete that was in disrepair is unfounded, as an inspection of the concrete at the residence did not produce any area that needed repair. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. (Member Main not participating.)
11. Gerald J. Herbst, Jr. of Cedarburg, Wisconsin claims $2,988.60 for damage to the basement of his home, which was allegedly caused by nearby road construction. In 1992 the Department of Transportation began a road construction project near the claimant's home. The claimant noticed that as equipment passed his home, the whole house shook to the point where pictures fell off the walls. Immediately after completion of the project the claimant began noticing cracks in the basement floor. In the spring of 1993 water began coming up through the cracks. The claimant tried to remedy the problem himself by patching the cracks. The water problem returned in the spring of 1994 and the claimant realized he needed professional repair. He contacted the Department to try and get their assistance. He states that he was passed around from office to office, including that of the project contractor, Musson Brothers. In 1996 he was finally referred to Barbara Bird, the Department's Assistant General Counsel. The claimant alleges that in spring of 1997 a Department representative came to the claimant's house and acknowledged that a problem existed. The claimant had the damage to his basement professionally repaired and requests reimbursement of his repair costs. The claimant states that the only thing that occurred between having cracks in his basement and not having cracks, was the highway project, therefore it must have caused the cracks. The Department finds no evidence to support his theory and recommends denial of the claim. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
12. Gloria S. Martell of Chippewa Falls, Wisconsin claims $231.79 for vehicle damage caused by a resident of Northern Wisconsin Center, where the claimant is employed. While walking from one building to another a resident became agitated, ran over to the claimant's car, broke off the antenna and scratched the hood. The resident has a history of this sort of behavior. The claimant's insurance covers collision damage only. She requests reimbursement for the cost to repair her vehicle and replace the antenna. Under similar circumstances, even though there is no showing of negligence, the Department recommends that claimants be reimbursed up to the amount of their insurance deductible. In this case, the claimant chose not to insure her vehicle against this type of damage so there is no deductible. The state cannot assume the responsibility of an insurance company. However, based on equitable principles, the department recommends the claimant be reimbursed $100. The Board concludes the claim should be paid in the reduced amount of $100.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Health & Family Services appropriation s.
20.435 (2)(gk), Stats.
13. Thomas C. Smith of Green Bay, Wisconsin claims for a lost television, which he alleges was sent to a third party without his authorization. The claimant was transferred from Oshkosh Correctional Institution to Fox Lake Correctional Institution. When he arrived at FLCI, he noticed that his television was missing. He contacted OCI and was told that they had mailed his TV to a Lula Bass because the TV had a timer and was not allowed at FLCI. The claimant states that he was never contacted about disposing of the television, contrary to OCI rules and that he did not give his approval for them to send the TV to Ms. Bass. The address to which OCI mailed the TV was out of date; Ms. Bass had moved several months earlier. The claimant has not been able to recover his television. He requests $188.72 for the TV. The claimant also requests $500 punitive damages and $500 for pain and suffering because of the "tremendous pain and heartache
sleepless nights and loss of appetite from the frustration of trying to recover [his] TV." The Department of Corrections recommends denial of this claim. The claimant's property was inventoried and mailed out in March 1993 and OCI appropriately relied on his official approved visitors' list in shipping the TV to someone who had picked up his property in the past. There is no state employe negligence nor is there and equitable basis for payment of this claim. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
14. InterCon Construction of Madison, Wisconsin claims $5,879.17 for costs incurred responding to a diesel spill in March 1993 near Janesville. The claimant was contacted by the Department of Natural Resources to perform clean-up work at the site of an overturned semi-tractor/trailer, which was leaking diesel fuel. The claimant responded immediately and by its prompt assistance, helped to prevent a much greater environmental problem. The Department stated that it was acting on behalf of the owner of the vehicle, Interstate Transit, Inc. of Marion, Indiana when it requested the claimant's assistance. The owner of the vehicle is financially unable to pay the bill and their insurance company has refused coverage. The claimant has employed legal counsel to try and collect payment from the vehicle owner but has only been able to collect $200. The claimant requests reimbursement of its costs from the clean-up. The claimant is willing to reduce its claim to $5,000 in order to expedite payment. The Department recommends payment of $5,000 based on equitable principles. The Board concludes the claim should be paid in the reduced amount of $4,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation s.
20.370 (2) (dv), Stats.
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15.
Milwaukee Police Association claims $4,500 for recovery of a forfeiture imposed by the Ethics Board. The claimant, a lobbying principal, forfeited $4,500 for making a campaign contribution of the same amount, through a Political Action Committee, outside a "window period" established by the Ethics Board. The Ethics Board imposed this forfeiture based on an opinion that a PAC, which is established by a principal, may only contribute to a candidate during a "window period" between June 1 and the date of the general election. On February 23, 1994, Dane County Circuit Court struck down the Ethics Board ruling with regards to the "window period" campaign contributions, holding that the PAC was not barred from making a contribution outside the "window period" because the PAC does not come within the definition of either "lobbyist" or "principal" and therefore is not subject to restrictions imposed on lobbyists or principals. The claimant's situation is the same as that in the referenced case, therefore, the claimant requests return of the forfeiture imposed by the Ethics Board. The Ethics Board recommends denial of this claim. The claimant voluntarily paid the forfeiture in connection with its acceptance of the Board's settlement offer and the claimant's acceptance of the Settlement Agreement. As a result, the Ethics Board did not conduct an investigation of the matter or proceed to a hearing to make factual determinations. The claimant had every opportunity to allow a full investigation of the matter and to present its legal and factual arguments to an independent hearing examiner. It could have sought review of any adverse decision of the Circuit Court and raised the same legal issues as in the above referenced case. It chose not to do so and instead, now seeks to substitute the Claims Board as its preferred forum. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. (Member Lee not participating.)
16. Annie Daniel of Racine, Wisconsin claims $5,000 for attorney's fees incurred when the claimant was charged with abuse of a resident by the Racine County District Attorney. The Claimant is employed at Southern Wisconsin Center and was accused of striking a resident while on duty on October 9, 1992. She contracted with legal counsel for a flat fee of $5,000 to defend her against the charge. The case was dismissed after a preliminary hearing on the grounds that the allegations were not plausible. The Racine County DA and the Department of Health & Family Services recommend denial of this claim. Under s.
775.11, Stats., the claimant is entitled to compensation only if she is found not guilty. The Board concludes the claim should be paid in the reduced amount of $3,500 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Claims Board appropriation s.
20.505 (4) (d), Stats.
The Board concludes:
1. The claims of the following claimants should be denied:
William Deppen
Gary Heinrichs
Cleansoils Wisconsin, Inc.
Terrence P. Bauer
Central Wisconsin Inspection Services
Paul B. Cogswell
Bank of Homewood
Vera J. Cross
Gerald H. Herbst, Jr.
Thomas C. Smith
Milwaukee Police Association
2.Payment of the following amounts to the following claimants is justified under s.
16.007, Stats:
Lulloff's Used Cars $5,000.00
Robert E. Wilkes $2,100.00
Gloria S. Martell $100.00
InterCon Construction, Inc. $4,000.00
Annie Daniel $3,500.00
Dated at Madison, Wisconsin this _30_th day of October 1997.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Sheryl Albers
Assembly Finance Committee
Brian Burke
Senate Finance Committee
__________________
By Charles Sanders, chief clerk.
Mr. President:
I am directed to inform you that the Assembly has passed and asks concurrence in:
Assembly Bill 93
Assembly Bill 118
Assembly Bill 167
Assembly Bill 273
Assembly Bill 340
Assembly Bill 342
Assembly Bill 392
Assembly Bill 419
Assembly Bill 455
Assembly Bill 502
__________________
Assembly Bill
93
Relating to: abuse of vulnerable adults and providing penalties.
By Representatives Krusick, Ainsworth, Black, Bock, Carpenter, Dobyns, Freese, Gunderson, Hahn, Hasenohrl, Kelso, Kreuser, Ladwig, La Fave, J. Lehman, Meyer, Musser, Notestein, Olsen, Ott, Ourada, Plale, R. Potter, Powers, Riley, Ryba, Seratti, Springer, Steinbrink, Turner, Walker and Wasserman; cosponsored by Senators Buettner, Drzewiecki, Farrow, Huelsman, Plache, Rosenzweig and Wirch.
Read first time and referred to committee on Judiciary, Campaign Finance Reform and Consumer Affairs.
Relating to: qualified domestic relations orders under the Wisconsin retirement system.
By Representatives R. Young, Baldwin, Boyle, Gronemus, La Fave, Notestein, Robson and Turner; cosponsored by Senators Grobschmidt, Buettner and Adelman.
Read first time and referred to committee on Economic Development, Housing and Government Operations.
Assembly Bill
167
Relating to: changing the name of a minor.
By Representatives Foti, Ladwig, Handrick, Riley, Duff, Dobyns, Goetsch, Gronemus, Williams, Hutchison, Lorge, Musser, M. Lehman, Cullen, Hahn and Ward; cosponsored by Senators Buettner, Farrow, Welch, Panzer and Rosenzweig.
Read first time and referred to committee on Judiciary, Campaign Finance Reform and Consumer Affairs.
Assembly Bill
273
Relating to: the regulation of dental hygienists, creating a dental hygienists affiliated credentialing board, granting rule-making authority and providing penalties.
By Representatives Powers, Robson, Zukowski, Hanson, Kreibich, Turner, Hahn, Musser, Bock, Vander Loop, Notestein, Olsen, Johnsrud, Kaufert and J. Lehman; cosponsored by Senators Clausing, Zien, Plache and Risser.
Read first time and referred to committee on Health, Human Services, Aging, Corrections, Veterans and Military Affairs.
Assembly Bill
340
Relating to: exempting certain vehicles that are used primarily off a highway from vehicle registration
By Representatives Ainsworth, Albers, Gard, Goetsch, Grothman, Hahn, Musser, Nass, Olsen, Ott, Owens, Powers, Seratti, Sykora, Ward and Skindrud; cosponsored by Senators A. Lasee and Zien.
Read first time and referred to committee on Labor, Transportation and Financial Institutions.
Assembly Bill
342
Relating to: rights of victims of crime, granting rule-making authority and providing a penalty.
By Representatives Krug, Green, Rutkowski, Duff, R. Potter, Schneider, Brandemuehl, Baumgart, Dobyns, Black, Freese, Boyle, Hahn, Carpenter, Harsdorf, Coggs, Seratti, Hanson, Sykora, Hasenohrl, Underheim, Ryba, Walker, Springer, Travis, Huebsch, Turner, Vander Loop, Hutchison, Wasserman, Kelso, L. Young, Ladwig, Ziegelbauer, F. Lasee, Hebl, Lazich, Huber, J. Lehman, Kreuser, M. Lehman, La Fave, Lorge, Meyer, Musser, Morris-Tatum, Olsen, Notestein, Plale, Ourada, Plouff, Porter, Riley, Robson, Albers and Bock; cosponsored by Senators Moore, Huelsman, Adelman, Plache, Welch, C. Potter, Wirch, Rosenzweig, Moen, Grobschmidt and Drzewiecki, by request of Attorney General James Doyle; Crime Victims Council; Wisconsin Coalition Against Sexual Assault; Parents of Murdered Children; Mothers Against Drunk Driving; Wisconsin Chiefs of Police Association; Wisconsin Victim/Witness Professionals Association; Coalition of Wisconsin Aging Groups; Wisconsin Merchants Federation; AFSCME, Locals 3021 and 3394 (Correctional Officers).
Read first time and referred to committee on Judiciary, Campaign Finance Reform and Consumer Affairs.
Assembly Bill
392
Relating to: the farm mediation and arbitration program, eliminating the farm mediation and arbitration board, the farmer assistance program, exit from and entry into the dairy industry, granting rule-making authority and making an appropriation.
By Representatives Ott, Otte, Brandemuehl, Sykora, Ward, Hahn, Ainsworth, Powers and Owens; cosponsored by Senator Roessler
.
Read first time and referred to committee on Agriculture and Environmental Resources.
Assembly Bill
419
Relating to: motor vehicle pursuit by law enforcement officers, training of law enforcement officers, requiring the exercise of rule-making authority and providing a penalty.
By Representatives Hanson, Goetsch, Musser, Travis, R. Potter, Cullen, Notestein, R. Young, Ziegelbauer, Murat, Hutchison, Lazich, Olsen, Freese, Nass, Robson, Plouff, Skindrud, M. Lehman, Baldwin, Albers, Owens, Wasserman, Krusick, Hasenohrl, Bock, Gronemus, Staskunas and Walker; cosponsored by Senators Adelman, Huelsman, Drzewiecki, Rude, Roessler, Clausing, Farrow, Risser, Plache, Grobschmidt and Zien.
Read first time and referred to committee on Judiciary, Campaign Finance Reform and Consumer Affairs.
Assembly Bill
455
