Wisconsin Legislature: 2003-01-10 Senate Journal

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

7. Dennis Gonzalez of Boscobel, Wisconsin claims $144.50 for additional compensation for photographs lost by DOC. The claimant, an inmate at the Wisconsin Secure Program Facility, states that DOC lost or stole 56, 8 x 10 color photographs. The claimant filed an inmate complaint and was reimbursed $140.00, half the cost of the photographs. The claimant alleges that these photographs do not depreciate, but instead increase in value over time. He therefore requests that he be awarded the remaining value of the photographs, plus the cost of shipping.

DOC recommends denial of this claim. DOC states that, while it was unfortunate that the claimant's property was misplaced, DOC has followed its standard policy in addressing the issue. DOC states that the claimant was reimbursed for 50% of the cost of each photograph ($2.50 each) in accordance with DOC's depreciation schedule. Pursuant to this schedule, commercial photographs are considered publications and are depreciated at 50%. DOC agrees with the Corrections Complaint Examiner, who noted, "Depreciation is a real factor when dealing with property and insurance companies take a very similar approach in the outside world. In this case, the DOC depreciation schedule was appropriately applied." DOC does not believe that the claimant is entitled to any further compensation for his damages.

8. Dennis Gonzalez of Boscobel, Wisconsin claims $32.16 for property allegedly misplaced by DOC personnel. The claimant, an inmate at the Wisconsin Secure Program Facility, states that DOC personnel took his property and did not inform him of what specific items were being seized, as required by section DOC 306.15 of the Wisconsin Administrative Code. The claimant states that the property was taken when he was placed on restrictions but that it was not returned when the restrictions were lifted.

DOC recommends denial of this claim. DOC records indicate that on May 1, 2002, the claimant received a Conduct Report for disobeying orders and misuse of state and federal property because he covered the camera in his cell with toilet paper. As a result of the Conduct Report, the claimant was placed on restrictions and all personal items that could be used to obstruct the view of his cell (toothpaste, lotion, paper, etc.) were removed from his cell until the restrictions were lifted on May 15, 2002. The claimant filed an Inmate Complaint on May 16th, alleging that some of his property was not returned. The ensuing investigation determined that DOC misplaced a wireless notebook and two legal pads and the claimant was reimbursed $2.35 for those items. DOC points to the fact that the Institution Complaint Examiner noted that some of the missing items were purchased as far back as March 2001 and that it was highly unlikely that items such as conditioner and lotion were still in the claimant's possession as of May 2002. The claimant's allegations have been investigated by the institution and responded to accordingly through the Inmate Complaint System.

9. M.H. Ranch, Inc., of Westfield, Wisconsin claims $1,636.40 for damages related to the removal of a sign advertising the claimant's business. The claimant states that in June 2000 it contacted Marquette County regarding permission to place a sign off I-39 at the Westfield exit ramp. The claimant states that the county gave them the okay but told them that they also needed to contact DOT because it was unclear who owned the land in question. The claimant states that they spoke with John Zielinski at DOT, who met with the claimant's employee at the site and discussed placement of the sign. The claimant alleges that Mr. Zielinski flagged a specific spot where they could place their sign and that they had the sign installed on that spot. In December 2001, the claimant again contacted Mr. Zielinski to discuss installing an improved, larger sign. The claimant alleges that Mr. Zielinski stated that as long as the new sign was installed in the same spot as the old one and could not be read from the highway, no permit was necessary and there would be no problem. The claimant ordered a new sign. The claimant alleges that the company creating the new sign also contacted DOT and was told that the sign was not a problem as long as it could not be read from the highway. The new sign was installed around May 1, 2002. On May 7, 2002, the claimant received a letter from DOT stating that the sign was on DOT property and needed to be removed within 30 days. The claimant has removed the sign. The claimant states that the new sign cost $1,561.40 and that they paid $75.00 to have it removed. The claimant believes that it should not be penalized because it relied on DOT instruction when placing the sign.

DOT recommends denial of this claim. DOT denies the claimant's allegation that Mr. Zielinski gave verbal permission for placement of the sign. Verbal approval for such signs is not allowed pursuant to s. 84.30, Stats., and Trans 201, Wis. Adm. Code, which require a permitting process for the placement of signs. DOT states that it is the sign owner's responsibility to determine ownership of the land and then receive permission from the appropriate landowner. Ownership of the land can be determined by obtaining plat maps from the Highway District office. DOT states that when Mr. Zielinski met with the claimant at the site, the claimant did not bring any plat maps, therefore it was not possible to determine ownership of the land in question. DOT also alleges that the claimant indicated at this meeting that they already had permission from a property owner, therefore, Mr. Zielinski assumed that the claimant planned to place the sign on private property. DOT did not become aware that the sign was placed in the DOT right-of-way until the larger sign, which was visible from the highway, was noticed during a routine sign survey. DOT then sent a 30 day notice informing the claimant that the sign was in violation of s. 86.19, Stats., as well as Trans 201.07, 201.075 and 233, Wis. Adm. Code, and that the sign needed to be removed or it would be taken down by DOT. DOT states that this notice also indicated that the claimant could solve the problem by applying for an Off Premise Permit and gave instructions for obtaining a permit application. DOT points to the fact that the sign was neither confiscated nor destroyed by DOT; it is in the claimant's possession. DOT has offered suggestions for other ways to legally install the sign at other locations, if the claimant wishes to do so. DOT believes that, since the sign is still usable by the claimant at other locations, the claimant has suffered no actual loss and the claim should therefore be denied.

S13 The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

10. Heinn/Trend Corporation of Milwaukee, Wisconsin claims $23,291.32 for costs related to security guard services provided pursuant to a building lease. The claimant owns a building leased by the state through DOA. (The claimant purchased the building in 1997, however, the lease was entered into in 1992 with the previous owner.) The claimant states that in June 1994, DOA signed a First Lease Amendment to the original Lease and that this Amendment provided for continuation of security guard services under the lease. The claimant states that the Amendment also stated that the Lessor would be reimbursed by the state for security guard costs that exceeded $20,996.28 per year upon presentation of documents verifying such excess costs. The claimant states that the Amendment contains no language requiring the billing for these excess costs to be submitted within a specific time period. In September 2001 the claimant submitted an invoice to the state for excess security guard costs for 1998-2001. The claimant believes that the non-availability of funds clause in the original Lease does not apply to these costs. The claimant argues that this clause only absolves the state from liability relating to costs associated with future use of the property but that the clause can not be applied to past costs that were incurred while the state actually used and occupied the building. The claimant further points to the fact that DOA did provide reimbursement for the excess costs for 2000 and 2001 and that there is therefore no evidence that the state would have thought the costs for 1998 and 1999 excessive, had they been presented earlier. The claimant requests payment of the excess security costs for 1998 and 1999 in the amount of $23,291.32. The claimant also requests payment of interest at the statutory rate of 5% from September 2001 through the date of payment.

DOA recommends denial of this claim and does not believe that the claimed costs were presented to the state in a timely manner. DOA does not understand why the claimant delayed for over four years before presenting these costs to the state. DOA believes that this delay and the resulting four-year cumulative billing places an unfair and excessive burden on the state, particularly at a time when the state's ability to seek supplemental resources is essentially non-existent. DOA points to the fact that its December 22, 1992, letter, which served as a Lease Addendum, clearly stated that the security service could be cancelled or renegotiated by the Lessee. DOA therefore believes that the delayed billing denied the state the right to terminate or renegotiate the services as provided for in the First Lease Amendment. DOA also states that the First Lease Amendment states that the Lessor would be reimbursed if the costs exceeded the stated amount "per year for said guard service" which indicates that the agreement for security services was entered into on an annual basis. DOA believes that it is therefore a logical expectation that notification of the excess costs would be annual as well. Finally, it is DOA's position that, pursuant to section 15 of the original Lease, the availability of funds for the 1998 and 1999 costs had lapsed by the time the claimant presented its invoice.

The Board concludes:

1. The claims of the following claimants should be denied:

Edna and Russell Jeske

Terrance A. Kaucic

Genevieve G. McBride

Tara L. Hoekman

Jeremy S. Daubon

Dennis Gonzalez (2 claims)

M.H. Ranch, Inc.

Heinn/Trend Corporation

2. Payment of the following amounts to the following claimants from the following appropriations is justified under s. 16.007, Stats:

Megan E. Weinhandl $70.00 20.285(5)(h), Stats.

Dated at Madison, Wisconsin this 6 day of February 2002.

Alan Lee, Chair

Representative of the Attorney General

John E. Rothschild, Secretary

Representative of the Secretary of Administration

Sheryl Albers

Assembly Finance Committee

Amanda Schaumburg

Representative of the Governor

STATE OF WISCONSIN CLAIMS BOARD

The State Claims Board conducted hearings at the Department of Administration Building, St. Croix Room, Madison, Wisconsin, on December 19, 2002, upon the following claim:

Claimant Agency Amount

Frederick Saecker Innocent Convict $25,000.00+

(s. 775.05, Wis. Stats.)

The Board Finds:

The Claims Board referred this claim to a hearing examiner on December 7, 2001. On May 30, 2002, a hearing on the claim was held before Administrative Law Judge Peter C. Anderson of the Division of Hearings and Appeals. Judge Anderson has submitted to the Claims Board a Proposed Decision for the claim as well as a Proposed Decision on the Award of Attorney's Fees and Costs. After consideration of the information submitted, the Board concludes that the evidence is clear, satisfactory and convincing that the prisoner was innocent of the crime for which he suffered imprisonment. The Board concludes that the attached Proposed Decision should be adopted as the decision of the Claims Board and that Frederick Saecker should be paid the amount of $25,000.00 pursuant to section 775.05 (4), Wis. Stats. The Board further concludes that the attached Proposed Decision on the Award of Attorney's Fees and Costs should be adopted as the decision of the Claims Board and that Attorney John D. McKenzie should be paid the amount of $20,000.00 as permitted under section 775.05 (4), Wis. Stats. Under authority of s. 16.007 (6m), Wis. Stats., the Board concludes that these payments should be made from the Claims Board appropriation s. 20.505 (4)(d), Wis. Stats.

Dated at Madison, Wisconsin this __6___ day of January 2003.