2006-05-30 Senate Journal

The DOC recommends denial of this claim. The claimant argues that the restitution ordered during his previous incarceration is a penalty and that it constitutes double jeopardy to hold him responsible for that restitution during his current incarceration. The DOC points to the fact that double jeopardy prohibits the state from penalizing a person twice for the same offence. The DOC notes that the claimant is not being punished twice—he is only being asked to pay the restitution once and the fact that the restitution amount has been collected over two periods of incarceration does not double the original penalty. The claimant also argues that his due process rights have been violated, which the DOC denies. The DOC states that the claimant received due process during the original hearing on the conduct report for which the restitution was ordered. The claimant also argues that he should not be held responsible for legal and medical co-pay loans incurred during his prior incarceration. The DOC notes that as a condition of obtaining such loans, an inmate is required to sign repayment agreements. Nowhere in the loan policies or repayment agreement forms does it state that the loans will be forgiven upon discharge or that DOC is prohibited from collecting these debts during subsequent incarceration. Finally, the DOC disagrees with the claimants allegation that ss. 301.325 and 301.328, Stats., are the exclusive remedy available to the DOC for collection of these debts. The DOC states that there is nothing in these statutory sections which indicate that these are intended to be the exclusive method of collection or that a prisoner should be immune from DOC's efforts to collect outstanding debts simply because he is discharged from prison before the debt is paid.

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.

13. Landwehr Construction of St. Cloud, Minnesota claims $73,562.70 for costs related to removal of asbestos containing material (ACM). The claimant alleges that this work was not included in the contract for a UW-River Falls demolition project and requests additional payment for the ACM removal. The claimant contends that the material in question, floor tile and foundation black tar/felt both are considered Category I non-friable ACM. (Friable material will crumble when squeezed between the thumb and forefinger.) The claimant alleges that bid documents provided that the state would be responsible for removal of Class I or Class II ACM and that the bidder should only include a bid cost for removal of friable ACM and Category II non-friable ACM. Because of these provisions, the claimant believed that removal of the floor tile and tar/felt was the responsibility of the state and they did not include the cost of removing this ACM in their bid. Although the bid documents did also refer to a $50,000 cash allowance related to the ACM, the claimant states that the language of this section, which indicates that the allowance is "to balance the Owner's desire to recycle concrete floor slabs", led them to believe that the state would remove the ACM and that the $50,000 allowance only related to the recycling of the material. The claimant believes that the specific provisions that indicate the state is responsible for removing the Category I non-friable ACM take precedence over the general requirement section regarding the $50,000 allowance. Finally, the claimant notes that its additional cost for removing the ACM is not substantially higher than the difference between its bid and the next lowest bidder. Therefore, the claimant believes that the state would not suffer any substantial loss compared to the cost it would have incurred if the claimant had not been awarded the bid.

The DOA recommends denial of this claim. The DOA points to the fact that the bid contained a mandatory requirement that bidders include in their bids additional allowances of $50,000 to cover the cost of optional asbestos abatement work and $10,000 to cover the labor for the abatement. The allowance was to be returned to the contractor if the contractor chose to recycle the ACM. The DOA notes that for some reason, the claimant chose to include the $10,000 allowance, but not the $50,000 allowance, despite the fact that both were mandatory requirements. The claimant admits in its claim that it understood that the floor tile and tar/felt removal was outside the scope of the project—hence, the requirement of the additional allowances. The DOA also disagrees with the claimant's assertion that the ACM in question was non-friable. In fact, the ACM only remains non-friable if the contractor does not recycle the concrete. If the contractor chose to recycle the material, which was optional, that process would render the ACM friable. In addition, DOA believes that the claimant has miscalculated the amount of its claim, which at most, should not have exceeded $48,251.40 in eligible costs for the work in question. (An amount, the DOA notes, which would have been covered by the $50,000 allowance.) Finally, the DOA understands that the bid documents, contract documents, plans and specifications that make up these types of construction projects can be diverse and complex and may sometimes cause confusion. However, the claimant is an experienced bidder and was put on notice, along with all the other bidders, that it would be held responsible for any errors in its bid. The claimant made the mistake of failing to provide for the full, mandatory $60,000 allowance required by the bid and the state should not now be held responsible for the claimant's error.

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. (Member Rothschild not participating.)

14. Lisa R. Vadnais of Chippewa Falls, Wisconsin claims $556.83 for vehicle damage caused by a resident of Northern Wisconsin Center, where the claimant is employed. The claimant states that on October 26, 2005, a NWC client became agitated and began hitting the walls with his briefcase. He then went outside and struck the claimant's vehicle with his briefcase, denting and scratching the trunk. The claimant states that her vehicle was only about a month old at the time. The claimant has insurance coverage with a $250 deductible, however, she does not feel that she should have to file a claim with her insurer, because this would cause her rates to go up. The claimant states that the accident was in no way her fault and she does not believe she should have to bear the additional expense of increased insurance costs. She therefore requests payment of the entire cost to repair her vehicle.

S872 The DHFS believes that the facts of this incident as stated by the claimant are accurate. However, the department believes that it is reasonable to expect the claimant to pursue a claim with her insurer. The DHFS therefore only recommends payment of the claimant's $250 deductible.

The Board concludes the claim should be paid in the reduced amount of $250.00 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 and Family Services appropriation s. 20.435(2)(g), Stats.

The Board concludes:

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

Charlotte B. Mahoney

United Mechanical, Inc.

Scott Fields

Levi Aho

Chris A. Lund

Nathan McFarlane

Ryan Schneider

Canam Steel Corporation

Darnell Jackson

Landwehr Construction

Jeremy M. Wine

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

Amanda Barbian $2,362.79 s. 20.395(5)(cq), Stats.

Barry Huebner $46.26 s. 20.115(1)(a), Stats.

Lisa R. Vadnais $250.00 s. 20.435(2)(g), Stats.

Dated at Madison, Wisconsin this 24th day of May, 2006.

Alan Lee

Chair, Representative of the Attorney General

John E. Rothschild

Secretary, Representative of the Secretary of Administration

Amy Kasper

Representative of the Governor

Mary Lazich

Senate Finance Committee

Dan Meyer

Assembly Finance Committee

__________________

The committee on Labor and Election Process Reform reports and recommends:

Senate Clearinghouse Rule 06-015

Relating to the 2006 edition of the Uniform Standards of Professional Appraisal Practice (USPAP).

No action taken.

Thomas Reynolds

Chairperson

__________________

The Chief Clerk makes the following entries dated Friday , May 26, 2006.

__________________

State of Wisconsin
Office of the Governor

May 26 , 2006

To the Honorable, the Senate:

The following bill(s), originating in the Senate, have been approved, signed and deposited in the office of the Secretary of State:

Bill Number Act Number Date Approved

Senate Bill 358 Act 450 May 25 , 2006

Senate Bill 685 Act 453 May 25 , 2006

Senate Bill 524 Act 457 May 25 , 2006

Senate Bill 145 Act 462 May 25 , 2006

Senate Bill 548 Act 464 May 25 , 2006

Senate Bill 528 Act 466 May 26 , 2006

Sincerely,
JIM DOYLE
Governor

__________________

State of Wisconsin
Office of the Secretary of State

To the Honorable, the Senate:

Bill Number Act Number Publication Date

Senate Bill 318 Act 434 June 5 , 2006

Senate Bill 409 Act 435 June 5 , 2006

Senate Bill 526 Act 436 June 5 , 2006

Senate Bill 629 Act 437 June 5 , 2006

Senate Bill 99 Act 442 June 5 , 2006

Senate Bill 123 Act 443 June 5 , 2006

Senate Bill 226 Act 444 June 5 , 2006

Senate Bill 286 Act 445 June 5 , 2006

Senate Bill 499 Act 446 June 5 , 2006

Senate Bill 575 Act 447 June 5 , 2006

Senate Bill 606 Act 448 June 5 , 2006

Senate Bill 650 Act 449 June 5 , 2006

Joint Enrolled
Resolution Number Publication Date

SJR 75 59 Not Published

SJR 76 60 Not Published

SJR 86 61 Not Published

Sincerely,
DOUGLAS LA FOLLETTE
Secretary of State

State of Wisconsin

Office of the Governor

May 26, 2006

The Honorable, The Senate:

I am vetoing Senate Bill 446. The bill would limit the Secretary of the Department of Administration's authority to determine the date of inter-fund transfers, when none is specified, by requiring that the transfer take place during the fiscal year in which the law takes effect.

At best, this bill is unnecessary. The DOA Secretary's authority to determine the date of a transfer pertains only if a date is not otherwise specified. If the Legislature wants to specify a date, it can do so.

S873 At worst, this bill would needlessly restrict the Secretary's obligation to manage the state's finances in a prudent manner. Managing the finances of an enterprise with over $25 billion in annual funding is inherently complex and not all circumstances can be anticipated. The flexibility granted the Secretary of Administration in determining fund transfers allows the DOA to adjust to changing circumstances.

As a practical matter, SB 446 may not be workable in the context of a biennial budget. Non-statutory provisions such as transfers could easily be effective the date of publication or the first year of the biennium. In executing a two-year budget, a transfer in the second year could be the better option to comply with legislative intent for a balanced budget.

Sincerely,

JIM DOYLE