Wisconsin Legislature: S903

S900 DHS recommends denial of this claim. On February 16, 2011, the claimant was sent a notice that her BadgerCare benefits would end on March 1st, which fulfilled the 10 day notification rule. The notice further stated that the claimant could appeal that decision until April 18, 2011. Towards the end of March the caseworker completed her review of the claimant's renewal application. DHS states that if the documentation had shown the claimant was eligible for BadgerCare benefits, her benefits would have been restored with no gap in coverage. However, the claimant was found not eligible for benefits because she exceeded the income limit and had access to employer provided insurance. A notice was sent to the claimant on March 25, 2011, that she had been found ineligible for benefits as of March 1st and that she had until May 10th to appeal that decision. The claimant's appeal to Hearings and Appeals was untimely.

The Board defers decision of this claim at this time in order to obtain additional information from DHS and the claimants.

4. Michael T. Davis of Boscobel, Wisconsin claims $269.76 for value of property allegedly improperly destroyed by DOC. On 3/17/11 the claimant was transferred from Gordon Correctional Center to the Wisconsin Secure Program Facility (WSPF). On 3/23/11 he received his property along with a list of items not allowed at WSPF. On 3/25/11 the claimant filed a complaint (ICE) with WSPF challenging the disallowed property. On 4/13/11 his ICE was dismissed by the complaint examiner and the dismissal was upheld by the warden on 4/14/11. On 4/21/11 the claimant appealed to the complaint examiner in Madison (CCE). On 6/10/11 the claimant received a letter from Madison stating that the time limit for deciding his CCE had been extended and that his administrative remedies had not been exhausted. On 8/5/11 the claimant received notice that his CCE appeal was dismissed. On 8/10/11 the claimant sent WSPF property staff a request to mail out his disallowed property. The property staff informed him that his property had been destroyed on 5/10/11. The claimant states that this was the first notice he received that his property had been destroyed. The claimant filed an ICE regarding the destruction of his property but the ICE was dismissed as untimely. The claimant believes DOC's destruction of his property prior to the decision from CCE in Madison violated his due process rights because he was not allowed to exhaust his administrative appeals before his property was destroyed. He also states that he was not notified that his property was destroyed until after his CCE was denied and that it is therefore unfair that his ICE related to the destruction of his property was denied as untimely. Finally, the claimant notes that he filed an ICE at Stanley Correctional Institution in 2007 and, after winning his CCE appeal two-and-a-half months later, his property was returned. He believes DOC should reimburse him for the value of his destroyed property.

DOC recommends denial of this claim. DOC states that WSPF staff is required to keep inmate property for 30 days after an ICE denial or 10 days after the warden's decision. Pursuant to Department of Adult Institutions' (DAI) policy and the Wisconsin Administrative Code, property is not required to be retained while an inmate appeals to CCE. DOC states that the claimant was properly notified of not allowed and excess items when he received form DOC-237 on 3/23/11. He had the opportunity at that time to notify property staff regarding how he wished to handle these property items. Because he failed to do so, pursuant to DAI policy, the property was destroyed. DOC notes that the claimant was transferred to WSPF, a high-security facility, due to his own behavior and that he should have been aware that there are different rules regarding allowable property at high-security institutions. DOC points to the fact that federal courts have found a prisoner's property rights are "subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution." DOC further notes that because state law does not provide prisoners with a property interest in possessing a specific amount of property, the due process clause is not implicated when prison administrators make decisions regarding the amount or type of property an inmate is allowed. DOC states that the claimant's property was handled properly, in accordance with WSPF rules, and that his claim should be denied.

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 with the state should assume and pay based on equitable principles.

5. James Newson of Boscobel, Wisconsin claims $32.03 for cost of typewriter wheel allegedly lost by DOC staff. The claimant is an inmate at Columbia Correctional Institution (CCI). On 3/11/11 he received a replacement typewriter wheel he had purchased from Access Corrections. The typewriter wheel was defective. On 3/18/11 the claimant gave CCI property staff a box containing the defective typewriter wheel with a pre-paid UPS return label for Union Supply. The claimant contacted CCI property staff on 4/8/11 indicating that he had inadvertently sent the package to the wrong company and requesting the UPS tracking number. CCI staff responded that their records showed UPS picked up the package on 3/23/11 but that they were unable to track packages sent on a UPS account other than CCI's. They told the claimant that he would need to contact Union Supply directly. On 4/18/11 the claimant wrote to Union Supply regarding the returned typewriter wheel and received no response. He phoned Union Supply on 4/26/11 and was told that items received belonging to another company or shipped to the wrong address were automatically returned to the sender. Union Supply also told him they kept no records of these returns and therefore could not confirm whether or not they had received his package. The claimant again contacted CCI property staff and requested UPS tracking info but was told they did not have that information. The claimant states that it is CCI's responsibility to maintain UPS tracking information and that their failure to do so is the sole cause of the loss of his property. He requests reimbursement for the cost of a new typewriter wheel.

DOC recommends denial of this claim. DOC states that it has no policy that requires an institution to track or insure an inmate's package. DOC notes that the claimant admits that he returned the typewriter wheel to the wrong company. DOC believes that it was the claimant's responsibility to send the package to the correct company and that his error is the cause of the loss of his property.

S901 6. Joey Davis of Plymouth, Wisconsin claims $9,825.00 for $75.00 per day of incarceration past the time the claimant allegedly should have been released. In May 2004 the claimant was sentenced to 18 months incarceration and 18 months extended supervision for being a felon in possession of a firearm. In November 2005 the claimant was released to serve the extended supervision portion of his sentence. On 6/11/07 the claimant's extended supervision was revoked based on allegations that he had battered his girlfriend. Although the charges in this case were dismissed on 11/7/07, the claimant remained incarcerated until 3/18/08. The claimant believes that it was unlawful for DOC to continue to hold him after the charges that caused his revocation were dismissed. The claimant states that at the time of his revocation, he was employed by Western State Envelope, where he earned $14.55 per hour. He requests reimbursement in the amount of $75 per day for lost wages.

DOC recommends denial of this claim. DOC states that the claimant's supervision was revoked for two reasons, the battery charges and also his refusal to answer questions posed to him by his agent. DOC points to case law stating that an offender's supervision may be revoked based on an incident for which that offender is charged, even if those charges are eventually dismissed or the offender is acquitted at trial. DOC also notes that the claimant signed a form waiving his right to a final revocation hearing, thereby acknowledging his guilt in the battery, at least as it related to the revocation matter. Finally, DOC points to the fact that the only reason the batter charges were dismissed was because the victim failed to appear and testify at trial.

7. R.D. Black of Waupun, Wisconsin claims $457.60 for reimbursement of restitution payments allegedly improperly charged by DOC. The claimant is an inmate at Waupun Correctional Institution (WCI). He states that on 7/21/97 a WCI guard alleged that the claimant had attacked and injured him. The claimant states that he was charged with battery by a prisoner but that the court case was dismissed and that the court imposed no restitution upon him. The claimant believes that the WCI guard's injury was a fabrication. WCI assessed $454.60 in restitution costs against the claimant, allegedly for medical treatment costs incurred by the WCI guard. The claimant states that if the guard had indeed been injured, he would have been required to provide a Notice of Injury to WCI's insurer as well as the guard's union. The claimant alleges that neither notice was provided by the guard. The claimant requests reimbursement of the restitution money taken from his prison account.

DOC recommends denial of this claim. DOC states that on 7/21/07 the claimant stabbed a WCI guard in the chest with a shank made from a sharpened piece of a nail clipper attached to a number of pen inserts. DOC states that the guard received first aid at the prison and then sought additional medical attention at a nearby hospital. DOC states that the claimant received an Adult Conduct Report for battery and possession/manufacture of a weapon. DOC states that the claimant was assigned an advocate and given notice of a hearing date but that the claimant refused to sign the notice, cooperate with his advocate, or attend his 8/7/97 conduct report hearing. DOC states that the hearing officer found the conduct report to be credible and assigned both disciplinary sanctions and restitution to the claimant. DOC states that because the guard's injury was work-related, the restitution taken from the claimant was paid directly to the State Worker's Compensation fund. DOC notes that the claimant took no action to dispute this restitution until filing his claim with the Claims Board 14 years after his hearing. DOC believes the claimant is not entitled to any reimbursement of the restitution payments.

8. Tramell Starks of Waupun, Wisconsin claims $228.93 for replacement cost of television, shipping charges, and photocopies for filing this claim. The claimant is an inmate at Waupun Correctional Institution. He alleges that his television was damaged while under staff control. He states that he was sent to segregation on 4/7/11 and that his property, including his TV, was taken to the property room and inventoried on 4/11/11. The claimant points to the fact that property room staff are required to check all electronic devices upon inventory and make note of any defective or damaged items. The claimant states that DOC admits there are no notations that the claimant's TV was broken when it was inventoried in the property room. The claimant's TV was returned to him on 7/1/11 when he was released from segregation. The claimant states that he immediately notified staff that the screen was cracked. The claimant mailed out the TV to a repair shop and filed an Inmate Complaint (ICE) for repair costs. The repair shop later informed him the TV was not worth fixing. The claimant purchased another TV and filed an ICE requesting the cost of the new TV. His ICE was denied, as was his appeal. The claimant states that the TV was only one year old and therefore unlikely to be susceptible to breakage due to "changing conditions of heat, cold, humidity, weather and age-related stress". The claimant also notes that, although DOC alleges that camera footage proves that DOC staff did not drop the TV while packing it at the claimant's cell, DOC clearly did not review footage from all cameras showing the transport of the TV to the property room and the many days of property room camera footage covering the time period the TV was in staff control. Finally, the claimant notes that if the TV had been damaged prior to receipt in the property room, staff would have immediately notified him and required that he mail out the TV or let it be destroyed by staff, because damaged electronics are not allowed.

DOC failed to provide a timely response to this claim in a manner that allowed the Claims Board itself to review the materials or provide the claimant an equitable opportunity to respond.

The Board defers decision of this claim at this time in order to allow the claimant an opportunity to respond to DOC's recommendation. [Members Murray and Taylor dissenting.]

S902 9. Antonio D. Johnson of Waupun, Wisconsin claims $168.00 for value of missing or damaged property allegedly caused by DOC staff in two incidents at Waupun Correctional Institution (WCI) where the claimant is an inmate. The claimant states that on 3/9/11 Sergeant Kimball, who the claimant alleges is known for damaging inmate property, ordered the claimant to wait downstairs while she searched his cell. The claimant states that he heard "what sounded like heavy items being thrown around the cell" and that he went back upstairs because he was concerned that Kimball was damaging his property. The claimant alleges that the cell was "in shambles" in violation of the rules regarding inmate cell searches. After the search, the claimant learned that his fan was broken, his headphones were damaged, and a pair of eyeglasses and his digital antenna were missing. He filed complaints with ICE and appealed to CCE but both complaints were denied. Regarding the second incident, on 7/7/11 the claimant was placed in segregation for a rule violation. He alleges that WCI staff left his personal property in his cell unsupervised for two weeks before inventorying and packing it up. The claimant states this is a violation of WCI policy, which requires property to be inventoried and packed immediately upon an inmate's placement in segregation. The claimant believes some of his property was stolen during this two-week period, specifically, a baseball cap, a checkerboard, a pair of Nike shoes, and a calculator. The claimant states that these items were missing from his property when it was returned after his release from segregation and that the items were also not listed on the inventory form, which he believes indicates they were taken during the two-week period his property was left in his cell. The claimant also noticed that his eyeglasses were damaged when he received his property. The claimant filed a complaint with ICE but it was rejected because the missing items were not listed on the inventory report and because the eyeglasses may have broken easily, regardless of the actions of WCI staff. The claimant believes it is obvious that his glasses were broken while under staff control because if they had been broken earlier, they would have been confiscated as contraband.

DOC failed to provide a timely response to this claim in a manner that allowed the Claims Board itself to review the materials or provide the claimant an equitable opportunity to respond.

The Board defers decision of this claim at this time in order to allow the claimant an opportunity to respond to DOC's recommendation. [Members Murray and Taylor dissenting.]

10. Daymon Tate of Black River Falls, Wisconsin claims $152.86 for cost of two pairs of eyeglasses allegedly lost by DOC staff. The claimant is an inmate at Jackson Correctional Institution (JCI). He transferred to JCI from Columbia Correctional Institution (CCI) on 8/23/11. He points to the fact that the property inventory list from CCI shows he had two pairs of glasses when they packed up his property prior to his transfer and the JCI inventory list completed upon his arrival at JCI shows no eyeglasses in his property. The claimant states that a JCI guard was present when he unpacked his property and realized the glasses were missing and that the guard compared the two property inventories and recommended the claimant file a complaint. He filed a complaint with the Inmate Complaint Examiner (ICE). His complaint was referred to the Corrections Complaint Examiner (CCE). His complaint was rejected because he "did not allege sufficient facts upon which redress may be made" because he was not able to provide correct receipts for the two pairs of glasses. The inmate states he realized he submitted the wrong receipt in error and corrected the situation by submitting the correct receipts as soon as he was able to obtain them from the vendors. The claimant notes that the items recorded on an inventory report are the property in the possession of property staff when inventoried. He points to the fact that the CCI list indicated two pairs of glasses present in the property under CCI control and states he did not arrive at JCI wearing any glasses. He states that the glasses he currently wears he received from a visitor. He requests the full value of both pairs of glasses.

DOC recommends payment of this claim in the reduced amount of $41.00. DOC states that the claimant is manipulative and has a history of filing complaints for missing property. DOC does not dispute that the CCI and JCI inventories differ regarding the claimant's possession of two pairs of glasses. DOC points to the fact that the claimant has one pair of glasses in his possession and that property is not allowed to be given to an inmate by a visitor. DOC notes the claimant has presented no evidence as to how he was able to receive glasses from a visitor in violation of DOC rules. DOC believes this proves that the claimant is lying about where he got the eyeglasses he is currently wearing. Because the CCI inventory did note the claimant had two pairs of glasses, one purchased in 2007 and one purchased in 2011, DOC recommends reimbursing the claimant for one pair of eyeglasses. Using DOC's standard depreciation schedule, the 2007 pair of glasses would now be worth $41.00. DOC recommends payment of the claim in that amount.

The Board concludes the claim should be paid in the reduced amount of $41.00 based on equitable principles. The Board further concludes, under authority of § 16.007(6m), Stats., payment should be made from the Department of Corrections appropriation § 20.410(1)(GT), Stats.

11-12. Fannie Rhodes and Nicholas D. Roesler of Milwaukee, Wisconsin claim the amounts shown below for value of personal property. On August 24, 2010, the DOC office on Capitol Drive in Milwaukee, Wisconsin, was destroyed by fire. Along with departmental property, personal property of DOC employees was destroyed. The claimants were DOC employees at the Capitol Drive office and request reimbursement for the value of their personal property.

DOC recommends payment of these claims in reduced amounts. In order to provide for a fair system of reimbursement, DOC has evaluated the property claimed by Capitol Drive employees using the IRS's general depreciation schedule. DOC recommends reimbursement in the depreciated amounts shown below.

Claimant Claimed Amt DOC Recommended Amt

Fannie Rhodes $452.00 $162.29
Nicholas Roesler $179.00 $131.57

On August 12, 2011, the Claims Board initially reviewed 17 similar claims. For each claim, employees listed various items of personal property that he or she kept at the office. DOC reviewed the claims and, following review, DOC recommended that each and every item of personal property listed be reimbursed, subject only to the standard IRS depreciation schedule.

State Risk Management generally does not provide coverage for employee personal property "except as needed for legitimate state business purposes as determined and agreed to in writing in advance by the agency risk manager." Given the wide variety of personal property that was listed for reimbursement, the Claims Board questioned whether all of it was actually work related. Because of the Risk Management policy and the Claims Board's questions, the Claims Board asked DOC to confirm the work related nature of the personal property. The Board specifically asked DOC to decide which personal property items could be characterized as having a legitimate state business purpose. DOC responded by affirming that every item listed by each claimant was legitimately work related.

S903 Based solely on DOC's affirmation that all claimed property is legitimately work related, the Board concludes the claims should be paid in the reduced amounts recommended by DOC, based on equitable principles. The Board further concludes, under authority of § 16.007 (6m), Stats., payment should be made from the Department of Corrections appropriation § 20.410 (1)(b), Stats. The Board further reaffirms the precedent set forth in its December 13, 1977, decision of the claim of Karen Gruba, that state employees not be reimbursed for the loss of "personal property brought to their work station for their convenience and enjoyment," and states that the payment of these claims is not intended to serve as future precedent for similar claims.

The Board concludes:

That the following identified claimants are denied:

Richard Wood
Michael T. Davis
James A. Newson
Joey Davis
R.D. Black

That decision of the following claims is deferred to a later date:

Kelle & Brian Dorn
Tramell Starks
Antonio D. Johnson

John & Bonnie Weiglein. The claimants and DOT appeared before the Board and indicated they are in the process of finalizing a resolution to both claims. The Board directed DOT to contact Claims Board staff regarding the status of this matter prior to the next Claims Board meeting.

That payment of the below amounts to the identified claimants from the following statutory appropriations is justified under S 16.007, Stats:

Daymon Tate $41.00 § 20.410(1)(GT), Stats.
Fannie Rhodes $162.29 § 20.410(1)(b), Stats.
Nicholas D. Roesler $131.57 § 20.410(1)(b), Stats.

Dated at Madison, Wisconsin this 12th day of October, 2012.

Steve Means

Chair, Representative of the Attorney General

Gregory D. Murray

Secretary, Representative of the Secretary of Administration

Brian Hagedorn

Representative of the Governor

lena c. taylor

Senate Finance Committee

patricia strachota

Assembly Finance Committee

__________________

State of Wisconsin

Government Accountability Board

October 16, 2012

The Honorable, The Senate:

The following lobbyists have been authorized to act on behalf of the organizations set opposite their names.

For more detailed information about these lobbyists and organizations and a complete list of organizations and people authorized to lobby the 2011-2012 session of the legislature, visit the Government Accountability Board's web site at http://gab.wi.gov/.

Graul, Mark American Cancer Society Cancer Action Network (ACS CAN)
Julius, Buddy New Resources Consulting, LLC
Petersen, Eric J Physicians Plus Insurance Corporation
Sheridan, Michael Wisconsin State AFL-CIO
Stephenson, Sean American Cancer Society Cancer Action Network (ACS CAN)

Also available from the Wisconsin Government Accountability Board are reports identifying the amount and value of time state agencies have spent to affect legislative action and reports of expenditures for lobbying activities filed by organizations that employ lobbyists.

Sincerely,

kevin kennedy

Director and General Counsel