6. Life Underwriters PAC and Wisconsin Association of Life Underwriters of Madison, Wisconsin claim $3,100 for recovery of a forfeiture imposed by the State Ethics Board. The claimant, a lobbying principal, forfeited $3100 for making campaign contributions 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, the Dane County Circuit Court struck down the Ethics Board ruling with regards to the window period campaign contributions, finding that a PAC was not barred from making contributions outside this period because a 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, plus interest at the legal rate measured from July 24, 1994. The Ethics Board recommends denial of this claim. This claim is essentially identical to a claim previously filed by the Milwaukee Police Association. The Claims Board denied that claim at its October 14, 1997 meeting. In order to avoid a full investigation by the Ethics Board, the claimant accepted the Board's settlement offer and voluntarily paid the $3,100 forfeiture. The claimant had every opportunity to allow a full investigation and to present its legal and factual arguments to an independent hearing examiner. The claimant could have sought review of any adverse decision in the Circuit Court and raised the same legal issue raised in other cases; it chose not to do so. Rather, the claimant now seeks to substitute the Claims Board as its preferred forum to obtain what it could not achieve in a settlement and was unwilling to try to achieve through statutory procedures. If the Claims Board permits the claimant to circumvent regulatory agencies in this way, then any litigant in a civil action to which the State is a party could foreclose an agency from fully investigating the facts, settle a claim, and appeal to the Claims Board. The Ethics Board believes the Claims Board should follow its own precedent and reject 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. (Member Albers dissenting. Members Lee and Simonson not participating.)
7. Robert Beavers of Eau Claire, Wisconsin claims $5,598.40 for lost wages related to his transfer from a minimum security correctional facility to a medium security facility. This transfer occurred in response to an emergency administrative rule, effective December 8, 1988, which stated that all inmates with life sentences should be placed in medium or maximum security facilities. The claimant, who was serving a life sentence, had been assigned minimum security status since April 1987, because of his good behavior and work record. At the time of the transfer, he had worked as a firewood worker for two years and was earning $250 per month. Because of the emergency rule, the claimant was transferred to a medium security facility, where he was assigned to work in the tailor shop at a much lower rate of pay. Inmates, including the claimant, filed a lawsuit against the Division (now Department) of Corrections regarding the emergency rule. In 1990, Dane County Circuit Court ruled that the rules enacted by Corrections were illegal and ordered the restoration of minimum security status to all life sentence prisoners who had been reclassified. The claimant was transferred back to Oregon Correctional, where he resumed his previous job at his prior rate of pay. The claimant requests reimbursement of the difference in the amount that he was paid as a medium security inmate and the pay that he would have continued to receive had he remained a minimum security inmate at Oregon Correctional. The Department recommends denial of this claim. The Dane County Circuit Court decision was reversed by the Court of Appeals.
Burrus v. Goodrich,
535 N.W.2d 85, 194 Wis.2d 655 (Ct.App. 1995), which sustained the rules and rejected the plaintiffs' (such as the claimant) assertions that the rules violated their ex post facto rights. The Supreme Court denied the petition for review on August 28, 1995. In other words, there is no legal basis for the claim. There is also no equitable basis for the claim. The claimant received a life sentence for First Degree Murder and was not entitled to serve as much of it in minimum security as he would have liked. 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.
8. Mya L. Haessig of Racine, Wisconsin claims $63.23 for reimbursement for a car radio antenna. The claimant is employed by the Department of Corrections. In August 1996 she was conducting probation and parole home visits. When she returned to her car, the antenna was badly bent, so much so that it later broke off. The claimant is required to do home visits as part of her job duties with the Department. Agents can use state vehicles for these visits, however, the claimant alleges that they are frequently unavailable. The claimant states that she uses her own car for home visits because of the shortage of available state vehicles. While she agrees that there is no evidence that the criminal knew she was a probation and parole agent, the claimant feels that the state is responsible for the damage since it occurred while she was conducting state business. The Department recommends denial of this claim. Although the claimant's car was parked in the neighborhood because she was conducting home visits, that connection with the Department's business is too remote to justify requiring DOC to reimburse the claimant for the cost of replacing her antenna. There is no indication that the antenna was bent because the criminal knew she was a probation and parole agent. The damage is unfortunate, however it is not directly related to her employment; it could have happened to any other car parked in the neighborhood. The state should not be required to act as an insurer for its employes. A random crime was committed and there was no negligence on the part of the Department. 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.
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9. Rosemary M. Flanum of Sturgeon Bay, Wisconsin claims $1,563.25 for medical expenses incurred due to a fall at Ottawa Park. In August 1997, while visiting the park, the claimant allegedly tripped over a support post of a picnic table and fell, breaking her wrist. The bench on the table was missing, and the claimant states that she tripped on the exposed support post when she went to remove something from the table. The claimant states that she had been in the area for about an hour and had not consumed any alcohol. She does not have medical insurance to cover her expenses and requests reimbursement for her medical bills. The Department of Natural Resources recommends denial of this claim. The picnic tables in the Ottawa Lake picnic area had been inspected less than 1 week prior to the accident, pursuant to the park's routine inspection program. The bench was removed by unknown persons sometime after that inspection and had not been reported to park personnel. It is clear that the state is not legally liable for this accident. Section
895.52, Stats., provides that the state has no liability to persons engaged in recreational activities in state parks and forests, in the absence of an malicious act or failure to warn against known unsafe conditions occurring in areas designated for recreational activity. In absence of legal liability or other information relating to the existence of special circumstances that would differentiate this claim from other situations covered by the recreational immunity statute, the Department believes the 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 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.
10. George Bolwerk of West Bend, Wisconsin claims $409.79 for cost of repairing an air conditioner and replacing a clock and coffee maker, which were allegedly damaged while he was camping at the Kettle Moraine State Forest in August 1997. The claimant contends that the electrical outlet at the campsite he used was incorrectly wired and caused damage to the appliances in his camper. The claimant requests reimbursement for his damages. The Department of Natural Resources recommends payment of this claim based on equitable principles. Although the state has no legal liability in this situation, the DNR acknowledges that the claimant's damages were caused by faulty wiring at the campsite and that the claimant was without fault in this situation. Department staff spoke with the contractor who installed the electrical outlet in an attempt to have him pay for the damages but he has refused to cooperate. The DNR recommends payment of this claim in the amount of $409.79. The Board concludes the claim should be paid 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(1)(mu) , Stats.
11. Timothy L. Kelso of De Forest, Wisconsin claims $2,438.22 for reimbursement of income tax overpayment garnished from his wages. The claimant failed to file a personal income tax return for 1992. An estimated assessment was issued in November 1994 and certification of the claimant's wages began in 1996. The claimant filed his 1992 return in July 1997. His completed return indicated that he only owed $25 tax, however, by that time, $2,463.22 had been certified from his wages to satisfy the delinquent assessment. The claimant requests reimbursement of the overpaid amount, minus any late fees assessed by the Department. The Department of Revenue recommends denial of this claim. Section
71.75(5), Wis. Stats., prohibits the department from refunding the amount that was collected on the original assessment, since no refund was claimed within the prescribed two-year time period. 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. Daniel J. Price of Oshkosh, Wisconsin claims $8,280.64 for damages related to alleged lack of action by the Dodge County District Attorney's office in regard to his wage claim against BMI-Cherokee Ltd. On December 6, 1996, DILHR's Labor Standard Bureau determined that BMI-Cherokee Ltd., owed the claimant $8,483.64 for business expenses that were incurred during his employment with that business. The case was referred to the District Attorney's office. The District Attorney informed the claimant that he was on a list of creditors as part of the corporation's liquidation, that there would be payment against his wage claim and there was no reason to file in small claims court. The claimant received a settlement check for $203.60, which was typical of the 2.4% for all unsecured creditors. The order of priority for outstanding liabilities clearly states that wages take precedence over unsecured creditors, however, BMI's attorneys proclaimed this claim as unsecured credit, contrary to DILHR's determination. The District Attorney took no action to correct this situation and uphold the claimant's wage claim. The claimant believes it was negligent for the District Attorney's office not to pursue this matter and requests payment of the balance of his wage claim. The Dodge County District Attorney's office recommends denial of this claim. The District Attorney's office was informed by BMI's attorneys that $203 was all the money available for the claimant's claim. The District Attorney's office determined that the money owed to the claimant could only be collected from BMI, not from its officers, who were also named in the action. There was not anything else the DA's office could do to collect the money, as the BMI had liquidated and appeared to have no more available funds. The Assistant District Attorney working on this case exercised her discretion in choosing not to pursue court action, as it appeared futile. The claimant could still file a civil action against BMI, but it does not appear that he would be successful, as the company is defunct. The District Attorney's office exercised proper discretion in determining whether or not to file a court action against BMI and should not be held responsible for that company's debts. 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 Albers dissenting.)
The Board concludes:
1. The claims of the following claimants should be denied:
Marilyn K. Stevenson
Kevin H. Ward
William E. Stieglitz
Rodney Feltz
James Cape and Sons, Company
Life Underwriters PAC/WI Association of Life Underwriters
Robert L. Beavers
Mya L. Haessig
Rosemary M. Flanum
Timothy L. Kelso
Daniel J. Price
2. Payment of the following amounts to the following claimants is justified under s. 16.007, Stats:
George Bolwerk $409.79
Dated at Madison, Wisconsin this 27th day of May 1998.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Timothy Weeden
Senate Finance Committee
Sheryl Albers
Assembly Finance Committee
Stewart Simonson
Representative of the Governor
State of Wisconsin
Department of Administration
May 27, 1998
The Honorable, The Legislature:
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Chapter 34, Laws of 1979, requires that when the Department of Administration maintains an office in Washington, DC, for the purpose of promoting federal/state cooperation, it should submit a report detailing the activities of the office and reporting the status of federal legislation of concern to the Legislature and other state agencies (Wis. Stats. 16.548(2)).
The report for the period January 1, 1998, through March 31, 1998, is attached.
Sincerely,
Mark D. bugher
Secretary
State of Wisconsin
Department of Health and Family Services
May 20, 1998
The Honorable, The Senate:
Wisconsin Statutes (s.
49.45(2)(a)20) require the Department to submit an annual report to the Joint Committee on Finance on the participation rates of children in the Early and Periodic Screening Diagnosis and Treatment Program. In Wisconsin, we have named this program "HealthCheck".
The report's purpose is to identify significant activities of Wisconsin Medicaid's HealthCheck program and, particularly, to report on the percent of children who received comprehensive health care screens through HealthCheck.
Wisconsin's actual screening ratio increased from 48% in 1996 to 54% in 1997. We believe the principal reason for the increasing screening ratio is the Medicaid managed care initiative. The Medicaid HMO contract requires an increasing HealthCheck screening ratio as one performance requirement. The screening ratio standard requirement increased from 40% in 1991 to 80% in 1996 and 1997.
Since children in HMOs are more likely to receive a HealthCheck screening than children in the fee-for-service system, we are expecting next year's HealthCheck screening ratio to continue to improve due to the recent HMO expansion. The numbers for the federal fiscal year (FFY) 1997 HMO screening exams are based on the number of screening exams reported by the HMOs for the first three quarters of FFY 1997; an estimate of screening exams is used for the fourth quarter. The fourth quarter is an estimate because HMOs are now submitting HealthCheck data semi-annually instead of quarterly. Fee-for-service numbers are counts of actual billed services.
I an pleased to send you the completed report for 1997.
Sincerely,
Joe Leean
Secretary
State of Wisconsin
Legislative Audit Bureau
May 28, 1998
The Honorable, The Legislature:
We have completed our annual financial audit of the Division of Gaming within the Department of Administration, as required by s.
13.94(1)(eg), Wis. Stats. We have issued an unqualified opinion on the Division's financial statement for the Racing, Indian Gaming, and Charitable Gaming programs for the years ended June 30, 1997 and 1996.
The Racing program's pari-mutuel tax revenue has decreased significantly in recent years. Between fiscal year (FY) 1994-95 and FY 1996-97, pari-mutuel tax revenue declined by approximately 45 percent, from $4.7 million to $2.6 million, and the Division projects pari-mutuel tax revenue will decline to $2.3 million in FY 1997-98. Charitable Gaming program revenue has remained relatively stable at $976,129 in FY 1994-95, $952,781 in FY 1995-96, and $975,627 in FY 1996-97. During our audit period, the Division's primary revenue from the Indian Gaming program was the $350,000 received annually from the 11 tribes as reimbursement for the State's regulatory costs.
Despite the reduction in pari-mutuel tax revenue, we found that Racing program revenues paid for some administrative expenditures that should have been charged to the Indian Gaming and Charitable Gaming programs in FY 1996-97. Specifically, the salary and fringe benefit expenditures for the Division's administrative staff were charged entirely to the Racing program, even though the duties and responsibilities of the staff encompass all three programs. Had these employe-related costs been allocated according to work effort, we estimate that an additional $164,500 in racing proceeds would have been available for transfer to other programs. By statute, transferred funds are first to be used for programs to aid local fairs and for educational programs related to livestock, both of which are administered by the Department of Agriculture, Trade and Consumer Protection. Any excess funds are then to be transferred to the General Fund.
In future sessions, the Legislature will determine how to appropriate additional funds the State will receive as a result of Indian gaming compact negotiations. However, the Legislature will first need assurances that all gaming regulatory costs are fully recovered and charged to the correct programs. Therefore, we have included a recommendation for the Department of Administration to develop an equitable process to allocate administrative costs to all its gaming programs.
We appreciate the courtesy and cooperation extended to us by the Department of Administration's Division of Gaming. The Division's response is the appendix.
Sincerely,
Janice Mueller
State Auditor
State of Wisconsin
Legislative Audit Bureau
June 2, 1998
The Honorable, The Legislature:
As directed by the Joint Legislative Audit Committee, we have completed a review of differing approaches to reading instruction, a survey of the approaches used by Wisconsin classroom teachers and school district curriculum professionals, and an evaluation of the process used to develop the curriculum guides published by the Department of Public Instruction for districts to use when creating their reading curricula.
Reading instruction is a contentious topic, as school districts debate the merits of phonics instruction—a skills approach that emphasizes letter and sound combinations within words—versus whole language instruction—an approach that teaches words within the context of literature. Because there is research supporting both skills and context approaches to reading instruction, education professionals nationwide are beginning to support the use of a mixture of approaches that combines the strengths of phonics and whole language instruction.
We surveyed kindergarten through third-grade classroom teachers in Wisconsin and found that over 90 percent use a mixture of approaches to reading instruction, although approximately 40.6 percent of surveyed teachers reported a skills (phonics-related) emphasis, 33.1 percent reported a context (whole language-related) emphasis, and 20.8 percent reported no specific emphasis. Despite reporting different emphases within their approaches to reading instruction, teachers and districts reported little difference in the types of instructional resources and techniques they use in the classroom.
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We also reviewed the task force process that the Department used to develop its
Guides to Curriculum Planning. The process used to determine content for the 1985
Guide to Curriculum Planning in Reading allowed for information about phonics and whole language instruction to be included, although this issue was not as contentious when the guide was being developed. The reading guide is now outdated, and we include a recommendation for how the Department can expand participation in the task force process to ensure reading instruction issues are comprehensively addressed in a future revision.
We appreciate the courtesy and cooperation extended to us by the Department of Public Instruction. The Department's response is Appendix III.
Sincerely,
Janice Mueller
State Auditor
__________________
executive order #336
Relating to a Proclamation that the Flag of the United States and the Flag of the State of Wisconsin be Flown at Half-Staff as a Mark of Respect for the Memory of the Late Barry M. Goldwater, Former United States Senator from the State of Arizona
WHEREAS, Barry M. Goldwater died at his home in Paradise Valley, Arizona at the age of 89 on Friday, May 29, 1998; and
WHEREAS, Barry M. Goldwater faithfully and patriotically served the people of the United States as a United States Senator and as a member of the Armed Forces; and
WHEREAS, President Clinton has ordered that the flag of the United States shall be flown at half-staff on Wednesday, June 3, 1998 as a mark of respect for the memory of the late Barry M. Goldwater;
NOW, THEREFORE, I, TOMMY G. THOMPSON, Governor of the State of Wisconsin, by the authority vested in me by Federal and State law, do hereby order that the flag of the United States and the flag of the State of Wisconsin shall be flown at half-staff at all buildings, grounds and military installations of the State of Wisconsin equipped with such flags beginning at sunrise on Wednesday, June 3, 1998 and ending at sunset on that date as a mark of respect for the memory of the late Barry M. Goldwater.
IN TESTIMONY WHERE OF, I have hereunto set my hand and caused the Great Seal of the State of Wisconsin to be affixed. Done at the Capitol in the city of Madison this second day of June in the year one thousand nine hundred and ninety-eight.
