Lake Como Sanitary District
Brown, George 9/18/98
Podiatric Medicine, Wisconsin Society of
Brown, George 9/21/98
Property Valuation Associates Inc
Brown, George 9/21/98
Also available from the Wisconsin Ethics 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 the organizations that employ lobbyists.
Sincerely,
Roth Judd
Director
State of Wisconsin
Ethics Board
September 29, 1998
The Honorable, The Senate:
At the direction of s.
13.685(7),
Wisconsin Statutes, I am furnishing you with the names of organizations recently registered with the Ethics Board that employ one or more individuals to affect state legislation or administrative rules, and notifying you of changes in the Ethics Board's records of licensed lobbyists and their employers. For each recently registered organization I have included the organization's description of the general area of legislative or administrative action that it attempts to influence and the name of each licensed lobbyist that the organization has authorized to act on its behalf.
Organization's authorization of additional lobbyists:
The following organizations previously registered with the Ethics Board have authorized to act on their behalf these additional licensed lobbyists:
Plastics Council Inc, American
Fonfara, Thomas
Termination of lobbying authorizations:
The following individuals are no longer authorized to lobby on behalf of the organizations listed below, as of the dates indicated.
Amusement and Music Operators, Wisconsin
Brown, George 9/23/98
Electric Power Co, Wisconsin
Brown, George 9/23/98
Johnson-Keland Land Company Inc
Brown, George 9/23/98
Also available from the Wisconsin Ethics 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 the organizations that employ lobbyists.
Sincerely,
Roth Judd
Director
State of Wisconsin
Claims Board
September 16, 1998
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on August 27, 1998.
The amounts recommended for payment under $5,000 on claims included in this report have, under the provisions of s.
16.007, Stats., been paid directly by the Board.
The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.
This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.
Sincerely,
Edward D. Main
Secretary
CLAIMS BOARD
The State Claims Board conducted hearings in the State Capitol, Room 417 North, Madison, Wisconsin on August 27, 1998, upon the following claims:
Claimant Agency Amount
1. Ringhand Meats Agriculture, Trade $5,144.05
& Beverages, Inc. & Consumer Protection
2. Marcia Klein Health and $5,274.29
Family Services
3. Green Tree Financial $20,532.00
Financial Services Institutions
4. Delmar L. Smith Revenue $10,954.74
5. Tillman Mosley Revenue $9,392.14
6.Eugene Parks Revenue $49,659.70
7. Wisconsin Gas Transportation $965.49
Company
8.Wisconsin Gas Transportation $1,590.07
Company
9.Wisconsin Gas Transportation $450.77
Company
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
10. Cedar Grove Agriculture, Trade $711.61
Cheese, Inc. & Consumer Protection
11. National Agriculture, Trade $102.38
Farmers & Consumer Protection
Organization
12. Gus W. Ernst Natural Resources $2,754.00
13. Lichtfeld Administration $172.00
Plumbing, Inc.
14. Scott & Brenna University $720.21
Miles of Wisconsin
15. Barbara Mariann Health and $93.19
Rush Family Services
16. James D. Weichelt Revenue $673.13
In addition, the following claim, presented at a previous hearing, was considered and decided:
Claimant Agency Amount
17. Deiss Sanitation University $33,305.00
of Wisconsin
In addition, the board discussed its long-standing policy of not holding hearings for stale-dated checks over six years old.
The Board Finds:
1. Ringhand Meats and Beverages, Inc., of Evansville, Wisconsin claims $5,144.05 for the cost of refinishing the floor of the claimant's meat processing plant. The claimant alleges that the floors of the plant were finished in accordance with instructions from Arthur Ness of DATCP's Meat Safety Division. The claimant claims that Mr. Ness instructed the floor contractor to finish the floors to a smooth finish and that they are now extremely hazardous when wet, causing several people to slip and fall. The claimant buffed the floors in an attempt to roughen them but this was not successful. The claimant has received a $5,000 estimate for shot blasting the floors to provide a rougher surface. He requests reimbursement for the cost of renting the buffer ($144.05) and the cost of refinishing the floors ($5,000). DATCP states that neither Mr. Ness nor any other state employe recommended that the floors in the plant be smooth. Department regulations require that the floor be impervious, not smooth. Furthermore, Department regulations state that floors that become wet must have a non-slip surface. The claimant received written materials that included these specifications for floors. The floors were apparently finished according to the architect's specifications, which state, "Interior concrete slabs shall have a monolithic steel-trowelled finish". The architect's spec sheet for the plant was never submitted to the Department prior to construction. A DATCP inspector states that he overheard the floor contractor ask the claimant if the floor was smooth enough for him and that the claimant told the contractor to make another pass to make the floor smoother. The claimant has been in the business for approximately 30 years. He has two facilities and has remodeled an existing one. He received written information from the Department, including the floor specifications, in 1988 and again in 1996. 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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2. Marcia Klein of Appleton, Wisconsin claims $5,274.29 for reimbursement of attorney's fees and other expenses allegedly incurred because of an open records request. The claimant is employed at Wisconsin Resource Center (WRC). In July 1996 two patients at the center, who were detained there under Chapter
980 Stats., as sexually violent persons, made open records requests for copies of the claimant's personnel file. At that time, the state planned on releasing a portion of the file to the requesters. The claimant retained an attorney and sued the state to keep it from releasing the file. The two patients requesting the records had themselves added to the lawsuit as defendants. After receiving additional patient requests for the personnel files of various other employes, the state reversed its position regarding release of the file. The state refused to release any portion of the claimant's personnel file based on the "balancing test" exemption of the Public Records Law. The claimant argued that position as well, and also argued that the patients were "incarcerated persons" and therefore were not proper requesters under s.
19.32 (3). The Circuit Court agreed with the state's position. The two patients appealed. The Court of Appeals upheld the Circuit Court's decision, based on the state's "balancing test" argument, but rejected the claimant's argument that the patients were "incarcerated persons" under s.
19.32 (3). The claimant requests reimbursement for her attorney's fees, interest, lost wages, and travel expenses. DHFS states that from the time it reversed its position and denied access to the records (9/10/96) through the Court of Appeals decision (4/1/98), the claimant and DHFS took the same position; the only difference was their legal reasoning. Both courts adopted DHFS' legal reasoning and rejected the claimant's therefore her legal expenditures during this period did not contribute in any way to the ultimate resolution of the case. DHFS also points out that a portion of her claim is for expenses incurred in supporting legislation to exempt committed inpatients from the definition of "requester" under Public Records Law. DHFS supported this legislation and does not feel the state should pay expenses an employe incurs in backing legislation that is sponsored by the state to improve the employe's working conditions. Finally, DHFS feels the claim should not be paid because the legislature has specified those circumstances in which the State is required to pay private citizens' legal costs, and this situation is not among them. (See ss.
814.245 and
277.485, Stats.) The Board concludes the claim should be paid in the reduced amount of $2,500.00 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. (
Member Lee not participating.)
3. Green Tree Financial Servicing Corporation of St. Paul, Minnesota claims $20,532.00 for refund of an alleged overpayment caused by an error in the claimant's 1997 Foreign Corporation Annual Report. The claimant states that it entered an incorrectly calculated apportionment factor showing 36 percent of its business for 1996 in Wisconsin when in fact only 1.39 percent of its business during that period was in Wisconsin. The claimant states that the majority of its business is done in states other than Wisconsin. To support this statement, the claimant points to its 1995 and 1996 Foreign Corporation Annual Reports, which show apportionment percentages for Wisconsin of .8799 and 1.273, respectively. The claimant believes that the documents that it has submitted prove that the apportionment factor on the originally filed report was incorrect and requests reimbursement of the fee overpayment caused by the error. DFI recommends denial of this claim because the Department has no way of verifying the accuracy of the information provided in the original report or in the articles of correction applying to the original report. In filing documents and annual reports and collecting the corresponding statutory fees, DFI performs a ministerial function and relies solely on the information set forth in such reports and documents. The source of that information is in the exclusive control of the corporation. The revenue generated from the collection of these fees ranges from approximately $2 to $4 million annually. It derives from reports and applications filed in the same circumstances as those attending the report on which the claimant seeks recovery. Accordingly, there is the potential of important future consequences in allowing a claim of this nature. To support its recommendation for denial, DFI points to a 1981 informal opinion of the Attorney General relating to a similar 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.
4. Delmar L. Smith of Madison, Wisconsin claims $10,954.74+ for refund of overpayment of income taxes for the years 1991-1993. In March 1996 the Department of Revenue began garnishing the claimant's paycheck for payment of assessments for the above years. The claimant admits that he did not timely file income tax returns for these years and accepts that late fee's and interest should be added as a penalty. However, the claimant feels that $6,370.26 in interest penalties and fees, which he has paid, is sufficient punishment for him not filing his taxes on time. The claimant believes that the state keeping $10,954.74 in overpayment is unjust and requests reimbursement of that amount. DOR recommends denial of this claim. The claimant failed to timely file his 1991, 1992 and 1993 income tax returns. Estimated income tax assessments for 1991 and 1992 were issued on October 17, 1994. An estimated assessment for 1993 was issued on November 4, 1996. All three returns were filed in February 1997. Section
71.75(5), Stats., prohibits DOR from refunding the money that was applied to the 1991 and 1992 assessments, since no refund was claimed within the prescribed two-year time period. Since the 1993 return was filed within the prescribed two-year, all payments applied to the 1993 estimate were credited to the actual liability leaving a delinquent balance due as of April 23, 1998, of $2,112.35. 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 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 Simonson dissenting.)
5. Tillman Mosley of Dayton, Ohio claims $9,392.14 for refund of overpayment of income taxes for the years 1991-1992. The Department of Revenue issued an estimated assessment for these two years in the amount of $17,000. In January 1997 DOR began garnishing the claimant's wages in the amount of $1,000 per month. The total amount taken by DOR was $10,577.16. After the claimant submitted his 1991 and 1992 income taxes, he discovered that he had overpaid in the amount of $9,392.14. The claimant believes that the estimated assessment was based on a fictitious number. The claimant also states that, based on the monthly statements he received from DOR, which stated that an overpayment would be refunded, he believed that the state would refund him any overpayment. DOR states that the claimant has a history of not filing his tax returns in a timely manner and that five of his last seven tax returns were filed anywhere from a year to five years late. DOR issued an estimated income tax assessment for the 1991 and 1992 taxes on November 21, 1994. The claimant filed the 1991 taxes on November 14, 1995, upon which a call was made to him to inform him that a 1992 return was also required to adjust DOR's assessment. The claimant allegedly informed the revenue agent that he would file the 1992 return right away. The 1992 return was not filed until March 6, 1998. DOR has documented as many as 12 contacts with the claimant from April 4, 1995 through March 6, 1998, concerning the filing of these taxes. Section
71.75 (5), Stats., prohibits the Department from refunding any overpayment since no refund was claimed within the prescribed two-year 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. (
Member Simonson dissenting.)
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6. Eugene Parks of Madison, Wisconsin claims $49,659.70 for refund of overpayment of income taxes for the years 1987 through 1996. The claimant believes that the assessments issued by the Department of Revenue were excessive and not reasonable as required under section
71.74, Stats. When he filed his taxes in December 1997, the claimant discovered that the total amount of tax he actually owed for the years in question was $2,624. The claimant believes that the huge discrepancy between what he actually owed and the amount garnished by DOR proves that the DOR's assessments were excessive and arbitrary. The claimant further alleges that DOR is denying his refunds based on an excessively narrow reading of s.
71.75 (2), Stats., and that he is due a refund under the doctrine of equitable recoupment. He believes that there is nothing in s.
71.75 (2), Stats., that prevents DOR from crediting his account in the amount by which prior assessments exceed liabilities. He requests that $911.75 of his outstanding balance be credited to his outstanding sales tax liability and that the remaining $48,747.95 either be refunded to him or applied to future tax liabilities. DOR states that despite persistent contact, the claimant failed to file income tax returns for the years 1987-1996 until December 5, 1997. In the interim, DOR issued estimated income tax assessments against the claimant for the years 1987 through 1994. The claimant did not contest these estimated assessments and they became final and conclusive and went delinquent. DOR issued wage certifications against the claimant. DOR states that it is prohibited from providing the claimant a refund or credit towards future years (which in substance is nothing more than another way of granting a refund) by the statute of limitations. Section
71.75, Stats., does not provide the claimant with any right to obtain a credit towards his future liabilities. DOR believes that the doctrine of equitable recoupment has no application to this situation. Equitable recoupment is not a cause of action, it is a defense to a presently pending assessment against the claimant that is not yet final and conclusive. However, DOR does not have an assessment presently pending against the claimant, so the claimant is without a refund claim under the doctrine of equitable recoupment. Furthermore, DOR states that equity only attaches to those who appear with "clean hands". The claimant failed to timely file income tax returns for 10 years in repeated violation of s.
71.83 (2) (a) 1, Stats., which is a crime. The DOR believes the claimant should not be provided equity for conduct that constitutes a crime. The Department issued estimated assessments against the claimant according to its best judgement. The claimant could have contested the assessments or timely filed his income tax returns and paid the amount of tax he self-reported. He chose not to. 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 Simonson dissenting.)
7. Wisconsin Gas Company of Milwaukee, Wisconsin claims $965.49 for gas loss and repair cost for its damaged gas line. The claimant alleges that on or before April 17, 1996, the Department of Transportation cut through the claimant's gas line while installing a road sign near Caledonia, Wisconsin. The claimant believes that DOT failed to take reasonable action and call to have the location of the underground gas mains and service lines marked in accordance with Wisconsin Statutes s.
182.0175. The claimant requests $531.00 for labor, $105.24 for equipment and materials, and $329.25 for gas loss, for a total claim of $965.49. DOT states that in 1987 it held a series of meetings with various utilities to discuss permit fees and locate services. A compromise agreement was reached that DOT would waive permit fees and make every effort to request locate services prior to digging, in exchange for which the utilities would hold DOT harmless for damage to their facilities. This agreement has been policy since 1989. This agreement indemnifies DOT for any unintentional damage to utility lines during DOT's normal course of business. This includes "damage to any property, lines or facilities placed by or on behalf of the applicant, pursuant to this permit or any other permit issued by the State for location of property, lines or facilities on highway right-of-way in the past or present". The indemnification language appears on every application/permit to bury utility lines on a DOT right of way. DOT makes every effort to call Diggers Hotline whenever possible and practical, however, DOT's primary duty is to install traffic signs in a timely manner. In this instance, DOT personnel were installing traffic signs on STH-10, when a Waupaca County Sheriffs Officer requested that they move an existing sign a few feet off of STH-10 to allow room for the County snowplow to adequately plow snow without striking the sign. The sign crew chief made a discretionary decision that the sign could be moved a few feet without a problem. There was no willful intention on the part of DOT to damage the gas main. The claimant knowingly entered an agreement to indemnify and hold the state harmless and repeatedly reaffirmed that agreement by endorsing the permit applications. They should not now be allowed to claim that the state should pay for these damages. The Board concludes the claim should be paid in the amount of $965.49 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Transportation appropriation s.
20.395 (3) (eq), Stats.
