Wednesday, December 23, 1998
Ninety-Third Regular Session
The Chief Clerk makes the following entries under the above date.
__________________
The committee on Human Resources, Labor, Tourism, Veterans and Military Affairs reports and recommends:
Van Bogaert, Cynthia A.,
of Oregon, as a member of the Employe Trust Funds Board, to serve for the term ending May 1, 2001.
Confirmation.
Ayes, 5 - Senators
senaye
Noes, 0 - None.
David Zien
Chairperson
__________________
State of Wisconsin
Claims Board
December 18, 1998
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on December 9, 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
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings in the State Capitol, Room 416 North, Madison, Wisconsin on December 9, 1998, upon the following claims:
Claimant Agency Amount
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
In addition, the following claims, presented at a previous hearing, were considered and decided:
Claimant Agency Amount
The Board Finds:
S809
1. William and Cynthia Haack of Mt. Horeb, Wisconsin claim $5,413.75 for the value of an injured horse and veterinary bills. The DNR has an easement privilege on the claimants' land. The claimants state that they have been trying to get the Department to fix and complete the fencing along the easement for two years. They claim that the fence is in a general state of disrepair and that a portion of the fence came down several years ago when a large tree on the DNR easement fell over. They state that barbed wire from the DNR fence was strewn about in the pasture near the tree, but that they were unaware of this because the wire was hidden in the tall marsh grasses. They allege that in 1997, one of their horses got tangled in the barbed wire from the DNR fence and was seriously injured. Because of its injuries, the horse is not able to bear weight and can never be ridden and it is also doubtful that the animal will be able to be bred. The horse is a rare, Rocky Mountain breed and was valued at $4,000 at the time of her injury. The claimants state that, contrary to the DNR's assertions, they never relocated any of their fencing; that their horse was injured in barbed wire from the downed DNR fence, not by the temporary wire mesh fence referred to in the DNR response, which the claimants erected after the horse's injury. They further state that the DNR fencing was not installed "several" years ago, but 32 years ago, after the easement was granted. The claimants allege that despite their repeated complaints to the DNR, the entire easement has not been maintained. The claimants further allege that in October 1998 local DNR employes contacted them and stated that they may have been wrong about the fence. DNR personnel came to the claimants' farm and inspected the area where the horse was injured. They agreed to fix the fence in that area and also took measurements of the unfenced area so that the fence could be completed. The claimants believe the DNR was negligent in not maintaining the easement in general and the fencing in particular. The DNR recommends denial of this claim. The DNR believes that the claimants relocated their fencing so that it no longer connected with the DNR fence and that prior to pasturing the horse in that area, someone other than the Department installed a temporary wire mesh fence to connect the claimants' relocated fence with the DNR fence. According to the Department's information, the horse became entangled in that portion of the fence, which was presumably erected by the claimants. The Department regrets the unfortunate accident, however it does not believe that Department personnel were negligent or that the claim should be paid on equitable grounds. The Board concludes the claim should be paid in the reduced amount of $5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation s.
20.370 (4)(mu), Stats.
2. Paul G. Roehrig of New Glarus, Wisconsin claims $11,903.03 for payment of attorney's fees related to a defamation lawsuit. In December 1996, Conservation Wardens from the DNR arrived at the claimant's home with a search warrant. The DNR had received a phone tip from Kevin Ward, who stated that he had personally observed the claimant engage in illegal hunting activity. The search produced no evidence to support Mr. Ward's allegations and no charges were filed against the claimant. The claimant states that he filed the lawsuit against Mr. Ward because his business reputation in the community was damaged by the poaching rumors. The suit was settled and Mr. Ward signed a statement that he was mistaken about his allegations. The claimant states he did not request attorney's fees from Mr. Ward in the settlement because it was clear that Ward had no financial means to pay them. The claimant believes that the DNR did not conduct a timely and thorough follow-up investigation, which would have helped clear his name and protect his business reputation. The claimant states that there were a number of inconsistencies in Mr. Ward's accusations, which would have been uncovered by simply questioning the individuals with whom he claimed to be. The claimant further states that DNR Wardens were rude both during and after the search, despite his cooperation. The Department of Natural Resources recommends denial of this claim. The Department notes that at their May 14, 1998 meeting, the Claims Board denied Mr. Ward's claim for reimbursement of his attorney's fees related to this same lawsuit. In response to Mr. Ward's hotline tip, Conservation Warden Jill Schartner interviewed Mr. Ward, who appeared to her to be credible. She then conferred with her supervisor, contacted the Green County District Attorney's Office and obtained a search warrant from the Green County Circuit Court. Therefore, it appears that both the District Attorney and the Court also believed that it was reasonable to conduct a search based on Mr. Ward's statements. The search of the claimant's property failed to reveal corroborating evidence upon which to base a prosecution, therefore, the DNR believes that the claimant had no need to incur expenses to defend himself against prosecution. All of the claimant's expenses were incurred after the search and appear to be in connection with his civil action filed against Mr. Ward. The claimant chose not to pursue that action and agreed to its dismissal without payment of costs or damages, therefore, the DNR does not believe the state should be held responsible for those costs. The Board concludes the claim should be paid in the reduced amount of $5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation s.
20.370 (3)(mu), Stats. Furthermore, the Board encourages the Department of Natural Resources to send a letter to the claimant reassuring him that he is no longer a suspect in this incident, that the Department regrets not coming to that conclusion sooner and that the Department appreciates the claimant's cooperation. The Board also strongly urges the Department to consider changes in the chain of command for wardens and improve warden training in the proper methods of conducting timely and appropriate follow-up investigations.
3. Lonie L. Wise of Columbus, Wisconsin claims $500.00 for vehicle damage related to an accident on October 27, 1998. The claimant is employed by the Department of Corrections. Her duties include sign installation and require her to travel extensively. The claimant was working on an exterior sign installation, when the installation crew had problems removing the old sign faces. They needed piano wire to slide behind the old sign to remove it but they did not have any on site. The claimant was leaving for training in Cincinnati the next morning, so in order to expedite completion of the sign installation, she returned to Madison to purchase piano wire. While she was stopped at an intersection she was rear-ended. The claimant states that the other driver motioned for her to pull over but that when she did so, he sped away and she was not able to get his license plate number. The claimant states that she used to drive an assigned state vehicle, a Ford Aerostar extended van, however, this vehicle was rear-wheel drive and extremely difficult to handle in windy or winter conditions. She alleges that she asked for a front-wheel drive vehicle, but was told that she could not turn in the Aerostar until she had put more miles on it. She alleges that due to safety concerns, she began driving her own personal vehicle. The claimant requests reimbursement for her insurance deductible. The Department of Corrections recommends denial of this claim. Although the claimant's truck was being used to drive to a store to purchase material to complete a state work project, the DOC believes that this connection with the Department's business is too remote to justify requiring them to reimburse the claimant. The Department does not believe the damages that the claimant suffered in this incident are directly related to her employment. 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 Corrections appropriation s.
20.410 (1)(a), Stats.
S810
4. William R. Niebuhr of Kenosha, Wisconsin claims $7,947.85 for refund of overpayment of 1992, 1993, 1994 and 1995 income taxes. The claimant states that he was suffering from undiagnosed, severe clinical depression, which caused him to neglect many of his responsibilities both at work and at home. The claimant alleges that it was this condition that caused him to neglect filing his income taxes. He states that his depression caused him to avoid opening his mail, which is why he did not respond to letters from the Department of Revenue. The DOR began garnishing his wages in 1995. In May 1997, the claimant was diagnosed with severe clinical depression and began treatment. The claimant filed his 1992-1995 income taxes on January 8, 1998. The claimant requests refund of his $7,947.85 overpayment due to the unusual medical circumstances that led him to neglect his taxes. The Department of Revenue denied the claimant's request for refund because of the two-year statute of limitations provided in section
71.75(5), Stats. However, the DOR is providing the facts of the case to the Claims Board, should they decide that there are mitigating circumstances related to the claimant's health. On November 21, 1994, the DOR issued an estimated assessment for $6,914.00 to the claimant for failing to file his 1992 income tax return. On April 11, 1995, a notice of hearing was sent to the claimant, who contacted the DOR by telephone and promised to file the return. On November 17, 1995, a wage attachment was issued to the claimant's employer for 15% of his gross wages. On August 26, 1996, the DOR issued an estimated assessment for $7,518.00 to the claimant for failing to file his 1993 income tax return. On February 5, 1997, the wage attachment was increased to 25% to include the 1993 assessment. On April 2, 1997, the claimant contacted the DOR to discuss his tax problems. DOR states that he was told that no release of the wage action would be made until his returns were filed and that the two-year statute of limitations was up for his 1992 return. On May 15, 1997, the claimant again contacted the Department and requested federal tax forms, which were mailed to him. On September 14, 1997, the DOR issued an estimated assessment for $14,326.00 for failing to file 1994 and 1995 returns. On January 12, 1998, the Department received the claimant's 1992 through 1996 income tax returns. All of the late returns showed refunds. The Department released its wage attachment and began issuing refunds to the claimant as allowed by statute. A total of $7,738.49 could not be refunded to the claimant because of the two-year statute of limitations. The Board concludes the claim should be paid in the reduced amount of $5,000.00 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.
5. Mary Sawatske of Mukwonago, Wisconsin claims $2,877.96 for refund of overpayment of 1992 income taxes. The claimant states that she did file a 1992 income tax return but that her records were lost in a house fire. She was contacted by the DOR in 1995 requesting the return. The claimant did not have records to confirm her employer and wages in 1992. She claims she contacted the IRS, only to be told that they were also unable to retrieve those records. In 1995, the DOR began garnishing her wages. In the fall of 1997, she consulted an accountant, Ms. Gonwa, who contacted the DOR and asked that they pull the claimant's 1991 and 1993 returns, to help determine where the claimant worked in 1992. In January 1998 Ms. Gonwa again contacted the DOR to request copies of the claimant's 1991 and 1993 tax returns. The DOR agent stated that he would order the files. Ms. Gonwa claims that she contacted the DOR agent several times and was told he did not yet have the files. In March, the claimant states that she contacted the agent, only to be told that he had closed out the file. Ms. Gonwa contacted the agent and asked why he had not sent the requested returns and he allegedly told her that he had called the claimant and given her the information. Ms. Gonwa again requested the information but the agent said he no longer had the files. She states that she asked him why he had not sent the information to her, since she had power of attorney and that he had no answer. Ms. Gonwa contacted the claimant, who stated that the agent had never contacted her with the requested information. Ms. Gonwa was finally able to get the claimant's gross wages for 1992 from the Social Security Administration. The filed return resulted in no tax liability. Ms. Gonwa states that the revenue supervisor, Linda Zepezauer, contacted her and suggested that the claimant file a claim with the Claims Board and that she felt that the DOR agent might not have handled the situation correctly. Ms. Gonwa also states that Ms. Zepezauer apologized for the agent's rudeness and stated that she felt that the claimant should get her money back due to the circumstances. The Department of Revenue recommends denial of this claim. For the tax year 1991, the claimant filed as married filing separately. She incurred a delinquent tax liability of $623.34. She was unresponsive to the DOR's attempts to resolve this delinquency. In 1992, the claimant's husband filed an income tax return as married filing separately; however, the Department states that the claimant did not file a 1992 return. In 1995, the DOR issued an estimated assessment and began garnishing the claimant's wages for both her 1992 estimated liability and her 1991 liability. The DOR claims that their first contact with the claimant was when her accountant contacted the DOR agent in November 1997, which was already past the two-year statute of limitations imposed by section
71.75(5), Stats. The revenue agent states that he informed Ms. Gonwa of the two-year statute of limitations during this conversation. The revenue agent claims he retrieved the requested information and that he conveyed it directly to the claimant in response to a phone call from her. The claimant filed her 1992 tax return in March 1998. The DOR's records indicate that the claimant's overpayment totaled $1,623.81. 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.
6. Thomas J. Wall of Fox Lake, Illinois claims $2,546.62 for refund of overpayment of taxes caused by his failure to submit an income tax return based on the sale of Wisconsin property in 1991. (The claimant had no 1991 wages in Wisconsin.) The claimant states that he was seriously ill beginning in March 1992 and was completely disabled and unable to work for several years. Because he was ill and in and out of various hospitals, he overlooked filing the form. The claimant alleges that the first contact he had with the Department of Revenue was in the form of a copy of a letter dated 9/12/97 instructing his employer to begin garnishing his wages. This letter was not sent to the claimant's home address, but instead to a California address where his wife had previously resided during a temporary consulting assignment. The claimant states that as soon as he received the notice he began taking action to gather together the information he needed to submit the return. This was completed on January 17, 1998. The total amount withheld from the claimant between September 12, 1997, and January 17, 1998, was $2,625. The actual amount of taxes due the state was $78.38. In view of the fact that serious illness was a contributing factor to his failure to file the return in a timely manner, the claimant requests a refund of his overpayment of $2,546.62. The Department of Revenue recommends denial of this claim. The claimant failed to file an income tax return for 1991, based on the sale of Wisconsin property. An estimated assessment was issued on February 20, 1995. The amount collected through wage certification in 1997 and 1998 was $2,625.00. The actual return was submitted in January 1998. Section
71.75(5), Stats., prohibits the DOR from refunding the overpayment since no refund was claimed within the prescribed two-year statute of limitations. The Board concludes the claim should be paid in the reduced amount of $1,300.00 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.
