13. David J. Devney of Madison, WI claims $350.00 for damage to suit allegedly incurred when he slipped and fell outside the DPI on April 11, 2000. The claimant states that he was entering the building at 10:00 AM, carrying a 30 pound printer for installation at DPI, when he slipped on ice and snow that was on the walk. The claimant alleges that the area had not been salted or sanded after early morning snow. The claimant states that he jarred his shoulder, cut his knee and bruised his elbow. He states that he tore a three-inch hole in the knee of his pants. He claims that he has contacted several companies in an attempt to have the suit repaired, however, he was told that the hole was too large to fix. The claimant also states that this particular suit is no longer being made in the same color, so it is not possible to find new pants to match the jacket. The claimant paid $299 for the suit in 1998 and requests $350 to account for a current higher replacement cost. The claimant believes that the building maintenance crew was negligent for not clearing the walk.
This incident was investigated on the date of occurrence. Although snow was not removed prior to the claimant's entrance into the building, the DOA believes that the claimant should have been aware of the slippery conditions. DOA believes that the claimant's decision to carry a boxed printer into the building through the snow contributed to his fall as it obscured his vision and ability to balance while walking into the building. DOA also states that there are two parking stalls available for the public to use for drop off, which are located in the parking level beneath the building. The claimant has not indicated that he tried to use these or that they were full and unusable. There were no other reports of slips or falls on this date for the Central Madison Complex.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
14. Christopher J. Kratcha of Marshfield, WI claims $1,086.75 reimbursement for stolen personal items not covered by his insurance policy. The claimant is employed by the DNR as a Conservation Warden trainee. The claimant states that he is required to travel around the state to attend various training sessions as part of his job duties. The claimant states that in August 2000 he was scheduled to attend a weeklong training session in Sturgeon Bay. The claimant states that he drove a state owned vehicle to his brother's home in Menasha the night before the training, in order to avoid a long drive to Sturgeon Bay the morning the training session began. The claimant alleges that, because he is in training and is frequently away from home for extended periods of time, he brings with him a number of personal items. The claimant states that his personal items were stolen from the state owned vehicle while it was parked in Menasha. The claimant requests reimbursement for items not covered by his insurance: 76 compact discs with a replacement value of $1,086.75.
The DNR understands that the Claims Board does not ordinarily award payment for personal items lost by state employees, however the DNR believes there are special circumstances in this case. The DNR states that Conservation Warden trainees are required to live away from their homes for extended periods of time during their year-long initial training period. The DNR believes that it is therefore not unreasonable for trainees to travel with personal items not normally included in business travel. The DNR notes that the items were stolen without forced entry into the state patrol truck. According to the police report, the claimant locked both doors but left a window on the truck open approximately one inch. The DNR believes that the claimant therefore contributed to the loss and recommends payment of 50% of the claim: $544.00.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
15. Eleanor A. White of Stoughton, WI claims $10,280.00 for refund of an assessment made by the DOR. The claimant alleges that in 1989 the DOR took the position that civil service pension benefits for National Guard technicians were tax exempt. The DOR published this position in a newsletter, which it distributed to federal retirees in 1989. In 1995, the DOR reversed its position and mailed assessments to over 400 National Guard technicians for back taxes on pension benefits from 1989 to 1995, plus 12% interest. In February 1996, the claimant received an assessment for $10,280 tax and interest on her husband's pension for the years 1989-1994. She paid the assessment in full. She states that she then began getting notifications about an attorney, Mr. Eugene Duffy, who was representing the National Guardsmen and fighting the DOR position reversal and backdated assessments. The newsletters and updates indicated the Mr. Duffy was representing all retired National Guard technicians. A "test case" was presented to the Wisconsin Tax Appeals Commission, which upheld DOR's position. WTAC's decision was appealed in Dane County Circuit Court in November 1999. The court affirmed that the pensions were taxable but found that some of the petitioners had relied on DOR's advice to their detriment and ruled that DOR was estopped from seeking assessments against those individuals for tax years 1989 and after. The claimant states that in early 2000, she received a notice from the DOR notifying her of a National Guard Technician Settlement. She contacted the DOR but was told that she did not qualify for refund of the 1989-1994 taxes, as provided for in the settlement, because she had not appealed the original assessment issued in 1996. The claimant believes that it is unconscionable for the DOR to refuse to refund her money and that it was grossly unfair of DOR to issue backdated assessments to begin with, when the retired technicians had relied on DOR's 1989 statement that their pensions were tax exempt. Because she received newsletters updating her on the legal fight with DOR she believed that she was included in any resulting victory and had no reason to believe that her failure to originally appeal the assessment would cause her disqualification from the settlement agreement.
S83
The DOR recommends denial of this claim. A notice of appeal rights accompanied the assessment sent to the claimant in February 1996. No notice of appeal or letter of objection was filed when the claimant paid the assessment. The last date the claimant could have timely filed a claim for refund of the assessment was February 26, 1998. In February 2000, the DOR offered a settlement to the named litigants in the WTAC appeal (the "test case"). The terms of the settlement provided that for the years 1989-1995 the DOR would withdraw assessments and pay timely, properly appealed refund claims. In March 2000, the DOR began to offer the same settlement to other individuals in similar situations as the named litigants, provided that the individuals had timely pending appeals or timely refund claims. The DOR did send a $183.04 settlement to the claimant for the year 1995, since that year was open to refund under the statutes at the time of first contact. Since the claimant did not appeal the original assessment for 1989-1994, DOR has no authority to issue the refund she is requesting and it is DOR's position that the assessment is final and conclusive.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. However, Representative Albers and Senator Shibilski have indicated that, despite the Board's decision, they will be introducing legislation that will provide for payment of this claim and other like claims.
The Board concludes:
1. The claims of the following claimants should be denied:
Thomas F. Bailey
Anthony Gray
Brian J. Friedman
S.R. and James Spitz
Kim Bown
Alvernest Kennedy
David J. Devney
Christopher J. Kratcha
Eleanor A. White
2.
Payment of the following amounts to the following claimants is justified under
Braeger Chevrolet $2,700.00
H. Joseph Slater $1,702.50
Burton A. Weisbrod $5,000.00
Jeral Khachi $2,000.00
Jay M. Johnson $118.29
Sandra C. Eselby $613.32
Dated at Madison, Wisconsin this 12 day of February 2001.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Sheryl Albers
Assembly Finance Committee
Kevin Shibilski
Senate Finance Committee
Amanda Schaumburg
Representative of the Governor
__________________
State of Wisconsin
Office of the Governor
February 9, 2001
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Sheehy
, Timothy R.,
of Fox Point, as a member of the State Fair Park Board, to serve for the interim term ending May 1, 2001, and for the full term ending May 1, 2006.
Sincerely,
Scott Mccallum
Governor
Read and referred to committee on Labor and Agriculture.
State of Wisconsin
Office of the Governor
February 9, 2001
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Leipold, Craig L.,
of Racine, as a member of the State Fair Park Board, to serve for the interim term ending May 1, 2002, and for the full term ending May 1, 2007.
Sincerely,
Scott McCallum
Governor
Read and referred to committee on Labor and Agriculture.
__________________
Relating to a system of remediation for applicants who have failed the clinical and laboratory examinations more than three times.
Submitted by Department of Regulation and Licensing.
Report received from Agency, February 13, 2001.
Referred to committee on Health, Utilities, Veterans and Military Affairs, February 15, 2001.
__________________
By John Scocos, chief clerk.
Mr. President:
I am directed to inform you that the Assembly has passed and asks concurrence in:
Assembly Bill 3
Assembly Bill 6
Assembly Bill 7
Assembly Bill 20
Assembly Bill 24
Assembly Bill 35
Assembly Bill 42
Assembly Bill 49
S84
Adopted and asks concurrence in:
Assembly Joint Resolution 4
Assembly Joint Resolution 12
Assembly Joint Resolution 19
Assembly Joint Resolution 25
Assembly Joint Resolution 26
Assembly Joint Resolution 27
Assembly Joint Resolution 31
Concurred in:
Senate Joint Resolution 18
