Wisconsin Legislature: 2002-01-08 Senate Journal

The DOA recommends payment of this claim. The DOA notes that there were grass clippings on the sidewalk in the area where the claimant fell and that the grass had been recently mowed. The DOA further notes that the pavement in the area was dry. The DOA believes that the grass clippings left on the walkway may have contributed to the claimant's accident and recommend that he be reimbursed for his medical expenses.

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.

8. Terri Nielson d/b/a Tech Trak Consulting of Reedsburg, Wisconsin claims $10,842.00 for damages allegedly related to the termination of a contract with the DOA. The claimant, through her company, entered into a contract with the DOA to provide technical writing services at a rate of $39 per hour. The claimant states that the term of the contract was July 1, 1999 through June 30, 2000, and required the claimant to provide the DOA with up to 2,000 hours of technical writing services for a total of $78,000. The claimant states that in mid May of 2000 the DOA informed her that the contract would be terminated on May 31, 2000. The claimant alleges that this termination was done without her consent and that she never requested to be relieved of her projects. She claims that she understood the contract as providing her with full-time work for one year and that she would not have entered into the contract had this not been the case.

The DOA recommends that this claim be denied. The DOA contends that, when construing the contract as a whole, it is clear that it was to be open-ended, depending on the need for and quality of the claimant's services. The DOA states that the purchase requisition, which in essence is the contract, followed standard purchasing requirements. The DOA points to the fact that the total cost of the contract is estimated based upon the potential hours at the hourly rate. The DOA states that this was obviously not a final, firm contract amount or it would not have been estimated. Moreover, the DOA states that if the contract had been for a fixed 2,000 hours/$78,000, the DOA would not have paid the claimant by monthly invoice, as was the case in this instance. The DOA states that the claimant was paid on a monthly basis specifically in order to track the work performed and allow the DOA to review the work and, if necessary, terminate the contract at any time. Finally, the DOA states that the reason for the termination of the contract was the claimant's failure to perform her assignment after approximately 1700 hours of work under the contract. The DOA alleges that the claimant requested to be removed from the web-hosting project to which she was assigned. When notified that she was ceasing work on the project without finishing it, the DOA chose to terminate the claimant's services. The DOA states that the contract did not guarantee that the claimant would receive work for the full 2,000 hours or that she would receive the absolute amount of $78,000.

9. West Side Garage, Inc. of Berlin, Wisconsin claims $2,579.34 for lost value of vehicle allegedly related to an error by DOT employees. The claimant received a 1999 pick up truck in trade, which was appraised for $18,000. The Wisconsin Vehicle Title was not marked salvage. The claimant states that when it attempted to sell the vehicle, it was discovered that the vehicle had been previously titled in Missouri as salvage and that the salvage brand from the MO title was not carried forward to the new WI title issued by the DOT. The claimant has since sold the vehicle, and claims a loss of $2,579.34.

The DOT recommends payment of this claim in the amount of $2,579.34. After conducting an investigation of the claim, the DOT does find negligence on the part of its employee, Nancy Davis, for not carrying forward the Missouri salvage brand and instead issuing a clean Wisconsin title.

The Board concludes the claim should be paid in the amount of $2,579.34 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(5)(cq), Stats.

10. James Cape & Sons, Inc. of Racine, Wisconsin claims $1,483,781.60 for additional construction costs allegedly incurred on a DOT construction project. The claimant alleges that, after they began construction work, the DOT notified them that the DOT would not allow the claimant to use excavated material for trench backfill. The claimant alleges that this is contrary to their interpretation of the contract, which they claim does allow for use of excavated material as backfill. The claimant also alleges that the DOT failed to provide them with access to the right of way, as provided for in the contract, thereby causing a delay in the project. The claimant alleges that the DOT failed to ensure that existing power lines and railroad tracks were relocated so as to avoid any interference with the project, and that the claimant incurred additional costs as a result of the delays.

The DOT requests that this claim be denied. The DOT states that the contract specifications require that trenches be backfilled with granular backfill. The DOT states that the claimant is an experienced state contractor and was well aware that the state always requires the use of granular backfill in such situations. The DOT alleges that specific conversations with the claimant indicate that they were aware that they would need to use granular backfill in the project. The DOT also alleges that at a meeting in April 1995, an employee of the claimant specifically admitted that he bid the project as using granular backfill. The DOT states that the claimant did have access to the right of way and that the contract did not require the DOT to ensure that the existing power lines and railroad tracks be relocated so as to avoid interference with the progress of the project. The DOT states that the contract advised the claimant to contact utilities and required the claimant to utilize applicable and safe construction methods when working around utility lines.

S494 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.

11. Michael & Mary Brown of Brookfield, Wisconsin claim $88.12 for damage to tire allegedly caused by negligence of the DOT. The claimant states that at 10:30 PM on December 8, 2000, he was driving through a construction zone on Greenfield Avenue in Waukesha County. He states that there was a pole-style lane divider bent into his lane, which he had to swerve to avoid and that when he swerved, he hit a large pothole and damaged his tire and rim. The claimant states that he contacted the road contractor in charge of the project and was told that they would not pay the bill. He requests reimbursement for his tire damage.

The DOT recommends that this claim be denied. The DOT states that the area in which the accident occurred was at that time in a construction zone. The DOT states that all state construction contracts have a hold harmless agreement, which says that the contract will indemnify and save harmless the state from all claims brought because of damages received by any person on account of any act, omission, neglect or misconduct of the contractor. Therefore, the DOT believes that any responsibility to address claims of negligence resulting in damage rests with Zignego, Inc., the prime contractor on this project. The DOT finds no negligence on the part of any state employee.

12. Bryce Garrett of Boscobel, Wisconsin claims $157.80 for court costs incurred by the claimant. The claimant, an inmate at Supermax Correctional Institution, alleges that the DOC wrongly charged him with a violation of Wisconsin Administrative Code. The claimant appealed the discipline imposed on him, and filed a Writ of Certiorari in Dane County Circuit Court. The claimant states that Dane County Circuit Court reversed the decision of the DOC to discipline the claimant and ordered that the discipline be expunged from his correctional file. The claimant requests reimbursement for his court filing fee and the sheriff's fee to serve papers on the DOC. The claimant states that he will file two more lawsuits if the Claims Board does not pay this claim. He claims that the typical inmate lawsuit costs the state $4,100 and believes that the board should pay the claim rather than have the state incur $8,200 in lawsuit costs.

The DOC requests that this claim be denied. The claimant filed a motion for costs under s. 814.245(3), Wis. Stats., which the court denied, finding that the DOC was substantially justified in its position and that the claimant was therefore not entitled to costs. In addition, the DOC states that the claimant failed to serve the motion for costs on the assistant attorney general who represented the DOC in these matters. The DOC believes there is no legal basis to grant this claim. The claimant has not presented any reason why the Claims Board should ignore the circuit court decision or s. 814.25, Stats.

Reconsideration of funding source for payment of claim of Kenneth C. Ketterer against the Department of Revenue. On September 21, 2001, the Claims Board decided to pay the claim of Kenneth C. Ketterer against the Department of Revenue in the amount of $4,221.92. The Board further indicated that this payment should be made from the Department of Revenue appropriation s. 20.566(1)(a), Stats. The Department of Revenue has requested that the Board reconsider their decision to pay the claim from DOR funds and instead consider paying the claim from the Claims Board appropriation s. 20.505(4)(d), Stats.

After reconsideration of the funding source for payment of the claim, the board declines to change its previous decision to pay the claim from the Department of Revenue appropriation s. 20.566(1)(a), Stats.

Consideration of motion to refer innocent convict claim of Frederick Saecker to a hearing examiner. Frederick Saecker has filed an innocent convict claim under s. 775.05, Stats., with the Claims Board. Claims Board Chairperson, Alan Lee, has made a motion that the claim should be heard by a hearing examiner designated by the board, rather than by the entire Claims Board. The hearing examiner would conduct the hearing for the claim and would submit a proposed Findings of Fact and Decision to the Claims Board for their approval.

After consideration of the issue, the Board concludes that the claim of Frederick Saecker should be considered by a designated hearing examiner, who will then submit to the Board a proposed Findings of Fact and Decision for their approval.

The Board concludes:

1. The claims of the following claimants should be denied:

Patrick D. Horkan

Pastori M. Balele

Marquita Phillips

James A. Mentek, Jr.

Geoffrey T. Hermsen

Terri Nielson/Tech Trak Consulting

James Cape & Sons, Inc.

Michael & Mary Brown

Bryce Garrett

2. Payment of the following amounts to the following claimants from the following appropriations is justified under s. 16.007, Stats:

Alicia Bowman $156.00

Willie J. Wilks $5,000.00
West Side Garage, Inc. $2,579.34

3. The board declines to change its previous decision to pay the claim from the Department of Revenue appropriation s. 20.566(1)(a), Stats.

4. The Board concludes that the claim of Frederick Saecker should be considered by a designated hearing examiner, who will then submit to the Board a proposed Findings of Fact and Decision for their approval.

Dated at Madison, Wisconsin this 21st day of December 2001.

Alan Lee, Chair

Representative of the Attorney General

S495 John E. Rothschild, Secretary

Representative of the Secretary of Administration

Chad Taylor

Representative of the Governor

Sheryl Albers

Assembly Finance Committee

State of Wisconsin

University of Wisconsin System

December 10, 2001

The Honorable, The Legislature:

The 2001-03 State of Wisconsin Biennial Budget, 1999 Wisconsin Act 9, included a provision to change the University of Wisconsin System's appropriation for tuition and fee revenues (Academic Student Fees, Fund 131) from an annual, sum certain appropriation to a continuing appropriation.

Wisconsin Act 9 required the Board of Regents to report annually, beginning on December 15, 2000, the amount by which actual expenditures in the previous fiscal year, in this case, 2000-2001, exceeded the amount in the schedule for that appropriation in the previous fiscal year. That report, including the purposes for which the additional revenues were spent and the amount spent for each purpose, is attached. The Board of Regents approved this report for submission at its December 7, 2001 meeting.

Please contact Freda Harris at (608) 263-5679, if you have any questions related to this report.

Sincerely,

Deborah A. Durcan

Vice President for Finance

State of Wisconsin

Joint Legislative Council

December 6, 2001

The Honorable, The Senate:

I am pleased to transmit to you the following report to the 2001 Legislature on legislation introduced by the Joint Legislative Council:

RL 2001-01 Legislation on recodification of Operating While Intoxicated and Safety Laws Pertaining to Motor Vehicle, All-Terrain Vehicle, Boat or Snowmobile Operation

(2001 Assembly Bill 667 and Senate Bill 335)

(2001 Assembly Bill 668 and Senate Bill 336)

(2001 Assembly Bill 669 and Senate Bill 337)

(2001 Assembly Bill 670 and Senate Bill 338)

I would appreciate your including this letter in the journal for the information of the membership. Additional copies of this report are available at the Legislative Council Staff Offices, One East Main, Suite 401, or from our web site at http://www.legis.state.wi.us/lc/reports_by_topic.htm.

Sincerely,

Terry C. Anderson

Director

State of Wisconsin

Joint Legislative Council

December 11, 2001

The Honorable, The Senate:

I am pleased to transmit to you the following report to the 2001 Legislature on legislation introduced by the Joint Legislative Council:

RL 2001-10 Legislation recommended by the Special Committee on Use of Prescription Drugs for Children

(2001 Assembly Bill 672)

Sincerely,

Terry C. Anderson

Director

State of Wisconsin

Department of Natural Resources

December 27, 2001

The Honorable, The Legislature:

Sec. 292.65(3)(3e) requires that no later than January 1, 2002, the Department of Natural Resources shall complete a review of the Dry Cleaner Environmental Response Fund Program and submit a report on the results of that report to the Joint Committee on Finance and to the appropriate standing committee of the legislature as determined by the speaker of the House and the president of the Senate. Attached is that report for your information and review. This report also contains an addendum by the Governor's Council on the Dry Cleaner Environmental Response Fund Program, as part of their required program review.

If you have any questions on this program or this report, please contact me at 267-7569.

Sincerely,

Robin Schmidt