8. HGM Architecture, Inc., of Oshkosh, Wisconsin claims $3,608.58 for elimination of interest and penalties assessed on its late filed withholding tax. The claimant states that from September 1996 through December 1999, its employee, Kathryn Eisenreich, embezzled funds from the claimant. The claimant states that Ms. Eisenreich used the state tax withholding funds to cover up her theft and that she also hid mail from DOR and paid the penalties interest incurred on late filings. The embezzlement was discovered and Ms. Eisenreich was convicted. She requested a court hearing to attempt to get her restitution amount lowered. The court set a preliminary restitution amount but provided that the amount would be reduced should the state decide to reduce the interest and penalties charged to the claimant. The court instructed the claimant to come before the Claims Board and request such a reduction. The claimant requests elimination of the penalties and interest assessed by DOR.
DOR does not object to partial payment of this claim. DOR states that the claimant is no longer able to recover money from DOR relating to this incident because of the two-year statute of limitations under s.
71.75(5), Stats. DOR further states that, if the claimant had filed a claim for refund within the two-year time limit, DOR would have reduced the interest and refunded the penalties charged against the claimant. Because of the circumstances, DOR does not object to a refund of the penalties and a reduction of the interest from 18% to 12%. DOR calculations show that this would result in a $1,560.09 refund to the claimant. DOR is unable to refund this money because of the statute of limitations but would not object to payment of this amount by the Claims Board.
The Board concludes the claim should be paid in the reduced amount of $1,560.09 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Revenue appropriation s.
20.566 (1)(a), Stats.
9. Mary E. Redlinger
of Glendale, Wisconsin claims $584.01 for return of overpayment for a 1997 tax liability. The claimant states that she filed an amended 1997 tax return in September 2001, which reduced the amount of tax that she owed for her 1997 taxes. The claimant alleges that she has had financial difficulty because the state has been late or inconsistent in sending her alimony payments, which are garnished from her ex-husband's paychecks. The claimant states that DOR garnished her paychecks for the 1997 liability but that her amended return resulted in an overpayment of $584.01. The claimant asserts that, contrary to DOR's assertions, section 71.75(5), Stats., does not apply to her overpayment. The claimant believes that s. 71.75 applies only to the return of tax refunds, not to the return of money overpaid on a tax liability. The claimant states that she was never due a tax refund on her 1997 taxes; her amended return only reduced the amount of tax that she owed, but she still owed taxes. Since she is not requesting return of any tax refund, she does not believe that the two-year limit in s. 71.75 applies to her claim.S815
DOR recommends denial of this claim. DOR records indicate that on April 8, 1998, the claimant filed her 1997 tax returns, showing a tax due of $2,911.00, but that no payment was submitted with the return. DOR sent a bill to the claimant several weeks later but no payment was received. DOR sent the claim to collections on June 5, 1998. In August 1998 the claimant entered into an installment agreement but failed to make any payments. The claimant later filed bankruptcy but the tax debt was not dischargeable under the bankruptcy filing. After dismissal of the bankruptcy, DOR again attempted to collect the debt by certifying the claimant's wages. The claimant asked for and was again granted an installment agreement, but she again failed to ever make any payments on the debt. DOR again began certification of her wages on September 14, 2000. On September 19, 2001, the claimant filed an amended 1997 return. The amended return changed the claimant's tax liability from $2,911 to $1,586, a reduction of $1,325. All monies overpaid by the claimant were refunded to her, with the exception of $585.01, which was not refundable under s.
71.75(5), Stats. DOR states that this statute does apply to the claimant's situation because it prohibits DOR from returning any money that was collected on the original assessment 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 employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
10. Carolyn Carty of Spokane, Washington claims $5,122.99 for damages allegedly incurred due to negligence by the Department of Corrections. The claimant, a former Madison resident, alleges that DOC failed to adequately notify the Madison public that Jeffrey Jackson, a paroled sex-offender, had absconded from his halfway house. The claimant alleges that Mr. Jackson was at large for four days before the public was warned that he was in the area. The claimant states that she met Mr. Jackson at a Labor Ready job center and that, unaware of his status as an escapee, she invited him to stay in her home. The claimant states that she felt sorry for Mr. Jackson because he claimed to be homeless and out of work. The claimant states that she is particularly vulnerable to victimization by individuals such as Mr. Jackson because of prior sexual assaults that left her both mentally and physically disabled. The claimant states that, because of DOC's alleged failure to warn the Madison public, she was unaware that Mr. Jackson was an armed and dangerous individual. The day after Mr. Jackson stayed with the claimant and her son, her son saw a news report about Mr. Jackson's status as an escaped parolee. The claimant alleges that this caused her great personal trauma to the extent that she longer felt safe in Madison and was compelled to to move back to her home state of Washington. She believes that DOC failed to adequately notify the public and requests reimbursement for her costs to move to Washington.
DOC believes that this claim should be denied. DOC points to the fact that the claimant willingly invited a complete stranger into her home and is therefore solely responsible for any alleged trauma she suffered from being exposed to Mr. Jackson. DOC states that the claimant has provided no evidence that DOC in any way failed in its duties to provide notice of Mr. Jackson's escape. Mr. Jackson absconded from his halfway house at 11:46 AM on April 6, 2001. DOC records indicate that by 12:12 PM on April 6, it had issued an apprehension order for Mr. Jackson and had notified the Madison Police Department by 12:39 PM. DOC also issued a second apprehension order on April 9. Mr. Jackson was apprehended on the morning of April 10. The claimant alleges that this incident forced her to move, however, statements made by Mr. Jackson after his arrest indicate that the claimant had told him she was planning on renting her apartment because she needed money to "get out of town." DOC points to the fact that the claimant admits that Mr. Jackson never threatened or injured her and that at no point while he was in her home did she ever feel endangered. DOC believes that it is clear that the claimant has suffered no actual harm from her encounter with Mr. Jackson. The claimant chose to invite a stranger into her home, a choice she later regretted. DOC does not believe that it should be held responsible for the claimant's own error in judgment.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
11. Jason Marshall of Spokane, Washington claims $5,000.00 for damages allegedly incurred due to negligence by the Department of Corrections. The claimant is the fiancé of Carolyn Carty, who has also filed a claim relating to this incident. The claimant, a former Madison resident, alleges that DOC failed to adequately notify the Madison public that Jeffrey Jackson, a paroled sex-offender, had absconded from his halfway house. The claimant alleges that Mr. Jackson was at large for four days before the public was warned that he was in the area. The claimant states that Ms. Carty met Mr. Jackson at a Labor Ready job center and that, unaware of his status as an escapee, she invited him to stay in her home. The claimant states that, because of DOC's alleged failure to warn the Madison public, Ms. Carty was unaware that Mr. Jackson was an armed and dangerous individual. The claimant alleges that Ms. Carty's encounter with Mr. Jackson caused her great personal trauma to the extent that she no longer felt safe in Madison and was compelled to move back to her home state of Washington. The claimant accompanied Ms. Carty back to Washington. He believes that DOC failed to adequately notify the public and requests reimbursement for his costs to move to Washington.
DOC believes that this claim should be denied. DOC points to the fact that Ms. Carty willingly invited a complete stranger into her home and is therefore solely responsible for any alleged trauma caused by her contact with Mr. Jackson. DOC also believes it is noteworthy that none of the police reports, probation and parole records, or news accounts relating to this event ever mentioned the claimant's name. Based on his own statements, the claimant never even met Mr. Jackson. DOC believes that it is clear that the claimant has suffered no harm from the incident involving Ms. Carty and Mr. Jackson. DOC states that the claimant has provided no evidence that DOC in any way failed in its duty to provide notice of Mr. Jackson's escape. Mr. Jackson absconded from his halfway house at 11:46 AM on April 6, 2001. DOC records indicate that by 12:12 PM on April 6, it had issued an apprehension order for Mr. Jackson and had notified the Madison Police Department by 12:39 PM. DOC also issued a second apprehension order on April 9. Mr. Jackson was apprehended on the morning of April 10. DOC believes that none of its actions affected the claimant personally and that the claimant has provided no evidence of negligence by DOC. If the claimant believes he should be reimbursed for his moving expenses, he should be asking Ms. Carty to reimburse him, not the State of Wisconsin.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
12. Alphoncy Dangerfield of Boscobel, Wisconsin claims $1,126.44 for property allegedly improperly destroyed by DOC. The claimant was transferred from Oshkosh Correction Institution (OCI) to Columbia Correctional Institution (CCI). During the move, some of his personal property was designated as contraband and confiscated. The claimant states that he was told that his property would be sent to him at CCI within a month after the move. The claimant filed an Inmate Complaint when he did not receive his property. He states that the Complaint Examiner found that his property had been incorrectly designated as contraband and should be returned to him, however, the property had been destroyed and was therefore not returned. The claimant does not believe that his court dismissals have any bearing on his claim because they were based on filing technicalities and, therefore, the case was not judged on its merits. The claimant alleges that his missing property included books, shoes, a calendar, photos, magazines, and an 800-page transcript that would cost him $1,000 to replace.
S816
DOC recommends denial of this claim. DOC records indicate that the claimant was told to pack his personal belongings prior to being transferred to CCI but that he refused to do so. DOC states that the claimant was informed that if he failed to pack his property, it would be confiscated and treated as contraband. The claimant continued to refuse to pack his property, therefore, OCI staff packed his property and confiscated it. The property was ultimately destroyed. DOC states that the claimant has already pursued the appropriate avenues for recourse. The claimant filed an Inmate Complaint and the Complaint Examiner did find that, although the claimant acted inappropriately in refusing to pack his belongings, the property should not have been designated as contraband. The claimant has filed several small claims actions in Winnebago County, which were dismissed because the claimant failed to file properly. The claimant later filed a motion for a trial de novo, which was granted. The Court granted DOC's motion to dismiss for lack of jurisdiction in May 2000. The claimant filed an appeal, which was dismissed because he failed to pay filing fees. DOC believes that the claimant has exhausted his administrative remedies and attempted to bring his case to court. DOC believes that the Claims Board should not overlook the claimant's failure to properly bring his case in court. Finally, DOC points to the fact that in April 2000, it provided the claimant with a copy of the missing court transcript, a fact which the claimant neglects to mention when he requests payment of $1,000 for the cost of replacing the same transcript. DOC believes that the claimant's failure to be forthright and his failures in court warrant denial of his claim.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
13. Myron Edwards of Boscobel, Wisconsin claims $853.20 for the cost of a transcript allegedly lost by DOC. The claimant, an inmate at Green Bay Correctional Institution (GBCI), was transferred to Supermax Correctional Institution (SMCI) in early 2002. He alleges that when his property arrived at SMCI in March, the copy of his trial transcripts, which had been sent to him by the Public Defender's Office, was missing, along with some other items. He states that shortly thereafter, the Public Defender's Office asked him to provide the transcript, which they needed in connection with his appeal. The claimant filed a complaint with the Inmate Complaint System, which was eventually dismissed in June 2002. The claimant states that he cannot afford to pay for another copy of the transcript, which would cost $0.40 per page. The claimant refutes the DOC's statement that he might have gotten rid of his transcript either by giving it to another inmate or mailing it out. The claimant states that the transcript would be of no use to anyone else and that if he had mailed it out, it would have required special postage, which would be documented in DOC's mail records. The claimant states that he needs a copy of the transcript in order to effectively pursue his appeals and request payment of $853.20, the cost of obtaining another copy.
DOC recommends denial of this claim. DOC records indicate that in August 2001 the claimant was transferred from Columbia Correctional Institution (CCI) to GBCI. At that time, the claimant's property inventory showed that he had legal materials in his property but did not specify any transcripts. At the time of his transfer to GBCI the claimant acknowledged receipt of all of his property. In January 2002, the claimant was transferred from GBCI to CCI and then to SMCI two days later. DOC records indicate that when the claimant's property was inventoried at GBCI prior to the transfers, there were no legal materials in the claimant's property. The claimant's Inmate Complaint was dismissed in June 2002. The Corrections Complaint Examiner determined that there was no evidence that DOC ever had possession of the allegedly missing transcript. (Other property reported as missing was found and returned to the claimant.) DOC records indicated that at one time prior to the transfer the claimant had some unspecified legal materials in his possession but that at the time of the transfer, no legal materials were found in the claimant's cell. DOC states that an inmate is responsible for his own property. At any time the claimant might have mailed out the transcript, thrown it out, given it to another inmate, or otherwise disposed of it, or it could have been stolen. DOC believes that there is no evidence that it has possession of the trial transcripts or was negligent in handling the claimant's property in the transfer to SMCI.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
14. Berrell Freeman claims $45.80 for for cost of photos allegedly lost or stolen by DOC personnel. The claimant is an inmate at Supermax Correctional Institution. He alleges that, on December 20, 2001, a Corrections Officer confiscated 45 photographs from his cell and told the claimant that they would be placed in his property box. He claims that on December 26, 2001, when he was going through his property box, he discovered that someone else's photographs were in his box and that his 45 photos were missing. The claimant states that he purchased the photos in October and submits copies of two disbursement requests as proof that he purchased the pictures. The claimant also submits as evidence a statement from a fellow inmate, Ronald C. Jackson, indicating that Mr. Jackson's photos had been found in the claimant's property box. The claimant states that the property box was at all times in the possession of DOC. The claimant states that DOC 306.15 and 306.16 require that DOC reimburse him for any property that they damage during a search of his cell. He requests reimbursement for the missing photographs and the cost to mail this claim.
DOC recommends denial of this claim. The Inmate Complaint Review System investigated the claimant's allegations and denied his claim. The ICRS investigation found that there are numerous photos in the claimant's property box that match the description of the allegedly missing photos. DOC states that the claimant has never submitted any evidence proving that any specific photos are missing. The claimant has submitted copies of two October disbursement requests indicating the purchase of photos, however, DOC states that these receipts could be for any of the photos in the claimant's property box and in no way prove the existence of the allegedly missing property. DOC also states that the written statement provided by inmate Jackson does not prove the existence of any missing photographs. DOC does not believe that the claimant has supplied any proof of his loss and therefore recommends denial of the claim.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S817
15. Dennis Gonzalez
of Boscobel, Wisconsin claims $15.75 for cost of replacing property allegedly stolen from his cell by a DOC employee. The claimant, an inmate at Supermax Correctional Institution, states that he had a copy of the DOC Administrative Code in his cell. He claims that he last used the document at the end of October and that he noticed it was missing on November 15. The claimant alleges that no one other than DOC staff has access to his cell and that DOC staff conducted a search of his cell on November 4. The claimant further alleges that one of the officers who conducted the November 4 search has either lost or stolen the claimant's property on previous occasions. He claims that the code was taken on that date and believes that it was done to harass him and to sabotage his legal appeals.
DOC recommends denial of this claim. The claimant filed an Inmate Complaint alleging that a DOC officer intentionally removed pages from his copy of the DOC Administrative Code. The complaint was reviewed and appealed. Both the Institution Complaint Examiner and the Reviewing Authority found no merit to the claim and noted that the claimant provided no documented evidence that the pages alleged to be taken were taken while the code was under DOC control. This decision was upheld by the DOC Secretary's Office. DOC believes that the claimant has submitted no new factual information relative to the claim that would justify the Claims Board coming to a decision contrary to the findings of DOC's Inmate Complaint Review System.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
16. Dennis Gonzalez of Boscobel, Wisconsin claims $19.69 for cost of replacing items allegedly destroyed improperly by DOC. The claimant, an inmate at Supermax Correctional Institution, states that he was mailed documents to be used in his court case. The documents, 1 copy of a newspaper article and 8 pages of a photocopied publication, were denied as contraband mail by the institution mailroom and were not delivered to the claimant. The claimant alleges that he submitted a memo to the institution mailroom requesting that the documents be sent to a specific individual. The claimant states that he was told the documents were mailed out but then was later told that the documents had been destroyed. The claimant does not have a receipt for the items because they were copied and sent by someone else. However, he submits a price guide from Kinko's as proof of the value of the items. The claimant filed an Inmate Complaint about the issue, but DOC rejected the complaint.
DOC recommends denial of this claim. The claimant filed an Inmate Complaint relating to a number of non-delivery notices he received for contraband mail. Pursuant to DOC regulations, the complaint was rejected because it dealt with multiple issues and instances. The claimant later reduced his complaint to the specific non-deliverable mail items related to this claim and the Corrections Complaint Examiner (CCE) conducted a review of the complaint on the merits. The CCE's investigation found that, although there were requests from the claimant that other items of non-deliverable mail be mailed out of the institution there was no request relating to the non-deliverable mail specifically referred to in the claimants Inmate Complaint (and this claim). DOC states that there were multiple non-delivery notices dated 12/5/01, some of which related to other mail items that are not the subject of this claim. Along with his Inmate Complaint, the claimant submitted a copy of a memo dated 12/6/02 to the institution mailroom. However, this memo requested the mailing out of documents consisting of one photocopied newspaper article and two photocopied publication pages, not one newspaper article and eight photocopied publication pages as claimed in his inmate complaint. DOC believes that this memo refers to another notice of non-deliverable mail. DOC's 12/5/01 notice of non-deliverable mail relating to this claim also contains the note that this was the second time the sender had mailed contraband to the claimant, so, DOC points out, there had obviously been a previous non-delivery notice sent to the claimant relating to items from this sender. DOC states that it did receive requests to mail out non-deliverable mail on 12/6/01 and 12/9/01, both of which related to other non-delivery notices, each for 8 pages of documents. DOC states that those requests were responded to appropriately and the documents were mailed out per the claimant's instructions. DOC states that the claimant is attempting to use requests and responses relating to non-delivery notices and non-deliverable mail that are not the subject of this claim in an attempt to deceive the Claims Board. The CCE found no evidence that they ever received a mail-out request from the claimant for the documents specifically mentioned in this claim. Because no request was received within the required time limit, the non-deliverable documents were destroyed.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
17. Dennis Gonzalez of Boscobel, Wisconsin claims $78.22 for magazines and catalogs allegedly lost by DOC. The claimant is an inmate at Supermax Correctional Institution. He alleges that, over the course of several months, he had a number of magazines and catalogs put in his property box, which was solely under the control of DOC personnel. He claims that these publications were unread and in mint condition. He states that he later realized that some of the publications were missing and filed a complaint with the Inmate Complaint Review System. The claimant believes he should be fully reimbursed for all of his missing property.
DOC recommends denial of this claim. The Inmate Complaint Examiner's investigation found that several of the allegedly missing publications were still in the property box, several had been sent out of the institution on a visit, and several were items for which the claimant had no proof of ownership. The ICE did find that some publications were missing and the claimant was reimbursed for those items as follows: April, June and September Maxim at $1.50 per issue = $4.50; December and January FHM at $1.25 per issue = $2.50; and Three issues of Sporting News at $1.19 per issue = $3.57; for a total reimbursement of $10.57. It is DOC's position that the claimant has pursued the appropriate administrative review and has received the entire amount to which he is justified. DOC believes that he has provided no new evidence or legal authority that would support a determination by the Claims Board contradictory to the findings of DOC's Inmate Complaint Review System.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
18. Dennis Gonzalez of Boscobel, Wisconsin claims $214.00 for value of photos allegedly taken or lost by DOC personnel. Claimant is an inmate at Supermax Correctional Institution. He claims that during a cell search on 10/2/01, photos were taken from his cell because he was over the limit for such items. He states that the photos should have been put in his property box but that he later discovered that the photos were not in his property box. He states that the photos were in the sole care of DOC and that DOC is therefore responsible for their loss. He states that the missing photos comprised 20 celebrity photos, which will cost $114 to replace, and 10 personal photos of friends and family, for which the claimant requests $100 compensation.
S818
DOC recommends denial of this claim. The Inmate Complaint Examiner (ICE) initially found that all of the photos had been returned to the claimant, but the Corrections Complaint Examiner (CCE) determined that some of the photos were indeed misplaced. The CCE recommended that the complaint be returned to the ICE for further investigation and an amended response. The ICE determined that DOC personnel had lost 16 celebrity photos. The claimant was reimbursed $92 for those photos. The CCE notified the claimant that if he was not satisfied with the ICE's new decision on his complaint, he could file an appeal. The claimant failed to file any appeal within the 10-day time limit. DOC therefore believes that the claimant failed to exhaust his administrative remedies. DOC further states that the claimant has already received all reimbursement to which he is entitled in this matter. DOC does not believe that the claimant has presented any new evidence or legal argument to justify awarding him any additional money.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
19. Dennis Gonzalez of Boscobel, Wisconsin claims $224.00 for replacement of glasses allegedly broken by DOC personnel. The claimant, an inmate at Supermax Correctional Institution, alleges that he was attacked, without provocation, by institution guards. The claimant states that while he was being removed from his cell, the guards repeatedly slammed his head into the wall, injuring him and breaking his glasses beyond repair. The claimant denies that he was resisting the guards. He claims that they did not give him any orders but attacked him for no reason. He requests the cost of replacing his glasses and sunglass clip-ons.
DOC recommends denial of this claim. DOC points to the fact that in his "statement of circumstances" the claimant never even mentions his broken glasses, but instead, complains of alleged injuries for which he is not requesting reimbursement. DOC states that the claimant, in fact, refused medical attention at the time of the incident. DOC also states that the claimant neglects to mention his own disruptive behavior during the incident. DOC states that during the incident the claimant repeatedly ignored the officers' orders to cease shouting at another inmate and to face forward. The officers' statements indicate that when the claimant refused to follow orders, they placed him in a compliance hold. Both officers stated that the claimant resisted the compliance hold and, in response, they pressed him to the wall at which time his glasses were broken. DOC believes that it was the claimant's own behavior that provoked the incident, which resulted in the broken glasses. DOC states that had the claimant simply obeyed orders and not resisted, no damage would have occurred.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
20. Mt. Sterling Cheese Coop., of Mt. Sterling, Wisconsin claims $6,590.48 for value of milk lost because of an incorrect test used by DATCP inspector. The claimant states that during the March 2002 quarterly antibiotic residue testing of the claimant's goat's milk, the DATCP inspector used a test not appropriate for testing goat's milk. The results of the test came back positive for antibiotic residue and the claimant was instructed by DATCP to dump 21,939 pounds of milk. The claimant later learned that the state had used the wrong test. The claimant's milk has successfully passed subsequent testing for antibiotic residue. He requests reimbursement for the value of the milk wrongly dumped because of DATCP's error.
DATCP does not object to payment of this claim. The DATCP inspector used the Charm II Competitive test to test the claimant's goat's milk for antibiotic residue. DATCP states that a miscommunication between the FDA and DATCP resulted in DATCP confusion regarding the approval status of the Charm II test for goat's milk. (The test was approved for testing cow's milk, but not goat's milk.) DATCP acknowledges the error and admits that it should not have used the Charm II test for testing goat's milk.
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 of $2,500 should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115 (1)(a) Stats., and $2,500 should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115 (8)(km), Stats.
21. Eugene L. Schupbach of Mauston, Wisconsin claims $79.13 for damaged tire. The claimant is employed at Volk Field. For security reasons, DMA had placed orange traffic-control posts at the entrance to Volk Field after September 11, 2001. On January 9, 2002, as the claimant was entering the main gate, his right rear tire caught a flange on the removable orange post, which damaged the tire beyond repair. The claimant believes that the post was placed too close to the guard house and posed a safety hazard. The claimant does not have insurance coverage for the damage.
DMA recommends payment of this claim. After the terrorist attacks on September 11, barriers were placed at the front gate of Volk Field. These barriers were intentionally positioned to slow approaching vehicles to a crawl as they approached the gate. The barriers are made from steel pipes, which slip into other steel pipes buried in the pavement. The upper steel pipe has a flange on it that sticks out to keep it in proper position. This system allows for the barriers to be easy removed and reinstalled. On the day of the claimant's incident, the barriers were in place. DMA has confirmed that the claimant's tire was damaged beyond repair. DMA believes that since the barrier pole, an obstacle installed by DMA, is the cause of the damage, the claimant should be reimbursed for his damages.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S819
22. Donald Wollheim
of Watertown, Wisconsin claims $157,947.30 for damages related to a contract for employment at the UW Medical School (UWMS). The claimant states that he was offered a contract for a full-time position from 11/1/00 through 6/30/03 by UWMS and the UW Medical Foundation (UWMF). After accepting the offer, the claimant moved his family to Wisconsin and purchased a home here. The claimant states that in 2/01 he was orally informed that his contract would be terminated on 4/30/01 but that there was no reason given for the termination. He states that on 3/12/01, he received a letter regarding the termination of his contract, which named the Academic Staff Policies and Procedures (ASPP), as the authority for termination of the contract. The claimant alleges that the ASPP was never made a term of either the offer of employment or the contract. The claimant's 10/12/00, appointment letter refers to the Academic Staff Rules, however, no such named document exists. The claimant also states that he was also never provided with the ASPP, either at the time of the offer or any other time during his employment. The claimant also points to language in the ASPP, which provides that, if a probationary period applies to the position, it "shall be stated in the appointment letter." The claimant states that there was no language regarding a probationary period in either the appointment letter or in his contract. The 3/12 letter also referred to problems with the claimant's application for hospital privileges. During the week of 3/5/01, the Columbus Community Hospital's (CCH) Board of Directors took action to delay the claimant's application for hospital privileges. The claimant states that he did apply for privileges in a timely fashion, as the contract required, but that he has no control over the actions of the board. In fact, the claimant believes that UWMS and UWMF staff, who serve the board, delayed his application in an attempt to provide justification for termination of his contract. The claimant believes that the UW had an obligation to inform him of the probationary period, as provided in sections 2.02 and 2.04 of the ASPP but failed to do so. The claimant requests reimbursement for his lost income and benefits relating to the alleged breach of contract.
The UW recommends denial of this claim. The UW states that the 10/12/00 appointment letter set forth additional terms of the contract, stating in part, "Enclosure A describes the privileges and benefits of this appointment…Please read this information carefully as it sets forth obligations and conditions to which you are agreeing in accepting this appointment." Enclosure A stated, "You will be a member of the Academic Staff and entitled to privileges and benefits as outlined in the Academic Staff Rules…" The UW states that the Academic Staff Rules are contained in the ASPP, which states in section 2.04, "Initial fixed term appointments…shall include a period of evaluation of at least six months…during which appointee may be dismissed at the discretion of the individual making the appointment and without right of appeal. The duration of the period shall be specified in the appointment letter. If the appointment letter does not specify the period of evaluation, the evaluation shall be for a period of six months." The UW alleges that the claimant's supervisors became concerned about his performance during the first six months of his employment. They further learned that CCH would not be extending the claimant's temporary hospital privileges and that the claimant had not obtained permanent hospital privileges as required by his contract. The UW believes that the offer and appointment letters provided the claimant with proper notice of the probationary period. The UW believes that it was incumbent upon the claimant to carefully read all documents relating to the conditions of his employment contract and that he failed to do so. The UW therefore believes that there has been no breach of contract as the claimant alleges.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
23. Lyndon Weberg of Tuscon, Arizona claims $548.75 for attorney's fees allegedly incurred because of incorrect information given to him by DETF. The claimant states that some time prior to October 2001, he called DETF's toll free hotline to find out how to get his ex-wife removed as a beneficiary on his disability annuity. The claimant alleges that DETF told him that he needed to obtain an attorney and get a Qualified Domestic Relations Order (QDRO). He also alleges that DETF told him his monthly annuity amount would increase as a result of the removal of his ex-wife, but that he would not be able to name a new beneficiary. The claimant states that he retained an attorney and sought a QDRO based on DETF's statements. The claimant alleges that a number of months then passed, during which DETF told him they were recalculating his monthly annuity. DETF allegedly then told the claimant that everything he had been told earlier was incorrect—his monthly annuity would not increase and he would be able to name a new beneficiary. The claimant alleges that he hired the attorney solely because of what DETF told him, which later turned out to be incorrect. The claimant also points to the fact that he has since been given the same incorrect information by staff at the DETF hotline.
DETF does not feel it is appropriate to specifically advise the Claims Board regarding payment of this claim, since the board does not have the authority to pay the claim from DETF funds and any payment would therefore have to be made from Claims Board funds. DETF points to the fact that the claimant is apparently unclear as to precisely when he made the phone call regarding he QDRO. DETF phone logs show four calls prior to October 2001. A June call and an August 2nd call were from the claimant and a July call was from the claimant's current employer, all three calls relating to other issues. On August 13 the claimant's attorney called and asked to discuss the claimant's account. He was told that DETF could not discuss the claimant's records without the appropriate release but the attorney and DETF staff did discuss, in general terms, how the filing of a QDRO could affect an annuity. DETF phone logs show a call from the claimant on October 30, 2001, relating to the filing of a QDRO. DETF admits that during this call the hotline staff gave the claimant incorrect information regarding how the QDRO would affect his annuity. However, DETF believes that, based on the phone logs and other documents, it appears that the claimant hired his attorney prior to the conversation in which he received incorrect information, which occurred on October 30. The QDRO was signed on October 23 and the claimant's attorney had called on the same subject in August. Although the phone logs could be incorrect, DETF has found no evidence of an earlier call discussing the QDRO, as the claimant alleges. Furthermore, DETF points to the fact that the billing submitted by the claimant from his attorney indicates past due balances going back over a number of months, which seems to indicate that the majority of the work performed by the during May and June ($356.25), and July ($135.00). Although a DETF employee did discuss QDROs in general terms with the claimant's attorney in August 2001, DETF believes that it is unfortunate that the claimant's attorney did not obtain the appropriate release. If he had done so, he would have been able to discuss the specifics of the claimant's annuity prior to obtaining the QDRO.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
24. Terri L. Nielson/Tech Trak Consulting of Reedsburg, Wisconsin claims $10,842.00 for reconsideration of her claim, which was previously denied by the board on December 7, 2001. There was a mistake made in processing the claim and the claimant was not afforded an opportunity to respond one of the memos from DOA. Because of this error, the claimant requested that the board reconsider the claim based on the additional information submitted in response to the DOA memo. DOA declines to issue any additional response and stands by its original submissions.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. (Members Rothschild and Albers not participating.)
The Board concludes:
1. The claims of the following claimants should be denied:
Donald Smith Myron Edwards
Lynn Kirschbaum Berrell Freeman
Michael Barnhardt Dennis Gonzalez (5 claims)
Don Charles Diet z Eugene L. Schupbach
Mary Redlinger Donald Wollheim
Carolyn Carty Lyndon Weberg
Terri L. Nielson/Tech Trak Consulting
Alphoncy Dangerfield
2.
Payment of the following amounts to the following claimants from the following appropriations is justified under s.
16.007, Stats:
Inc.
Coop.
Dated at Madison, Wisconsin this __29__ day of October 2002.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Amanda Schaumburg
Representative of the Governor
Kevin Shibilski
Senate Finance Committee
Sheryl Albers
Assembly Finance Committee
State of Wisconsin
Ethics Board
November 5, 2002
The Honorable, The Senate:
The following lobbyists have been authorized to act on behalf of the organizations set opposite their names.
For more detailed information about these lobbyists and organizations and a complete list of organizations and people authorized to lobby the 2001 session of the legislature, visit the Ethics Board's web site at
http://ethics.state.wi.us/
Kraemer, Kenneth G. Wisconsin Pipe Trades Association
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 organizations that employ lobbyists.
Sincerely,
