The Chief Clerk makes the following entries under the above date.
__________________
State of Wisconsin
Department of Administration
October 9, 2002
The Honorable, The Legislature:
Pursuant to 13.172(2) of the Wisconsin Statutes, the Department of Administration submits to the Wisconsin Legislature the annual report of the Wisconsin public benefits program.
This report was required by the Wisconsin Legislature as part of
1999 Wisconsin Act 9 (the 1999-2001 Biennial Budget Act).
If you have any questions, please contact John Marx, Administrator, of the Division of energy. Mr. Marx can be reached at (608) 266-2035.
Sincerely,
George Lightbourn
Secretary
State of Wisconsin
Department of Administration
October 30, 2002
The Honorable, The Legislature:
Included with this correspondence, I am submitting the report of the Department of Administration, Division of Gaming (Gaming), for the first quarter of fiscal year 2003 (July 1, 2002 through September 30, 2002). As required by s.
562.02(1)(g), Wis. Stats., the attached materials contain pari-mutuel wagering and racing statistical information, as well as the revenues for the program areas of Racing, Charitable Gaming, Bingo and Indian Gaming.
If you have any questions or comments regarding this report, please do not hesitate to contact Rachel Meek at (608) 270-2535.
Sincerely,
F. Scott Scepaniak
Administrator
State of Wisconsin
Department of Revenue
October 29, 2002
The Honorable, The Senate:
In accordance with section 71.55(10)(e), Wis. Stats. (1999-00), I am enclosing copies of the Department of Revenue reports on distribution of enrollment cards for the Wisconsin State Medical Society "Partnercare" program.
Sincerely,
Richard G. Chandler
Secretary
State of Wisconsin
Claims Board
October 29, 2002
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on October 3, 2002.
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,
John E. Rothschild
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings in the State Capitol, Grand Army of the Republic Memorial Hall, Madison, Wisconsin, on October 3, 2002, upon the following claims:
Claimant Agency Amount
1. Donald W. Smith Employee Trust $31,214.08
Funds/Justice
2. John Komassa Natural Resources $5,368.73
3. Lynn Kirschbaum Natural Resources $14,370.00
4. Meer Electric, Inc. Administration $8,713.95
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
5. Michael Barnhardt Revenue $3,590.21
6. Cabinet Country, Ltd. Revenue $31.00
7. Don Charles Dietz Revenue $398.36
8. HGM Architecture, Revenue $3,608.58
Inc.
9. Mary E. Redlinger Revenue $584.01
10. Carolyn Carty Corrections $5,122.99
11. Jason F. Marshall Corrections $5,000.00
12. Alphoncy Dangerfield Corrections $1,126.44
13. Myron Edwards Corrections $853.20
14. Berrell Freeman Corrections $45.80
15. Dennis Gonzalez Corrections $15.75
16. Dennis Gonzalez Corrections $19.69
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17. Dennis Gonzalez Corrections $78.22
18. Dennis Gonzalez Corrections $214.00
19. Dennis Gonzalez Corrections $224.00
20. Mt. Sterling Agriculture, Trade $6,590.48
Cheese Coop. & Consumer Protection
21. Eugene L. Schupbach Military Affairs $79.13
22. Donald Wollheim University of $157,947.30
Wisconsin
23. Lyndon Weberg Employee Trust Funds $548.75
24. Terri L. Nielson Administration $10,842.00
The Board Finds:
1. Donald W. Smith of Madison, Wisconsin claims $31,214.08 for the value of sick leave credits for which he was not eligible due to his retirement date. The claimant served as an assistant attorney general for 26 years. He retired in August 1996 because of health problems. He states that he tried to put off his retirement as long as possible because he knew that the legislature was considering an increase in the amount of sick leave credits that could be converted to pay health insurance premiums after retirement. However, negotiations for the new contract, which would include the increased sick leave credit provision, went far beyond the contract expiration date of June 1995. The claimant states that he was an active member of the Wisconsin State Attorneys Association (WSAA) when the contract expired. In light of his many years of service to the state, the claimant asks that he be awarded the value of the extra sick leave credits.
DETF does not believe it is appropriate to advise the Claims Board on the payment of this claim, since the board does not have the authority to make any payment from DETF funds. This claim relates to the sick leave accrual provisions in the 1997-1999 contract with the WSAA. The contract took effect on December 29, 1997, but provided for retroactive application to July 6, 1997. The claimant, however, retired eleven months prior to the retroactive date. DETF states that the claimant has no legal grounds for relief but appears to be basing his request on his years of service to the state.
DOJ states that, although it sympathizes with the claimant's health concerns and appreciates his many years of service, it cannot recommend payment of this claim. Based on the provisions of the contract, which only provided retroactive benefits to July 1997, DOJ correctly calculated the claimant's accrued sick leave at the time of his retirement.
At the request of DETF, DER concurs with DETF's analysis of the claimant's ineligibility for increased sick leave earnings. DER believes that the negotiated contract with WSAA did not permit retroactive benefits to the claimant and that the claim does not have merit based on the claimant's retirement date.
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. (Member Shibilski dissenting. Member Lee not participating.)
2. John Komassa of Mt. Horeb, Wisconsin claims $5,368.73 for attorney fees related to his employment at the Nevin State Fish Hatchery. The claimant states that his duties at the hatchery include keeping the premises free from all animals because they can spread disease to the hatchery's fish or fish eggs. On November 19, 2001, the claimant noticed a stray cat in the fish hatchery building. The claimant states that the cat was unkempt, did not have tags and appeared to be feral. The claimant states that he was bitten in his initial attempt to catch the cat. The bite punctured the skin on the claimant's hand, despite the fact that he had put on heavy work gloves. The claimant states that he realized that he would be at risk for rabies and that the cat would have to be caught and killed in order for it to be tested. Unable to capture the animal alive, the claimant struck the cat with a metal object, which resulted in its death. The Dane County District Attorney subsequently charged him with mistreatment of an animal. The claimant contacted the DNR to obtain legal representation but was informed that, because he was charged with a crime, the state could not provide representation. The claimant obtained his own attorney at a cost of $5,338.39 to defend himself against the charges, which were eventually dismissed. The claimant believes that he was performing his duties and that his actions were appropriate to the situation and requests reimbursement for his attorney's fees.
DNR recommends payment of this claim. The claimant had been instructed by his supervisor to take whatever measures necessary to keep the hatchery disease-free and to keep all animals out of the premises. At other hatcheries, disease outbreaks have required destruction of fish causing monetary losses of tens of thousands of dollars. The claimant contacted the Fitchburg Police Department for assistance in getting the animal tested for rabies. The Fitchburg Police referred the claimant to the Dane County Humane Society. It was the Human Society that pressed the Dane County Sheriff's Department and the District Attorney to file against the claimant. DNR was not able to provide the claimant with representation because he was charged with a crime and the claimant had to borrow money to pay for an attorney. The DA's office dismissed the charges against the claimant without comment on March 22, 2002. DNR points to the fact that until this time the claimant was the subject of a mean spirited hate-mail campaign and that his case was the subject of much media attention, including newspaper articles and radio talk shows. Throughout this incident, DNR believes that the claimant behaved professionally and, to his credit, declined to take part in the heated public debate surrounding his case. DNR feels that the claimant did not deserve to be prosecuted for simply trying to do his job and that he should not have to bear the cost of defending himself for an act that was not criminal and which was in the best interest of the state.
The Board concludes that a reasonable attorney's fee is $200 per hour and therefore the claim should be paid in the reduced amount of $4530.00 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.
3. Lynn Kirschbaum of Glen Haven, Wisconsin claims $14,370.00 for crop damage caused by deer. The claimant states that his property adjoins property where the landowners do not allow sufficient hunting to adequately control the deer population. The claimant alleges that deer from these neighboring properties have been causing significant damage to his corn crop for many years. The claimant states that from 1995 through 2000, he did participate in the Wildlife Damage Abatement and Claim Program (WDACP). He alleges that the program only paid for a portion of his damages and that it took too long to get the money. He also states that he had problems with the hunters that he was forced to allow onto his land under the program and that the hunters would only shoot bucks, not does, which did not sufficiently impact the deer population. Because of his dissatisfaction with the WDACP, he decided not to participate in the program in 2001. He alleges that he made numerous requests to DNR for assistance but that they were unwilling to cooperate because he had not signed up for the WDACP.
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DNR recommends denial of this claim. DNR does not dispute that deer have caused damage to the claimant's crops. However, DNR states that it is not responsible for the individual acts of wild animals and points to the fact that there is no right under common law to compensation for deer damage. DNR points to the fact that there was previous statutory authority for payment for certain damages done by deer, however, that statutory program was repealed in 1980. DNR states that this statutory authority was replaced by the WDACP, which is a voluntary program administered by the counties. The DNR points to the fact that the claimant has participated in this program in the past and has received substantial payments for his damages under the program. DNR states that the claimant has also been issued permits to shoot deer causing damage to his property. DNR states that the claimant decided not to participate in the WDACP in 2001; he apparently decided to deal with the problem by leasing hunting rights on his property. DNR believes that the claimant was apparently not satisfied with the results of this attempt and is now trying to collect payment, despite the fact that he has not filed the statutorily required notice under the WDACP. DNR also suggests to the board that there would be large numbers of potential claimants in similar situations as Mr. Kirschbaum. Finally, DNR points to the fact that the Claims Board has denied numerous similar claims in the past. DNR does not believe that this claim is different from those that were previously denied and believes that there is no equitable reason to pay 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.
4. Meer Electric, Inc., of Richfield, Wisconsin claims $8,713.95 for damages allegedly relating to a contract for classroom renovations at UW-Milwaukee. The claimants did not include the cost of concrete cutting and patching in their bid for this project. The claimants allege that they told Mitch Hyra from the Division of Facilities Development (DFD) that their bid price did not include the cutting and patching costs. The claimants state that when they received the contract for signature, there was no indication in the contract that the cost of concrete cutting and patching was not included. The claimants state that, on the advice of their attorney, they typed additional language on the contract indicating that this work was not included. The claimants allege that when they returned the amended contract to DFD, the state signed the contract without comment. The claimants believe that this indicates that the state accepted the additional language. The claimants state that, after the project was started, the state told them that they had to perform the concrete cutting and patching work or lose the contract. The claimants hired the general contractor to perform the work. The claimants have tried to receive additional payment for this work from DFD but their requests have been denied.
