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. The Board would be willing to reconsider this claim if significant new or additional evidence becomes available in the future.
S869 5. Levi Aho of Eau Claire, Wisconsin claims $891.10 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. Aho requests reimbursement for one month's rent and security deposit, U-Haul rental, storage unit rental for 2 months, and mileage of 50 miles per day for 20 days at $0.36 per mile.
The DOC recommends denial of this claim. Mr. Aho sought a transfer from Kettle Moraine Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. Aho eventually transferred to Stanley on September 9, 2002, and his employment with DOC was not interrupted by the delay in the transfer. The DOC believes that it is unclear from Mr. Aho's documentation to what extent the rent, U-Haul and storage unit expenses were incurred specifically because of the delay, and that these costs would not have been otherwise incurred. As for Mr. Aho's mileage claims, it is unclear whether this mileage figure is the difference between the distance he drove from his home to his old job and the distance he drove from his home to Stanley. Apparently he was driving to his old job at KMCI and continued to do so until the transfer to Stanley took place. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these 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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
6. Chris A. Lund of Eau Claire, Wisconsin claims $1,346.80 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. Lund requests reimbursement for 3,640 miles @ $0.37 per mile.
The DOC recommends denial of this claim. Mr. Lund sought a transfer from Jackson Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. Lund eventually transferred to Stanley on November 17, 2002, and his employment with DOC was not interrupted by the delay in the transfer. Mr. Lund has not submitted any mileage or attendance records to support his mileage claim. The DOC believes that it is unclear whether this mileage figure is the difference between the distance he drove from his home to his old job and the distance he drove from his home to Stanley. Apparently he was driving to his old job at JCI and continued to do so until the transfer to Stanley took place. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these 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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
7. Nathan McFarlane of Stanley, Wisconsin claims $8,439.44 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. McFarlane requests reimbursement for four months of house payments and utilities for his (unoccupied) new home; 9 weeks of lost wages for his wife; and mileage of 90 miles per day for 80 days at $0.36 per mile.
The DOC recommends denial of this claim. Mr. McFarlane sought a transfer from Dodge Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. McFarlane eventually transferred to Stanley on December 15, 2002, and his employment with DOC was not interrupted by the delay in the transfer. The DOC does not contest that apparently Mr. McFarlane purchased a home in anticipation of the transfer, however, the DOC believes that it is unclear that this move would not have occurred when it did despite the delay. Mr. McFarlane has provided no documentation whatsoever to support his claim of lost wages for his spouse and the DOC believes that tax receipts or some other evidence is necessary before this portion of the claim should be considered. As for Mr. McFarlane's mileage claims, it is unclear whether this mileage figure is the difference between the distance he drove from his home to his old job and the distance he drove from his home to Stanley. Apparently he was driving to his old job at DCI and continued to do so until the transfer to Stanley took place. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these 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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S870 8. Ryan Schneider of Eau Claire, Wisconsin claims $1,646.00 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. Schneider requests reimbursement for two and one half months rent, his security deposit, and U-Haul rental and gas.
The DOC recommends denial of this claim. Mr. Schneider sought a transfer from Prairie du Chien Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. Schneider eventually transferred to Stanley on October 6, 2002, and his employment with DOC was not interrupted by the delay in the transfer. The DOC does not contest that apparently Mr. Schneider rented an apartment in anticipation of the transfer, however, the DOC believes that it is unclear that this move would not have occurred when it did despite the delay. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these 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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
9. Canam Steel Corporation of Point of Rocks, Maryland claims $921.86 for overpayment of a 2005 Foreign Corporation Annual Report fee. The claimant states that it filed its 2005 report using an online system but that a human error occurred when entering the data. The claimant states that one of the lines should have been entered as zero, but that the person filling out the form accidentally repeated the dollar amount from the line above, resulting in an inflated par value stock number. The claimant states that, because of this error, it paid a $1230 fee, and that if the correct figure had been used, the fee would only have been $308.14. The claimant requests reimbursement of this overpayment.
The DFI recommends denial of this claim because the Department has no means by which to verify the accuracy of any of the information provided by the claimant in either the original or the adjusted annual report. The claimant admits that its error was not in any way the fault of the DFI. The DFI also points to the Claims Board's long-standing history of denying claims of this nature. Finally, the DFI notes that, because of the manner in which the 2005 and 2006 annual report fees are calculated, if the Claims Board were to approve payment of this claim, the necessary recalculation of the claimants 2005 and 2006 fees would actually result in the claimant owing the state an additional $744.
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. Barry Huebner of Auburndale, Wisconsin claims $46.26 for lost value of milk after claimant's dairy permit was degraded from Grade A to Grade B. The DATCP inspected the claimant's farm in June 2005 and shortly thereafter degraded the farm to Grade B. The claimant appealed the degrade and the DATCP agreed to restore the Grade A permit because of procedural flaws in the original inspection. While the degrade was in effect, the claimant received $46.26 less for his milk than he would have if there had been no degrade of his permit. The claimant requests reimbursement for this amount.
The DATCP has no objection to payment of this claim in the amount requested.
The Board concludes the claim should be paid in the amount of $46.26 based on equitable principles. The Board further concludes, under authority of s. 16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s. 20.115(1)(a), Stats.
11. Darnell Jackson of Boscobel, Wisconsin claims $195.00 for allegedly improper collection of a court filing fee. The claimant filed a writ of habeas corpus and was instructed to pay the $195 filing fee by the Court of Appeals. The claimant paid the filing fee, but alleges that such fees are unconstitutional because filing fees do not apply to habeas corpus proceedings pursuant to the Prison Litigation Reform Act of 1995 (PLRA). The claimant believes his rights were violated and requests reimbursement of the $195 filing fee.
The Director of State Courts recommends denial of this claim. When the claimant filed his pro se petition for habeas corpus with the Court of Appeals, he asked for a waiver of the filing fee. Based on the information provided on his PLRA worksheet, the claimant was not considered a prisoner for PLRA purposes. The Clerk's office determined that the claimant had sufficient funds to pay the fee and sent him an invoice. The claimant objected to the fee, however, a court order found that the claimant did not qualify as indigent. The claimant then filed a petition for review with the Supreme Court. The claimant did not submit a filing fee with the petition and the Supreme Court informed him that the petition would be denied if he did not pay the fee. The claimant moved for a fee waiver and submitted new information indicating that he had no available money. He also argued that the PLRA did not apply to his habeas corpus petition and cited several cases. The Supreme Court waived the filing fee, but indicated in its response that filing fees were applicable to the claimant's habeas corpus petition and that the fee only was being waived because the claimant had shown he was indigent. The claimant now repeats the same contention—that the PLRA makes habeas corpus petitions exempt from filing fees—and cites federal cases in support of his assertion. However, Wisconsin's version of the PLRA is significantly different from the federal PLRA and the Wisconsin Supreme Court has suggested that federal cases are not controlling with respect to Wisconsin's PLRA. Finally, the Director of State Courts points to the fact that the filing fee was not charged because the claimant was a "prisoner" under the PLRA—in fact he did not fit that definition—but because he had sufficient assets to pay the fee. The imposition of the fee was approved by order of the Court of Appeals and the Director of State Courts does not believe that the Claims Board should overturn that decision.
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.
S871 12. Jeremy M. Wine of Portage, Wisconsin claims $1,686.32 for reimbursement of money taken by the DOC for restitution and reimbursement of legal and medical co-pay loans. The claimant states that the restitution was imposed as a penalty as a result of a conduct report that occurred when he was incarcerated in 1996. The claimant also incurred legal and medical co-pay loans during this period of incarceration. The claimant states that he was completely discharged in July 2002 and that any outstanding debts he owed for the restitution and the loans should have been completely discharged at that time as well. The claimant states that when he was incarcerated again at a later date, the DOC took money from his account to pay for the restitution and loans incurred during the prior incarceration. The claimant believes that the ordered restitution is a penalty and that it therefore constitutes double jeopardy to hold him responsible for that amount during a later incarceration. The claimant also cites ss. 301.325 and 301.328, Stats., as the exclusive means by which the DOC may collect legal loans from inmates. The claimant alleges that the DOC has not followed the procedures provided for in those sections and that his right to due process has been violated. The claimant requests reimbursement of the amount taken from his account for payment of the restitution and loans incurred during his prior incarceration.
The DOC recommends denial of this claim. The claimant argues that the restitution ordered during his previous incarceration is a penalty and that it constitutes double jeopardy to hold him responsible for that restitution during his current incarceration. The DOC points to the fact that double jeopardy prohibits the state from penalizing a person twice for the same offence. The DOC notes that the claimant is not being punished twice—he is only being asked to pay the restitution once and the fact that the restitution amount has been collected over two periods of incarceration does not double the original penalty. The claimant also argues that his due process rights have been violated, which the DOC denies. The DOC states that the claimant received due process during the original hearing on the conduct report for which the restitution was ordered. The claimant also argues that he should not be held responsible for legal and medical co-pay loans incurred during his prior incarceration. The DOC notes that as a condition of obtaining such loans, an inmate is required to sign repayment agreements. Nowhere in the loan policies or repayment agreement forms does it state that the loans will be forgiven upon discharge or that DOC is prohibited from collecting these debts during subsequent incarceration. Finally, the DOC disagrees with the claimants allegation that ss. 301.325 and 301.328, Stats., are the exclusive remedy available to the DOC for collection of these debts. The DOC states that there is nothing in these statutory sections which indicate that these are intended to be the exclusive method of collection or that a prisoner should be immune from DOC's efforts to collect outstanding debts simply because he is discharged from prison before the debt is paid.
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. Landwehr Construction of St. Cloud, Minnesota claims $73,562.70 for costs related to removal of asbestos containing material (ACM). The claimant alleges that this work was not included in the contract for a UW-River Falls demolition project and requests additional payment for the ACM removal. The claimant contends that the material in question, floor tile and foundation black tar/felt both are considered Category I non-friable ACM. (Friable material will crumble when squeezed between the thumb and forefinger.) The claimant alleges that bid documents provided that the state would be responsible for removal of Class I or Class II ACM and that the bidder should only include a bid cost for removal of friable ACM and Category II non-friable ACM. Because of these provisions, the claimant believed that removal of the floor tile and tar/felt was the responsibility of the state and they did not include the cost of removing this ACM in their bid. Although the bid documents did also refer to a $50,000 cash allowance related to the ACM, the claimant states that the language of this section, which indicates that the allowance is "to balance the Owner's desire to recycle concrete floor slabs", led them to believe that the state would remove the ACM and that the $50,000 allowance only related to the recycling of the material. The claimant believes that the specific provisions that indicate the state is responsible for removing the Category I non-friable ACM take precedence over the general requirement section regarding the $50,000 allowance. Finally, the claimant notes that its additional cost for removing the ACM is not substantially higher than the difference between its bid and the next lowest bidder. Therefore, the claimant believes that the state would not suffer any substantial loss compared to the cost it would have incurred if the claimant had not been awarded the bid.
The DOA recommends denial of this claim. The DOA points to the fact that the bid contained a mandatory requirement that bidders include in their bids additional allowances of $50,000 to cover the cost of optional asbestos abatement work and $10,000 to cover the labor for the abatement. The allowance was to be returned to the contractor if the contractor chose to recycle the ACM. The DOA notes that for some reason, the claimant chose to include the $10,000 allowance, but not the $50,000 allowance, despite the fact that both were mandatory requirements. The claimant admits in its claim that it understood that the floor tile and tar/felt removal was outside the scope of the project—hence, the requirement of the additional allowances. The DOA also disagrees with the claimant's assertion that the ACM in question was non-friable. In fact, the ACM only remains non-friable if the contractor does not recycle the concrete. If the contractor chose to recycle the material, which was optional, that process would render the ACM friable. In addition, DOA believes that the claimant has miscalculated the amount of its claim, which at most, should not have exceeded $48,251.40 in eligible costs for the work in question. (An amount, the DOA notes, which would have been covered by the $50,000 allowance.) Finally, the DOA understands that the bid documents, contract documents, plans and specifications that make up these types of construction projects can be diverse and complex and may sometimes cause confusion. However, the claimant is an experienced bidder and was put on notice, along with all the other bidders, that it would be held responsible for any errors in its bid. The claimant made the mistake of failing to provide for the full, mandatory $60,000 allowance required by the bid and the state should not now be held responsible for the claimant's error.
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 Rothschild not participating.)
14. Lisa R. Vadnais of Chippewa Falls, Wisconsin claims $556.83 for vehicle damage caused by a resident of Northern Wisconsin Center, where the claimant is employed. The claimant states that on October 26, 2005, a NWC client became agitated and began hitting the walls with his briefcase. He then went outside and struck the claimant's vehicle with his briefcase, denting and scratching the trunk. The claimant states that her vehicle was only about a month old at the time. The claimant has insurance coverage with a $250 deductible, however, she does not feel that she should have to file a claim with her insurer, because this would cause her rates to go up. The claimant states that the accident was in no way her fault and she does not believe she should have to bear the additional expense of increased insurance costs. She therefore requests payment of the entire cost to repair her vehicle.
S872 The DHFS believes that the facts of this incident as stated by the claimant are accurate. However, the department believes that it is reasonable to expect the claimant to pursue a claim with her insurer. The DHFS therefore only recommends payment of the claimant's $250 deductible.
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 Health and Family Services appropriation s. 20.435(2)(g), Stats.
The Board concludes:
1. The claims of the following claimants should be denied:
Charlotte B. Mahoney
United Mechanical, Inc.
Scott Fields
Levi Aho
Chris A. Lund
Nathan McFarlane
Ryan Schneider
Canam Steel Corporation
Darnell Jackson
Landwehr Construction
Jeremy M. Wine
2. Payment of the following amounts to the following claimants from the following statutory appropriations is justified under s. 16.007, Stats:
Amanda Barbian $2,362.79 s. 20.395(5)(cq), Stats.
Barry Huebner $46.26 s. 20.115(1)(a), Stats.
Lisa R. Vadnais $250.00 s. 20.435(2)(g), Stats.
Dated at Madison, Wisconsin this 24th day of May, 2006.
Alan Lee
Chair, Representative of the Attorney General
John E. Rothschild
Secretary, Representative of the Secretary of Administration
Amy Kasper
Representative of the Governor
Mary Lazich
Senate Finance Committee
Dan Meyer
Assembly Finance Committee
__________________
The committee on Labor and Election Process Reform reports and recommends:
Relating to the 2006 edition of the Uniform Standards of Professional Appraisal Practice (USPAP).
No action taken.
Thomas Reynolds
Chairperson
__________________
The Chief Clerk makes the following entries dated Friday , May 26, 2006.
__________________
State of Wisconsin
Office of the Governor
May 26 , 2006
To the Honorable, the Senate:
The following bill(s), originating in the Senate, have been approved, signed and deposited in the office of the Secretary of State:
Bill Number Act Number Date Approved
Senate Bill 358 Act 450 May 25 , 2006
Senate Bill 685 Act 453 May 25 , 2006
Senate Bill 524 Act 457 May 25 , 2006
Senate Bill 145 Act 462 May 25 , 2006
Senate Bill 548 Act 464 May 25 , 2006
Senate Bill 528 Act 466 May 26 , 2006
Sincerely,
JIM DOYLE
Governor
__________________
State of Wisconsin
Office of the Secretary of State
To the Honorable, the Senate:
Bill Number Act Number Publication Date
Senate Bill 318 Act 434 June 5 , 2006
Senate Bill 409 Act 435 June 5 , 2006
Senate Bill 526 Act 436 June 5 , 2006
Senate Bill 629 Act 437 June 5 , 2006
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