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The Board Finds:
Claim for damages related to defense of federal criminal charges arising from the performance of the claimant's duties as a DOA employee. In January 2006, a federal grand jury indicted the claimant, charging misapplication of funds and theft of honest services. The indictment alleged that the claimant, as a member of the evaluation committee for a state travel procurement, intentionally influenced the vendor selection process for the political advantage of her supervisors and to help her own job security. The claimant plead not guilty and vigorously defended against the charges, but was convicted and sentenced to 18 months in prison with a $4,000 fine. The claimant began serving her sentence on November 27, 2006. She appealed her conviction and on April 5, 2007, within two hours of hearing oral argument, the Seventh Circuit Court of Appeals reversed her conviction and ordered her acquittal and immediate release from prison that very day. The court's decision makes it clear that the claimant's actions were proper and lawful. The claimant is not able to bring a claim under § 895.46(1) or § 775.05, Stats., but instead makes a claim for reimbursement based on equitable principles, because the criminal charges against her were based on the proper and lawful discharge of her duties as a state employee. The claimant believes that reimbursement of a state employee's legal fees in a case such as this is appropriate and just and is also good public policy. The claimant requests reimbursement for her legal fees, fines, assessments and taxes relating to this claim.
The Department of Administration supports payment of this claim. DOA had no role in the charges brought against the claimant and the claimant is not alleging any negligence on the part of any DOA employee, however, the claim is filed "against" DOA because the charges involved discharge of the claimant's duties as an employee of DOA. At no time during the travel procurement, criminal investigation or trial has DOA alleged that the claimant abused her discretion or acted outside the scope of her employment and DOA promptly re-employed the claimant upon her release from prison. DOA states that the claimant has been and remains a hard-working, respected and dedicated employee. DOA points to the fact that the Seventh Circuit Court of Appeals took the unusual step of calling for her immediate release from prison, noting that the evidence against her was "beyond thin." DOA believes that the claimant has suffered much because of her imprisonment for a crime she did not commit. DOA points to the fact that state employees from all agencies in state government, including the legislature and the court system, routinely exercise discretion in the proper discharge of their duties. DOA does not believe that these employees, acting in good faith and exercising their best judgment based on established law and policy, should work in fear of facing criminal charges for making the "wrong" decision, and when acquitted, not receiving appropriate restitution for the damages they suffer. DOA agrees with the claimant's analysis that relief is not available to her under § 895.46(1) or Chapter 775, Stats., and requests that the Board reimburse the claimant based on equitable principles.
The Board recommends that the legislature direct the Department of Administration to pay Hurley, Burish and Stanton, S.C. directly for defending Ms. Thompson, its employee, against federal criminal charges arising from the performance of her duties as a DOA employee. Wis. Stats. § 895.46(1) requires the state to pay reasonable attorney's fees and costs its employees incur while defending civil and some criminal actions taken against them by virtue of state employment. The Board concludes that although indemnification of Ms. Thompson in this particular criminal prosecution is not specifically contemplated by § 895.46(1), indemnification of Ms. Thompson furthers the purpose of that statute and is equitable in light of Ms. Thompson's acquittal. The legal fees, fines and assessments incurred in this matter are an obligation of the employer (State of Wisconsin) rather than its employee (Ms. Thompson). Such an indemnification eliminates Ms. Thompson's obligation to pay the fees and costs and therefore creates no tax burden for Ms. Thompson when the State of Wisconsin is instead obligated to pay them directly. Finally, the Board concludes that the attorney's fees incurred in this matter are reasonable and recommends that the Legislature direct the Department of Administration to pay the fees, fines and assessments in full in the amount requested, $228,792.62. The Board further recommends that payment should be made from the Department of Administration appropriation § 20.505(1)(kf), Stats.
The Board recommends:
Payment of $228,792.62 be made to Hurley, Burish and Stanton, S.C., by the State of Wisconsin from § 20.505(1)(kf), Stats., for the defense costs, fines and assessments of State of Wisconsin employee Georgia Thompson.
Dated at Madison, Wisconsin this 4th day of December, 2007.
Robert Hunter
Chair, Representative of the Attorney General
Cari Anne Renlund
Secretary, Representative of the Secretary of Administration
Nate Zolik
Representative of the Governor
Mark Miller
Senate Finance Committee
__________________
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board convened on November 15, 2007, at the State Capitol Building and on November 29, 2007, at the Department of Administration Building, in Madison, Wisconsin to consider the claim of Anthony Hicks.
The Board Finds:
S473 The claimant's original innocent convict claim was filed on November 26, 1997. At that time, the claim was placed in abeyance pending the resolution of a lawsuit against the claimant's trial attorney, which was settled in December 2004. Additional documentation was requested from the claimant and that information was submitted in November 2005. The claim was scheduled for hearing before the Board on December 13, 2006. At that meeting the Board voted unanimously to pay the claimant $25,000 compensation for his wrongful imprisonment, plus attorney's' fees in the reduced amount of $53,030.86. (Reduced from the requested amount of $106,061.71.) Payment was made in the form of one check in the amount of $78,060.36 to the trust account of the claimant's attorney.
On January 17, 2007, the clamant filed a Petition for Rehearing of the Claims Board Decision specifically relating to the matter of attorney's fees.
On January 19, 2007, the claimant's attorney requested that the Board issue a separate payment check of $25,000 to Mr. Hicks, so that his compensation would not be delayed pending resolution of the attorney's fees question. The Board Secretary requested return of the original check and then issued a new check in the amount of $25,000. On January 25, 2007, the claimant's attorney requested that the Board issue another check in the amount of the original award for attorney's fees, since the Petition for Rehearing only addressed the question of whether any additional attorney's fees should be awarded. The Board Chair denied that request.
On February 2, 2007, the Board considered whether to grant the Petition for Rehearing and also considered the request for partial payment of attorney's fees. The Board unanimously voted to vacate the portion of its December 13, 2006, decision relating to attorney's fees. The Board referred the issue to the Division of Hearings and Appeals for consideration before a Hearing Examiner. The Board specifically requested that the Hearing Examiner address six questions relating to the authority of the Board to issue awards for attorney's fees under § 775.05, Stats. The Board denied the request from the claimant's attorney for partial payment of the attorney's fees pending resolution of the Petition for Rehearing.
The Hearing Examiner has submitted his Proposed Decision to the Board on the Petition for Rehearing and the questions submitted by the Board for his consideration. The matter at issue before the Board today is whether or not to adopt the Proposed Decision submitted by the Hearing Examiner as the Claims Board's Decision on this matter.
The Board concludes that the Proposed Decision of the Hearing Examiner should be adopted in part and rejected in part.
The Board disagrees with the Hearing Examiner's conclusion that the Board may not award attorney's fees and costs in addition to statutorily capped compensation awards pursuant to § 775.05, Stats. and rejects that portion of the Proposed Decision. The legislative history presented by the Hearing Examiner is not conclusive and not enough to depart from Board determinations in previous § 775.05 claims, including the December 19, 2002, Frederic Saecker decision, the December 2, 2004, Steven Avery decision and the December 13, 2006, Anthony Hicks decision. See Claim of Saecker , Claim No. 1999-040-CONV (2002); Claim of Avery, Claim No. 2004-066-CONV (2004); Claim of Hicks, Claim No. 1997-135-CONV (2006). Accordingly, the Board concludes it has the authority to award attorney's fees and costs in addition to statutorily capped compensation awards made pursuant to § 775.05, Stats.
However, the Board does adopt the recommendation of the Hearing Examiner to utilize the Wisconsin Equal Access to Justice Act, § 814.245 (5)(a)2, Stats., ("EAJA") as a method to determine the appropriate amount of attorney's fees to award in § 775.05 claims before the Board. The Board will utilize the EAJA to determine the hourly rate and multiply that by the number of attorney hours expended unless the hours claimed appear unreasonable. See Hearing Examiner's Proposed Decision, page, 4, paragraph 12, attached.
To apply this determination to the claim at hand, the Board first looks to Mr. Hicks' fees for his criminal defense attorney, Mr. Hurley. Mr. Hurley's firm was able to document spending 690.15 hours between 1992 and 1997 on Mr. Hicks' case. The EAJA rate for that time period was $75.00 per hour as determined by the legislature in 1985. Since the EAJA rate was determined long before the work was performed, the Board concludes that a cost of living adjustment is reasonable and will utilize the cost of living calculator provided by the Bureau of Labor Statistics on their website. A small portion of Mr. Hurley's fees could not be documented or recovered. The Board will not pay the undocumented fees. Accordingly, the Board concludes that Mr. Hurley's fees will be paid in the reduced amount of $78,591.94 broken down as follows:
The Board now looks to Mr. Hicks' fees for his civil attorney, Mr. Olson. Mr. Olson spent a total of 94.2 hours and over $33,000 preparing Mr. Hicks Claims Board claim. The Hearing Examiner noted that "at $5,000 per year, an inmate receives roughly 57 cents per hour of confinement; if Mr. Olson's fee award were approved, Hicks' attorney would receive payment equal to more than 600 times his own rate of compensation." See Hearing Examiner's Proposed Decision, paragraph 30, page 11, attached. The Hearing Examiner also noted that "with all due respect to Attorneys Olson and Dixon, where an inmate's conviction has already been reversed based on new evidence of the inmate's innocence, the task of obtaining the full recovery available from the Claims Board should not typically require extraordinary skill or expertise. This is all the more likely, where, as here, the prosecutor does not oppose payment of the claim." See Hearing Examiner's Proposed Decision, paragraph 52, page 16, attached. The Board concludes that the number of hours submitted by Attorney Olson was excessive.
S474 A similar Claims Board claim presented at this same meeting by Ms. Georgia Thompson, required only 16 hours of preparation by a qualified attorney, in contrast to the 94.2 hours spent by Attorney Olson and his firm. Sixteen hours appears to have been adequate. The Board recognizes that Mr. Hicks' claim involved the additional step of submitting briefs to the Hearing Examiner regarding the Board's authority to award attorney's fees in addition to statutorily capped compensation, and therefore concludes that additional time to prepare the claim was necessary. The Board concludes that doubling the time it took a qualified attorney to prepare a similar claim for the Board could reasonably account for the extra effort necessary to prepare briefs for the Hearing Examiner. Accordingly, the Board concludes that 32 hours is a reasonable number of hours for which to compensate Mr. Olson. The Board allocates these 32 hours proportionally across the years in which the work was performed, based on the original annual hours reported by Mr. Olson. The Board again applies the hourly rate provided in the EAJA and adjusts it for inflation.
Therefore, the Board concludes that Mr. Olson will be paid in the reduced amount of $6,175.70, calculated as follows:
The Board further concludes, under authority of § 16.007(6m), Stats., that payments for Mr. Hurley and Mr. Olson should be made from the Claims Board appropriation § 20.505 (4)(d), Stats.
The Board concludes:
That payment of the following amounts to the following entities on behalf of the claimant from the following statutory appropriations is justified under s. 16.007, Stats:
Stephen Hurley $78,591.94 § 20.505(4)(d), Stats.
Jeff Scott Olson $6,175.70 § 20.505(4)(d), Stats.
Dated at Madison, Wisconsin this 4th day of December, 2007.
Robert Hunter
Chair, Representative of the Attorney General
Cari Anne Renlund
Secretary, Representative of the Secretary of Administration
Nate Zolik
Representative of the Governor
Mark Miller
Senate Finance Committee
__________________
Pursuant to Senate Rule 17 (5), Representative Gunderson added as a cosponsor of Senate Bill 337 .
__________________
Messages from the Assembly
By Patrick E. Fuller, chief clerk.
Mr. President:
I am directed to inform you that the Assembly has passed and asks concurrence in:
Assembly Bill 100
Assembly Bill 209
Assembly Bill 334
Assembly Bill 335
Assembly Bill 337
Assembly Bill 361
Assembly Bill 464
Assembly Bill 483
Assembly Bill 499
Assembly Bill 580
Assembly Bill 581
Assembly Bill 590
Adopted and asks concurrence in:
Assembly Joint Resolution 5
Assembly Joint Resolution 34
Amended and concurred in as amended:
Senate Bill 1 (Assembly amendment 1 adopted)
Concurred in:
Senate Bill 249
Senate Bill 332
Senate Joint Resolution 73
Senate Amendments 1, 3, 13, 14, 19 and 21 to Assembly Bill 207
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