Additional copies of this report may be obtained from the DNR by calling 608-266-5782 or may be obtained from the DNR website at:
http://dnr.wi.gov/stewardship/.
Sincerely,
Mathew j. frank
Secretary
Referred to joint committee on Finance.
Referred to committee on Environment and Natural Resources.
__________________
State of Wisconsin
Legislative Audit Bureau
November 20, 2008
The Honorable, The Legislature:
As required by s.
13.94(1)(em), Wis. Stats., we have completed a program evaluation of the Wisconsin Lottery, which is administered by the Department of Revenue. Although annual sales have fluctuated, they increased from a total of $482.9 million in fiscal year (FY) 2003-04 to $494.7 million in FY 2007-08, or by 2.4 percent over the past five years. Net lottery proceeds provided $146.5 million in property tax relief in FY 2007-08.
In FY 2005-06, the Wisconsin Lottery implemented an evaluation tool to assist in the development and management of instant games. We include a recommendation for the Wisconsin Lottery to include product information costs, which include spending to publicize individual games, in the evaluation tool and to require its contractor to regularly report on product information expenditures associated with specific games.
Between FY 2003-04 and FY 2007-08, the Wisconsin Lottery paid one contractor $25.2 million for product information services and another contractor $61.1 million for operations services such as computerized gaming system services. Formal annual performance evaluations are required under both contracts. While the Wisconsin Lottery meets regularly with its product information contractor to provide verbal feedback, it has not completed formal annual evaluations, as it does with its operations contractor. We include a recommendation for the Wisconsin Lottery to evaluate its product information contractor annually.
We appreciate the courtesy and cooperation extended to us by Wisconsin Lottery staff in the Department of Revenue. The Department's response follows the appendices.
Sincerely,
janice mueller
State Auditor
__________________
State of Wisconsin
Legislative Audit Bureau
November 25, 2008
The Honorable, The Legislature:
At the request of the departments of Commerce and Administration, and in accordance with s.
13.94(1s), Wis. Stats., we have completed a financial audit of the State of Wisconsin Petroleum Inspection Fee Revenue Obligations Program for the fiscal years ending June 30, 2008, and June 30, 2007. We express our unqualified audit opinion on the Statement of Changes in Program Assets and related notes.
Under the program, the State has issued revenue obligations, such as bonds and commercial paper, to provide financing for payment of claims under the Petroleum Environmental Cleanup Fund Award (PECFA) program. These revenue obligations are not general obligation debt of the State. Instead, they are to be repaid primarily from the $0.02 per gallon fee charged to suppliers of petroleum products sold in Wisconsin, which is collected by the Department of Revenue.
During fiscal year (FY) 2007-08, the State collected $76.6 million in petroleum inspection fees and made $30.4 million in scheduled debt service payments, including $20.3 million in principal repayment and $10.1 million in interest. As of June 30, 2008, a total of $252.3 million in revenue obligations remained outstanding, to be repaid from future petroleum inspection fees.
Petroleum inspection fees in excess of debt service requirements are deposited to the Petroleum Inspection Fund and are used to pay PECFA claims and for other purposes authorized by the Legislature, including the early redemption of petroleum inspection fee revenue obligations. During FY 2007-08, $47.0 million in inspection fees was deposited to the Petroleum Inspection Fund while $16.8 million in PECFA claims was paid from the Fund. The remaining $30.2 million was used for a variety of purposes, including a $20.3 million transfer authorized by the Legislature to the Transportation Fund, as well as $1.0 million in transfers to the General Fund to help meet lapse requirements included in
2007 Wis. Acts 20 and
226.
We appreciate the courtesy and cooperation extended to us during our audit by staff of the departments of Commerce, Administration, and Revenue.
Sincerely,
janice mueller
State Auditor
__________________
State of Wisconsin
Claims Board
November 25, 2008
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on November 6, 2008.
Those claims approved for payment pursuant to the provisions of 16.007 and 775.05 Stats., have been paid directly by the Board.
This report is for the information of the Legislature. The Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.
Sincerely,
Cari anne renlund
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on November 6, 2008, upon the following claims:
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Claimant Agency
Amount
The following claims were considered and decided without hearings:
Claimant Agency Amount
5. Theodore H. Agriculture, Trade $4,547.38
Paulson & Consumer Protection
6. Michele A. Windsor Natural Resources $316.45
7. Gabriel Umentum Corrections $4,618.17
8. Eugene Cherry Corrections $717.59
9. Joseph C. Clark Corrections $82.73
10. Lashone Jackson Corrections $160.00
11. Mark T. Smith Corrections $18.88
The Board Finds:
1. John A. Rupp of Cazenovia, Wisconsin claims $10,000 as compensation for wrongful imprisonment and $12,797.45 attorneys' fees related to his wrongful conviction. On March 14, 2001, the claimant was found guilty of theft pursuant to § 943.20(1)(b), Stats., and was sentenced to six years in prison. The claimant was also convicted of theft pursuant to §
943.20(1)(d), Stats., however, there was no prison sentence for this count and it is therefore not at issue here. The claimant was already serving time for other convictions and therefore served his sentence for this case from August 11, 2003 until March 4, 2005, nearly 19 months. The claimant has always asserted his innocence and did not in any way contribute to his conviction. The claimant believes that both his trial and appellate counsel were ineffective and he proceeded with his appeals
pro se to the best of his ability. The claimant states that there are no civil remedies available to him to recover his damages. On February 15, 2005, the Wisconsin Court of Appeals ruled that the evidence was insufficient to convict the claimant of embezzlement under §
943.20(1)(b), Stats. The Court found that “a reasonable jury could only regard the money as belonging to Rupp at the time he used it" and that the claimant could not be guilty of embezzling his own money. The court dismissed the claimant's conviction of §
943.20(1)(b), Stats., and ordered his immediate release. Despite the February 15 reversal, the claimant was held in custody for an additional six weeks. The claimant was finally released on March 24, 2005.
The claimant states that as a direct result of his wrongful imprisonment, he has suffered significant financial losses. He states that prior to his incarceration he earned $15 per hour at full time employment and therefore lost nearly $50,000 of income during his incarceration. The claimant also lost social security contributions and the ability to grow his business. The claimant states that he also suffered emotional damage during his incarceration. He was unable to support his family, placed next to murderers, and mistreated by guards. The claimant states that he suffered not only the regular social stigma of having been incarcerated, but additional stigma because the conviction was related to his work.
The claimant requests reimbursement at the statutory rate of $5,000 per year for two years. The claimant also requests compensation for his post-conviction attorneys' fees, specifically: $7,300 for his appellate counsel, $800 in costs for his work
pro se (his appellate counsel ceased to represent him when he ran out of money), and $4,697.45 attorneys' fees for the preparation of this claim. The claimant points to the Claims Board's decision in the Claim of Steven Avery, in which the Board construed the language of §
775.05, Stats., as allowing for the payment of attorneys' fees in addition to the statutory rate of compensation per year.
The Juneau County District Attorney, Scott Southworth, states that he was not the prosecutor at the time and has limited knowledge of the claimant's case; however he makes several observations about the claim. Mr. Southworth states that the amount of attorneys' fees requested by the claimant appears reasonable; however, he does not believe that the claimant is entitled to the statutory maximum reimbursement of $5,000 per year for his incarceration because the claimant did not serve a full two years in prison. In addition, he points to the fact that the claimant's conviction for another count in the same criminal complaint was upheld on appeal [theft under §
943.20(1)(d), a felony]. Finally, Mr. Southworth states that it appears that the state acted in good faith in prosecuting the claimant.
The Board concludes that “the evidence is not clear and convincing" that the claimant was innocent as required by §
775.05(4), Stats. The claim is therefore denied.
2. John and Bonnie Weiglein of Brownsville, Wisconsin claim $3,671.25 in damages to apple trees in their orchard, allegedly caused by road salt application to Hwy. 49. The claimants state that the trees near the highway have suffered salt damage every year since they purchased the orchard in 1999. The claimants state that they have tried to reduce the damage by erecting a plastic barrier but it was unsuccessful. The claimants also state that they have moved the trees significantly farther back from the road since they purchased the orchard. The claimants pay property taxes on all 23 acres and do not believe they should have to remove land from production in order to create a wind break. The claimants estimate that they have 78 damaged trees: 29 trees at 75% loss, 29 trees at 50% loss, and 20 trees at 25% loss. An estimated production of 4 bushels per healthy tree results in the loss of approximately 165 bushels a year. The claimants request reimbursement for the lost bushels at $22.25 per bushel, the average of the price for fancy apples and seconds.
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DOT does not believe there has been any negligence on the part of the state relating to this claim. DOT has a duty to maintain the roadways and remove and control ice and snow as a public service. DOT has made attempts to reduce the amount of salt used on Hwy. 49 without compromising the safety of the motoring public. Within one mile of the orchard is a business that requires a heavy daily volume of semi tractor-trailer traffic, emphasizing the need for road salt as a safety factor to the public and an aid in maintaining an open road to the business. DOC asserts that discontinuing road salt on Hwy. 49 is not a viable option. DOT believes that businesses must exercise prudence when planting fruit trees close to a heavily traveled state highway. This might include the planting of a “barrier" of salt tolerant plants or bushes to stop the uncontrolled flow of airborne salt spray from reaching the fruit trees. (To date, this is the only orchard in the state alleging road salt damage.) DOT notes that the claimants have not submitted tax or production records documenting the alleged loss of production and income. DOT states that it also recommended denial of a similar claim made by the former owners of this orchard (Robert & Dorothy Messner), citing concerns about the long-term implications of paying the claim and setting a precedent for future annual claims at this or other sites. DOT notes that the Messners stated in their claim that it takes seven to ten years for apple trees to come into full production but that the current claim includes damage to three to five year old trees.
The Board defers decision of the claim at this time, pending discussions between the claimants and the Department of Transportation regarding a long-term solution to this problem. The Board will reconsider this claim at its next Board meeting.
3. Jeff's Northshore Auto of Menasha, Wisconsin claims $4,994.14 for damages relating to an incorrect Wisconsin vehicle title. In August 2007, the claimant purchased a 2006 Saturn Ion from an owner presenting a clean Wisconsin title. The following day, the claimant took the vehicle to a Saturn dealership for warranty repairs. The dealership informed the claimant that the vehicle was a prior salvage in Louisiana and a Katrina flood vehicle. The Wisconsin title should have noted the salvage and flood damaged brand. The claimant requests reimbursement for the purchase price paid for the vehicle, repairs, gas and various fees, minus the selling price of the vehicle at auction.
DOT recommends payment of this claim. DOT's investigation of the claim finds that a DMV processor made an error and failed to carry forward the brand from the previous title. The processor issued a title stating: “Previously titled in LA" when it should have stated “Previously titled in LA as salvage and flood damaged." When contacted by the claimant, DOT Risk Management sent him a claim form, however the form was not returned within the 120-day time limit and therefore had to be denied by Risk Management.
The Board concludes the claim should be paid in the amount of $4,994.14 based on equitable principles. The Board further concludes, under authority of §
16.007 (6m), Stats., payment should be made from the Department of Transportation appropriation §
20.395(5)(cq), Stats.
4. The City of Eau Claire, Wisconsin claims $1,481.04 for unreimbursed whiteway lighting costs on Water Street in Eau Claire for the past four years. The claimant states that whiteway lighting (WWL) is the beam emanating from an electric street lamp and does not include the physical fixtures of the lamp itself. The claimant states that WWL is a service that provides a benefit to property owners, including UW-Eau Claire and other property owners along Water Street. WWL illuminates the sidewalk in front of UW-EC's classroom building entrances and the adjacent parking lot. WWL facilitates vehicle and pedestrian traffic and provides a safety benefit for UW-EC students and faculty. The claimant is charged for electrical consumption to provide WWL and in turn bills property owners along Water Street for their share of the WWL costs through a special assessment. UW-EC has refused to pay the WWL assessment, asserting both that the assessment is disallowed by § 66.0705(1)(b), Stats., and that the claimant has already been reimbursed for WWL through the state's Municipal Services Payments program under § 70.119, Stats.
The claimant believes that §
70.119, Stats., supersedes other statues relating to payments for municipal services, including §
66.0705(1), Stats. The claimant states however, that even if §
66.0705(1), Stats., is applicable, WWL lighting is an electric service, not an electric power system and therefore does not fall under the scope of the exception provided in §
66.0705(1)(b), Stats. The claimant states that WWL is a service that fits within the scope of §
70.119, Stats., and that this service is “financed in whole or in part by special fees" as required by the statute. The claimant points to the Program Operation Guidelines, which provide that payments under §
70.119, Stats., may be made either as a user fee or an MSP, but that MSP payments are only allowed for police, fire and solid waste services. Therefore, the claimant believes payment for this service should be made under section (1) of the guidelines, user fee payments.
In addition, the claimant argues that the claim should be paid on equitable principles. The claimant points to the fact that other non-residential owners in the city pay the fee and both the Chippewa Valley Technical College and the Eau Claire DNR offices have reimbursed the city for WWL since 1982. The claimant argues that UW-EC should not be treated differently than other non-residential property owners and other state agencies.
The UW recommends denial of this claim. The UW notes that it has already paid for its share of improvements along Water Street, including the cost of light fixtures, through a special assessment. The UW states that its position is consistent with Attorney General Opinions that exempt state property from special assessments for general maintenance, as opposed to those for local improvements.
OAG 72-80 (December 23, 1980).
The UW states that the claimant is inconsistent in its definition of WWL, sometimes claiming that it is the light from the street lamp and sometimes claiming that it is an electrical service. The UW points to the fact that the claimant's own budget documents indicate that WWL assessments are based on the “cost of operating and maintaining the system".
The UW states that if the charge is for the light from the street lamp, it falls within the scope of §
66.0705(1)(b), Stats., which disallows special assessments for “the right, easement or franchise to operate and maintain
…electric light or power systems in streets, alleys, parks or highways." However, if the WWL charge is for an “electrical service," the UW believes that it falls within the scope of §
70.119, Stats., and that the claimant is already compensated through the Municipal Services Payments Program provided under that statute. The UW notes that DOA is responsible for negotiating MSP with local governments and that the UW has no authority or role in determining the reimbursement formula. If there are restrictions in the program as to what types of services are reimbursed, that is outside the control of the UW. The UW also states that, pursuant to the previously noted AG Opinion, §
70.119(1), Stats., only applies to services
directly provided by municipalities. Because the claimant does not generate its own electricity, it cannot charge for the cost of electricity to provide WWL.
Finally, the UW rejects the claimant's argument that, as a matter of equity, the UW should not be treated differently from other property owners along Water Street. The UW notes that following this logic means that state agencies should not be exempt from property taxes simply because non-state property owners pay them. The UW states that the purpose of the MSP program is to provide the equivalent of a property tax assessment and that the claimant has already been compensated under this program.
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The Department of Administration's Division of Intergovernmental Relations administers the MSP program and submits this additional information for the Board's consideration. MSP is not the only way that municipalities can receive payments for services they provide. In fact, the Program Operation Guidelines approved by the Legislature for §
70.119 clarify that the purpose of the MSP program is to pay for services
financed by local property tax revenue, not for services funded through special assessments. The guidelines provide that services financed through special charges should be paid as User Fee Payments under section (1) of the guidelines.
The Board concludes the claim must be denied pursuant to §
66.0705(1)(b), Stats. The Board concludes these charges could be negotiated for payment under the Municipal Service Payments Program set forth in §
70.119, Stats. The Board also 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 Miller dissenting.)
5. Theodore H. Paulson of Bloomer, Wisconsin claims $4,547.38 for return of a Farmland Preservation Program payback. The claimant entered into a Farmland Preservation Agreement (FPA) in 1989, which does not expire until 2014. In 2005, the claimant sold 9.3 acres of his land and DATCP required payback of ten years of the tax credit received for that land, pursuant to §
91.19(6t) and
(7), Stats. At the time, the claimant was disabled but did not realize that §
91.19(1m), Stats., allowed permanently disabled individuals to relinquish their FPA without the payback. The claimant did not learn of this exception until 2008, at which time he contacted DATCP to request a refund and was referred to the Claims Board. The claimant states that he was permanently disabled when he sold the land and therefore should be reimbursed for the tax credit payback.
DATCP does not object to payment of this claim, provided that the claimant has appropriate medical documentation that he is totally and permanently disabled. (DATCP notes that the documentation supplied by the claimant with his claim speaks of disability, but does not indicate that the claimant is “totally and permanently disabled" as required by the statute.) DATCP feels obligated to point out that §
91.19(1m), Stats., provides that when the request is made for reasons of permanent disability the entire FPA is relinquished and the tax credit is lost for all the land in the FPA, not just a portion of the land. (Other sections of §
91.19, Stats., provide for release of portions of land under an FPA without loss of the entire FPA, but that option is not available when the request is made due to permanent disability.) In this instance, it appears that the claimant has an additional 180 acres still covered under the FPA for which the tax credit would be lost. DATCP believes that the claimant should consider whether it is more valuable for him to retain the tax credit for his remaining acres than to receive return of the $4,547.38. Finally, should the board consider payment of this claim, DATCP wishes to note that there was no negligence on the part of the department and that by law, the payback did not come to DATCP but was deposited in the school fund.
The Board concludes that, upon receipt of documentation from the claimant's physician that he is “totally and permanently disabled," the claim should be paid in the amount of $4,547.38 based on equitable principles. The Board further concludes, under authority of §
16.007 (6m), Stats., payment should be made from the Claims Board appropriation §
20.505(4)(d), Stats.
6. Michele A. Windsor of Black River Falls, Wisconsin claims $316.45 for the cost to replace the windshield on her personal vehicle. The claimant is a DNR employee in the Black River Falls office. The claimant's assigned state vehicle is an F150 pickup truck with no topper. The claimant states that she always uses her assigned vehicle, not her personal vehicle, for work purposes. In March 2008, the claimant's supervisor asked her to transport a large, stuffed snow goose to Madison so it could be displayed in the Madison DNR office. The stuffed goose was very large, with a 5 foot wingspan. There was no state vehicle in Black River Falls large enough to transport the goose and the claimant could not use her assigned pickup truck because it had no topper and the bird could be damaged. The only vehicle large enough to transport the bird to Madison was the claimant's personal vehicle, a Subaru Outback; therefore, the claimant used her personal vehicle to take the bird to Madison. The claimant states that during the trip back to Black River Falls, a passing semi kicked up a stone, which hit the claimant's windshield, causing a large chip that spread significantly by the time the claimant got back to Black River Falls. Due to the size of the crack, the claimant's entire windshield had to be replaced at a cost of $316.45, an amount less than the claimant's $500 insurance deductible.
DNR supports payment of this claim. DNR believes that the circumstances in this case warrant making an exception to the department's general policy to deny employee claims for damaged personal property. DNR points to the fact that the claimant's trip was entirely work-related and that she only used her personal vehicle out of necessity, because no suitable DNR vehicle was available. DNR notes that the claimant even received a certificate of non-availability of a state vehicle from her supervisor—a clear indication that using her personal vehicle was the only option. DNR believes one could assume that had a state vehicle been available for use, its windshield would have been damaged instead. DNR believes that the principles of equity dictate that the claimant should not bear the cost of this accident, particularly since she was directed to transport the bird by her supervisor.
The Board concludes the claim should be paid in the amount of $316.45 based on equitable principles. The Board further concludes, under authority of §
16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation §
20.370(1)(ma), Stats.
7. Gabriel Umentum of Waupun, Wisconsin claims $4,618.17 for reimbursement of legal fees incurred in defense of a criminal charge arising from the performance of his duties as an employee at Waupun Correctional Institution. On April 16, 2007, the claimant transferred inmate DuJuan Walker to a different cell and Walker became resistive. The claimant states that he had difficulty controlling Walker and called for assistance. Walker later filed a complaint against the claimant alleging that he assaulted Walker during the transfer, pushing him face first into a wall and repeatedly punching him in the head. Judge Andrew Bissonnet convened a John Doe proceeding and found “reason to believe" that the claimant had violated § 940.29, Stats., (abuse of residents of penal facilities). The claimant notes that the proof necessary in a John Doe proceeding is very low—a “reason to believe" standard, which is lower than probable cause. The claimant also points to the fact that § 968.26, Stats., which governs John Doe proceedings, does not allow the judge to consider factors that cast doubt on the allegations, such as the complainant's credibility or the prosecutive merit of the case.
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The claimant has been employed by DOC for six years, has received good employee reviews during that time and has no record of any substantial allegations of misconduct or inmate mistreatment. Inmate Walker has numerous felony convictions and a history of disciplinary problems while incarcerated. Detectives who interviewed Walker on the day of the alleged abuse noted that they saw no “cuts, abrasions, bruises, marks, scratches or any other marking on his face, head, knees or elbows that would reflect an injury he sustained." It appears that the only person injured during the incident was the claimant, who sustained a bite mark on his arm. The special prosecutor appointed by Judge Bissonnet investigated the allegations and, after reviewing information provided to him by the claimant's counsel, dismissed the charge. On April 22, 2008, the Circuit Court granted the claimant's motion to expunge the charges from his record. The claimant states that these charges were directly related to the exercise of his lawful duties as a state employee.
The claimant believes that his attorney's fees are reasonable and requests reimbursement of the $1,122.40 he has already paid his attorney plus the remaining balance of $3,495.77, pursuant to §§
16.007(5) and
775.11, Stats.
DOC supports payment of this claim. DOC does not dispute the facts as presented by the claimant and notes that the allegations against him could not be proven beyond a reasonable doubt and an Order was issued to expunge the record. DOC agrees that the claim is appropriate to pay pursuant to §
775.11, Stats., that the duties performed by the claimant were those expected of an employee, and that the attorney's fees are reasonable.
