One-Hundred and Second Regular Session
MONDAY, October 26, 2015
The Chief Clerk makes the following entries under the above date.
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Petitions and Communications
State of Wisconsin
Legislative Reference Bureau
October 26, 2015
The Honorable, the Legislature:
The following rules have been published in the October 26, 2015 Wisconsin Administrative Register No. 718: Clearinghouse Rules Effective Date(s)
Sincerely,
BRUCE J. HOESLY
Senior Legislative Attorney/Code Editor
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State of Wisconsin
Claims Board
September 16, 2015
Enclosed is the report of the State Claims Board covering the claims heard on August 25, 2015.Those claims approved for payment pursuant to the provisions of s.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,
GREGORY D. MURRAY
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on August 25, 2015, upon the following claims:
Claimant Agency Amount
11.
Wasserstrass Agriculture, Trade, & $2,579.70 Farms, Inc. Consumer Protection
22.
Mark Bernhardt, Jr. Revenue $783.00 The following claims were decided without hearings:
Claimant Agency Amount
33.
Cedar Road Meats Agriculture, Trade, & $423.80 Consumer Protection
44.
TRC Engineers, Inc. Financial Institutions $918.00 55.
Michelle Milstein University of $14,803.36 Wisconsin
66.
Fred Plummer Revenue $18,670.66 77.
Mark B. Brown Corrections $21.09 88.
Mark B. Brown Corrections $184.56 99.
Mark B. Brown Corrections $176.20 10. Ricky Grandy Corrections $42.94
11. Mark S. Hickles Corrections $381.48
12. Robert Morrison Corrections $19.71
With respect to the claims, the Board finds:
1. Wasserstrass Farms, Inc. of Monroe, Wisconsin claims $2,579.70 for value of milk that could not be sold, allegedly due to retaliation by a DATCP inspector. The claimants state that inspector Jennifer Barker wrote up their farm for violations related to their Delaval robotic milking system. The claimants believe that Barker did not have sufficient training for the Delaval system in order to properly inspect it. The claimants also state they had the system inspected by a DATCP equipment expert, who verbally told them it was working properly (he did not file a written report). The claimants state Ms. Barker told them she had experience inspecting Delaval systems at other farms. The claimants state that they called all the other farms in the area with a Delaval system and found that Ms. Barker had not inspected any of them. The claimants state that they made three requests to DATCP for list of other Delaval systems inspected by Ms. Barker but that DATCP never provided that information. The claimants believe Ms. Barker lied to them about her experience with the Delaval system. They believe her suspension of their license on 12/2/14, was retaliatory because they had questioned Ms. Barker’s experience and accused her of lying to them. At hearing, the claimants stated that the Delaval system computer notified them whenever they needed to perform routine maintenance and that they had always performed that maintenance “as best they could.” The claimants stated that a prior inspector had told them he would like them to update their computer software but that they had not done so. The claimants also stated that they made no changes to the milking system, other than performing routine maintenance, between the time they failed inspection and when they passed the reinstatement inspection.
DATCP recommends denial of this claim. DATCP notes that the claimants’ farm has had repeated problems with its Delaval milking system. DATCP states that inspections found that the robot sometimes failed to find and properly attached to the teats and would fall off onto the ground, where it became dirty. DATCP also notes that Ms. Barker is one of two DATCP inspectors who do nothing but farm inspections and that she has the necessary training to appropriately inspect Deleval robotic milking systems. After repeated failed inspections, DATCP sent the claimants a warning letter on 1/28/14. DATCP held an administrative conference with the claimants after another failed inspection on 3/3/14. DATCP states that another inspection on April 22 found the same problems. Another administrative conference was held on 5/8/14, during which Mr. Wasserstrass signed a stipulation and consent order placing conditions on his license. These conditions included a mandatory summary suspension of his license if the Delaval system was again found to be not working properly. DATCP notes that any suspension of a conditional license continues until a successful inspection. On 10/2114, Ms. Barker and a DATCP supervisor inspected the system and found it was not working properly. DATCP sent a notice of summary suspension to the claimants on 12/1/14. The procedure for requesting a reinstatement inspection were included with the suspension notice, however, the claimants waited until 12/8/14, to request reinspection. The reinstatement inspection was successfully conducted on December 12, and the claimant’s license was immediately reinstated. DATCP notes that the claimants are requesting reimbursement for milk loss between 12/3 and 12/13/14. DATCP believes this loss was not the result of improper behavior by DATCP employees, but rather by the claimants own delay in seeking the reinstatement inspection. At hearing, DATCP stated, and the claimant agreed, that the routine maintenance mentioned by the claimant (replacement of hoses and rubber parts) could easily have made the difference between the failed October inspection and the subsequent successful reinstatement inspection.
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 with the state should assume and pay based on equitable principles.
