6. The City of West Allis, Wisconsin claims $56,300.00 for damages related to an error made by a DOT employe related to a road improvement project in the City of West Allis. The project agreement split various costs of the project with the State and the Federal Highway Administration (FWHA) paying 80% and the City paying 20%. When the right-of-way acquisition began, the claimant understood that all state and federal approvals were in place. However, the request for federal authorization of real estate funds was inadvertently never submitted by the DOT. The DOT employe responsible for submitting the authorization forms was apparently seriously ill at the time this oversight occurred. The claimant proceeded to acquire the necessary right-of-way in good faith and in full compliance of all other state and federal guidelines under the assumption that authorizations were in place. The oversight in federal authorization was discovered when the city attempted to seek reimbursement from FWHA. FWHA has denied the city reimbursement because prior authorization was not received according to their policy. The city requests reimbursement of its real estate costs related to the project, which were incurred due to DOT's error. The DOT recommends payment of this claim. The required request for federal authorization of real estate funds was not submitted due to the illness of a state employe, who has since taken a disability retirement. The error was not discovered until years later, when the city attempted to seek reimbursement. This claim has been fully investigated by the DOT and negligence has been found on the part of a DOT employe. However, it has been determined that the DOT does not have legal authority to directly reimburse the city for these costs. The Department therefore requests that the Claims Board reimburse the claimant for their real estate costs. The board recommends that the claim be paid in the amount of $56,300.00 based on equitable principles.
7. Nemec Barningham Foster Care of Ashland, Wisconsin claims $11,008.66 for damages allegedly caused by the failure of the Department of Health and Family Services to adequately oversee Ashland County's handling of the foster parent program. The claimant alleges that he filed a claim for damages caused by his foster child and that Ashland County failed to process the claim in a timely manner, lost receipts, and gave him incorrect information regarding reimbursable amounts for clothing. The claimant also states that Ashland County promised to provide respite care or payment, to pay for mileage, and to pay for damage to the foster child's glasses but did not. The claimant alleges that he contacted the DHFS and asked them to step in and help resolve the dispute with Ashland County but that DHFS personnel repeatedly told him that they had no jurisdiction over Ashland County. The claimant feels that the state should have done something to make Ashland County respond to his complaints and process his damage claims correctly. He requests reimbursement for the following damages: $1489.50 for property damage by foster child, $7932.16 for respite care payment promised by Ashland County, $26.00 for damaged glasses, $200.00 for mileage to take foster child to counseling, $300.00 for clothing for foster child, $116.00 court costs, $600.00 for telephone bills, $300.00 for photocopies, and $45.00 for postage. The Department of Health and Family Services recommends denial of this claim. The DHFS has reimbursed the claimant $1289.50 for property damage sustained by a foster parent that is caused by a foster child, less a $200 deductible, as provided for under the foster parent insurance program under s.
48.627, Wis. Stats. The DHFS alleges that none of the other damages claimed in this claim may be paid under the foster parent insurance program because they do not constitute bodily injury or property damage covered by the foster parent insurance program as required in s.
48.627 (2m) and
(2s). The DHFS believes that there is no basis for the Claims Board to pay these other claimed damages. This claim arises out of foster care services the claimant provided to Ashland County, not the state or the DHFS. The DHFS states that although by statute the legislature has provided for payment of certain claims of both state and county foster parents, there are no other statutory grounds for state liability for county foster parents' claims against the county. Since the claimant provided foster care services for the county, there was no state involvement that could result in state negligence and the DHFS does not believe there is an equity basis for this claim. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S309
8. Reuben Johnson & Son, Inc., of Superior, Wisconsin claims $78,695.10 for additional compensation allegedly due in connection with the Bayfield Fish Hatchery Water Supply Project. The claimant states that it submitted a request for a change order for costs incurred in the engineering, fabrication, and installation of concrete weights used to anchor the 30" polyethylene intake line on the project. The claimant believes that the weighting system for the polyethylene pipe was incorrectly and unfairly omitted from the bid plans and specifications and that they are due additional compensation. The claimant alleges that the bid specifications provided by the state's engineering firm clearly indicated that the pipe weights were not mandatory materials bid items but only that they "maybe [sic] considered based on the contractor's method of placement and installation plan." The claimant further alleges that there was nothing in the bid documents indicating the volume and weight of water to be contained within the intake pipe and that they therefore assumed that the intake pipe would be at full volume capacity and contain sufficient weight to eliminate any need for pipe anchors and weights. The claimant states that their detailed plan for the pipe installation contained pipe concrete anchors, which were specifically required by the project engineer and the state following the commencement of construction. The claimant feels that if the state had intended that contractors specifically include pipe weights and anchors within their bid that they should have delineated them as mandatory bid items in the bid documents. The Department of Administration recommends denial of this claim. Polyethylene was not the only acceptable piping material allowed on the Bayfield Fish Hatchery project. The claimant could have chosen from a number of allowable piping materials and manufacturer's anchoring recommendations. The DOA states that Part 2 of Section 02660 of the Project Specifications clearly required that anchors, as per the manufacturer, be used with the polyethylene pipe option chosen by the claimant. The claimant could have used other pipe materials,
which did require pipe weights and anchors. The DOA further points out that the project specification also clearly required submittal of a detailed installation plan, including information pertaining to the "size and location of weights" as per the manufacturer recommendations. The pipe weights were called for in the manufacturer's specifications for the polyethylene piping material the claimant chose to use. The DOA believes that if the claimant did not want to use pipe weights and anchors, they should have chosen to use another piping material. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. Member Main not participating.
9. Scott and Faith Fechtmeyer of Wind Lake, Wisconsin claim $7,112.20 for overpayment of income taxes. The claimants sold their home in June 1997. $20,950.80 of the proceeds from the sale was paid to the DOR to pay off unpaid tax assessments. The claimants state that they were not aware of the amount of these assessments until the time of the closing. They believe that the assessments were excessive and unfairly punitive. The claimants filed their outstanding tax returns in December 1997. After the sale of their home, the claimants received a $2700 refund check from the DOR. They then received three refund checks in August 1998, each in the amount of $3,573.49. The claimants state that no explanations accompanied these checks and that they assumed this money was being refunded to them because the DOR had taken out too much from the sale of their home. They cashed two of the checks and then received a letter from the DOR, which stated that two of the $3,573.49 checks were sent in error and had to be returned. The claimants returned the one uncashed check and contacted the DOR. The claimants state that they told the DOR that they felt they were owed this money because of the excessive assessments. The claimants were told that their overpayments could not be refunded to them because they had filed the returns more than 2 years after the date of the assessments. The claimants request that the third check for $3,573.49 be returned to them and also request payment of the remainder of their overpayment in the amount of $3,538.71. The Department of Revenue recommends denial of this claim. This case involves chronic nonfilers who had failed to file timely income tax returns for the years 1991 through 1995. The assessments pertinent to this claim are those for 1991 and 1992. These assessments were issued in November 1994. In June 1997, the assessments were paid in full from the proceeds of the sale of the claimants' home. (The amount collected that went towards the 1991 and 1992 assessments was $12,617.68.) The 1991 and 1992 returns were filed in December 1997, more than three years after the assessment date. Section
71.75 (5), Stats., prohibits the DOR from refunding the overpayment since no claim was made within the two-year time period. The two-year time limit did not apply to the 1993 income tax assessment and all monies collected on the 1993 estimate were properly applied to outstanding liabilities or refunded to the claimants. In fact, the DOR made an immense error and refunded the claimants three checks for $3,573.49, when only one check should have been sent. The claimants have returned one of the extra checks but have refused to return the second, justifying their actions to reduce what they believe is an unfair loss. The DOR is currently taking action to recover the money refunded in error. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
10. Walworth County, Wisconsin claims $76,150.00 for damages related to an error made by a DOT employe related to a county trunk highway improvement project. The project agreement split various costs of the project with the State and the Federal Highway Administration (FWHA) paying 80% and the county paying 20%. When the right-of-way acquisition began, the claimant understood that all state and federal approvals were in place. However, the request for federal authorization of real estate funds was inadvertently never submitted by the DOT. The DOT employe responsible for submitting the authorization forms was apparently seriously ill at the time this oversight occurred. The claimant proceeded to acquire the necessary right-of-way in good faith and in full compliance of all other state and federal guidelines under the assumption that authorizations were in place. The oversight in federal authorization was discovered when the county attempted to seek reimbursement from FWHA. FWHA has denied the county reimbursement because prior authorization was not received according to their policy. The county requests reimbursement of its real estate costs related to the project, which were incurred due to DOT's error. The DOT recommends payment of this claim. The required request for federal authorization of real estate funds was not submitted due to the illness of a state employe, who has since taken a disability retirement. The error was not discovered until years later, when the county attempted to seek reimbursement. This claim has been fully investigated by the DOT and negligence has been found on the part of a DOT employe. However, it has been determined that the DOT does not have legal authority to directly reimburse the county for these costs. The Department therefore requests that the Claims Board reimburse the claimant for their real estate costs. The board recommends that the claim be paid in the amount of $76,150.00 based on equitable principles.
The Board concludes:
1. The claims of the following claimants should be denied:
Madison Metro/Great Lakes Electrical
Garver Feed & Supply
Nemec Barningham Foster Care
Reuben Johnson & Son, Inc.
Scott & Faith Fechmeyer
2.
Payment of the following amounts to the following claimants is justified under s. 16.007, Stats:
Julie Nickel $251.62
The Board recommends:
1. Payment of $9,926.00 to Robert and Dorothy Messner for damages to their orchard.
2. Payment of $13,785.25 to the City of West Allis, Wisconsin for real estate costs.
3. Payment of $56,300.00 to the City of West Allis, Wisconsin for real estate costs.
4. Payment of $76,150.00 to Walworth County, Wisconsin for real estate costs.
Dated at Madison, Wisconsin this 19th day of October, 1999.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Sheryl Albers
Assembly Finance Committee
Lawrence A. Wiley
Representative of the Governor
State of Wisconsin
Office of the Governor
October 22, 1999
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Gleason, Edward J.,
of Muskego, as Administrator of the Division of Emergency Management, to serve for the term ending at the pleasure of the Governor.
Sincerely,
TOMMY G. THOMPSON
Governor
Read and referred to committee on Economic Development, Housing and Government Operations.
__________________
Relating to assignment of costs and opportunity sales.
Submitted by Public Service Commission.
Report received from Agency, October 27, 1999.
Referred to committee on Health, Utilities, Veterans and Military Affairs, October 28, 1999.
__________________
__________________
By Charles Sanders, chief clerk.
Mr. President:
I am directed to inform you that the Assembly has passed and asks concurrence in:
Assembly Bill 318
Assembly Bill 335
Assembly Bill 391
__________________
Assembly Bill
318
Relating to: the controlled substance methamphetamine and providing penalties.
By Representatives Kreibich, Rhoades, Brandemuehl, Urban, Suder, Klusman, Freese, Ladwig, Ainsworth, Nass, Musser, Seratti, M. Lehman, Stone, Albers, Pettis, Gunderson, Kelso, Skindrud, Kedzie, Olsen, Huebsch, Petrowski, Gronemus, Vrakas, Kestell, Montgomery and Ward; cosponsored by Senators Clausing, Moen, Zien, Panzer, Roessler, Darling, Huelsman, Schultz, Rude and Farrow.
Read first time and referred to committee on Judiciary and Consumer Affairs.
Assembly Bill
335
Relating to: allowing municipal courts to hold refusal hearings.
By Representatives Vrakas, Montgomery, Petrowski, Staskunas, Olsen, Huber, Spillner, La Fave, Stone, Ryba, Cullen, Musser, Rhoades, Brandemuehl, Powers, Goetsch, Grothman, Sykora, Gunderson and Albers; cosponsored by Senators Huelsman, Darling, Roessler, Drzewiecki and Grobschmidt.
Read first time and referred to committee on Judiciary and Consumer Affairs.
Assembly Bill
391
Relating to: disposable earning exempt from garnishment.
By Representatives Gunderson, Musser, Townsend, Turner, Sykora, Hahn, Petrowski, Hundertmark, Spillner, Gronemus, Kelso, Albers and Powers; cosponsored by Senator Darling
.
Read first time and referred to committee on Judiciary and Consumer Affairs.
__________________
Senator Risser, with unanimous consent, asked that the Senate adjourn until Tuesday, November 2 at 10:00 A.M..
Adjourned.
10:01 A.M.
