By
Senators
George, Burke, Darling, Schultz and Rosenzweig; cosponsored by Representatives Walker, Balow, Sykora, Huber, Wade, Ryba, Pettis, Townsend, Albers, Powers, Stone, J. Lehman, Hundertmark, Colon, Huebsch, Olsen and Staskunas.
To committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.
__________________
State of Wisconsin
February 13, 2001
The Honorable, The Senate:
Pursuant to Senate Rule
20(2)(a), I have appointed Senator Sheila Harsdorf to the Wisconsin Environmental Education Board.
With regard to members of the minority party, the appointment is based on the nomination of that caucus.
Sincerely,
Chuck Chvala
Chair, Committee on Senate Organization
State of Wisconsin
Department of Administration
February 5, 2001
The Honorable, The Legislature:
Included with this correspondence, I am submitting the report of the Department of Administration, Division of Gaming (Gaming), for the second quarter of fiscal year 2001 (October 1, 2000 through December 31, 2000). As required by s.562.02(1)(g), Wis. Stats., the attached materials contain pari-mutuel wagering and racing statistical information, as well as the revenues for the program areas of Racing, Charitable Gaming and Indian Gaming. Please note that Bingo revenues are now captured in a new appropriation (836) and therefore are shown on a separate chart from the rest of Charitable Gaming.
If you have any questions or comments regarding this report, please do not hesitate to contact Richard Pedersen at (608) 270-2546.
Sincerely,
F. Scott Scepaniak
Administrator
State of Wisconsin
Claims Board
February 13, 2001
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on January 26, 2001.
The amounts recommended for payment under $5,000 on claims included in this report have, under the provisions of s.
16.007, Stats., been paid directly by the Board.
The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.
This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.
Edward D. Main
Secretary
The State Claims Board conducted hearings in the State Capitol, Grand Army of the Republic Memorial Hall, Madison, Wisconsin, on January 26, 2001, upon the following claims:
Claimant Agency Amount
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
In addition, the following claim, which was considered at a previous meeting, was considered and decided without hearing:
Claimant Agency Amount
The Board Finds:
1. Braeger Chevrolet of Milwaukee, WI claims $2,700.00 for damages allegedly related to an incorrect WI vehicle title. The claimant acquired a 1993 GMC Suburban as a trade in vehicle for $12,000. The claimant then sold that vehicle at a wholesale auction and received $11,700 for the vehicle, after fees. The wholesaler who purchased the vehicle ran a check and discovered that the vehicle had a previous IL title marked as salvage. The claimant had to buy back the vehicle and get a proper WI title with salvage indicated. The claimant was then only able to sell the vehicle for $9,000, incurring a loss of $2,700.
The DOT recommends payment of this claim. Miguel Estrada purchased the 1993 GMC on 6/16/98, with an IL salvage title. Mr. Estrada subsequently applied for a WI title and did not note on his application that the vehicle should be titled as salvage. However, the DOT states that the title processor should have noticed the salvage brand on the IL title and carried it forward to the WI title. The DOT believes that Pennie Wix, the DOT employee who processed the title, was negligent for not carrying forward the salvage brand.
The Board concludes the claim should be paid in the amount of $2,700.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Transportation appropriation s.
20.395 (5)(cq), Stats.
2. H. Joseph Slater of Lake City, MN claims $4,607.12 for income tax refunds for the years 1992, 1994 and 1995, which were withheld by the DOR to satisfy assessments for the years 1977-1985. The claimant states that he late filed his 1977-1985 returns in 1995. The claimant has a copy of a certified mail receipt dated 11/26/95 for 12 pages sent to E. Munson at the DOR. The claimant also has a copy of the signed, certified mail return receipt, showing that the returns were received by the DOR and a letter from E. Munson at the DOR dated several days after receipt of the certified mail, stating "(w)e have received your late filed 1977 through 1988 Wisconsin income tax returns." Despite this acknowledgement, the DOR withheld the claimant's 1992, 1994 and 1995 income tax returns to satisfy allegedly delinquent assessments for the years 1977-1985. The claimant states that he contacted the DOR and offered them the above evidence that he had indeed filed the returns in question. The claimant states that in March 2000, he received a letter from the DOR stating that the returns had never been received and that E. Munson "inadvertently listed having received late filed returns for tax years 1977 through 1988 when, in fact he meant 1986 through 1992." The claimant believes that this statement, issued by another auditor five years after Mr. Munson clearly stated he had received the returns, has no credible basis in fact.
DOR records show that the claimant has not filed 1977-1981 income tax returns. The DOR alleges that the claimant was incorrectly informed by E. Munson that DOR had received the 1977-1981 returns. The DOR states that it informed the claimant of the error in its March 2000 letter and that his refunds were held to satisfy the delinquent assessments for these years. DOR states that it has also issued an estimated assessment for 1996 that is now delinquent.
Based on additional DOR testimony at hearing, the Board concludes the claim should be paid in the reduced amount of $1,702.50 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Revenue appropriation s.
20.566 (1)(a), Stats.
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3. Thomas F. Bailey
of Milwaukee, WI claims $21,955.29+ for refund of an assessment made by the DOR. The claimant alleges that in 1989 the DOR took the position that civil service pension benefits for National Guard technicians were tax exempt. The DOR published this position in a newsletter, which it distributed to federal retirees in 1989. In 1995, the DOR reversed its position and mailed assessments to over 400 National Guard technicians for back taxes on pension benefits from 1989 to 1995, plus 12% interest. In August 1995, the claimant received an assessment for $20,644.37 tax and interest on his pension for the years 1989-1993. The claimant paid DOR $21,955.29 (the original assessment plus interest) in Noveber 1995. The claimant states that shortly after the DOR's position reversal, over 400 retired National Guard Technicians protested and objected to the DOR's action. The claimant states that this protest was so clear an unequivocal that then Revenue Secretary Bugher held meetings with representatives of the Retired National Guard community to address the issue. The claimant believes that Secretary Bugher was put on notice that the Retired National Guard community as a whole objected to and protested this action. A "test case" was presented to the Wisconsin Tax Appeals Commission, which upheld DOR's position. WTAC's decision was appealed in Dane County Circuit Court in November 1999. The court affirmed that the pensions were taxable but found that some of the petitioners had relied on DOR's advice to their detriment and ruled that DOR was estopped from seeking assessments against those individuals for tax years 1989 and after. The claimant states that he contacted the DOR but was told that he did not qualify for refund of the taxes because he had not appealed the original assessment issued in 1995. The claimant believes that it is unconscionable for the DOR to refuse to refund his money and that it was grossly unfair of DOR to issue backdated assessments to begin with, when the retired technicians had relied on DOR's 1989 statement that their pensions were tax exempt. The claimant believes that it is clear that all the retired National Guard Technicians protested this overwhelming financial burden when it was placed upon them and that this protest was clearly conveyed to both Secretary Bugher and the State Legislature by leaders of the Retired National Guard community.
The DOR recommends denial of this claim. A notice of appeal rights accompanied the assessment sent to the claimant in August 1995. No notice of appeal or letter of objection was filed when the claimant paid the assessment. The last date the claimant could have timely filed a claim for refund of the assessment was January 19, 1996. In February 2000, the DOR offered a settlement to the named litigants in the WTAC appeal (the "test case"). The terms of the settlement provided that for the years 1989-1995 the DOR would withdraw assessments and pay timely, properly appealed refund claims. In March 2000, the DOR began to offer the same settlement to other individuals in similar situations as the named litigants, provided that the individuals had timely pending appeals or timely refund claims. Since the claimant did not appeal the original assessment for 1989-1993, DOR has no authority to issue the refund he is requesting and it is DOR's position that the assessment is final and conclusive.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. However, Representative Albers and Senator Shibilski have indicated that, despite the Board's decision, they will be introducing legislation that will provide for payment of this claim and other like claims.
4. Anthony Gray of Madison, WI claims $7,318.24 for refund of monies garnished from his wages to satisfy estimated income tax assessments for 1994-1996. The claimant states that he did not live in WI until 1995 and that he therefore believes the 1994 assessment to be illegal. The claimant's wages were garnished from 7/99 through 8/00. The claimant states that these estimated assessments were incorrect and that he was actually due tax refunds for 1995 and 1996. The claimant further alleges that he was not properly notified of the assessments by certified mail. The claimant states that he was never told that funds would not be returned to him if the assessments were found to be unjustified. The claimant also believes that the two-year statute of limitation has not actually elapsed. The claimant points to the fact that his wages were not certified until 7/13/99. He feels that the two-year time limit should begin on that date, which would extend the deadline until 7/13/01. The claimant does not believe that the two-year statute of limitations applies to his case at all. He states that, according to the notice he received, the two-year limit applies to assessments that are paid in full without objection. He alleges that he did not pay these assessments voluntarily and that the total amount was never collected in full. Finally, the claimant states that he was involved in a serious car accident on 8/17/00, which caused him to miss an appointment with his accountant and has also caused him great financial difficulty.
The DOR states that it originally contacted the claimant after receiving from his employer a copy of his Wisconsin withholding exemption certificate in which he claimed 14 exemptions. The certificate was signed by the claimant and his current address was given. According to DOR records, a DOR auditor wrote the claimant in 7/97, requesting verification of his 14 exemptions. No reply was received. The DOR states that in 9/97, the auditor notified both the claimant and his employer by mail that the DOR was voiding the exemption claim based on the claimant's failure to respond. No reply was received. The DOR states that in December 1997, the auditor sent a letter to the claimant requesting filing of 1994-1996 income tax returns. No reply was received. Another request was sent in 2/98, without reply. The DOR alleges that all of the above correspondence was sent directly to the same address at which the claimant currently resides. DOR records further indicate that in 5/98, the DOR issued estimated assessments for the delinquent tax years. In 7/98, DOR sent the claimant a request to file 1994-1997 income tax returns. The claimant called DOR and indicated that he was not a resident in 1994. He promised to file the required returns by 11/1/98. DOR records indicate that from 9/98-4/99, the claimant periodically contacted DOR and requested three extensions to file the returns, which he promised to do by 4/30/99. On 6/18/99 DOR initiated certification of the claimant's wages. The promised returns were filed on 8/24/00. The DOR states that there is not requirement that the claimant be served by certified mail. The DOR believes that all evidence indicates that he received the correspondence and assessments, since his address has not changed since the DOR first contacted him in 1997 and the claimant has made no allegations that he moved or was absent for extended periods of time.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
5. Brian J. Friedman of Madison, WI claims $420.55 for dental injuries allegedly caused by the actions of a UW-Madison Police Officer. The claimant alleges that in 1975, while he was walking on N. Lake Steet, he was detained by a UW Police Officer and taken to the UW Police office on Mills Street. He alleges that he was questioned at gunpoint and pushed by an officer, which caused him to fall and chip a tooth. He requests reimbursement for his dental bills allegedly incurred because of this injury.
The UW is unable to locate any records showing that the claimant was involved with the UW-Madison Police in the year in question. Furthermore, the claimant has presented no information documenting the cause of the dental work that the claimant underwent in 1988, over 10 years after the alleged injury. Because of these reasons and given the length of time that has passed since the alleged injury, the UW does not support payment of this claim.
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 not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
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6. Burton A. Weisbrod
of Glencoe, IL claims $119,767.00 for the value of sick leave credits allegedly lost due to an error by the UW. The claimant was a professor at the UW-Madison. The claimant was on a leave of absence from 8/27/90 through 5/26/91 (the spring semester). He was enrolled in a state insurance plan until 7/31/90, and was covered by other insurance while he was on leave. At the end of his leave, he submitted a letter to the UW indicating that he would be retiring on 6/30/91. He alleges that the UW erred and notified ETF that his retirement date was 5/26/91 (the last day of the spring semester). The UW admitted this error in their letter to the claimant dated 4/2/97. The claimant states that he contacted ETF in June of 1991, regarding his retirement annuity. He states that ETF never discussed the issue of sick leave credits with him because, based on the incorrect information provided by the UW, they believed that he was already retired. In order to convert his sick leave balance to insurance premium credits, the claimant would have had to be insured under a state plan at the time of his retirement. The claimant states that if ETF had informed him of this requirement, there would have still been time to re-enroll with his state insurance before his retirement date of June 30. It is the claimant's understanding that ETF routinely requests sick leave balances from the employing agency of a retiring employee and discusses the sick leave conversion policy with employees when they call to discuss their retirement. The claimant believes that that it was because of the UW's error that ETF never requested his sick leave balance and did not discuss the sick leave conversion policy with him. He states that, had he known about the option to convert his sick leave, he would have reinstated his state insurance in order to meet the requirements of the conversion rules. The claimant states that his sick leave would have been worth $119,767 towards health insurance premiums and he requests payment of that amount.
The University of Wisconsin System recommends payment of this claim from funds of the Department of Employee Trust Funds. At the conclusion of his leave of absence, the claimant was eligible to return to employment with the UW and to re-enroll with a state health insurance provider prior to his retirement. Had he done so, he would have become eligible for the sick leave conversion program. The UW believes that when he sought pre-retirement advice from ETF, he was not properly counseled about the availability of the sick leave conversion benefit, or the requirements necessary to be eligible for it. The UW believes that the claimant was not properly advised about the sick leave benefit by ETF. The sick leave conversion program is funded by payments made to ETF by state agencies and thus the funds to support this claimant's benefit have already been paid to ETF. Finally, the UW states that the claimant's decision to retire was made, at least in part, to assist the UW and his action did result in relieving his department of a budget contingency. Given the circumstances, the UW believes it would be inappropriate to penalize the claimant by denying him the sick leave conversion benefit.
The Board concludes the claim should be paid in the reduced amount of $5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the University of Wisconsin appropriation s.
20.285 (1)(a), Stats. The Board further concludes that this payment is not considered full and final settlement of this claim should the claimant wish to pursue further avenues of relief.
7. S.R. and James Spitz of Clam Lake, WI claim $23,377.14 for medical bills, disability, pain and suffering and loss of companionship allegedly related to an accident while Frances Spitz was a patient at UW Hospital. The claimants allege that in March 1996 Frances Spitz slipped and fell in a hallway after wandering unattended from her bed. The fall resulted in a broken hip, which required surgery and extensive follow up care. The claimants state that Ms. Spitz has a history of being unsteady on her feet as well as a history of and wandering. The claimants state that the University of Wisconsin Hospital staff was aware of Ms. Spitz's history because she had wandered on at least six previous admissions. The claimants also state that UW Hospital had them sign two releases authorizing them to restrain Ms. Spitz for her own protection because the UW was aware that she had a tendency to wander off. The claimant states that because of her history, Mrs. Spitz's bed rails were required to be in the "up" position, so that she could not get out of bed while unattended. The claimants believe that UW Hospital personnel were negligent by not putting up her bed rails. The claimants attempted to file a lawsuit against the University of Wisconsin Hospital, but were unable to obtain the names of the hospital staff on duty, because the accident happened during a shift change. Because the claimants did not name a specific state employee, their Notice of Claim was denied by the Attorney General's Office. The claimants have submitted medical bills totaling $23,377.14 for Ms. Spitz's medical care. They also request awards for pain and suffering, permanent disability and loss of companionship in the amount of $350,000.
A Notice of Claim filed in this matter in 1977 was investigated by the Department of Justice, which denied the claim based on failure to comply with s.
893.82(3), Stats., and lack of any basis for a finding of liability on the part of any state employee. The UW recommends denial of this claim since there is nothing in the circumstances presented that indicate there was negligence on the part of a state employee and there is no equitable basis for payment.
