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 which the state should assume and pay based on equitable principles.
18. Dennis Gonzalez of Boscobel, Wisconsin claims $214.00 for value of photos allegedly taken or lost by DOC personnel. Claimant is an inmate at Supermax Correctional Institution. He claims that during a cell search on 10/2/01, photos were taken from his cell because he was over the limit for such items. He states that the photos should have been put in his property box but that he later discovered that the photos were not in his property box. He states that the photos were in the sole care of DOC and that DOC is therefore responsible for their loss. He states that the missing photos comprised 20 celebrity photos, which will cost $114 to replace, and 10 personal photos of friends and family, for which the claimant requests $100 compensation.
S818
DOC recommends denial of this claim. The Inmate Complaint Examiner (ICE) initially found that all of the photos had been returned to the claimant, but the Corrections Complaint Examiner (CCE) determined that some of the photos were indeed misplaced. The CCE recommended that the complaint be returned to the ICE for further investigation and an amended response. The ICE determined that DOC personnel had lost 16 celebrity photos. The claimant was reimbursed $92 for those photos. The CCE notified the claimant that if he was not satisfied with the ICE's new decision on his complaint, he could file an appeal. The claimant failed to file any appeal within the 10-day time limit. DOC therefore believes that the claimant failed to exhaust his administrative remedies. DOC further states that the claimant has already received all reimbursement to which he is entitled in this matter. DOC does not believe that the claimant has presented any new evidence or legal argument to justify awarding him any additional money.
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 which the state should assume and pay based on equitable principles.
19. Dennis Gonzalez of Boscobel, Wisconsin claims $224.00 for replacement of glasses allegedly broken by DOC personnel. The claimant, an inmate at Supermax Correctional Institution, alleges that he was attacked, without provocation, by institution guards. The claimant states that while he was being removed from his cell, the guards repeatedly slammed his head into the wall, injuring him and breaking his glasses beyond repair. The claimant denies that he was resisting the guards. He claims that they did not give him any orders but attacked him for no reason. He requests the cost of replacing his glasses and sunglass clip-ons.
DOC recommends denial of this claim. DOC points to the fact that in his "statement of circumstances" the claimant never even mentions his broken glasses, but instead, complains of alleged injuries for which he is not requesting reimbursement. DOC states that the claimant, in fact, refused medical attention at the time of the incident. DOC also states that the claimant neglects to mention his own disruptive behavior during the incident. DOC states that during the incident the claimant repeatedly ignored the officers' orders to cease shouting at another inmate and to face forward. The officers' statements indicate that when the claimant refused to follow orders, they placed him in a compliance hold. Both officers stated that the claimant resisted the compliance hold and, in response, they pressed him to the wall at which time his glasses were broken. DOC believes that it was the claimant's own behavior that provoked the incident, which resulted in the broken glasses. DOC states that had the claimant simply obeyed orders and not resisted, no damage would have occurred.
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 which the state should assume and pay based on equitable principles.
20. Mt. Sterling Cheese Coop., of Mt. Sterling, Wisconsin claims $6,590.48 for value of milk lost because of an incorrect test used by DATCP inspector. The claimant states that during the March 2002 quarterly antibiotic residue testing of the claimant's goat's milk, the DATCP inspector used a test not appropriate for testing goat's milk. The results of the test came back positive for antibiotic residue and the claimant was instructed by DATCP to dump 21,939 pounds of milk. The claimant later learned that the state had used the wrong test. The claimant's milk has successfully passed subsequent testing for antibiotic residue. He requests reimbursement for the value of the milk wrongly dumped because of DATCP's error.
DATCP does not object to payment of this claim. The DATCP inspector used the Charm II Competitive test to test the claimant's goat's milk for antibiotic residue. DATCP states that a miscommunication between the FDA and DATCP resulted in DATCP confusion regarding the approval status of the Charm II test for goat's milk. (The test was approved for testing cow's milk, but not goat's milk.) DATCP acknowledges the error and admits that it should not have used the Charm II test for testing goat's milk.
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 of $2,500 should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115 (1)(a) Stats., and $2,500 should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115 (8)(km), Stats.
21. Eugene L. Schupbach of Mauston, Wisconsin claims $79.13 for damaged tire. The claimant is employed at Volk Field. For security reasons, DMA had placed orange traffic-control posts at the entrance to Volk Field after September 11, 2001. On January 9, 2002, as the claimant was entering the main gate, his right rear tire caught a flange on the removable orange post, which damaged the tire beyond repair. The claimant believes that the post was placed too close to the guard house and posed a safety hazard. The claimant does not have insurance coverage for the damage.
DMA recommends payment of this claim. After the terrorist attacks on September 11, barriers were placed at the front gate of Volk Field. These barriers were intentionally positioned to slow approaching vehicles to a crawl as they approached the gate. The barriers are made from steel pipes, which slip into other steel pipes buried in the pavement. The upper steel pipe has a flange on it that sticks out to keep it in proper position. This system allows for the barriers to be easy removed and reinstalled. On the day of the claimant's incident, the barriers were in place. DMA has confirmed that the claimant's tire was damaged beyond repair. DMA believes that since the barrier pole, an obstacle installed by DMA, is the cause of the damage, the claimant should be reimbursed for his damages.
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 which the state should assume and pay based on equitable principles.
S819
22. Donald Wollheim
of Watertown, Wisconsin claims $157,947.30 for damages related to a contract for employment at the UW Medical School (UWMS). The claimant states that he was offered a contract for a full-time position from 11/1/00 through 6/30/03 by UWMS and the UW Medical Foundation (UWMF). After accepting the offer, the claimant moved his family to Wisconsin and purchased a home here. The claimant states that in 2/01 he was orally informed that his contract would be terminated on 4/30/01 but that there was no reason given for the termination. He states that on 3/12/01, he received a letter regarding the termination of his contract, which named the Academic Staff Policies and Procedures (ASPP), as the authority for termination of the contract. The claimant alleges that the ASPP was never made a term of either the offer of employment or the contract. The claimant's 10/12/00, appointment letter refers to the Academic Staff Rules, however, no such named document exists. The claimant also states that he was also never provided with the ASPP, either at the time of the offer or any other time during his employment. The claimant also points to language in the ASPP, which provides that, if a probationary period applies to the position, it "shall be stated in the appointment letter." The claimant states that there was no language regarding a probationary period in either the appointment letter or in his contract. The 3/12 letter also referred to problems with the claimant's application for hospital privileges. During the week of 3/5/01, the Columbus Community Hospital's (CCH) Board of Directors took action to delay the claimant's application for hospital privileges. The claimant states that he did apply for privileges in a timely fashion, as the contract required, but that he has no control over the actions of the board. In fact, the claimant believes that UWMS and UWMF staff, who serve the board, delayed his application in an attempt to provide justification for termination of his contract. The claimant believes that the UW had an obligation to inform him of the probationary period, as provided in sections 2.02 and 2.04 of the ASPP but failed to do so. The claimant requests reimbursement for his lost income and benefits relating to the alleged breach of contract.
The UW recommends denial of this claim. The UW states that the 10/12/00 appointment letter set forth additional terms of the contract, stating in part, "Enclosure A describes the privileges and benefits of this appointment…Please read this information carefully as it sets forth obligations and conditions to which you are agreeing in accepting this appointment." Enclosure A stated, "You will be a member of the Academic Staff and entitled to privileges and benefits as outlined in the Academic Staff Rules…" The UW states that the Academic Staff Rules are contained in the ASPP, which states in section 2.04, "Initial fixed term appointments…shall include a period of evaluation of at least six months…during which appointee may be dismissed at the discretion of the individual making the appointment and without right of appeal. The duration of the period shall be specified in the appointment letter. If the appointment letter does not specify the period of evaluation, the evaluation shall be for a period of six months." The UW alleges that the claimant's supervisors became concerned about his performance during the first six months of his employment. They further learned that CCH would not be extending the claimant's temporary hospital privileges and that the claimant had not obtained permanent hospital privileges as required by his contract. The UW believes that the offer and appointment letters provided the claimant with proper notice of the probationary period. The UW believes that it was incumbent upon the claimant to carefully read all documents relating to the conditions of his employment contract and that he failed to do so. The UW therefore believes that there has been no breach of contract as the claimant alleges.
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 which the state should assume and pay based on equitable principles.
23. Lyndon Weberg of Tuscon, Arizona claims $548.75 for attorney's fees allegedly incurred because of incorrect information given to him by DETF. The claimant states that some time prior to October 2001, he called DETF's toll free hotline to find out how to get his ex-wife removed as a beneficiary on his disability annuity. The claimant alleges that DETF told him that he needed to obtain an attorney and get a Qualified Domestic Relations Order (QDRO). He also alleges that DETF told him his monthly annuity amount would increase as a result of the removal of his ex-wife, but that he would not be able to name a new beneficiary. The claimant states that he retained an attorney and sought a QDRO based on DETF's statements. The claimant alleges that a number of months then passed, during which DETF told him they were recalculating his monthly annuity. DETF allegedly then told the claimant that everything he had been told earlier was incorrect—his monthly annuity would not increase and he would be able to name a new beneficiary. The claimant alleges that he hired the attorney solely because of what DETF told him, which later turned out to be incorrect. The claimant also points to the fact that he has since been given the same incorrect information by staff at the DETF hotline.
DETF does not feel it is appropriate to specifically advise the Claims Board regarding payment of this claim, since the board does not have the authority to pay the claim from DETF funds and any payment would therefore have to be made from Claims Board funds. DETF points to the fact that the claimant is apparently unclear as to precisely when he made the phone call regarding he QDRO. DETF phone logs show four calls prior to October 2001. A June call and an August 2nd call were from the claimant and a July call was from the claimant's current employer, all three calls relating to other issues. On August 13 the claimant's attorney called and asked to discuss the claimant's account. He was told that DETF could not discuss the claimant's records without the appropriate release but the attorney and DETF staff did discuss, in general terms, how the filing of a QDRO could affect an annuity. DETF phone logs show a call from the claimant on October 30, 2001, relating to the filing of a QDRO. DETF admits that during this call the hotline staff gave the claimant incorrect information regarding how the QDRO would affect his annuity. However, DETF believes that, based on the phone logs and other documents, it appears that the claimant hired his attorney prior to the conversation in which he received incorrect information, which occurred on October 30. The QDRO was signed on October 23 and the claimant's attorney had called on the same subject in August. Although the phone logs could be incorrect, DETF has found no evidence of an earlier call discussing the QDRO, as the claimant alleges. Furthermore, DETF points to the fact that the billing submitted by the claimant from his attorney indicates past due balances going back over a number of months, which seems to indicate that the majority of the work performed by the during May and June ($356.25), and July ($135.00). Although a DETF employee did discuss QDROs in general terms with the claimant's attorney in August 2001, DETF believes that it is unfortunate that the claimant's attorney did not obtain the appropriate release. If he had done so, he would have been able to discuss the specifics of the claimant's annuity prior to obtaining the QDRO.
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 which the state should assume and pay based on equitable principles.
24. Terri L. Nielson/Tech Trak Consulting of Reedsburg, Wisconsin claims $10,842.00 for reconsideration of her claim, which was previously denied by the board on December 7, 2001. There was a mistake made in processing the claim and the claimant was not afforded an opportunity to respond one of the memos from DOA. Because of this error, the claimant requested that the board reconsider the claim based on the additional information submitted in response to the DOA memo. DOA declines to issue any additional response and stands by its original submissions.
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 which the state should assume and pay based on equitable principles. (Members Rothschild and Albers not participating.)
The Board concludes:
1. The claims of the following claimants should be denied:
Donald Smith Myron Edwards
Lynn Kirschbaum Berrell Freeman
Michael Barnhardt Dennis Gonzalez (5 claims)
Don Charles Diet z Eugene L. Schupbach
Mary Redlinger Donald Wollheim
Carolyn Carty Lyndon Weberg
Terri L. Nielson/Tech Trak Consulting
Alphoncy Dangerfield
2.
Payment of the following amounts to the following claimants from the following appropriations is justified under s.
16.007, Stats:
Inc.
Coop.
Dated at Madison, Wisconsin this __29__ day of October 2002.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Amanda Schaumburg
Representative of the Governor
Kevin Shibilski
Senate Finance Committee
Sheryl Albers
Assembly Finance Committee
State of Wisconsin
Ethics Board
November 5, 2002
The Honorable, The Senate:
The following lobbyists have been authorized to act on behalf of the organizations set opposite their names.
For more detailed information about these lobbyists and organizations and a complete list of organizations and people authorized to lobby the 2001 session of the legislature, visit the Ethics Board's web site at
http://ethics.state.wi.us/
Kraemer, Kenneth G. Wisconsin Pipe Trades Association
Also available from the Wisconsin Ethics Board are reports identifying the amount and value of time state agencies have spent to affect legislative action and reports of expenditures for lobbying activities filed by organizations that employ lobbyists.
Sincerely,
Roth Judd
Director
__________________
State of Wisconsin
Office of the Governor
October 28, 2002
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Conway
, Dr. Steven R.,
of Athens, as a member of the Chiropractic Examining Board, to serve for the interim term ending July 1, 2005.
Sincerely,
SCOTT McCALLUM
Governor
Read and referred to committee on Health, Utilities, Veterans and Military Affairs.
__________________
State of Wisconsin
Revisor of Statutes Bureau
November 1, 2002
To the Honorable, the Senate:
The following rules have been published:
Sincerely,
GARY L. POULSON
Deputy Revisor
__________________
The committee on Labor and Agriculture reports and recommends:
Relating to Wisconsin works.
No action taken.
Relating to employer medical certification requirements under the long-term disability insurance (LTDI) program.
No action taken.
David Hansen
Chairperson
