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.
12. Jerry Frazier of Waupun, Wisconsin, claims $65.00 for the cost of headphones allegedly damaged by and then destroyed by the DOC. The claimant is an inmate at the Wisconsin Secure Program Facility. On March 23, 2007, he was transferred from a segregated unit at WSPF to the general population. At that time, he received property that he had not been allowed while in segregation. The claimant alleges that when he received his property, he noticed that his headphones were damaged and that he immediately informed Property Officer Sherman of the damage. On March 30, 2007, he also contacted Unit Manager Tim Haines about the damage. On April 3, 2007, the claimant filed an Offender Complaint, which was dismissed. The claimant alleges that DOC's assertion that he would not have been given the headphones if they were damaged is false and that inmates often receive damaged items from Property Officer Sherman. The claimant points to the case of Inmate Silva, who received damaged property, then later filed a complaint and was compensated by the DOC for the damage. The claimant further alleges that the DOC incorrectly destroyed the headphones without his consent and that he should have been given the opportunity to mail them out. The claimant states that the damage must have occurred while the headphones were in the possession of DOC staff and therefore requests reimbursement for their purchase price, $65.
The Department of Corrections recommends denial of this claim. The DOC states that the claimant received his property on March 23, 2007, but did not inform DOC staff (Unit Manager Tim Haines) that the headphones were damaged until March 30, 2007, one week later. The DOC states that if any damage had been noted when retrieving the claimant's property from storage, the headphones would not have been given to the claimant. The DOC states that the claimant's assertion regarding the complaint of Inmate Silva is false. Inmate Silva's headphones were never returned to him because the damage was noted by DOC staff while inspecting his property. The claimant's headphones were also inspected and no damage was noted by the staff. The headphones were returned to the claimant and were in his possession for a week prior to any damage being reported. The DOC points to the fact that the claimant has provided no evidence that DOC staff damaged his headphones. The DOC also notes that, pursuant to DOC 309.20(3)(g), Adm. Code, “Repair of inmate property shall be at the inmate's expense." Finally, the DOC states that the claimant's headphones were properly destroyed. On April 2, 2007, prior to the filing of his complaint, the claimant approved the destruction of the headphones, along with other property, by signing a property disposition form indicating the property should be destroyed. The DOC believes that there is no evidence that the damage to the claimant's property was cause by DOC staff or that the property was improperly destroyed and that the claim should be denied.
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.
13. Johnny Sullivan, Jr. of Boscobel, Wisconsin, claims $159.75 for the cost of a television allegedly damaged by and then improperly destroyed by DOC staff. On November 7, 2006, the claimant was transferred from Fox Lake Correctional Institution to the Wisconsin Secure Program Facility. He states that when WSPF staff first inventoried his property on November 9th, no damage was noted to his television. The claimant states that he was later notified on November 28th that the housing unit on his TV was cracked and that the unit was therefore considered damaged and was not allowed. The claimant states that he requested that the television be mailed out but that DOC staff instead destroyed the TV without his permission. He requests reimbursement for the cost of his television.
S471
The Department of Corrections recommends payment of this claim in the reduced amount of $105.44. The DOC states that the claimant's TV arrived at WSPF with a cracked housing unit. DOC records indicate that at the time of the claimant's arrival at WSPF, intake of a large volume of property was occurring and staffing was minimal, therefore, there was a delay in notifying inmates about damaged property. The claimant filed an Offender Complaint regarding the damage, the Inmate Complaint Examiner recommended dismissal of that complaint and the Deputy Warden reviewed and agreed with the dismissal. The claimant was given notice of his right to appeal the decision but did not do so. The claimant sent an Interview/Information request asking that his TV be sent out. The property officer responded with a request that the claimant complete the appropriate paperwork but he failed to do so and the TV was destroyed. The DOC states that a number of inmates filed complaints with the Corrections Complaint Examiner and both the CCE and Deputy Secretary Rick Raemisch made the decision to reimburse inmates with damaged televisions, after depreciation. Pursuant to DOC policy, TVs are considered to have a life of 10 years and are therefore depreciated 10% annually. The claimant's TV was 3.5 years old. The original cost of the TV was $159.75 minus 34% depreciation ($54.31) = $105.44. Based upon the fact that other WSPF inmates in similar situations have been reimbursed for their TVs, the DOC recommends payment to the claimant of $105.44.
The Board concludes the claim should be paid in the reduced amount of $105.44 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Corrections appropriation §
20.410(1)(a), Stats.
14. Johnny Sullivan, Jr. of Boscobel, Wisconsin, claims $62.55 for the cost of food items designated as “excess" and destroyed by DOC staff. The claimant was transferred from Fox Lake Correctional Institution to the Wisconsin Secure Program Facility on November 7, 2006. The claimant states that he had numerous food items in his property that DOC staff said he could not have because they were “excess." The claimant states that he filed a complaint but that it was dismissed. The claimant also alleges that he wrote to Correctional Officer Sherman and asked that his property be mailed out, but that CO Sherman told him that any excess property had to be destroyed and never gave the claimant the option of mailing out the items. He requests reimbursement for the items confiscated and destroyed by DOC staff.
The Department of Corrections recommends denial of this claim. The DOC states that the claimant was placed in segregation upon his arrival at WSPF and therefore the amount of property allowed in his cell was limited. DOC records indicate that the claimant's property was inventoried on November 9, 2006, and that he was given notice that he had expired and excess items in his property. The DOC states that CO Sherman spoke to the claimant and told him that he would need to dispose of this property but that the claimant refused to sign the Property Receipt/Disposition form, indicating how he wished to dispose of the items. DOC records indicate that the property was eventually destroyed on December 14, 2006. The claimant filed an Offender Complaint, which was dismissed. The claimant was given notice of his opportunity to appeal the decision, however he failed to do so. Finally, the DOC notes that the claimant's November 9, 2006, Property Inventory form shows that CO Sherman did allow the claimant to keep some of the food items he had purchased. The department does not believe it is responsible for reimbursing the claimant for his destroyed food items.
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.
15. Tomas Barajas of Boscobel, Wisconsin, claims $13.50 for damages related to property confiscated and destroyed after a cell search at the Wisconsin Secure Program Facility. The claimant, an inmate at WSPF, states that 14 catalogs and a tube of toothpaste were confiscated during a cell search on 2/5/07. The claimant states that the guards told him that he could not have the items because he was in step program status and that the items would be destroyed. The claimant filed a complaint on 2/6/07, requesting that the confiscated property be placed in his property box until such time as he was able to have it again. The claimant states that he received the decision on his complaint on 3/5/07. The claimant believes that he should have been allowed 10 days from his receipt of that decision to decide whether to mail out his property or have it destroyed but that he received a notice on 3/6/07 that his publications had been destroyed. He believes that the DOC prematurely destroyed his property and requests reimbursement of $13.50 to cover the cost of the publications.
The Department of Corrections recommends payment of this claim in the reduced amount of $1.75. The DOC states WSPF staff conducted a random cell search and discovered property that the inmate was not allowed while in step status. In response to the claimant's 2/5/07 Offender Complaint, the DOC recommended that the claimant be reimbursed for his toothpaste, because it was a processing error that allowed him to order that item, which he should not have been allowed to order due to his restricted status. The DOC states that the claimant was notified that he had 10 days to appeal this decision, but he failed to do so. The DOC states that the claimant should not be reimbursed for his publications. Pursuant to DOC 303.10 Adm. Code, these items were contraband and were properly disposed of pursuant to DOC 303.10(2) Adm. Code and DAI Policy 309.20.01. Finally, the DOC points to the fact that WSPF policies and procedures state that it is an inmate's responsibility to notify the mailroom that a complaint has been filed and that, if he fails to do so, the items may be destroyed prior to the complaint answer. The claimant failed to notify the mailroom and DOC therefore destroyed the contraband items.
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.
The Board concludes:
That the claims of the following claimants should be denied:
Plant & Flanged Equipment
The Engineer Company
Timothy Oestriech
Mark Brown (3 claims)
Jerry Frazier
Johnny Sullivan, Jr. (claim for $62.55)
Tomas Barajas
That payment of the following amounts to the following claimants from the following statutory appropriations is justified under s. 16.007, Stats: S472
Dated at Madison, Wisconsin this 29th day of November, 2007.
Robert Hunter
Chair, Representative of the Attorney General
Cari Anne Renlund
Secretary, Representative of the Secretary of Administration
Nate Zolik
Representative of the Governor
Mark Miller
Senate Finance Committee
__________________
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board convened on November 15, 2007, at the State Capitol Building and on November 29, 2007, at the Department of Administration Building, in Madison, Wisconsin to consider the claim of Georgia Thompson against the State of Wisconsin, Department of Administration.
The Board Finds:
Claim for damages related to defense of federal criminal charges arising from the performance of the claimant's duties as a DOA employee. In January 2006, a federal grand jury indicted the claimant, charging misapplication of funds and theft of honest services. The indictment alleged that the claimant, as a member of the evaluation committee for a state travel procurement, intentionally influenced the vendor selection process for the political advantage of her supervisors and to help her own job security. The claimant plead not guilty and vigorously defended against the charges, but was convicted and sentenced to 18 months in prison with a $4,000 fine. The claimant began serving her sentence on November 27, 2006. She appealed her conviction and on April 5, 2007, within two hours of hearing oral argument, the Seventh Circuit Court of Appeals reversed her conviction and ordered her acquittal and immediate release from prison that very day. The court's decision makes it clear that the claimant's actions were proper and lawful. The claimant is not able to bring a claim under §
895.46(1) or §
775.05, Stats., but instead makes a claim for reimbursement based on equitable principles, because the criminal charges against her were based on the proper and lawful discharge of her duties as a state employee. The claimant believes that reimbursement of a state employee's legal fees in a case such as this is appropriate and just and is also good public policy. The claimant requests reimbursement for her legal fees, fines, assessments and taxes relating to this claim.
The Department of Administration supports payment of this claim. DOA had no role in the charges brought against the claimant and the claimant is not alleging any negligence on the part of any DOA employee, however, the claim is filed “against" DOA because the charges involved discharge of the claimant's duties as an employee of DOA. At no time during the travel procurement, criminal investigation or trial has DOA alleged that the claimant abused her discretion or acted outside the scope of her employment and DOA promptly re-employed the claimant upon her release from prison. DOA states that the claimant has been and remains a hard-working, respected and dedicated employee. DOA points to the fact that the Seventh Circuit Court of Appeals took the unusual step of calling for her immediate release from prison, noting that the evidence against her was “beyond thin." DOA believes that the claimant has suffered much because of her imprisonment for a crime she did not commit. DOA points to the fact that state employees from all agencies in state government, including the legislature and the court system, routinely exercise discretion in the proper discharge of their duties. DOA does not believe that these employees, acting in good faith and exercising their best judgment based on established law and policy, should work in fear of facing criminal charges for making the “wrong" decision, and when acquitted, not receiving appropriate restitution for the damages they suffer. DOA agrees with the claimant's analysis that relief is not available to her under §
895.46(1) or Chapter
775, Stats., and requests that the Board reimburse the claimant based on equitable principles.
The Board recommends that the legislature direct the Department of Administration to pay Hurley, Burish and Stanton, S.C. directly for defending Ms. Thompson, its employee, against federal criminal charges arising from the performance of her duties as a DOA employee. Wis. Stats. §
895.46(1) requires the state to pay reasonable attorney's fees and costs its employees incur while defending civil and some criminal actions taken against them by virtue of state employment. The Board concludes that although indemnification of Ms. Thompson in this particular criminal prosecution is not specifically contemplated by §
895.46(1), indemnification of Ms. Thompson furthers the purpose of that statute and is equitable in light of Ms. Thompson's acquittal. The legal fees, fines and assessments incurred in this matter are an obligation of the employer (State of Wisconsin) rather than its employee (Ms. Thompson). Such an indemnification eliminates Ms. Thompson's obligation to pay the fees and costs and therefore creates no tax burden for Ms. Thompson when the State of Wisconsin is instead obligated to pay them directly. Finally, the Board concludes that the attorney's fees incurred in this matter are reasonable and recommends that the Legislature direct the Department of Administration to pay the fees, fines and assessments in full in the amount requested, $228,792.62. The Board further recommends that payment should be made from the Department of Administration appropriation §
20.505(1)(kf), Stats.
The Board recommends:
Payment of $228,792.62 be made to Hurley, Burish and Stanton, S.C., by the State of Wisconsin from § 20.505(1)(kf), Stats., for the defense costs, fines and assessments of State of Wisconsin employee Georgia Thompson.
Dated at Madison, Wisconsin this 4th day of December, 2007.
Robert Hunter
Chair, Representative of the Attorney General
Cari Anne Renlund
Secretary, Representative of the Secretary of Administration
Nate Zolik
Representative of the Governor
Mark Miller
Senate Finance Committee
__________________
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board convened on November 15, 2007, at the State Capitol Building and on November 29, 2007, at the Department of Administration Building, in Madison, Wisconsin to consider the claim of Anthony Hicks.
The Board Finds:
S473
The claimant's original innocent convict claim was filed on November 26, 1997. At that time, the claim was placed in abeyance pending the resolution of a lawsuit against the claimant's trial attorney, which was settled in December 2004. Additional documentation was requested from the claimant and that information was submitted in November 2005. The claim was scheduled for hearing before the Board on December 13, 2006. At that meeting the Board voted unanimously to pay the claimant $25,000 compensation for his wrongful imprisonment, plus attorney's' fees in the reduced amount of $53,030.86. (Reduced from the requested amount of $106,061.71.) Payment was made in the form of one check in the amount of $78,060.36 to the trust account of the claimant's attorney.
On January 17, 2007, the clamant filed a Petition for Rehearing of the Claims Board Decision specifically relating to the matter of attorney's fees.
On January 19, 2007, the claimant's attorney requested that the Board issue a separate payment check of $25,000 to Mr. Hicks, so that his compensation would not be delayed pending resolution of the attorney's fees question. The Board Secretary requested return of the original check and then issued a new check in the amount of $25,000. On January 25, 2007, the claimant's attorney requested that the Board issue another check in the amount of the original award for attorney's fees, since the Petition for Rehearing only addressed the question of whether any additional attorney's fees should be awarded. The Board Chair denied that request.
On February 2, 2007, the Board considered whether to grant the Petition for Rehearing and also considered the request for partial payment of attorney's fees. The Board unanimously voted to vacate the portion of its December 13, 2006, decision relating to attorney's fees. The Board referred the issue to the Division of Hearings and Appeals for consideration before a Hearing Examiner. The Board specifically requested that the Hearing Examiner address six questions relating to the authority of the Board to issue awards for attorney's fees under §
775.05, Stats. The Board denied the request from the claimant's attorney for partial payment of the attorney's fees pending resolution of the Petition for Rehearing.
The Hearing Examiner has submitted his Proposed Decision to the Board on the Petition for Rehearing and the questions submitted by the Board for his consideration. The matter at issue before the Board today is whether or not to adopt the Proposed Decision submitted by the Hearing Examiner as the Claims Board's Decision on this matter.
The Board concludes that the Proposed Decision of the Hearing Examiner should be adopted in part and rejected in part.
The Board disagrees with the Hearing Examiner's conclusion that the Board may not award attorney's fees and costs in addition to statutorily capped compensation awards pursuant to §
775.05, Stats. and rejects that portion of the Proposed Decision. The legislative history presented by the Hearing Examiner is not conclusive and not enough to depart from Board determinations in previous §
775.05 claims, including the December 19, 2002, Frederic Saecker decision, the December 2, 2004, Steven Avery decision and the December 13, 2006, Anthony Hicks decision.
See
Claim of Saecker , Claim No. 1999-040-CONV (2002);
Claim of Avery, Claim No. 2004-066-CONV (2004);
Claim of Hicks, Claim No. 1997-135-CONV (2006). Accordingly, the Board concludes it has the authority to award attorney's fees and costs in addition to statutorily capped compensation awards made pursuant to §
775.05, Stats.
However, the Board does adopt the recommendation of the Hearing Examiner to utilize the Wisconsin Equal Access to Justice Act, §
814.245 (5)(a)2, Stats., (“EAJA") as a method to determine the appropriate amount of attorney's fees to award in §
775.05 claims before the Board. The Board will utilize the EAJA to determine the hourly rate and multiply that by the number of attorney hours expended unless the hours claimed appear unreasonable.
See Hearing Examiner's Proposed Decision, page, 4, paragraph 12, attached.
To apply this determination to the claim at hand, the Board first looks to Mr. Hicks' fees for his criminal defense attorney, Mr. Hurley. Mr. Hurley's firm was able to document spending 690.15 hours between 1992 and 1997 on Mr. Hicks' case. The EAJA rate for that time period was $75.00 per hour as determined by the legislature in 1985. Since the EAJA rate was determined long before the work was performed, the Board concludes that a cost of living adjustment is reasonable and will utilize the cost of living calculator provided by the Bureau of Labor Statistics on their website. A small portion of Mr. Hurley's fees could not be documented or recovered. The Board will not pay the undocumented fees. Accordingly, the Board concludes that Mr. Hurley's fees will be paid in the reduced amount of $78,591.94 broken down as follows:
The Board now looks to Mr. Hicks' fees for his civil attorney, Mr. Olson. Mr. Olson spent a total of 94.2 hours and over $33,000 preparing Mr. Hicks Claims Board claim. The Hearing Examiner noted that “…at $5,000 per year, an inmate receives roughly 57 cents per hour of confinement; if Mr. Olson's fee award were approved, Hicks' attorney would receive payment equal to more than 600 times his own rate of compensation." See Hearing Examiner's Proposed Decision, paragraph 30, page 11, attached. The Hearing Examiner also noted that “with all due respect to Attorneys Olson and Dixon, where an inmate's conviction has already been reversed based on new evidence of the inmate's innocence, the task of obtaining the full recovery available from the Claims Board should not typically require extraordinary skill or expertise. This is all the more likely, where, as here, the prosecutor does not oppose payment of the claim." See Hearing Examiner's Proposed Decision, paragraph 52, page 16, attached. The Board concludes that the number of hours submitted by Attorney Olson was excessive.
S474
A similar Claims Board claim presented at this same meeting by Ms. Georgia Thompson, required only 16 hours of preparation by a qualified attorney, in contrast to the 94.2 hours spent by Attorney Olson and his firm. Sixteen hours appears to have been adequate. The Board recognizes that Mr. Hicks' claim involved the additional step of submitting briefs to the Hearing Examiner regarding the Board's authority to award attorney's fees in addition to statutorily capped compensation, and therefore concludes that additional time to prepare the claim was necessary. The Board concludes that doubling the time it took a qualified attorney to prepare a similar claim for the Board could reasonably account for the extra effort necessary to prepare briefs for the Hearing Examiner. Accordingly, the Board concludes that 32 hours is a reasonable number of hours for which to compensate Mr. Olson. The Board allocates these 32 hours proportionally across the years in which the work was performed, based on the original annual hours reported by Mr. Olson. The Board again applies the hourly rate provided in the EAJA and adjusts it for inflation.
Therefore, the Board concludes that Mr. Olson will be paid in the reduced amount of $6,175.70, calculated as follows:
The Board further concludes, under authority of §
16.007(6m), Stats., that payments for Mr. Hurley and Mr. Olson should be made from the Claims Board appropriation §
20.505 (4)(d), Stats.
The Board concludes:
That payment of the following amounts to the following entities on behalf of the claimant from the following statutory appropriations is justified under s. 16.007, Stats:
Dated at Madison, Wisconsin this 4th day of December, 2007.
Robert Hunter
Chair, Representative of the Attorney General
Cari Anne Renlund
Secretary, Representative of the Secretary of Administration
Nate Zolik
Representative of the Governor
Mark Miller
Senate Finance Committee
__________________
Pursuant to Senate Rule 17 (5), Representative Gunderson added as a cosponsor of
Senate Bill
337
.
__________________
