Leah Vukmir
Chairperson
Referred to joint committee for review of Administrative Rules, pursuant to 227.19(5)(a),Wisconsin Statutes.
.
__________________
The Chief Clerk makes the following entries dated Friday, September 9
, 2011.
State of Wisconsin
Department of Public Instruction
September 4, 2011
The Honorable, The Senate:
Pursuant to s.
15.377(8), Wis. Stats., enclosed please find a list of nominees to the Professional Standards Council for Teachers. These individuals were selected based upon organizational recommendations as prescribed in statute. Your confirmation of the appointees is requested.
Sincerely,
TONY EVERS
State Superintendent
Anderson, Arthur,
of Shorewood, as a member of the Professional Standards Council for Teachers, for the term ending June 30, 2014.
Read and referred to committee on Education.
Beggs
, Joshua,
of Milwaukee, as a member of the Professional Standards Council for Teachers, for the term ending June 30, 2014.
Read and referred to committee on Education.
Dallas
, William,
of Medford, as a member of the Professional Standards Council for Teachers, for the term ending June 30, 2014.
Read and referred to committee on Education.
Swain
, Katherine,
of Beloit, as a member of the Professional Standards Council for Teachers, for the term ending June 30, 2014.
Read and referred to committee on Education.
Underwood, Julie,
of Madison, as a member of the Professional Standards Council for Teachers, for the term ending June 30, 2014.
Read and referred to committee on Education.
__________________
The committee on Senate Organization reports:
Referred to the joint committee on
Finance, pursuant to Senate Rule
41 (1)(e):
Senate Bill 22
Ayes: 5 - Senators Fitzgerald, Ellis, Grothman, Miller and Hansen.
Noes: 0 - None.
Placed the following proposals on the Senate Calendar of Tuesday
, September 13
, 2011:
Senate Resolution 20
Senate Joint Resolution
37
Senate Joint Resolution
39
Senate Bill 110
Senate Bill 111
Senate Bill 138
Senate Bill 139
Ayes: 5 - Senators Fitzgerald, Ellis, Grothman, Miller and Hansen.
Noes: 0 - None.
SCOTT FITZGERALD
Chairperson
__________________
State of Wisconsin
Investment Board
September 1, 2011
The Honorable, The Senate:
Pursuant to s.
1.11(2)(j), Wis. Stats., please distribute this notice to members of the Assembly. The State of Wisconsin Investment Board did not consider any proposals or major actions in Wisconsin during fiscal year 2011 that would have significantly affected the quality of the human environment. Accordingly, the agency was not required to prepare any environmental assessments or impact statements under s.
1.11 Wis. Stats.
Please contact Vicki Hearing at 261-2415 if you have any questions concerning this report.
Sincerely,
keith bozarth
Executive Director
__________________
State of Wisconsin
Claims Board
September 1, 2011
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on August 12, 2011.
Those claims approved for payment pursuant to the provisions of s.
16.007 and
755.05 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 12, 2011, upon the following claims:
Claimant Agency Amount
The following claims were considered and decided without hearings:
Claimant Agency Amount
S441
1. Wisconsin State Payphones, Inc. of Brookfield, Wisconsin claims $52,921.87 for costs related to an alleged breach of contract by DNR. In July 2001, Wisconsin State Payphones (WSP) entered into a contract with DNR to provide payphone service at WI state parks. The contract expired in December 2005 but was renewed for another five years. On June 25, 2009, WSP received a 30-day notice to terminate the contract. WSP alleges that prior to this letter it had no notice from DNR of any problems, deficiencies or billing errors relating to WSP service. WSP alleges that DNR failed to notify them of any breach of contract and failed to give WSP the opportunity to cure any alleged problems, as required by the contract. WSP believes that this constitutes breach of contract by DNR. WSP states that in response to the notice of termination, it tried to get documentation from the department relating to any deficiencies of service but that DNR was unresponsive. WSP notes that when the department eventually did provide "evidence" of problems, that evidence consisted of hearsay statements alleging problems at only three parks. WSP believes that it is evident that the department did not even begin to gather documentation of alleged problems until well after DNR cancelled the contract and after WSP filed a Notice of Claim. WSP points to the fact that, although DNR alleges that the contract manager sent a 30-day right to cure letter in mid-2007, DNR has been unable to produce a copy of that letter. WSP believes that DNR has failed to provide any evidence of poor service or non-functioning phones. WSP states that it provided service to numerous WI state parks for nine years with no indication of problems from DNR and that DNR's notice of termination came as a complete shock. WSP believes that DNR's real motivation for terminating the contract was budgetary. Finally WSP states that it initially believed the 2005 contract extension expired on 6/30/10; however, WSP has uncovered an email exchange with DNR staff that indicates that both parties understood the extension expired on 12/31/10. WSP requests reimbursement for the remainder of the contract term from July through December 2010.
DNR recommends payment of this claim, but only in the reduced amount of $3,810. DNR denies that there was no indication of problems. DNR further denies that the contract was cancelled for budgetary reasons. The department states that the only reason for termination of the contract was poor performance by the claimant. DNR states that there were numerous complaints communicated to WSP regarding broken and non-functioning phones, jammed coin boxes, lack of dial tone and other problems at multiple state parks. DNR notes that although the claimant argues that there were zero problems and that they had zero notice of any problems, the claimant also argues that WSP promptly responded to repair requests. (If there were zero problems and zero notice, why would they be making repairs?) DNR states that numerous calls were made to WSP to report problems but eventually their voicemail filled up and stopped taking messages. DNR states that these contacts constitute dozens of verbal right to cure notices, which are allowed under the contract - nothing in the contract requires right to cure notices to be written. DNR states that the contract manger, who is now retired, recalls sending a notice to cure letter in mid-2007. The department has been unable to locate a copy of that letter but again points to the fact that nothing in the contract requires that a right to cure notice be given in writing. Therefore, even if the contract manager's memory is incorrect, there were dozens of verbal right to cure notices provided to WSP. DNR notes that WSP's response to the notice of termination letter, which allegedly came as a complete shock, was not to contact DNR to inquire about the letter, but to immediately file a Notice of Claim. DNR also states that it is untrue that the department was not responsive to WSP's requests for documentation and that there were ongoing settlement discussions conducted by DOJ and the claimant's attorneys. DNR states that although there was a 2005 email exchange referencing a December 2010 end date for the renewal, further evidence shows that by December 2009, both parties agreed that the end date for the renewal was June 30, 2010. DNR believes the claimant has provided insufficient legal basis for why it should receive full payment under the contract when the service provided was poor, unreliable and in many cases non-existent. DNR believes that based on the date of the 30-day termination letter, one can presume that the contract would have ended in July 2009. The department therefore recommends payment for one additional month of service in the amount of $3,810, based on equitable principles.
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.
2. Milwaukee County Department of Health & Human Services, Juan Muniz and Pang Xiong of Milwaukee, Wisconsin claim $35,764.89 for current and ongoing costs related to a lawsuit against Milwaukee County and several of its employees. The county has a contract with DCF to provide administrative functions for the Child Care Program. In 2008, while performing its duties under that contract, the county denied renewal of a child care certification application by Shontay Humphries based on a 1988 substantiation finding that the applicant had abused a child. The applicant is now suing Milwaukee County over the county's denial of that certification renewal. The county states that it was following the policies and procedures established by the DCF when it denied the certification renewal and that these procedures did not give the county any discretion. Milwaukee County states that it was acting as an agent of the state when it denied the application. Milwaukee County further states that pursuant to its contract with DCF and §
895.46(1), Stats., DCF is required to defend this lawsuit. DCF has refused to indemnify the county, which has caused the county to incur legal damages in an undetermined amount. The county requests reimbursement for its current costs as well as any future damages it may incur as a result of this lawsuit.
DCF recommends denial of this claim. DCF states that Ms. Humphries' lawsuit challenges the actions of Milwaukee County, not the validity of DCF policies and procedures. Ms. Humphries alleges in her suit that the county denied her application for renewal without notice and failed to comply with an administrative order to process the renewal application, contrary to the Due Process Clause. DCF states that, contrary to the county's assertion, no DCF policy or procedure required the county to deny the application without proper notice or without providing Ms. Humphries the opportunity to contest the denial at a hearing. DCF notes that its contract with the county requires that the county implement DCF's policies and procedures in compliance with the law. DCF also states that its contract does not obligate the state to defend the county in this lawsuit. DCF states that the indemnification clause of the contract specifies that that DCF will defend a suit "challenging the validity of the State's Child Care Program policies or procedures." Ms. Humphries suit challenges specific actions by Milwaukee County, not the policies or procedures of the State Child Care Program. Finally, DCF notes that even if the board accepts the county's argument that DCF should indemnify the county under the contract, the contract cannot override state statutes, which do not give the department the authority to provide for legal representation under these circumstances. This section of the contract is in conflict with the statutes and is therefore invalid and unenforceable.
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.
S442
3. Brett E. Williams of Oconomowoc, Wisconsin claims $70,866.00 for refund of overpayment of taxes. The claimant states that he was a successful owner of a general contracting business for over 15 years. The claimant states that in the 1990's, he developed financial difficulties relating to the economy and personal issues. Eventually, the IRS liquidated all of the claimant's business and personal assets and he lost his livelihood. The claimant states that his accountant also retired at this time and that due to his financial difficulties the claimant was unable to hire another accountant. The claimant states that he was unable to handle filing the complex business returns without an accountant and admits that he stopped filing tax returns for a number of years (1994-1999). In 2000, the claimant found employment and DOR began garnishing his wages. The claimant states that between the DOR garnishment and his child support payments he was left with little to live on and was unable to hire an accountant. The claimant had several contacts with DOR to discuss lowering the amount of the garnishment. The claimant states that he was never informed that there was a statute of limitations regarding claiming a refund for any tax overpayment resulting from the garnishment. In 2008, the claimant was finally able to hire and accountant and began to file his late tax returns. At that time he discovered that he had overpaid by over $70,000 and yet DOR alleged he still owed money for two of the tax years. The claimant does not object to paying penalties and interest on his late taxes, however, he believes an additional "penalty" of over $70,000 is usurious. He requests reimbursement of his overpayment.
