Wisconsin Legislature: S446

4. Charles Tubbs, Sr. of Madison, Wisconsin claims $73.50 for the cost of replacing eyeglasses broken while at work. The claimant is employed as Chief of the Capitol Police Department. He states that on October 19, 2010, a bomb threat was made against the State Capitol Building. The threat necessitated evacuation of the Capitol building. The claimant states that during the clearing of the building, his glasses fell to the floor and the right lens was broken. The claimant states that the glasses could not be repaired and had to be replaced. He requests reimbursement for the cost of replacing his glasses.

DOA recommends payment of this claim. Although it does not appear that the department was in any way negligent in this situation, because the claimant's glasses were broken while he was exercising his job duties, the department believes he should be reimbursed 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.

(Member Murray not participating. Members Means, Hagedorn and Strachota dissenting.)

5. Steven N. Winters of Reedsburg, Wisconsin claims $2,249.81 for the cost of installation of a new culvert, allegedly required due to a DOT road project. As part of a 2006 improvement project on Hwy. 23, DOT replaced a pre-existing 30" culvert with a 42" culvert. The claimant states that he expressed concerns to the project foreman at the time, that the larger culvert would increase the volume of water which flowed to his property. The claimant states he had an 18" culvert that had functioned perfectly for 29 years, funneling the water that would flow from Hwy. 23, even during heavy spring rains or periods of rapid snow melt. The claimant states that he expressed concern that his 18" culvert would not be able to handle the increased flow generated by the larger culvert being installed by DOT. The claimant states that DOT reassured him there would be no problem. The claimant states that his driveway has been washed out 3 times in the past two years. In June 2008, the claimant was reimbursed by FEMA for damages from two washouts. The claimant's driveway again washed out in July 2010. The claimant had his 18" culvert replaced with a 30" culvert. The claimant believes that the repeated driveway washouts were caused by DOT's 2006 project and he requests reimbursement for the cost of installing the larger culvert in order to prevent future damage to his property.

S443 DOT recommends denial of this claim. DOT notes that the claimant's driveway is located on Coon Bluff Road, which is a town road over which DOT has no responsibility. DOT states that the highway project referenced by the claimant is quite some distance away from his property and was completed several years before the claimant's driveway washed out. DOT states that, contrary to the claimant's assertion, culvert pipes do not "generate" flows, they convey naturally occurring flows. DOT believes that the driveway washouts are more likely the result of unusually heavy rains. DOT notes that in the years since completion of the Hwy. 23 project there have been a number of well documented extreme rainfall events in the area and that the rainfall in early June 2008 was considered a 100 year storm (hence the claimant's eligibility for FEMA reimbursement). DOT also states that it conducts hydrologic studies in conjunction with its highway projects in order to assure adequate drainage. The department denies any responsibility for the claimed damages and recommends denial of this claim.

6. Mary Jaques of Port Credit, Ontario, Canada claims $1,060.00 for refund of an estimated tax payment made for 2005. In January 2007, the claimant submitted payment for 2005 estimated Wisconsin individual income tax. The claimant later realized that she did not have to pay any 2005 WI income tax because she had moved to Canada in September 2004. She contacted DOR to request a refund but DOR denied her request because she was four months past the statute of limitations. She requests reimbursement for her estimated tax payment.

DOR recommends denial of this claim. Pursuant to § 71.75(2), Wis. Stats., the statutory deadline for the claimant to request her refund would have been April 17, 2010. The department received the claimant's request for refund on August 8, 2010. Because the claim for refund was filed after the 4-year statute of limitations had expired, DOR denied the claim for refund.

7. Tracy J. Lewandowski of Mukwonago, Wisconsin claims $8,852.54 for uninsured medical bills and loss of work allegedly caused due to an injury sustained at Ottawa Lake Campground in the Kettle Moraine State Forest on September 10, 2010. The claimant was visiting at the campground host's campsite. She was attempting to untangle three dogs tied up at the site when she stepped into a hole that was covered by leaves. The claimant fell and injured her elbow. EMS was called and the claimant was transported to the hospital. Her injury required surgery and extensive physical therapy. The claimant states that the hole she stepped into was left after a grill was removed at the host site. The campground host (Degner) stated that he intended to fill in the holes with gravel after removal of the grill. The campground assistant manager (Wessberg) stated that he had "pushed some of the dirt around the edge back into the holes" after he and the host removed the grill, but the holes were not completely filled in until after the claimant's accident. The claimant requests reimbursement for the portion of her medical bills not covered by insurance ($1,144.70). She also requests reimbursement for 328 hours of sick leave she was required to use while recovering from her injury ($7,707.84). The claimant states that she wishes to pay this money back into her sick leave "bank" to recover the sick time she used.

DNR recommends payment of this claim in the reduced amount of $1,144.70. Although there is some discrepancy regarding exactly when the grill was removed (Degner said August, Wessberg said 2-3 days prior to the accident), both Degner and Wessberg indicated that the plan was to fill the holes with gravel, which obviously did not occur until after the claimant's accident. DNR points to the fact that the state has no legal liability in this situation due to Wisconsin's Recreational Immunity Law, which grants immunity unless the injury was caused by a malicious act. DNR believes that failure to fill in the holes was an oversight but clearly not a malicious act. Despite the lack of legal liability, DNR believes that because the hole was not naturally occurring, equitable principles suggest some compensation. DNR notes that the claimant's leave from work was covered by paid sick time provided by her employer. DNR therefore believes the claimant did not suffer any "lost wages" and should not be compensated for this portion of her claim. DNR believes there is a basis in equity to pay the claimant's uninsured medical expenses and therefore recommends payment of the claim in the reduced amount of $1,144.70.

The Board concludes the claim should be paid in the reduced amount of $500.00 based on equitable principles. The Board further concludes, under authority of § 16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation § 20.370 (1)(ea), Stats.

S444 8. Lee Alexander Brown of Mauston, Wisconsin claims $127.75 for costs to repair a radio and replacement value of the radio and a watch destroyed as contraband by DHS. The claimant is detained at Sand Ridge Secure Treatment Center (SRSTC). When the claimant arrived at SRSTC in May 2009, the staff inventoried his property. SRSTC staff informed the claimant that his radio did not work and gave him 45 days to either have it repaired or mailed out of the institution to a family member. The claimant agrees that the tape player and jack on the radio were broken but alleges that the radio itself worked fine. Pursuant to staff instructions, the claimant sent the radio out to be repaired. The repair shop fixed the microphone jack but said it was not possible to fix the tape player due to lack of parts. The claimant paid $44 for the repair. The claimant states that he also paid $5 to have the "mic and recording disabled." The claimant states that SRSTC staff originally approved his request to send the radio to a family member but later denied the request because he did not have the funds to mail out the radio. The radio was destroyed. In October 2009, SRSTC staff conducted a room search and told the claimant his watch was broken (the stem pulled out completely and according to staff had a "sharp needlelike point"). Staff told the claimant he had 45 days to either send the watch for repair or mail it out to a family member. The claimant did not have funds to either repair or mail out the watch and it was destroyed. The claimant attempted to grieve both decisions. He believes the confiscation and destruction of his property was in retaliation for the many complaints he has filed against DHS staff. He alleges that DHS did not properly follow the grievance procedures and made arbitrary decisions about his property. The claimant also alleges that, although he is indigent, DHS has refused to grant him indigent status, which would have allowed him to mail out his property as an unpaid obligation. He requests reimbursement for replacement of the watch and radio and the cost of the radio repairs.

DHS recommends denial of this claim. DHS states that it followed proper procedures in confiscating the claimant's property and throughout the grievance process. DHS notes that the claimant only pursued the Stage 1 grievance process and failed to pursue Stage 2-4 of the grievance process for both items of property. DHS states that it has policies in place to ensure treatment of property in a fair and consistent manner. Policy SR-115 provides that "Contraband property is not permitted. Excess property or any altered, damaged, unclaimed or worn out property is considered contraband?" The claimant's property was confiscated pursuant to this policy. DHS states that the claimant was allowed 45 days to repair the property or have it picked up by a family member. The claimant's radio was not able to be repaired and the claimant failed to make any attempt to have the watch repaired. Because the claimant failed to have the property properly repaired or sent to someone outside the institution within the 45 day time period, the claimant's property was destroyed. DHS believes there was no violation of the claimant's rights and that the state has no liability to replace his property.

9. Lee Alexander Brown of Mauston, Wisconsin claims $210.95 for replacement value of a television destroyed as contraband by DHS. The claimant is detained at Sand Ridge Secure Treatment Center (SRSTC). On May 21, 2010, SRSTC staff conducted a room search and removed the claimant's television because it did not work. The claimant states that the TV only needed a picture adjustment and that it could have been adjusted by the staff if they had opened the back panel of the TV. The claimant was told he had 30 days to either have the television repaired or mailed out of the institution. The claimant did not have the money to repair or mail out the TV. He believes that he should have been allowed to have it repaired or sent out as an unpaid obligation but that he was not given the opportunity to do so. SRSTC staff destroyed the claimant's television after 30 days. The claimant requests reimbursement for the cost of his television.

DHS recommends denial of this claim. DHS states that it followed proper procedures in confiscating the claimant's television and throughout the grievance process. DHS notes that the claimant only pursued the grievance process through Stage 2 and failed to pursue Stage 3-4 of the grievance process. DHS states that it has policies in place to ensure treatment of property in a fair and consistent manner. Policy SR-115 provides that "Contraband property is not permitted. Excess property or any altered, damaged, unclaimed or worn out property is considered contraband?" The claimant's television was confiscated pursuant to this policy. DHS states that the claimant was allowed 30 days to repair the TV or have it picked up by a family member. Because the claimant failed to have the TV repaired or sent to someone outside the institution within the 30 day time period, the claimant's television was destroyed. DHS believes there was no violation of the claimant's rights and the state has no liability to replace his television.

10. Lee Alexander Brown of Mauston, Wisconsin claims $55.61 for the cost of legal supplies incurred because of DHS refusal to grant the claimant indigent status. The claimant is confined at Sand Ridge Secure Treatment Center (SRSTC) as a Sexually Violent Person (SVP). The claimant alleges that the court ordered his commitment to a secure "mental health facility" and that SRSTC does not provide mental health or psychological services and therefore is not a mental health facility. The claimant alleges that placement at SRSTC requires and individual's informed, written consent to participate in an individualized treatment plan and that SRSTC has not provided him with such a treatment plan. The claimant states that SRSTC's therapeutic work program is part of the SVP treatment plan. Individuals who do not participate in the SVP treatment plan are ineligible to earn the higher wages and work hours available in the therapeutic work program. The claimant states he does not consent to participate in the SVP treatment plan and therefore his work options are very limited. The claimant believes that he should be granted indigent status, which would provide him with indigent payments to assist with the costs of his legal supplies and telephone calls. The claimant believes that his rights are governed by Chapter 980, not SRSTC's treatment policies and that he cannot be denied indigent status based on his refusal to participate in the SVP therapeutic work program.

DHS recommends denial of this claim. DHS states that the claimant has been found to be a sexually violent person and was committed to the "control, care and treatment" of the department. DHS states that it has established procedures to achieve security and treatment goals. DHS Policy SR-359 Indigent Patient Cash Allowances provides that if a patient is capable of work they will be offered employment. SR-359 further states, "Indigent patients who refuse to accept employment opportunities offered them by SRSTC shall be ineligible to receive indigent payments." DHS states that the claimant is able to work, has been offered employment opportunities, and refuses to work. Pursuant to SR-359, the claimant is therefore ineligible for indigent payments. DHS further notes that the claimant's indigent status has been adjudicated seven times through SRSTC's administrative grievance procedures. DHS believes there has been no violation of the claimant's rights and that the claim should be denied.

S445 11. Gerald Polzin of Green Bay, Wisconsin claims $634.00 for lost wages allegedly incurred because of DOC misconduct. The claimant is an inmate at Green Bay Correctional Institution (GBCI). He was employed in the kitchen where he earned $0.42 per hour. On March 12, 2010, the claimant was found guilty of a major rule violation and was sentenced to 180 days of Disciplinary Separation (segregation). Although it was not specified as part of the claimant's discipline, the claimant lost his job in the kitchen. The claimant states that GBCI Policy 309.01-02 requires that DOC staff complete form DOC-1408 when they remove an inmate from a job. The claimant states that DOC never completed form DOC-1408 and therefore he was not able to appeal the loss of his job. DOC argues that Administrative Rule DOC 303.70(9) is an absolute prohibition against inmates earning wages while in Disciplinary Separation, however, the claimant points to the fact that the language of this rule states that inmates "may" not earn compensation, it does not state that they "shall" not. The claimant believes that this language is clearly discretionary and therefore does not constitute an absolute prohibition as DOC alleges. The claimant also notes that while DOC argues that Chapter 303 of the Administrative Code does not require DOC to fill out form DOC-1408, GBCI Policy 309.01-02 does require DOC to do so in every instance of "work/program placement, removals, transfers and refusals" as stated on the form. The claimant notes that DOC's response pointedly ignores GBCI Policy 309.01-02. Finally, the claimant responds to DOC's argument that he does not bring this claim with "clean hands" and should not be able to profit from his own misconduct. The claimant states that he is not bringing this claim because of his infraction but because DOC failed to follow its own rules. The claimant believes that the misconduct giving rise to this claim is DOC's and he requests reimbursement for lost wages as outlined in his claim materials.

DOC recommends denial of this claim. The claimant admitted he was guilty of a major disciplinary violation and was sentenced to 180 days of Disciplinary Separation. While in Disciplinary Separation, he was obviously unable to perform his job. DOC states that pursuant to Wis. Admin. Code § 303.70(9), inmates in Disciplinary Separation are prohibited from earning compensation. DOC notes that nothing in Chapter 303 requires that DOC complete form DOC-1408; it is a complete prohibition against Disciplinary Separation inmates earning wages, with no exceptions. DOC also notes that the claimant does not bring this claim before the board with "clean hands." There is abundant case law demonstrating that a person should not be allowed to profit from his own wrongdoing. DOC states that it was the claimant's own unlawful conduct, which he admitted, that was the cause of his job loss. DOC believes that he should not now be allowed to profit from his misconduct. DOC believes this claim is without merit and should be denied.

12. Thomas Seeley of Redgranite, Wisconsin claims $57.86 for remaining value of a watch and a watch strap after a DOC reimbursement allegedly based on an incorrect depreciated value. The claimant is an inmate at Redgranite Correctional Institution. In September 2010, he was placed in temporary lock-up and his personal property was inventoried and packed by DOC staff. When the claimant returned from lock-up and received his property, he noted that his watch was missing. He contacted DOC staff, who acknowledged that they recalled seeing his watch when packing his property. DOC conducted an investigation and determined that the watch had apparently been lost while under DOC control. The claimant submitted receipts showing the value of the original watch ($63.75) and a replacement watchband he had purchased four years later ($14.60). DOC depreciated the watch and band based on a useful life of five years and reimbursed the claimant $20.49. The claimant points to the fact that DOC's Inmate Property Depreciation Schedule states that the value of items made of high-grade plastics is 4% per year. The claimant believes that the DOC incorrectly and unfairly depreciated his property and requests reimbursement for the remaining value.

DOC recommends denial of this claim. DOC does not dispute that the claimant's property was lost while under the control of DOC staff. DOC uses an Inmate Property Depreciation Schedule to ensure that inmates are fairly reimbursed for any property lost or damaged by DOC staff. Pursuant to this policy, watches and watchbands are depreciated over the course of five years. Based on that policy, the watch had 1.5 years of remaining useful life and the watchband had 4 years 10 months remaining useful life. DOC notes that the claimant replaced the original watchband after four years, which indicates that the department's 5 year depreciation schedule is more than fair. The claimant was reimbursed $20.49 based on this schedule. DOC believes that the claimant has been fairly reimbursed for his property based on DOC policy and that the claim should be denied.

13. Eric George of Boscobel, Wisconsin claims $219.99 for replacement value of a television allegedly broken by DOC staff. In December 2010, the claimant was an inmate at Green Bay Correctional Institution. He states that on December 30, 2010, two correctional officers entered his cell and extracted him, during which one officer knocked the claimant's television off his desk. The claimant states that he was later informed by the property officer packing up his belongings that the TV would not turn on. Because the TV was no longer working, DOC would not allow the claimant to keep it and it was disposed of. The claimant alleges that the television worked fine before it was knocked off the desk. He requests reimbursement for the replacement value of the TV.

S446 DOC recommends denial of this claim. DOC states that on the date of this incident, both the claimant and his cell mate refused a direct order from correctional officers to turn on their cell light and come to the front of their cell. DOC states that while his cell mate attempted to block their view, the correctional officers witnessed the claimant flushing contraband down the toilet. DOC states that when the officers entered the cell, the claimant resisted and did not comply with their orders. The claimant was given two conduct reports related to the incident. DOC states that there is no evidence that the TV was working before the incident and no evidence that DOC staff damaged the television during the extraction. DOC notes that "the propensity of prisoners to lie and harass has been judicially noted." DOC further states that, even if the television was knocked over and damaged as the claimant alleges, such damage would have occurred during the course of a cell entry that was necessitated by the claimant's own conduct. Had the claimant and his cell mate obeyed staff orders, this incident would not have occurred. DOC points to Colon v. Schneider, which supports the idea that the fault for any damage resulting from the use of force lies directly with the disobedient inmate. Finally, DOC points to numerous cases which provide that a person should not be allowed to profit from his own wrongdoing. DOC believes that the claimant has not come before the Claims Board with "clean hands" and that any alleged damage to the television was clearly caused by his own refusal to follow orders.

The Board concludes:

That the following claims are denied:

Wisconsin State Payphones
Milwaukee County, J. Muniz & P. Xiong
Yalonzo R. Hull
Charles Tubbs
Steven N. Winters
Mary Jaques
Lee Alexander Brown
Gerald Polzin
Thomas Seeley
Eric George

That payment of the below amounts to the identified claimants from the following statutory appropriations is justified under S 16.007, Stats:

Tracy J. Lewandowski $500.00 § 20.370(1)(ea), Stats.

Dated at Madison, Wisconsin this 12th day of August, 2011.

Steve Means

Chair, Representative of the Attorney General

Gregory D. Murray

Secretary, Representative of the Secretary of Administration

Pamela Galloway

Senate Finance Committee

Patricia Strachota

Assembly Finance Committee

Brian Hagedorn

Representative of the Governor

__________________

State of Wisconsin

Government Accountability Board

September 6, 2011

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 2011-2012 session of the legislature, visit the Government Accountability Board's web site at http://gab.wi.gov/

Foti, Steven National Seating & Mobility, Inc.
Horkan, Peter National Seating & Mobility, Inc.
Petersen, Eric J Capital Midwest Advisors, LLC
Scearce, Dena Medtronic, Inc.

Also available from the Wisconsin Government Accountability 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,

Kevin Kennedy

Director and General Counsel

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