Summary of factual data and analytical methodologies
Pursuant to s.
977.02 (9), Stats., the public defender board “shall consider information regarding the actual, necessary, and direct cost of producing copies of materials that are subject to discovery" when establishing the maximum fees that the public defender may pay for them.
A significant portion of the direct cost of any copy is the media (e.g., the paper or the blank disc) on which it is provided.
In its biennial budget request for FY 2009-2011, the public defender board requested funding to increase the rate to be paid for paper discovery materials from $0.20 to $0.25 per page. This request was neither included in the Governor's budget, nor added to the budget bill by the legislature. The state public defender board interprets the omission of the requested funding as tacit agreement that $0.20 per page meets or exceeds the “actual, necessary and direct cost" criteria for paper copies of discovery materials. Compare FedEx/Kinko's current retail price of $0.08 each for up to 100 letter- or legal-size copies, and $0.07 each for 101 to 1,000 copies. The Department of Justice charges $0.15 per page for paper copies furnished in response to a public records request under ch.
19, Stats. Under the proposed rule, the state public defender would continue to pay up to $0.20 per page, or $0.35 per double-sided page.
The charges submitted for discovery materials provided in electronic formats vary greatly among the state's prosecutors and law enforcement agencies. For example, bills for a single compact disc (CD) range from $3 to $35. The retail cost of blank CDs and digital videodiscs (DVDs) is currently less than $0.80 each. Large suppliers such as Corporate Express offer discounts to governmental units, bringing the unit cost down to less than $0.40 each. The Department of Justice charges $1.00 per disc for copies furnished in response to a public records request under ch.
19, Stats. Under the proposed rule, the state public defender would pay up to $5.00 per disc.
The charges submitted for copies of photographs range from $1.50 to $25.00 for digital prints, from $1.00 to $2.00 for black and white photos, and from $0.35 to $2.00 for color photos. The retail cost of photograph reproductions depends upon their size. Walgreen's, a national retailer, charges $0.19 each for less than 100 4x6 prints, $0.15 each for 100 or more 4x6 prints, $1.59 each for 5x7 prints and $2.99 each for 8x10 prints. The Camera Company in Madison charges $0.43 each for photos up to 4x6. Under the proposed rule, the state public defender would pay up to $0.50 each for copies of photos that are 5x7 and smaller, and $1.00 each for copies of larger photos.
The charges submitted for copies of audio and video tapes also vary greatly. Bills for a single video tape range from $5.00 to $46.00, and for a single audio tape from $1.00 to $25.00. If purchased from a state contract office supply vendor, blank audio cassette tapes range in price from $0.42 to $1.07 each and blank VHS video tape prices range from $1.22 to $3.00 each. If purchased from a retailer (Best Buy), a four-pack of audio cassette tapes costs $5.99 ($1.50 each), and a four-pack of VHS video tapes costs $10.99 ($2.75 each). Under the proposed rule, the state public defender would pay up to $5.00 per tape.
Analysis and supporting documents used to determine effect on small business
The impact on counties and municipalities that provide copies of discovery materials is unknown.
Small Business Impact
Small businesses are not affected by the rule.
Fiscal Estimate
Summary
The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.
These administrative rules do not create a new offense, expand the scope of any criminal offense, or change any criminal penalties. The rules provide maximum rates that the SPD will pay for discovery materials, such as photocopies of police reports and audio or video recordings of interrogations. In the vast majority of cases in which the SPD provides representation, the appointed attorney must obtain and review discovery materials as part of adequate case preparation.
The SPD does not anticipate any significant fiscal impact from these rules. The SPD has a separate appropriation for discovery, interpreters, and transcripts. For the last few years, this appropriation has been insufficient to pay the necessary costs incurred by the SPD in the course of providing representation. The deficit in this appropriation has been growing, as more counties and municipalities have been recording interrogations of defendants and then billing the SPD for copies of the recordings. In some counties, these rules will lower the costs of each individual recording; however, the number of jurisdictions providing the recordings may continue to increase.
The SPD has been paying all counties $0.20 per page for photocopies provided as discovery materials. The SPD has been paying varying amounts for other forms of discovery, such as DVDs and CDs. Some bills for recordings come from municipalities and others from counties. The SPD does not have data to estimate the specific impact of these rules on individual municipalities and counties. However, because the SPD's annual appropriation for transcript, discovery and interpreter payments was not changed as a result of this provision of
2009 Wis Act 28, the biennial budget bill, it appears that the legislative intent is that these rules will neither increase nor decrease the SPD's total payments for discovery materials.
Long-range fiscal implications
The rules provide a mechanism for the SPD Board to reduce the maximum rates if the appropriation in question is depleted in two consecutive years (following adoption of the rules). Thus, the rules arguably provide a safety valve to limit the total payment obligations of the SPD for discovery. The rules may also help to resolve issues that might otherwise arise regarding the rates that counties and municipalities may charge for new formats in which they provide discovery materials.
Agency Contact Person
Questions regarding these rules may be directed to:
Kathy Pakes
315 N. Henry Street, 2nd Floor
Madison, WI 53703
Phone: (608) 266-0087
Notice of Hearing
Workforce Development
Public Works Construction Contracts,
Chs.
DWD 290-
294
NOTICE IS HEREBY GIVEN that pursuant to sections
779.14 (1s) and
227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider emergency rules and permanent rules to amend section
DWD 293.02, relating to the adjustment of thresholds for the application of payment and performance assurance requirements and affecting small businesses.
Hearing Information
March 31, 2010
|
MADISON
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Wednesday
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G.E.F. 1 Building, B103
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1:30 p.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rules
The proposed rules are available at the web site
http://adminrules.wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:
Howard Bernstein
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearings and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than April 2, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Explanation of agency authority
Section
779.14, Stats., sets payment and performance assurance requirements that apply to contracts for the performance of labor or furnishing of materials for a public improvement project or public work. Section
779.14 (1s), Stats., requires the Department to biennially adjust the thresholds for various requirements in proportion to any change in construction costs since the last adjustment if the adjustment to be made would not be less than 5%.
Summary of the proposed rule
Chapter
DWD 293 provides adjusted thresholds for various payment and performance assurance requirements that apply to contracts with state or local governments for the performance of labor or furnishing of materials for a public improvement or public work. In accordance with the requirement of the statute, this rule adjusts the thresholds to reflect a 6.82% increase in construction costs from December 2007 to December 2009. These adjusted thresholds have been adopted in an emergency rule which became effective on January 1, 2010; this rule would adopt the same thresholds on a permanent basis.
Summary of analytical methodology
Section
DWD 293.01, Wis. Adm. Code, provides that the Department will adjust the required bond thresholds on the basis of the change in the construction cost index as published in the
Engineering News-Record, a national construction trade publication. The thresholds are rounded to the nearest thousand.
Comparison to federal regulations
The threshold for application of the federal contractor payment and performance bond requirements is $100,000. This threshold is in the statute and is rarely adjusted.
Comparison of payment and performance bond thresholds in adjacent states
Minnesota:
Minnesota has a public contractors' performance and payment bond requirement that applies to a contract that exceeds $75,000.
Illinois:
Illinois requires a bond if a contract for a public work exceeds $5,000. Neither state appears to have a mechanism for adjustment of the thresholds, other than statutory amendment.
Michigan:
Michigan has a performance bond requirement without a clear statutory threshold.
Iowa:
The Department did not find a performance bond requirement for public works contracts in Iowa.
Small Business Impact
The rule affects construction companies, many of whom are small businesses. No reporting, bookkeeping, or other professional skills are required for compliance with the rule.
There does not appear to be any adverse impact on small businesses, because the adjustment of the thresholds for the application of the payment and performance bond requirements prevents these provisions from affecting more and more public works projects over time due solely to the effects of inflation.
Fiscal Estimate
For the same reason as in the paragraph above, this proposed rule does not appear to create any adverse fiscal impact on state or local government or on those businesses that are subject to the rule.
Agency Contact Person
Howard Bernstein, Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Phone: (608) 266-9427
