The Honorable, The Senate:

Pursuant to Senate Rule 75, please have the Senate Journal reflect how I would have voted had I been present for the roll call votes taken on Tuesday, January 11, 2011:

Rejection of Senate Amendment 1 to Senate Joint Resolution 2: Aye

Adoption of Senate Joint Resolution 2: Aye

The Honorable, The Senate:

Pursuant to Wis. Stats. sec. 115.361(2), the attached report is submitted to you for referral to the appropriate standing committees of the legislature under Wis. Stats. sec. 13.172(3). The report provides a collection of analyzed information about programs funded under this section along with evidence of their effectiveness. Further, this report covers a two-year cycle and provides information on a wide-range of Alcohol and Other Drug Abuse related resources, including grants, training, technical assistance, and educational materials.

If you have any questions regarding this document, please contact Kenneth Wagner at (608) 266-5181.

Referred to committee on Education.

Enclosed is the report of the State Claims Board covering the claims heard on December 9, 2010.

Those claims approved for payment pursuant to the provisions of s. 16.007 and 755.05 Stats., have been paid directly by the Board.

The Board is preparing the bill(s) for payment of any claim(s) recommended to the Legislature and will submit such to the Joint Finance Committee for legislative introduction.

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.

The Board Finds:

1. David W. Bateman et al. claim $39,817.33 for attorney's fees incurred due to legal action brought by the former part-time West Bend Police Officers against the City of West Bend regarding Wisconsin Retirement System (WRS) contributions. In 2002, claimant David Bateman became aware that the City of West Bend (City) had underreported his hours to WRS. Other part-time officers discovered the same error and in 2003 the officers hired an attorney and appealed to the Department of Employee Trust Funds (ETF). In 2004 the officers requested an administrative hearing and in January 2006, the hearing examiner ruled in favor of the officers. The City appealed to ETF and in July 2006, ETF ruled in favor of the officers. The City appealed to the Circuit Court pursuant to Chapter 227, Wis. Stats. In March 2007, the Circuit Court affirmed ETF's decision in favor of the officers. The City paid back contributions and interest into the WRS. The claimants state that three of the officers involved in the original action were unable to receive any increase in their annuity because they were either "maxed out" for retirement or on Duty Disability. The portion of the City's payment for these three officers totaled $82,586.88. The 19 officers pursuing this claim request reimbursement for their attorney's fees from this amount. The claimants believe that ETF was enriched by obtaining these contributions for which they will not have to make any pay-outs and which the WRS would not have received were it not for actions pursued by these officers.

ETF recommends denial of this claim. The actions pursued by the claimants were against the City of West Bend. The final ruling by the ETF Board, which was affirmed by the Circuit Court, found that the City's prior practice was "unfair and unreasonable." ETF was not a party to these proceedings and was never found guilty of any wrongdoing in this matter. ETF states that, had it been a party to the proceedings, the claimants would have been able to make a claim for attorney's fees as part of the administrative hearing process. However, because ETF was not a party, no claim was possible. ETF notes that the legislature has not provided any other statutory basis for claiming attorney's fees against state agencies when there is an administrative hearing process. ETF further notes that contributions are often made on behalf of individuals who are at the statutory maximum or on Duty Disability. This occurs because the statutes require the contributions even though some individuals cannot receive an increased annuity. ETF does not believe that the fact that the original annuitants were unable to receive benefit from their action entitles the claimants to receive this money. Finally, ETF notes that the money the claimants are requesting is now part of the WRS. The Supreme Court has held that specific legislative action requiring a payment from the WRS is a violation of the Constitution. Therefore, the Legislature and Claims Board are prohibited from taking money from the WRS.

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. James Kroll of Muscoda, Wisconsin claims $1,057.77 for cost of cleaning buildings and vehicles after his property was allegedly inundated with smoke during an April 2009 DNR prescribed burn. The claimant alleges that DNR had issued a "no burn" order on the date of the prescribed burn, which he heard announced on the radio. He states that the winds were high, which carried smoke to the claimant's property and made his family sick. The claimant states that he was not personally notified of the burn despite the fact that, after a similar circumstance 10 years earlier, he had been assured that he would be personally notified of any future burns. The claimant does not believe DNR should have conducted a burn on a day that they had issued a burn restriction. The claimant also objects to the large scale of these burns and believes that if DNR burned smaller areas, the smoke would not be such a problem. The claimant states that it is a lot of work to clean up the smoke after these burns and he does not want this to happen again. The claimant is requesting compensation for 53 hours time at $18 per hour for cleaning the interior and exterior of his home, shed and four vehicles, as well as the cost of cleaning supplies.

S24 DNR recommends denial of this claim. DNR conducted a prescribed spring burn in the Snow Bottom State Natural Area on April 17, 2009. DNR denies the claimant's allegation that there was a burn ban in place on that day for DNR staff. DNR states it would not have been able to obtain a burn permit if a ban had been in place. DNR states that, contrary to the claimant's allegations the winds were not high, on the contrary, the weather conditions were highly conducive for the burn, with south winds at 5 mph and gusts up to 10 mph. DNR also notes that the burn did not occur "close to" the claimant's property, but in fact his property is over a mile away and at a higher elevation than the burn area, therefore it is unlikely that there would have been debilitating smoke at the claimant's property. DNR notes that there were no complaints regarding smoke or clean up costs from any of the property owners adjacent to the burn area. Although it is certainly possible that some smoke reached the claimant's property, it is unlikely it would cause damage to the extent claimed. Prior to the burn the department issued a press release, sent a letter to the Castle Rock Township Chair and notified the eight landowners adjacent to the burn. DNR states that the promise of personal notification of future burns provided to the claimant over ten years ago was the result of a private landowner burning incident. Furthermore, the promise was made by a state legislator who is no longer in office and DNR had no record of this promise. DNR states that it did not notify the claimant because his property was over a mile away from the burn site. DNR notes that personnel and equipment costs for these burns are same per day regardless of the size of the burn; therefore, burning smaller parcels of land would not be cost effective. Finally, DNR notes that the claimant has submitted no evidence of the alleged damages or costs of clean up. The department believes that, even if some clean up was necessary, the costs alleged by the claimant are either too high or reflect items that would have been unavoidably impacted, such as exterior surfaces of vehicles or buildings. DNR states that this burn was conducted in full compliance with the law, appropriate notifications were provided, and given the distance of the claimant's property from the burn site, it is unlikely there was any measurable damage to his property.

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.

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.