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Restitution – Damages – School District: Employees’ “Lost Productivity” Due to Bomb Scare Evacuation

State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district lost the value of these employee’s services during that time.

¶14      Vanbeek contends that even if the school district is a victim it did not suffer a pecuniary loss because “[t]he school district did not pay out any additional sum in salary and benefits than was already required under its contracts nor did the school district pay for an additional day of school.”  However, the rationale underlying Vanbeek’s argument was previously rejected by this court in State v. Rouse, 2002 WI App 107, 254 Wis. 2d 761, 647 N.W.2d 286.

[While the bank’s employees were investigating Rouse’s the bank lost the value of their services. “The deprivation of an employee’s productivity is a loss in itself that may or may not have an end result of lost profits. Requiring such a showing could deprive entities that do not work for profit any compensation for their lost resources.”]

¶17      We see no reason to treat the school district’s loss differently. During the four and one-half hours that the students and staff were evacuated from school district property as a result of Vanbeek’s bomb scare, the school district paid its employees, but received no services from them. Under Rouse and Wis. Stat. § 973.20(5)(a), it is entitled to restitution for that loss of employee productivity.

True, Rouse did mention “entities that do not work for profit,” but that reference plainly was dicta; the question there was whether a (for-profit) bank was entitled to restitution for its (not some non-profit’s) employees’ lost productivity – which, one may reasonably assume, translated to a reduction in the bank’s income. How was the school district harmed financially in this instance? The students were deprived of instruction, but that doesn’t equate to a financial loss to the district. If the end result were an additional 4-hours’ schooling beyond the end of the school year, to make up for lost time, financial harm would be easily seen – but no such thing happened. Perhaps local taxpayers were harmed, in the sense that 4 hours’ worth of their property tax payments went for naught. And perhaps the rationale might be that the only way to make the taxpayers whole is to compensate the district. But compensating the district is simply a windfall to the district (because, again, it hasn’t suffered any measurable financial loss) and certainly does nothing to relieve the taxpayers for the loss of 4 hours of instruction. Someone might be entitled to payment. But the school district itself? Reliance on dicta in Rouse may settle the issue as a practical matter but it’s hardly convincing.


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