LRB-0224/2
JTK:wj:nwn
2007 - 2008 LEGISLATURE
January 8, 2007 - Introduced by Senators Ellis, Erpenbach, Risser, S. Fitzgerald,
Roessler, Cowles, Olsen, Harsdorf, Lehman, Carpenter and Schultz,
cosponsored by Representatives
Kaufert, Travis, Musser, Cullen, Van
Akkeren, Hines, Benedict, Nelson, Black, Hebl, Parisi, Kessler, Vruwink,
Davis, Molepske and
Krusick. Referred to Committee on Ethics Reform and
Government Operations.
SB2,2,15
1An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (6), 5.05 (11), 5.68 (7), 9.01 (1) (ag) 4.,
215.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (2), 19.47 (4), 20.510
3(intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (b), 20.510 (1) (bm), 20.510
4(1) (d), 20.510 (1) (g), 20.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i), 20.510 (1) (j),
520.510 (1) (q), 20.510 (1) (sm), 20.510 (1) (t), 20.510 (1) (x), 20.521 (intro.), 20.521
6(1) (title), 20.521 (1) (a), 20.521 (1) (b), 20.521 (1) (g), 20.521 (1) (h), 20.521 (1)
7(i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om) and 230.08 (2) (wm);
to
8renumber and amend 15.03, 15.617, 19.46 (2), 19.55 (2) (a) and 19.55 (2) (b);
9to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (3)
10(a), 5.40 (7), 5.62 (4) (b), 5.68 (4), 6.26 (2) (b), 6.26 (2) (c), 6.56 (3) to (5), 7.08
11(title), 7.15 (1) (g), 7.23 (2), 7.31 (5), 7.60 (4) (a), 7.60 (5), 7.70 (1), 7.70 (5) (b),
128.05 (1) (j) 3., 8.10 (5), 8.15 (4) (b), 8.18 (2), 8.20 (6), 8.50 (3) (a), 8.50 (3) (e), 9.01
13(1) (a) 1., 9.01 (1) (ar) 2., 9.01 (10), 10.06 (1) (title), 11.21 (title), 11.21 (7) (intro.),
1411.22 (4), 11.61 (2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k),
114.58 (20), 15.07 (1) (cm), 15.07 (4), 16.753 (2), 16.79 (2), 16.96 (3) (b), 16.973 (6),
217.07 (6), 17.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1)
3(intro.), 19.47 (5), 19.50 (2), 19.54 (2), 19.55 (1), 19.55 (2) (c), 19.59 (1) (g) 8.,
419.59 (8) (a) and (c), 19.59 (8) (cn), 19.59 (8) (d), 19.85 (1) (h), 20.923 (4) (intro.),
546.95 (4), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10 (3) (b), 73.0301 (1) (d)
613., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c),
7125.05 (1) (b) 10., 165.25 (1), 165.93 (4), 198.08 (10), 200.09 (11) (am) 2. and 3.,
8227.03 (6), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 301.03 (20m), 343.11 (2m),
9560.04 (2m), 778.135 and 778.136;
to repeal and recreate 11.60 (4), 15.07 (1)
10(a) 2. and 19.579; and
to create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.05 (5s) (title)
11and (d), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (2) (n), 15.07 (5) (m), 15.60, 15.603,
1219.85 (1) (fm), 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m),
13230.08 (2) (e) 4h., 230.08 (2) (on), 758.19 (9) and 971.19 (12) of the statutes;
14relating to: creation of a Government Accountability Board; enforcement of
15elections, ethics, lobbying regulation laws; and providing penalties.
Analysis by the Legislative Reference Bureau
Currently, the Elections Board consists of eight or nine members. The governor
appoints all of the members of the Elections Board, without confirmation by the
senate, to serve for two-year terms as follows: one member is selected by the
governor and one member each is designated by the chief justice of the supreme
court, the speaker of the assembly, the senate majority leader, the minority leader
in each house of the legislature, and the chief officer of each political party qualifying
for a separate ballot at the September primary whose candidate for governor at the
most recent gubernatorial election received at least 10 percent of the vote (as of
November 1, 2006, the Republican, Democratic, and Libertarian parties).
Currently, the Ethics Board consists of six members. Members of the Ethics
Board are nominated by the governor, and with the advice and consent of the senate
appointed, to serve for staggered six-year terms. All members must be U.S. citizens
and residents of this state, and no member may hold any other office or employment
in the government of this state or any political subdivision thereof or in any state
department. In addition, no member, for one year immediately prior to the date of
appointment, may have been, and no member, while serving on the Ethics Board,
may become, a member of a political party, an officer or member of a committee in
any partisan political club or organization, or a candidate for any partisan office.
This bill abolishes both boards and replaces them with a Government
Accountability Board. Under the bill, the board is composed of seven members
serving for staggered four-year terms. Four members of the board must have
prosecutorial experience. One member of the board is a retired judge of a court of
record in this state. All of the members except the retired judge are nominated by
the governor and appointed with the advice and consent of the assembly and senate.
Each of the members other than the retired judge must be appointed from
nominations submitted by a Government Accountability Candidate Committee,
which consists of one court of appeals judge from each of the court of appeals districts.
The court of appeals judges are chosen by lot by the chief justice of the supreme court
in the presence of the other justices. A unanimous vote of the committee is required
to nominate a candidate. The retired judge is appointed by the nominating
committee on a random basis from a register of retired judges. The retired judge
serves as chairperson of the board. No member of the Government Accountability
Board may hold another position that is subject to the code of ethics for state public
officials or the code of ethics for local public officials. No member, for one year
immediately prior to the date of appointment, may have been, and no member while
serving on the board may become, a member of a political party, an officer or member
of a committee in any partisan political club or organization, a candidate for any
partisan office or an officer or employee of a registrant under the campaign finance
law. No member may be a lobbyist or an employee of a principal (person who employs
a lobbyist).
The bill creates an Enforcement Division within the Government
Accountability Board. The Enforcement Division is headed by an administrator who
is appointed by the executive director of the board outside the classified service for
a term specified by the board of not less than four years nor more than six years,
expiring on September 1 of an odd-numbered year. The administrator may not be
removed during his or her term except for cause.
The bill also permits the executive director to appoint up to two other division
administrators outside the classified service but the bill does not authorize any new
positions for the administrators. The bill transfers all members of the existing staffs
of the Elections Board and Ethics Board and their positions to the Government
Accountability Board. Under the bill, the staff members who have civil service rights
retain those rights. The bill does not provide any funding for continued employment
of the staff members, however.
The Enforcement Division is empowered to investigate violations and bring
civil and criminal actions to enforce the elections, ethics, and lobbying regulation
laws. Under current law, the Elections Board and Ethics Board share civil
enforcement authority with district attorneys and in some cases with county boards
of election commissioners, and with the attorney general; and the district attorneys,
and in some cases the attorney general, exercise criminal enforcement authority.
Under the bill, the Enforcement Division has independent authority to investigate
violations of the elections, ethics, and lobbying regulation laws without the consent
of the Government Accountability Board, except that the division must obtain the
concurrence of the board before issuing a subpoena or obtaining a search warrant.
The bill requires the Enforcement Division to obtain the approval of the board before
commencing a prosecution. The vote of at least four members of the board is required
for approval. The bill permits the Enforcement Division to request the board to
appoint special counsel to investigate or prosecute violations of the law. Under the
bill, the board may retain special counsel to act as an investigator in any matter. The
administrator of the Enforcement Division may also investigate any matter without
retaining an investigator. An investigator or the administrator must report to the
board concerning an investigation at least once every 90 days, after which the
investigation may continue unless the board terminates the investigation by a vote
of at least four members of the board. The bill also permits the Enforcement Division
to request investigatory and prosecutorial assistance from the Department of Justice
and directs the Department of Justice to provide the assistance upon request. Under
the bill, the Enforcement Division is bound by applicable laws, rules, formal
opinions, and actions of the board, except that the division may nonacquiesce in any
formal opinion of the board by publishing a notice of nonacquiescence in the
Wisconsin Administrative Register. Thereafter, the division is not bound by that
opinion. The bill directs the Government Accountability Board and the district
attorneys to share investigatory information concerning possible violations of the
elections, ethics, and lobbying regulation laws and accords precedence to the board
in conducting investigations and prosecutions. Under the bill, a district attorney
may refer to the board any matter concerning a possible violation of the elections,
ethics, or lobbying regulation laws. If a district attorney refers to the board a matter
concerning a possible criminal violation of the elections laws in an election for state
or national office or an alleged violation of the ethics or lobbying regulation laws by
a state official and the board determines not to commence a criminal prosecution, the
bill directs the board to report to the district attorney within 30 days of the referral
specifying the reasons why it will not commence a prosecution.
The bill directs a district attorney to notify the Government Accountability
Board before commencing a prosecution concerning any violation of the elections,
ethics, or lobbying regulation laws. The district attorney is prohibited from
commencing a prosecution with respect to a violation of the election laws in an
election for state or national office, or a violation of the ethics or lobbying regulation
laws by a state official unless the board notifies the district attorney that it will not
commence a prosecution, or the board does not commence a prosecution within 30
days after the district attorney receives the notice.
The bill provides that if a district attorney opens an investigation of a possible
criminal violation of the elections, ethics, or lobbying regulation laws, the district
attorney must report to the Government Accountability Board concerning the status
of the investigation no later than the end of each 90-day period until the
investigation is concluded. Under the bill, if a district attorney commences a criminal
prosecution for a violation of the elections, ethics, or lobbying regulation laws, the
district attorney must report to the board concerning the status of the prosecution
no later than the end of each 180-day period until the prosecution is concluded. If
the Enforcement Division commences any prosecution for a violation of the elections,
ethics, or lobbying regulation laws, the division must report to the board concerning
the status of the prosecution no later than the end of each 180-day period until the
prosecution is concluded.
Currently, the Elections and Ethics boards have sum certain appropriations
derived from state general purpose revenue. In addition, both boards finance some
of their operations with program revenue. This bill repeals all appropriations to both
boards and does not make any appropriations to the Government Accountability
Board. Under the bill, the Government Accountability Board will be unable to
operate unless funding is provided for the board by other legislation. The bill
requires the board to forward the Enforcement Division's budget requests to the
Department of Administration without change, except as concurred in by the
division.
Under the bill, any person may file a sworn complaint with the Enforcement
Division alleging a violation of the elections, ethics, or lobbying regulation laws. The
division must investigate the complaint unless the division finds the complaint to be
without merit. The bill also permits the division to investigate any violation of the
elections, ethics, or lobbying regulation laws on its own initiative or upon direction
of the board. The division may order an election official or private person to act in
conformity with the elections, ethics, or lobbying regulation laws or rules of the
board, and may impose a forfeiture (civil monetary penalty) for a violation. The
decision of the division may be appealed to the board or may be appealed directly to
circuit court. In deciding an appeal, the board is not bound by any findings of fact
or conclusions of law made by the division with respect to the matter. If the decision
of the division is not appealed or if the board does not modify or reverse a decision
of the division after hearing an appeal, the decision of the division becomes the
decision of the board. Any decision of the board is also subject to judicial review in
circuit court. If the board modifies or reverses an action of the division, the division
may also seek judicial review of the board's decision. The procedure does not apply
to any alleged violation of the elections, ethics, or lobbying regulation laws by the
board or division, nor to any matter arising in connection with a recount.
Currently, a defendant in a criminal trial is tried in the county where the
defendant's crime is alleged to have been committed, except that the defendant may
request the judge to move the trial to another county and the judge may grant the
request if the judge believes that an impartial trial cannot be had unless the trial is
moved. This bill provides that if the defendant in a criminal trial for a violation of
the elections, ethics, or lobbying regulation laws is a resident of this state, the trial
shall be held in circuit court for the county where the defendant resides, subject to
the current exception.
Currently, opinions of the Elections Board are open to public inspection, but
opinions of the Ethics Board, with limited exceptions, are closed to public inspection.
However, the Ethics Board publishes summaries of its opinions without divulging
information that could reveal the identity of the requester. This bill makes all
opinions issued by the Government Accountability Board closed to public inspection,
subject to the current exceptions for opinions issued by the Ethics Board.
The bill provides for the bill to become law on January 1, 2009, after which date
the members of the Government Accountability Board may be appointed and take
office. However, the existing Elections Board and Ethics Board continue in operation
until June 1, 2009, subject to appropriation of money for continued operation of the
boards by other legislation. Under the bill, the Government Accountability Board
may not exercise administrative or enforcement authority until June 1, 2009. The
bill also provides that the director of the Legislative Council Staff shall serve as
executive director of the Government Accountability Board, without additional
compensation, until the initial executive director of the Government Accountability
Board is appointed and qualified, and may exercise all of the functions of the
executive director of the Government Accountability Board, the enforcement
division, and the administrator of the enforcement division.
Currently, state boards may meet in closed session to discuss the investigation
of charges against specific persons. This bill provides specifically that the
Government Accountability Board may meet in closed session to deliberate
concerning any investigation under the board's jurisdiction.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB2, s. 1
1Section
1. 5.02 (1s) of the statutes is amended to read:
SB2,6,22
5.02
(1s) "Board" means the
elections government accountability board.
SB2, s. 2
3Section
2. 5.05 (title) of the statutes is amended to read:
SB2,6,5
45.05 (title)
Elections Government accountability board; powers and
5duties.
SB2, s. 3
6Section
3. 5.05 (1) (intro.) of the statutes is amended to read:
SB2,6,107
5.05
(1) General authority. (intro.) The
elections government accountability 8board shall have the responsibility for the administration of chs. 5 to 12 and other
9laws relating to elections and election campaigns. Pursuant to such responsibility,
10the board may:
SB2, s. 4
11Section
4. 5.05 (1) (a) of the statutes is repealed.
SB2, s. 5
12Section
5. 5.05 (1) (b) of the statutes is amended to read:
SB2,7,15
15.05
(1) (b) In the discharge of its duties and
upon after providing notice to
the 2any party
or parties being investigated who is the subject of an investigation,
3subpoena and bring before it any person
in the state and require the production of
4any papers, books
, or other records relevant to an investigation. A circuit court may
5by order permit the inspection and copying of the accounts and the depositor's and
6loan records at any financial institution
, as defined in s. 705.01 (3)
, doing business
7in the state to obtain evidence of any violation of ch. 11 upon showing by the board
8of probable cause to believe there is a violation and that such accounts and records
9may have a substantial relation to the violation. In the discharge of its duties, the
10board may cause the deposition of witnesses to be taken in the manner prescribed
11for taking depositions in civil actions in circuit court.
The board shall delegate to the
12enforcement division the power to issue subpoenas and to obtain search warrants
13under this paragraph on behalf of the board, subject to the procedures under s. 5.066
14(6). The delegation is supplemental to the board's exercise of direct authority under
15this paragraph.
SB2, s. 6
16Section
6. 5.05 (1) (c) of the statutes is amended to read:
SB2,8,917
5.05
(1) (c) Bring civil
or criminal actions
to require forfeitures for any violation
18of
ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only
19violations with respect to reports or statements required by law to be filed with it,
20and other violations arising under elections for state office or statewide referenda 21chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The board may compromise
22and settle any
civil action or potential action brought or authorized to be brought by
23it
under ch. 11 which, in the opinion of the board, constitutes a minor violation, a
24violation caused by excusable neglect, or which for other good cause shown, should
25not in the public interest be prosecuted under such chapter. Notwithstanding s.
1778.06,
an a civil action or proposed
civil action authorized under this paragraph may
2be settled for such sum as may be agreed between the parties. Any settlement made
3by the board shall be in such amount as to deprive the alleged violator of any benefit
4of his or her wrongdoing and may contain a penal component to serve as a deterrent
5to future violations. In settling actions or proposed actions, the board shall treat
6comparable situations in a comparable manner and shall assure that any settlement
7bears a reasonable relationship to the severity of the offense or alleged offense.
8Forfeiture actions brought by the board shall be brought in the circuit court for the
9county wherein the violation is alleged to occur.
SB2, s. 7
10Section
7. 5.05 (1m) of the statutes is created to read:
SB2,8,1311
5.05
(1m) Executive director; legal counsel. The board shall employ an
12executive director outside the classified service and shall employ legal counsel to
13perform legal services outside the enforcement division.
SB2, s. 8
14Section
8. 5.05 (2m) of the statutes is created to read:
SB2,8,2015
5.05
(2m) Enforcement division. (a) The enforcement division shall
16investigate and prosecute alleged civil and criminal violations of laws administered
17by the board pursuant to all statutes granting or assigning that authority or
18responsibility to the board. The enforcement division shall prosecute civil and
19criminal actions brought by the board and shall assist the district attorneys and the
20attorney general in prosecuting criminal actions referred to them by the division.
SB2,8,2321
(b) The board may refer any matter to the enforcement division for
22investigation. Any person may file a verified complaint with the enforcement
23division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.
SB2,9,924
(c) 1. The board shall employ at least one full-time attorney and at least one
25full-time staff support individual within the enforcement division. The enforcement
1division may, with or without approval of the board, investigate any possible civil or
2criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 in the name
3of the board. The jurisdiction of the enforcement division is concurrent with the
4jurisdiction of the board, the district attorneys, and where authorized, the attorney
5general to conduct investigations and enforce these laws. The enforcement division
6may request authorization of the board to obtain the assistance of special counsel to
7conduct investigations or to prosecute violations of these laws. The enforcement
8division may also request assistance from the department of justice to conduct
9investigations or to prosecute violations of these laws.
SB2,9,2510
2. Upon opening or concluding an investigation of any alleged violation of chs.
115 to 12, subch. III of ch. 13, or subch. III of ch. 19, the board shall notify the district
12attorney for the county wherein the violation is alleged to occur. Upon opening or
13concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch.
1413, or subch. III of ch. 19, a district attorney shall notify the board. Upon request of
15the board or a district attorney, the board and district attorney shall each share
16information in their possession relating to any alleged violation of chs. 5 to 12, subch.
17III of ch. 13, or subch. III of ch. 19. If the board notifies the district attorney for any
18county that it has opened an investigation of an alleged violation of chs. 5 to 12,
19subch. III of ch. 13, or subch. III of ch. 19 that is prosecutable in circuit court for that
20county, the district attorney shall suspend any investigation of the same alleged
21violation that the district attorney is conducting until the board notifies the district
22attorney that it has concluded its investigation and it will not prosecute the alleged
23violation or there elapse 30 days from the date of the board's notification that its
24investigation is concluded and the board does not commence a prosecution of the
25alleged violation.
SB2,10,10
13. The district attorney for any county may refer any matter concerning a
2possible civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of
3ch. 19 to the board. If the board determines not to commence a prosecution with
4respect to a matter concerning an alleged criminal violation of chs. 5 to 12 in an
5election for state or national office, or an alleged violation of subch. III of ch. 13 or
6subch. III of ch. 19 by an elective state official, as defined in s. 13.62 (6), or a state
7public official, as defined in s. 19.42 (14), that is referred to the board under this
8subdivision, the board shall, within 30 days of receipt of the referral, report to the
9district attorney in writing specifying the reasons why it has determined not to
10commence a criminal prosecution.
SB2,10,1511
4. If a district attorney opens an investigation of a possible violation of chs. 5
12to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall report to
13the board concerning the status of the investigation no later than the end of each
14consecutive 90-day period, beginning on the day that the investigation is opened and
15ending on the day that the investigation is concluded.
SB2,10,2316
5. Each individual who is retained by the board to act as an investigator shall
17make periodic reports to the board, as directed by the board, but in no case may the
18interval for reporting exceed 90 days. If the administrator of the enforcement
19division investigates any matter without retention of an investigator, the
20administrator shall make periodic reports to the board, as directed by the board, but
21in no case may the reporting interval exceed 90 days. If, after receiving a report, the
22board does not terminate the investigation by a vote of at least 4 members of the
23board, the investigation is continued.
SB2,11,824
6. Prior to commencing any prosecution with respect to an alleged violation of
25chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a district attorney shall provide
1written notice to the board. The district attorney shall not commence a prosecution
2with respect to an alleged violation of chs. 5 to 12 in an election for state or national
3office, or an alleged violation of subch. III of ch. 13 or subch. III of ch. 19 by an elective
4state official, as defined in s. 13.62 (6), or a state public official, as defined in s. 19.42
5(14), unless the board notifies the district attorney in writing that it will not
6commence a prosecution with respect to that alleged violation or the board fails to
7commence a prosecution with respect to that alleged violation within 30 days after
8receiving notice from the district attorney under this subdivision.
SB2,11,139
7. If a district attorney commences a criminal prosecution for an alleged
10violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney
11shall report to the board concerning the status of the prosecution no later than the
12end of each consecutive 180-day period, beginning on the day that the prosecution
13is commenced and ending on the day that the prosecution is concluded.
SB2,11,1814
8. If the enforcement division commences a prosecution for an alleged violation
15of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the division shall report to
16the board concerning the status of the prosecution no later than the end of each
17consecutive 180-day period, beginning on the day that the prosecution is commenced
18and ending on the day that the prosecution is concluded.
SB2,11,2119
9. The enforcement division may file a compliant against any person only upon
20authorization by the board. A vote of at least 4 members of the board is required for
21authorization.
SB2,12,222
10. Upon employment of any individual to serve as special counsel for the
23enforcement division, the administrator of the division shall certify the maximum
24amount provided in the employment contract to the secretary of administration, and
1direct the department of administration to pay special counsel bills related to that
2case within the certified amount.
SB2,12,73
(e) The enforcement division is bound by applicable laws, rules, formal
4opinions, and actions of the board, except that the division may nonacquiesce in any
5formal opinion of the board by publishing a notice of nonacquiescence in the
6Wisconsin Administrative Register. Thereafter, the division is not bound by the
7formal opinion in which the division nonacquiesces.
