Amendment ASA1-AB1189

LRBs0741/1

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2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 1189

May 2, 2006 - Offered by Representatives Pocan, Parisi and Pope-Roberts.

AB1189-ASA1,2,19 An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (6), 5.05 (11), 7.08 (7), 9.01 (1) (ag) 4., 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (2), 19.47 (4), 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (b), 20.510 (1) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i), 20.510 (1) (j), 20.510 (1) (q), 20.510 (1) (t), 20.510 (1) (x), 20.521 (intro.), 20.521 (1) (title), 20.521 (1) (a), 20.521 (1) (b), 20.521 (1) (g), 20.521 (1) (h), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om) and 230.08 (2) (wm); to renumber and amend 15.03, 15.617, 19.46 (2), 19.55 (2) (a) and 19.55 (2) (b); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (3) (a), 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 6.56 (2) to (5), 7.08 (title), 7.08 (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), 8.05 (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 (1) (a) 1., 9.01 (1) (ar) 2., 9.01 (10), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.61 (2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20), 15.07 (1) (cm), 15.07 (4), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.07 (6), 17.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.47 (5), 19.48 (9), 19.50 (2), 19.53 (6), 19.54 (2), 19.55 (1), 19.55 (2) (c), 19.58 (1) (a), 19.59 (8) (a) and (c), 19.59 (8) (cn), 19.59 (8) (d), 19.85 (1) (h), 20.923 (4) (intro.), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10 (3) (b), 73.0301 (1) (d) 13., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 198.08 (10), 200.09 (11) (am) 3., 227.03 (6), 227.52 (6), 230.03 (4) and (6), 230.08 (4) (a), 230.40 (1), (2), (4) and (5), 234.02 (3m) (c), 560.04 (2m), 778.135 and 778.136; to repeal and recreate 11.60 (4), 15.07 (1) (a) 2. and 19.579; and to create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.05 (5s) (title) and (d), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (5) (m), 15.60, 15.603, 19.42 (7t) and (11e), 19.45 (5m), 19.45 (15), 19.85 (1) (fm), 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m), 230.08 (2) (e) 4h., 230.08 (2) (on), 230.40 (7), 230.405 and 971.19 (12) of the statutes; relating to: creation of a Government Accountability Board, campaign activity by state employees, solicitation or discouragement of political activity by state officials and employees, training programs for state employees, granting rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

Government Accountability Board

Currently, the Elections Board consists of 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 (currently, 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 substitute amendment abolishes both boards and replaces them with a Government Accountability Board. Under the substitute amendment, 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 are nominated by the governor and appointed with the advice and consent of the assembly and senate. Each of the members 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 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. 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 substitute amendment 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 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 substitute amendment also permits the executive director to appoint up to two other division administrators outside the classified service but the substitute amendment does not authorize any new positions for the administrators. The substitute amendment transfers all members of the existing staffs of the Elections Board and Ethics Board and their positions to the Government Accountability Board. Under the substitute amendment, the staff members who have civil service rights retain those rights. The substitute amendment 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 substitute amendment, the Enforcement Division has independent authority to investigate violations of the elections, ethics, and lobbying regulation laws and to prosecute civil or criminal violations 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 substitute amendment permits the Enforcement Division to request the board to appoint special counsel to investigate or prosecute violations of the law. Under the substitute amendment, 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 retention of 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 votes to terminate it. The substitute amendment also permits the Enforcement Division to request investigatory and prosecutorial assistance from the Department of Justice and directs the Department of Justice to provide such assistance upon request. Under the substitute amendment, 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 substitute amendment 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. If a district attorney refers to the board a matter concerning a possible criminal violation of the elections, ethics, or lobbying regulation laws by a state official and the board determines not to commence a criminal prosecution, the substitute amendment 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 substitute amendment directs a district attorney to notify the Government Accountability Board before commencing a criminal prosecution concerning any violation of the elections, ethics, or lobbying regulation laws. If the board notifies the district attorney that it will not commence a criminal prosecution, or the board does not commence a criminal prosecution within 30 days after receiving the notice, the district attorney may commence the prosecution.

The substitute amendment 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. Similarly, under the substitute amendment, 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. Within 30 days after receiving any report, the substitute amendment permits the board to direct the district attorney to close the investigation or to terminate the prosecution, and the district attorney must do so.

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 substitute amendment repeals all appropriations to both boards and does not make any appropriations to the Government Accountability Board. Under the substitute amendment, the Government Accountability Board will be unable to operate unless funding is provided for the board by other legislation. The substitute amendment requires the board to forward the division's budget requests to the Department of Administration without change, except as concurred in by the division.

Under the substitute amendment, any person may file a sworn complaint with the 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 substitute amendment 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 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 substitute amendment 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 substitute amendment 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 substitute amendment provides for the substitute amendment to become law on January 1, 2007, 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, 2007, subject to appropriation of money for continued operation of the boards by other legislation. Under the substitute amendment, the Government Accountability Board may not exercise administrative or enforcement authority until June 1, 2007. The substitute amendment 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 substitute amendment provides specifically that the Government Accountability Board may meet in closed session to deliberate concerning any investigation under the board's jurisdiction.

Campaign activity by state employees

Currently, no state employee is authorized to engage in, and no state appointing authority is authorized to permit or require an employee to engage in, any activity on state time or with the use of state resources other than activity that is a part of the official functions of the state agency in which an employee works, as prescribed by law. In addition, with one limited exception, no person may solicit or receive from any state officer or employee any contribution or service for a political purpose while the officer or employee is engaged in his or her official duties. Under the Code of Ethics for State Public Officials and Employees, no state public official may use or attempt to use the public position held by the official to influence or gain unlawful benefits, advantages, or privileges personally or for others. Current law also specifically restricts political activity by employees who hold positions in the state classified service, and permits or in some cases requires those employees to take leaves of absence to participate in political activity.

This bill specifically prohibits an appointing authority of any state employee holding an appointive position from assigning or authorizing campaign activity, as defined in the bill, to be performed on state time, or with the use of state resources, or on any property owned or leased by the state. The bill specifically prohibits any state employee from using, or making available for use by another, state resources or property owned or leased by the state in connection with campaign activity except to the extent that the resources or property are available to be used by any person under similar circumstances. The bill provides that no state employee holding an appointive position may engage in campaign activity: 1) while engaged in his or her employment; 2) while on any form of paid leave, except vacation and paid holidays, and then only after obtaining the approval of the employee's appointing authority to use the leave for that purpose; or 3) during the established hours of employment for the employee, unless the employee first obtains a similar approval from his or her appointing authority. In addition, the bill prohibits any decision affecting the continued employment of a state employee holding an appointive position, or affecting the salary, benefits, hours, or other conditions of employment of such an employee, from being based on the failure of the employee to participate in any campaign activity or the failure to make a political contribution.

In addition, the bill extends a current restriction in the civil service law relating to the political activities of classified employees to apply to all state employees in appointive positions.

Under the bill, if a state employee who holds an appointive position becomes a candidate for partisan political office, the employee must be placed on a leave of absence for the duration of the election campaign and if elected must separate from his or her former position on assuming the duties and responsibilities of the partisan political office.

The bill provides that any violation of these prohibitions is a violation of the Code of Ethics for State Public Officials and Employees. Violators are subject to a forfeiture (civil penalty) of not more than $1,000 for each violation.

Solicitation or discouragement of political activity

The bill prohibits any state public official or state employee from knowingly soliciting or discouraging any political activity by a person who has business with the unit of government served by the official or employee. Currently, political solicitation is addressed in the campaign finance and civil service laws (see above). Discouragement of political activity is not specifically addressed in the statutes.

Violators are subject to a forfeiture of not more than $1,000 for each violation.

Training programs for state employees

Currently, the Ethics Board conducts training programs designed to explain and interpret the code of ethics for state public officials and the lobbying regulation law for state public officials and certain other persons. The board may prescribe a fee to be paid by attendees at these programs. This bill extends the coverage of these programs to include those portions of the campaign finance and civil service laws that pertain to political activity, including the portions created by the bill. The bill also directs the board to require attendance of state employees at these programs for a minimum number of hours specified by rule of the board within each biennial period, and to require each new state employee to attend such a program within six months after beginning employment. Under the bill, each state agency must pay any fees incurred by state employees in attending the programs.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1189-ASA1, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

AB1189-ASA1,8,2 5.02 (1s) "Board" means the elections government accountability board.

AB1189-ASA1, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

AB1189-ASA1,8,5 5.05 (title) Elections Government accountability board; powers and duties.

AB1189-ASA1, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

AB1189-ASA1,8,10 5.05 (1) General authority. (intro.) The elections government accountability board shall have the responsibility for the administration of chs. 5 to 12 and other laws relating to elections and election campaigns. Pursuant to such responsibility, the board may:

AB1189-ASA1, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

AB1189-ASA1, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

AB1189-ASA1,9,6 5.05 (1) (b) In the discharge of its duties and upon after providing notice to the any party or parties being investigated who is the subject of an investigation, subpoena and bring before it any person in the state and require the production of any papers, books, or other records relevant to an investigation. A circuit court may by order permit the inspection, and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court. The board shall delegate to the enforcement division the power to issue subpoenas and to obtain search warrants under this paragraph on behalf of the board, subject to the procedures under s. 5.066 (6). The delegation is supplemental to the board's exercise of direct authority under this paragraph.

AB1189-ASA1, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

AB1189-ASA1,9,25 5.05 (1) (c) Bring civil or criminal actions to require forfeitures for any violation of ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only violations with respect to reports or statements required by law to be filed with it, and other violations arising under elections for state office or statewide referenda chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it under ch.11 which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, an action or proposed action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling actions or proposed actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Forfeiture actions brought by the board shall be brought in the circuit court for the county wherein the violation is alleged to occur.

AB1189-ASA1, s. 7 Section 7. 5.05 (1m) of the statutes is created to read:

AB1189-ASA1,10,4 5.05 (1m) Executive director; legal counsel. The board shall employ an executive director outside the classified service and shall employ legal counsel to perform legal services outside the enforcement division.