LRBs0740/1
JTK&RAC:cx:jf
2005 - 2006 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2005 ASSEMBLY BILL 1188
May 2, 2006 - Offered by Representatives Pocan, Parisi and Pope-Roberts.
AB1188-ASA1,2,15
1An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (6), 5.05 (11), 7.08 (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) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i),
520.510 (1) (j), 20.510 (1) (q), 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), 6.26 (2) (b), 6.26 (2) (c), 6.56 (2) to (5), 7.08 (title), 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), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.61
1(2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20), 15.07
2(1) (cm), 15.07 (4), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.07 (6), 17.17 (1), 17.17
3(4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.47 (5), 19.50 (2),
419.54 (2), 19.55 (1), 19.55 (2) (c), 19.59 (8) (a) and (c), 19.59 (8) (cn), 19.59 (8) (d),
519.85 (1) (h), 20.923 (4) (intro.), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10
6(3) (b), 73.0301 (1) (d) 13., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2) (b)
7(intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 198.08 (10), 200.09 (11) (am)
83., 227.03 (6), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m), 778.135 and
9778.136;
to repeal and recreate 11.60 (4), 15.07 (1) (a) 2. and 19.579; and
to
10create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.05 (5s) (title) and (d), 5.052, 5.054,
115.066, 15.03 (2), 15.07 (5) (m), 15.60, 15.603, 19.85 (1) (fm), 20.923 (4) (e) 2e.,
1220.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m), 230.08 (2) (e) 4h., 230.08 (2) (on),
13230.40 (5m) and 971.19 (12) of the statutes;
relating to: creation of a
14Government Accountability Board, payment of health insurance premiums for
15state employees who take certain leaves of absence, and providing penalties.
Analysis by the Legislative Reference Bureau
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.
Currently, for state employees, health insurance premiums are generally paid
two months prior to the time that the employees actually receive the coverage. A
state employee who terminates state employment or who takes a leave of absence
therefore receives paid health insurance coverage for at least two months after his
or her date of separation from employment. Currently, most of the premium cost for
state employee health care coverage the state pays.
This bill provides that any state employee who takes a leave of absence may not
receive during the leave of absence any health insurance coverage, the premiums of
which are paid in whole or in part by the state, if during any part of the leave of
absence the employee is a candidate for a partisan political office or a nonpartisan
state elected office or the employee is employed by a political party, candidate, or
political committee.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB1188-ASA1,6,22
5.02
(1s) "Board" means the
elections government accountability board.
AB1188-ASA1,6,5
45.05 (title)
Elections Government accountability board; powers and
5duties.
AB1188-ASA1,7,27
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
1laws relating to elections and election campaigns. Pursuant to such responsibility,
2the board may:
AB1188-ASA1,7,195
5.05
(1) (b) In the discharge of its duties and
upon after providing notice to
the 6any party
or parties being investigated who is the subject of an investigation,
7subpoena and bring before it any person
in the state and require the production of
8any papers, books
, or other records relevant to an investigation. A circuit court may
9by order permit the inspection
, and copying of the accounts and the depositor's and
10loan records at any financial institution
, as defined in s. 705.01 (3)
, doing business
11in the state to obtain evidence of any violation of ch. 11 upon showing by the board
12of probable cause to believe there is a violation and that such accounts and records
13may have a substantial relation to the violation. In the discharge of its duties, the
14board may cause the deposition of witnesses to be taken in the manner prescribed
15for taking depositions in civil actions in circuit court.
The board shall delegate to the
16enforcement division the power to issue subpoenas and to obtain search warrants
17under this paragraph on behalf of the board, subject to the procedures under s. 5.066
18(6). The delegation is supplemental to the board's exercise of direct authority under
19this paragraph.
AB1188-ASA1,8,1321
5.05
(1) (c) Bring civil
or criminal actions
to require forfeitures for any violation
22of
ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only
23violations with respect to reports or statements required by law to be filed with it,
24and other violations arising under elections for state office or statewide referenda 25chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The board may compromise
1and settle any
civil action or potential action brought or authorized to be brought by
2it
under ch.11 which, in the opinion of the board, constitutes a minor violation, a
3violation caused by excusable neglect, or which for other good cause shown, should
4not in the public interest be prosecuted under such chapter. Notwithstanding s.
5778.06, an action or proposed action authorized under this paragraph may be settled
6for such sum as may be agreed between the parties. Any settlement made by the
7board shall be in such amount as to deprive the alleged violator of any benefit of his
8or her wrongdoing and may contain a penal component to serve as a deterrent to
9future violations. In settling actions or proposed actions, the board shall treat
10comparable situations in a comparable manner and shall assure that any settlement
11bears a reasonable relationship to the severity of the offense or alleged offense.
12Forfeiture actions brought by the board shall be brought in the circuit court for the
13county wherein the violation is alleged to occur.
AB1188-ASA1,8,1715
5.05
(1m) Executive director; legal counsel. The board shall employ an
16executive director outside the classified service and shall employ legal counsel to
17perform legal services outside the enforcement division.
AB1188-ASA1,8,2419
5.05
(2m) Enforcement division. (a) The enforcement division shall
20investigate and prosecute alleged violations of laws administered by the board
21pursuant to all statutes granting or assigning that authority or responsibility to the
22board. The enforcement division shall prosecute civil and criminal actions brought
23by the board and shall assist the district attorneys and the attorney general in
24prosecuting criminal actions referred to them by the division.
AB1188-ASA1,9,3
1(b) The board may refer any matter to the enforcement division for
2investigation. Any person may file a verified complaint with the enforcement
3division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.
AB1188-ASA1,9,144
(c) 1. The board shall employ at least one full-time attorney and at least one
5full-time staff support individual within the enforcement division. The enforcement
6division may, with or without approval of the board, investigate or prosecute any civil
7or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 in the
8name of the board. The jurisdiction of the enforcement division is concurrent with
9the jurisdiction of the board, the district attorneys, and the attorney general to
10conduct investigations and enforce these laws. The enforcement division may
11request authorization of the board to obtain the assistance of special counsel to
12conduct investigations or to prosecute violations of these laws. The enforcement
13division may also request assistance from the department of justice to conduct
14investigations or to prosecute violations of these laws.
AB1188-ASA1,9,2515
2. Upon opening or concluding an investigation of any alleged violation of chs.
165 to 12, subch. III of ch. 13, or subch. III of ch. 19, the board shall notify the district
17attorney for the county wherein the violation is alleged to occur. Upon opening or
18concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch.
1913, or subch. III of ch. 19, a district attorney shall notify the board. Upon request of
20the board or a district attorney, the board and district attorney shall each share
21information in their possession relating to any alleged violation of chs. 5 to 12, subch.
22III of ch. 13, or subch. III of ch. 19. If the board notifies the district attorney for any
23county that it has opened an investigation of a violation of chs. 5 to 12, subch. III of
24ch. 13, or subch. III of ch. 19 that is alleged to have occurred in that county, the district
25attorney shall suspend any investigation of the same alleged violation that the
1district attorney is conducting until the board notifies the district attorney that it has
2concluded its investigation and it will not prosecute the alleged violation or there
3elapse 30 days from the date of the board's notification that its investigation is
4concluded and the board does not commence a prosecution of the alleged violation.
AB1188-ASA1,10,135
3. The district attorney for any county may refer any matter concerning a
6possible civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of
7ch. 19 to the board. If the board determines not to commence a criminal prosecution
8with respect to a matter concerning an alleged criminal violation of chs. 5 to 12,
9subch. III of ch. 13, or subch. III of ch. 19 by an elective state official, as defined in
10s. 13.62 (6), or a state public official, as defined in s. 19.42 (14), that is referred to the
11board under this subdivision, the board shall, within 30 days of receipt of the referral,
12report to the district attorney in writing specifying the reasons why it has
13determined not to commence a criminal prosecution.
AB1188-ASA1,10,2114
4. If a district attorney opens an investigation of a possible criminal violation
15of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall
16report to the board concerning the status of the investigation no later than the end
17of each consecutive 90-day period, beginning on the day that the investigation is
18opened and ending on the day that the investigation is concluded. Within 30 days
19after receiving a report under this subdivision, the board may direct the district
20attorney to close the investigation and the district attorney shall thereupon close the
21investigation.
AB1188-ASA1,11,422
5. Prior to commencing any criminal prosecution with respect to an alleged
23violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a district attorney
24shall provide written notice to the board. If the board notifies the district attorney
25in writing that it will not commence a criminal prosecution with respect to that
1alleged violation or the board fails to commence a criminal prosecution with respect
2to that alleged violation within 30 days after receiving notice from the district
3attorney under this subdivision, the district attorney may commence a criminal
4prosecution with respect to that alleged violation.
AB1188-ASA1,11,125
6. If a district attorney commences a criminal prosecution for an alleged
6violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney
7shall report to the board concerning the status of the prosecution no later than the
8end of each consecutive 180-day period, beginning on the day that the prosecution
9is commenced and ending on the day that the prosecution is concluded. Within 30
10days after receiving a report under this subdivision, the board may direct the district
11attorney to terminate the prosecution and the district attorney shall thereupon
12terminate the prosecution.
AB1188-ASA1,11,1713
7. If the board directs a district attorney to close an investigation of a person
14under subd. 4. or to terminate a prosecution of a person under subd. 6. with respect
15to an alleged violation of the law, the district attorney shall not open a new criminal
16investigation or commence a new criminal prosecution of the same person with
17respect to the same alleged violations of the law.
AB1188-ASA1,11,2418
8. Each individual who is retained by the board to act as an investigator shall
19make periodic reports to the board, as directed by the board, but in no case may the
20interval for reporting exceed 90 days. If the administrator of the enforcement
21division investigates any matter without retention of an investigator, the
22administrator shall make periodic reports to the board, as directed by the board, but
23in no case may the reporting interval exceed 90 days. If, after receiving a report, the
24board does not vote to terminate the investigation, the investigation is continued.
AB1188-ASA1,12,5
19. Upon employment of any individual to serve as special counsel for the
2enforcement division, the administrator of the enforcement division shall certify the
3maximum amount provided in the employment contract to the secretary of
4administration, and direct the department of administration to pay special counsel
5bills related to that case within the certified amount.
AB1188-ASA1,12,106
(e) The enforcement division is bound by applicable laws, rules, formal
7opinions, and actions of the board, except that the division may nonacquiesce in any
8formal opinion of the board by publishing a notice of nonacquiescence in the
9Wisconsin Administrative Register. Thereafter, the division is not bound by the
10formal opinion in which the division nonacquiesces.
AB1188-ASA1,12,1612
5.05
(3) (a) The board shall upon complaint by any person or on its own motion
13investigate violations of the elections laws and shall notify the district attorney of the
14proper county
, or the attorney general
or the governor where appropriate under s.
1511.60 (4) or 11.61 (2) of any facts within its knowledge or evidence in its possession
16which may be grounds for civil action or criminal prosecution.
AB1188-ASA1,12,1918
5.05
(3m) Chief election officer. The board shall designate an employee of
19the board to serve as the chief election officer of this state.
AB1188-ASA1, s. 12
21Section
12. 5.05 (5s) (title) and (d) of the statutes are created to read: