SB1: Bill Text Engrossed

LRB-3986/1

JTK:cjs:ch

2005 - 2006 LEGISLATURE

Engrossed 2005 Senate BILL 1

November 7, 2005 - Printed by direction of Assembly Chief Clerk.

SB1-engrossed,2,10 An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (11), 7.08 (7), 9.01 (1) (ag) 4., 15.07 (1) (a) 2., 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) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 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 and 15.617; to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (6), 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 7.08 (title), 7.31 (5), 7.60 (4) (a), 7.60 (5), 7.70 (1), 7.70 (5) (b), 8.05 (1) (j), 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), 9.01 (1) (ar) 2., 9.01 (10), 11.21 (title), 11.21 (7) (intro.), 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.), 19.46 (2), 19.47 (5), 19.50 (2), 19.54 (2), 19.55 (1), 19.55 (2) (a) to (c), 19.59 (1) (g) 8., 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), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m), 778.135 and 778.136; to repeal and recreate 19.579 and 71.10 (3) (b); and to create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (5) (m), 15.60, 15.603, 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m), 230.08 (2) (e) 4h. and 230.08 (2) (on) of the statutes; relating to: creation of a Government Accountability Board and providing penalties.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 2005 Senate Bill 1 consists of the following documents adopted by the senate on November 1, 2005: the bill as affected by Senate Amendments 1, 2, 3 (as affected by chief clerk's correction), 4, and 5.

Certain of these amendments affect the same text. In this bill, amendments are reconciled as follows:

1. Senate Amendment 1 affects the treatment by 2005 Senate Bill 1 of s. 5.05 (2m) (d) 1. Senate Amendment 3 removes the treatment of s. 5.05 (2m) (d) 1. This bill reflects the effect of Senate Amendment 3.

2. Senate Amendment 4 affects Section 141 (4) (b) of 2005 Senate Bill 1. Senate Amendment 3 removes Section 141 (4) (b). This bill reflects the effect of Senate Amendment 3.

Content of Engrossed 2005 Senate Bill 1:

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 bill abolishes both boards and replaces them with a Government Accountability Board. Under the bill, the board is composed of four members serving for staggered four-year terms who are nominated by the governor and appointed with the advice and consent of the senate. Each of the members must be appointed from nominations submitted by a Government Accountability Candidate Committee, which consists of the chief justice of the supreme court, the dean of the University of Wisconsin law school, and the dean of the Marquette University law school. A unanimous vote of the committee is required to nominate a candidate. No member of the Government Accountability Board may hold a 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 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 under the bill. 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. However, before bringing an action to prosecute any alleged criminal violation, the division must provide written notice to the district attorney for the county where the alleged violation occurs. If the district attorney fails to prosecute within 30 days after receiving the notice or declines to prosecute, the division may then prosecute the alleged violation. Under current law, the Elections Board and Ethics Board share civil enforcement authority with district attorneys and in some cases 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 and to prosecute civil 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 bill requires the Enforcement Division to obtain the approval of the board before commencing a criminal prosecution. The bill 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 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 or action of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by that opinion or action.

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 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 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.

The bill provides for the bill to become law on the day after publication, 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 the first day of the sixth month beginning after publication, 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 the first day of the sixth month beginning after publication. 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.

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:

SB1-engrossed, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB1-engrossed,5,2 5.02 (1s) "Board" means the elections government accountability board.

SB1-engrossed, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB1-engrossed,5,5 5.05 (title) Elections Government accountability board; powers and duties.

SB1-engrossed, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB1-engrossed,5,10 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:

SB1-engrossed, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB1-engrossed, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB1-engrossed,6,9 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. The delegation is supplemental to the board's exercise of direct authority under this paragraph.

SB1-engrossed, s. 6 Section 6. 5.05 (1m) of the statutes is created to read:

SB1-engrossed,6,13 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.

SB1-engrossed, s. 7 Section 7. 5.05 (2m) of the statutes is created to read:

SB1-engrossed,6,20 5.05 (2m) Enforcement division. (a) The enforcement division shall investigate and prosecute alleged violations of laws administered by the board pursuant to all statutes granting or assigning that authority or responsibility to the board. The enforcement division shall prosecute civil and criminal actions brought by the board and shall assist the district attorneys and the attorney general in prosecuting criminal actions referred to them by the division.

SB1-engrossed,6,23 (b) The board may refer any matter to the enforcement division for investigation. Any person may file a verified complaint with the enforcement division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.

SB1-engrossed,7,7 (c) 1. The board shall employ at least one full-time attorney and at least one full-time investigator within the enforcement division. Except as provided in subd. 2., the enforcement division may, with or without approval of the board, investigate or prosecute any civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 in the name of the board. The jurisdiction of the enforcement division is concurrent with the jurisdiction of the board, the district attorneys, and the attorney general to conduct investigations and enforce these laws. The enforcement division may request assistance from the department of justice to conduct investigations and prosecute violations of these laws.

SB1-engrossed,7,16 2. Prior to commencing any criminal prosecution with respect to an alleged violation of chs. 5 to 12, subch. III of ch. 13. or subch. III of ch. 19, the enforcement division shall provide written notice to the district attorney for the county in which the violation is alleged to have occurred. If the district attorney notifies the division in writing that he or she will not commence a criminal prosecution with respect to that alleged violation or the district attorney fails to commence a criminal prosecution with respect to that alleged violation within 30 days after receiving notice from the division, the division may, with the approval of the board, commence a criminal prosecution with respect to that alleged violation.

SB1-engrossed,7,20 3. Upon employment of special counsel, the administrator of the enforcement division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay special counsel bills related to that case within the certified amount.

SB1-engrossed,7,25 (e) 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 or action of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by the formal opinion or action in which the division nonacquiesces.

SB1-engrossed, s. 8 Section 8. 5.05 (3m) of the statutes is created to read:

SB1-engrossed,8,3 5.05 (3m) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.

SB1-engrossed, s. 9 Section 9. 5.05 (5) of the statutes is repealed.

SB1-engrossed, s. 10 Section 10. 5.05 (6) of the statutes is amended to read:

SB1-engrossed,8,17 5.05 (6) Formal opinions. Any interested person may make written request to the board executive director of the board to issue a formal opinion with respect to the person's authority or responsibilities under chs. 5 to 12. The board executive director shall within 15 days advise the person requesting an opinion whether or not a formal opinion will be issued. If a formal opinion will be issued, it shall be issued within 30 days of the request. The executive director may consult with the board before issuing a formal opinion. No person acting in good faith upon a formal opinion issued to the person by the board executive director shall be subject to civil or criminal prosecution for so acting, if the material facts are as stated in the opinion request. Nothing in this subsection requires the issuance of an opinion by the board executive director, nor precludes it the executive director from issuing an opinion or ruling in any other manner.

SB1-engrossed, s. 11m Section 11m. 5.05 (11) of the statutes is repealed.

SB1-engrossed, s. 12 Section 12. 5.052 of the statutes is created to read: