2005 - 2006 LEGISLATURE
November 7, 2005 - Printed by direction of Assembly Chief Clerk.
SB1-engrossed,2,10
1An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (11), 7.08 (7), 9.01 (1) (ag) 4., 15.07
2(1) (a) 2., 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (2), 19.47
3(4), 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (bm), 20.510 (1)
4(c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (h), 20.510 (1) (i), 20.510 (1) (j), 20.510
5(1) (q), 20.510 (1) (t), 20.510 (1) (x), 20.521 (intro.), 20.521 (1) (title), 20.521 (1)
6(a), 20.521 (1) (b), 20.521 (1) (g), 20.521 (1) (h), 20.521 (1) (i), 20.923 (4) (d) 3.,
720.923 (4) (d) 4., 230.08 (2) (om) and 230.08 (2) (wm);
to renumber and amend
815.03 and 15.617;
to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b),
95.05 (6), 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 7.08 (title), 7.31 (5), 7.60
10(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
11(6), 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a), 9.01 (1) (ar) 2., 9.01 (10), 11.21 (title),
1211.21 (7) (intro.), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k),
1314.58 (20), 15.07 (1) (cm), 15.07 (4), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.07 (6),
1417.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.),
119.46 (2), 19.47 (5), 19.50 (2), 19.54 (2), 19.55 (1), 19.55 (2) (a) to (c), 19.59 (1)
2(g) 8., 19.85 (1) (h), 20.923 (4) (intro.), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6),
371.10 (3) (b), 73.0301 (1) (d) 13., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2)
4(b) (intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 198.08 (10), 200.09 (11)
5(am) 3., 227.03 (6), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m),
6778.135 and 778.136;
to repeal and recreate 19.579 and 71.10 (3) (b); and
to
7create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (5)
8(m), 15.60, 15.603, 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m),
9230.08 (2) (e) 4h. and 230.08 (2) (on) of the statutes;
relating to: creation of a
10Government 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:
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5.02
(1s) "Board" means the
elections government accountability board.
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45.05 (title)
Elections Government accountability board; powers and
5duties.
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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:
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5.05
(1) (b) In the discharge of its duties and
upon after providing notice to
the 14any party
or parties being investigated who is the subject of an investigation,
15subpoena and bring before it any person
in the state and require the production of
16any papers, books
, or other records relevant to an investigation. A circuit court may
17by order permit the inspection
, and copying of the accounts and the depositor's and
1loan records at any financial institution
, as defined in s. 705.01 (3)
, doing business
2in the state to obtain evidence of any violation of ch. 11 upon showing by the board
3of probable cause to believe there is a violation and that such accounts and records
4may have a substantial relation to the violation. In the discharge of its duties, the
5board may cause the deposition of witnesses to be taken in the manner prescribed
6for taking depositions in civil actions in circuit court.
The board shall delegate to the
7enforcement division the power to issue subpoenas and to obtain search warrants
8under this paragraph on behalf of the board. The delegation is supplemental to the
9board's exercise of direct authority under this paragraph.
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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.
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5.05
(2m) Enforcement division. (a) The enforcement division shall
16investigate and prosecute alleged violations of laws administered by the board
17pursuant to all statutes granting or assigning that authority or responsibility to the
18board. The enforcement division shall prosecute civil and criminal actions brought
19by the board and shall assist the district attorneys and the attorney general in
20prosecuting criminal actions referred to them by the division.
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(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.
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(c) 1. The board shall employ at least one full-time attorney and at least one
25full-time investigator within the enforcement division. Except as provided in subd.
12., the enforcement division may, with or without approval of the board, investigate
2or prosecute any civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch.
3III of ch. 19 in the name of the board. The jurisdiction of the enforcement division
4is concurrent with the jurisdiction of the board, the district attorneys, and the
5attorney general to conduct investigations and enforce these laws. The enforcement
6division may request assistance from the department of justice to conduct
7investigations and prosecute violations of these laws.
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2. Prior to commencing any criminal prosecution with respect to an alleged
9violation of chs. 5 to 12, subch. III of ch. 13. or subch. III of ch. 19, the enforcement
10division shall provide written notice to the district attorney for the county in which
11the violation is alleged to have occurred. If the district attorney notifies the division
12in writing that he or she will not commence a criminal prosecution with respect to
13that alleged violation or the district attorney fails to commence a criminal
14prosecution with respect to that alleged violation within 30 days after receiving
15notice from the division, the division may, with the approval of the board, commence
16a criminal prosecution with respect to that alleged violation.
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3. Upon employment of special counsel, the administrator of the enforcement
18division shall certify the maximum amount provided in the employment contract to
19the secretary of administration, and direct the department of administration to pay
20special counsel bills related to that case within the certified amount.
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(e) The enforcement division is bound by applicable laws, rules, formal
22opinions, and actions of the board, except that the division may nonacquiesce in any
23formal opinion or action of the board by publishing a notice of nonacquiescence in the
24Wisconsin Administrative Register. Thereafter, the division is not bound by the
25formal opinion or action in which the division nonacquiesces.
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5.05
(3m) Chief election officer. The board shall designate an employee of
3the board to serve as the chief election officer of this state.
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5.05
(6) Formal opinions. Any interested person may make written request to
7the
board executive director of the board to issue a formal opinion with respect to the
8person's authority or responsibilities under chs. 5 to 12. The
board executive director 9shall within 15 days advise the person requesting an opinion whether or not a formal
10opinion will be issued. If a formal opinion will be issued, it shall be issued within 30
11days of the request.
The executive director may consult with the board before issuing
12a formal opinion. No person acting in good faith upon a formal opinion issued to the
13person by the
board executive director shall be subject to civil or criminal prosecution
14for so acting, if the material facts are as stated in the opinion request. Nothing in
15this subsection requires the issuance of an opinion by the
board executive director,
16nor precludes
it the executive director from issuing an opinion or ruling in any other
17manner.
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205.052 Government accountability candidate committee. (1) The
21government accountability candidate committee shall organize whenever a vacancy
22occurs in the membership of the board that requires a nomination to be submitted
23to the governor under s. 15.60 (2). The chief justice of the supreme court shall serve
24as chairperson of the committee.
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1(2) No person may be nominated by the committee unless the person receives
2the unanimous approval of the committee.
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3(3) Except as provided in sub. (4), the committee shall submit the following
4number of nominations:
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(a) To fill one vacancy, 2 nominations.
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(b) To fill 2 vacancies, 3 nominations.
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(c) To fill 3 vacancies, 5 nominations.
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(d) To fill 4 vacancies, 6 nominations.
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9(4) If a nomination of the governor is rejected by the senate, the committee shall
10submit an additional nominee to the governor.
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125.054 Duties of the executive director. The executive director of the board
13shall:
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14(1) Whenever a vacancy occurs on the board, call a meeting of the government
15accountability candidate committee.
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16(2) Assist the government accountability candidate committee in the
17performance of its functions.
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195.066 Complaints and decision-making procedure. (1) In this section:
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(a) "Division" means the enforcement division of the board.
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(b) "Election official" includes any board of election commissioners under s. 7.20
22or governing body of a local governmental unit that has the responsibility to
23administer the election laws.
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(c) "Local governmental unit" has the meaning given in s. 16.97 (7).
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(d) "Working day" has the meaning given in s. 227.01 (14).
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1(2) Any person may file a verified complaint with the division alleging a
2violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The division shall
3investigate the complaint unless the division finds the complaint to be without merit.
4The division may, on its own motion or upon direction of the board, investigate any
5potential violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 whenever
6the division has probable cause to believe that a violation has occurred. If the
7division finds, by a preponderance of evidence, that a complaint is frivolous, the
8division may order the complainant to forfeit not more than the greater of $500 or
9the expanses incurred in investigating the complaint. The attorney general, when
10so requested by the division, shall institute proceedings to recover any forfeiture
11incurred under this subsection that is not paid by the person against whom it is
12assessed.
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13(3) If the complaint concerns a question as to whether an election official or a
14private person is acting in conformity with the law or rules of the board, the person
15filing the complaint shall serve a copy of the complaint upon that official or private
16person and that official or private person shall be a party to the case. An election
17official or private person may move to dismiss a complaint if it is clearly without
18merit. If the division finds, in response to a motion, that a complaint is clearly
19without merit, the division shall dismiss the complaint.
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20(4) If the division does not dismiss a complaint, the division shall issue a
21proposed decision, which shall include findings of fact and conclusions of law and
22may include an order under sub. (5).
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23(5) The division may order an election official or a private person to act in
24conformity with chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or rules of the
25board, or may, by order, impose a civil penalty under s. 11.60 or 12.60 (1) (c) or (d),
113.69, or 19.579 for any violation of ch. 11 or 12, subch. III of ch. 13, or subch. III of
2ch. 19 for which a civil penalty is applicable.
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3(6) Subject to the procedures under this subsection, the division may, in the
4discharge of its functions under this section and after providing notice to any party
5who is the subject of an investigation, subpoena and bring before it any person and
6require the production of any papers, books, or other records relevant to an
7investigation. Prior to issuing a subpoena or obtaining a search warrant, the division
8shall submit a written request for this purpose to the board. If the board does not
9disapprove the request within 7 days of receiving the request, the division may issue
10the subpoena or obtain the search warrant. A circuit court may by order permit the
11inspection and copying of the accounts and the depositor's and loan records at any
12financial institution, as defined in s. 705.01 (3), doing business in this state to obtain
13evidence of any violation of ch. 11 or 12, subch. III of ch. 1 3, or subch. III of ch. 19
14upon a showing by the division of probable cause to believe there is a violation and
15that such accounts and records may have a substantial relation to the violation. In
16the discharge of its functions under this section, the division may cause the
17deposition of witnesses to be taken in the manner prescribed for taking depositions
18in civil actions in circuit court.
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19(7) If the division issues a decision under sub. (4) that contains an order under
20sub. (5), the order is effective upon service of the order notwithstanding any appeal
21to the board under sub. (8) or to circuit court under sub. (11), except that the division
22may stay such an order pending an appeal.
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23(8) Any party aggrieved by a proposed decision under sub. (4) may appeal the
24proposed decision to the board within 20 days after service of a copy of the decision
25upon the party. If no appeal is filed within 20 days of service of a copy of a proposed
1decision upon each party to the case in which the decision is made, the decision is
2final and becomes the decision of the board. In appealing a decision of the division,
3the appellant shall indicate in its appeal whether the appellant contests any finding
4of fact made by the division. If an appellant does not contest a finding of fact, the
5validity of which is reasonably ascertainable to the appellant at the time of the
6appeal, that finding is conclusive against the appellant in all subsequent
7proceedings.
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8(9) If a proposed decision of the division is appealed to the board, the board shall
9hear the appeal at its next meeting occurring at least 3 working days after the appeal
10is received by the board. In reviewing the decision of the division, the board is not
11bound by any finding of fact that is contested or any conclusion of law made by the
12division. After hearing the appeal, the board may issue a decision, which shall
13include findings of fact and conclusions of law. In its decision, the board may affirm,
14modify, or reverse an order issued by the division under sub. (5), and may order an
15election official or a private person to act in conformity with chs. 5 to 12, subch. III
16of ch. 13, or subch. III of ch. 19 or rules of the board, or may, by order, impose a civil
17penalty under s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 for any violation of ch. 11
18or 12, subch. III of ch. 13, or subch. III of ch. 19 for which a civil penalty is applicable.
19If the board does not modify or reverse a decision of the division at the meeting at
20which an appeal of a decision is heard, the decision is affirmed.
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21(10) If a person aggrieved by a decision issued under sub. (4) that contains an
22order under sub. (5) appeals the decision to the board and the board modifies the
23order, the modified order is effective upon service, except that the division may stay
24such an order pending judicial review under s. 227.57.
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1(11) The defendant may appeal any decision of the division or the board in a
2contested case arising under this section as provided in s. 227.57. If the board
3modifies or reverses an order issued by the division under sub. (5), the division may
4seek judicial review of the decision. In seeking judicial review of a decision of the
5division or the board, the appellant shall indicate in its petition for review whether
6the appellant contests any finding of fact made by the division or the board that is
7not conclusive against the appellant. If the appellant does not contest any finding
8of fact made by the division or the board, that finding is conclusive against the
9appellant.
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10(12) When the enforcement division issues an order imposing a forfeiture
11under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 that is not appealed in
12a timely manner under sub. (8) or (11), or when the board issues an order imposing
13a forfeiture under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 and the
14period allowed under s. 227.57 for judicial review of the order expires, the division
15or board may file a copy of its order with the clerk of circuit court for Dane County.
16The clerk shall thereupon enter the order in the judgment and lien docket in the same
17manner as provided for entry of civil judgments under s. 806.10. The division or
18board may also enter the order on the judgment and lien docket of any other county
19under s. 806.13. The order may be enforced and satisfied in the same manner as
20provided for enforcement and satisfaction of civil judgments.
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21(13) If the division or the board issues an order requiring an election official
22or private person to act in conformity with chs. 5 to 12, subch. III of ch. 13, or subch.
23III of ch. 19 or rules of the board, the division may file an action in circuit court for
24any county where the official or other person is present to obtain relief requiring
25compliance with the order.
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1(14) (a) This section does not apply to any complaint brought by an election
2official or private person in which the board or the division is alleged to have violated
3the law.
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(b) This section does not apply to any matter arising in connection with a
5recount under s. 9.01.