LRBs0005/1
JTK:cx:jf
January 2007 Special Session
2007 - 2008 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 1
January 23, 2007 - Offered by
Committee on Ethics Reform and Government
Operations.
SB1-SSA1,3,2
1An Act to repeal 5.05 (1) (a), 5.05 (3), 5.05 (5), 5.05 (6), 7.21 (2m), 11.38 (5), 13.69
2(8), 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (1) and (2), 19.47
3(4), 19.49 (title), 19.49 (1), 19.49 (3), 19.49 (4), 19.50 (title), 19.50 (2), 19.51
4(title), 19.51 (1) (a) and (b), 19.51 (3), 19.52, 19.53 (intro.), 19.53 (1) to (5), 19.53
5(7) and (8), 19.535, 19.54, 19.545, 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a),
620.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i), 20.511 (1) (c), 20.521 (intro.), 20.521
7(1) (title), 20.521 (1) (a), 20.521 (1) (g), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4)
8(d) 4., 230.08 (2) (om), 230.08 (2) (wm) and 778.136;
to renumber 19.47 (3),
919.47 (6), 19.49 (1m), 19.50 (4) and (5), 19.51 (2), 19.579, 20.510 (1) (b), 20.510
10(1) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (j), 20.510 (1) (q),
1120.510 (1) (t) and 20.510 (1) (x);
to renumber and amend 15.617, 19.46 (2),
1219.47 (5), 19.49 (2), 19.49 (5), 19.50 (intro.) and (1), 19.50 (3), 19.51 (1) (intro.),
1319.53 (6), 19.55 (2) (a), 19.55 (2) (b), 20.521 (1) (b) and 20.521 (1) (h);
to amend
15.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (1) (e), 5.05
2(9), 5.05 (11), 5.055, 5.056, 5.08, 5.09, 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2)
3(c), 6.36 (2) (a), 6.56 (3) to (5), 7.08 (title), 7.08 (7), 7.15 (1) (g), 7.31 (5), 7.60 (4)
4(a), 7.60 (5), 7.70 (1), 7.70 (5), 8.05 (1) (j) 3., 8.10 (5), 8.15 (4) (b), 8.18 (2), 8.20
5(6), 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a) 1., 9.01 (1) (ag) 4., 9.01 (1) (ar) 2., 9.01
6(10), 10.06 (1) (title), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.60 (4), 11.60 (5),
711.61 (2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20),
815.07 (1) (cm), 15.07 (4), 16.753 (2), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.17 (1),
917.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.55 (1),
1019.55 (2) (c), 19.579 (title), 19.59 (1) (g) 8., 19.85 (1) (h), 20.455 (1) (b), 20.930,
1146.95 (4), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10 (3) (b), 73.0301 (1) (d)
1213., 73.0301 (1) (e), 85.61 (1), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c),
13125.05 (1) (b) 10., 165.25 (1), 165.25 (3r), 165.25 (8), 165.25 (8m), 165.93 (4),
14198.08 (10), 200.09 (11) (am) 2. and 3., 227.03 (6), 227.45 (1), 227.46 (1) (intro.),
15227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 301.03 (20m), 343.11 (2m), 560.04
16(2m), 778.135, 801.52, 971.225 (1) (intro.) and 978.05 (1) and (2);
to repeal and
17recreate 15.07 (1) (a) 2., 19.47 (title) and 20.005 (3) (schedule) 20.511; and
to
18create 5.05 (1e), 5.05 (1m), 5.05 (2m), (2s) and (2w), 5.05 (3g), 5.05 (5f) (title),
195.05 (5s) (title), (d) and (e), 5.05 (5s) (f) 2. c., 5.051, 5.052, 5.054, 8.30 (2m), 12.13
20(5), 12.60 (1) (bm), 15.07 (2) (b), 15.07 (5) (m), 15.60, 15.603, 19.471, 19.851,
2120.511 (intro.) and (1) (title) and (a), 20.511 (1) (h) and (i), 20.923 (4) (f) 3j.,
22230.08 (2) (e) 4h., 230.08 (2) (on), 758.19 (9), 801.50 (5t), 971.19 (12) and 971.223
23of the statutes;
relating to: creation of a Government Accountability Board,
24enforcement of elections, ethics, and lobbying regulation laws, venue for
1prosecution of certain offenses, granting rule-making authority, making
2appropriations, and providing penalties.
Analysis by the Legislative Reference Bureau
This substitute amendment creates a Government Accountability Board which
replaces the current Elections Board and Ethics Board. Significant provisions
include:
Board structure
Currently, the Elections Board consists of eight or nine members. The governor
appoints all of the members of the Elections Board, without confirmation by the
senate, to serve for two-year terms as follows: one member is selected by the
governor and one member each is designated by the chief justice of the supreme
court, the speaker of the assembly, the senate majority leader, the minority leader
in each house of the legislature, and the chief officer of each political party qualifying
for a separate ballot at the September primary whose candidate for governor at the
most recent gubernatorial election received at least 10 percent of the vote (as
November 1, 2006, the Republican, Democratic, and Libertarian parties).
Currently, the Ethics Board consists of six members. Members of the Ethics
Board are nominated by the governor, and with the advice and consent of the senate
appointed, to serve for staggered six-year terms. The consent of a majority of the
senators present and voting is required to confirm a nominee. All members of the
Ethics Board 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. No member, for one year
immediately prior to the date of nomination, 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 an officer
or employee of a registrant under the campaign finance law.
This substitute amendment abolishes both boards and replaces them with a
Government Accountability Board. Under the substitute amendment, the board is
composed of six members serving for staggered six-year terms who are nominated
by the governor and appointed with the advice and consent of the senate. The
consent of two-thirds of the senators present and voting is required to confirm a
nominee. However, the substitute amendment provides that the governor shall
submit three of the nominees to initially fill seats on the board solely to the senate
for confirmation by a majority of the senators who are present and voting and shall
submit three of the nominees to initially fill seats on the board solely to the assembly
for confirmation by a majority of the representatives to the assembly who are present
and voting. Each of the members of the Government Accountability Board must be
an individual who formerly served as a judge of a court of record in this state and who
was elected to serve in the position that he or she held. Each of the members must
be appointed from nominations submitted by a Governmental Accountability
Candidate Committee, which consists of one court of appeals judge from each of the
court of appeals districts who serve for two-year terms. 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, except that a member may serve as a circuit judge or court of appeals judge
if appointed on a reserve basis. No member, for one year immediately prior to the
date of nomination, 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 state or local elective office
or an officer or employee of a registrant under the campaign finance law. No member
may, while serving on the board,0 become a candidate for state or local elective office.
In addition, no member, while serving on the board, may make a political
contribution to a candidate for state or local elective office. No member may be a
lobbyist or an employee of a principal (person who employs a lobbyist). The
chairperson of the board is chosen by lot by the current chairperson at the first
meeting of the board in January of each year. The concurrence of at least four
members is required for the board to take any action. No member, for 12 months prior
to beginning that service, may have made a political contribution to a candidate for
a partisan state or local office.
Currently, the Elections Board and the Ethics Board must employ executive
directors outside the classified service and the Elections Board must employ legal
counsel. This substitute amendment directs the Government Accountability Board
to employ an individual outside the classified service to serve as legal counsel to the
board, who is directed to provide legal and administrative functions for the board.
The substitute amendment prescribes certain other statutory responsibilities for
this officer.
The substitute amendment creates two divisions within the Government
Accountability Board. The divisions are an Ethics and Accountability Division and
an Elections Division. The Ethics and Accountability Division has the responsibility
for the administration of the campaign finance law. Each division is headed by a
division administrator who is appointed outside the classified service by the board
to serve at its pleasure. The substitute amendment prescribes certain statutory
responsibilities for the administrators.
The substitute amendment does not authorize any new positions for the
administrators. The substitute amendment transfers all authorized FTE positions
of the Elections Board and Ethics Board to the Government Accountability Board.
The substitute amendment also transfers all incumbent employees in the positions,
except the executive directors of the boards. Under the substitute amendment, the
staff members who have civil service rights retain those rights.
Enforcement procedures
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 the attorney general; and the district attorneys, and
in some cases the attorney general, exercise criminal enforcement authority.
Currently, the Elections Board and Ethics Board may investigate violations of the
law, with or without complaint, and may enforce their respective laws. The Elections
Board may file civil actions to collect forfeitures (civil monetary penalties) for
violations of the law and the Ethics Board may, after an administrative hearing,
assess civil forfeitures or impose certain other remedies for violations of the law.
Currently, the Elections Board has an administrative procedure for processing of
complaints from electors alleging that an action or failure to act on the part of an
election official is contrary to law, or that an official has abused his or her discretion.
Under the procedure, the board may order the official to conform his or her conduct
to the law or may prosecute the official for a civil violation of the law. If either board
finds a criminal violation of the law, it may refer the matter to the appropriate district
attorney, or in certain cases the attorney general. Under current law, the attorney
general is directed to investigate crimes that are statewide in nature and to
represent state agencies and witnesses in court. In addition, under current law, the
attorney general has certain limited responsibilities related to administration and
enforcement of the elections, ethics, and lobbying regulation laws and may prosecute
certain offenses when the Ethics Board so requests or when a district attorney
declines or fails to do so.
This substitute amendment maintains the current shared enforcement
authority between the Government Accountability Board and the district attorneys,
but deletes the enforcement authority of county boards of election commissioners.
The substitute amendment maintains the current responsibilities of the attorney
general but modifies the authority of the attorney general to prosecute most offenses
under the elections, ethics, and lobbying regulation laws. In addition, the substitute
amendment creates a new investigatory and prosecution procedure that is uniformly
applicable to all investigations and prosecutions of violations of the elections, ethics,
and lobbying regulation laws by the Government Accountability Board. Under the
substitute amendment, the board may investigate any alleged violation of the
elections, ethics, or lobbying regulation laws and may prosecute alleged civil
violations. The board may also refer suspected civil or criminal violations to the
appropriate district attorney. Any person may file a compliant with the board
alleging a violation of the elections, ethics, or lobbying regulation laws. If the board
reviews a complaint and does not find that there is a reasonable suspicion that a
violation has occurred or is occurring, the board must dismiss the complaint. If the
board determines that there is a reasonable suspicion that a violation has occurred
or is occurring, it may direct the administrator of the ethics and accountability
division of the board to submit the names of three qualified individuals to act as
special investigators. The board may retain one or more of the special investigators.
The board may also authorize the administrator to investigate any matter without
retaining an investigator. If the board retains a special investigator, the board may
issue a subpoena to a specific person or may authorize the investigator to obtain a
search warrant if the board approves that action by motion at a meeting of the board.
A special investigator or the administrator must report to the board concerning an
investigation at least once every 30 days. The board must meet with the special
investigator or administrator at least once every 90 days to review the progress of
an investigation. The investigation terminates after 90 days unless the board votes
to continue it for an additional period not exceeding 90 days. The board is prohibited
from expending more than $10,000 to finance the cost of an investigation before
receiving a report on the progress of the investigation and a recommendation to
commit additional resources. The board may vote to terminate an investigation at
any time. If the board finds that there is probable cause to believe that a violation
of the elections, ethics, or lobbying regulation laws has occurred or is occurring, it
may authorize the filing of a civil complaint against a person and may, in addition,
request the administrator to submit the names of three individuals to act as special
counsel. If the board retains special counsel, the substitute amendment provides for
the counsel to be paid from a sum sufficient appropriation from general purpose
revenue. Once retained, the special counsel proceeds with the case in the manner
he or she sees fit, with the assistance of the staff of the board if requested.
Alternatively, the board may refer the matter to the district attorney for the county
having authority to prosecute the matter for potential civil or criminal prosecution
or in certain cases to another district attorney or to the attorney general (see below).
Under the substitute amendment, the only authority of the attorney general to
prosecute violations of the elections, ethics, and lobbying regulation laws is upon
referral by the Government Accountability Board after two district attorneys have
declined or failed to act or in criminal cases involving a district attorney or circuit
judge or a candidate for one of those offices.
The substitute amendment permits the Government Accountability Board, by
rule, to authorize the administrator of the ethics and accountability division to
compromise and settle specified categories of offenses in the name of the board
without a formal investigation, if the offenses by any given alleged offender do not
involve payment of more than $1,000. The substitute amendment provides that no
individual who serves as legal counsel to the board or as a division administrator for
the board may have been a lobbyist, and no such individual may have served in, or
have been a candidate for, a partisan state or local office. The substitute amendment
also provides that no employee of the board may, while so employed, become a
candidate for a state or partisan local office and no individual who is retained to serve
as a special investigator or special counsel for the board may, during such service,
become a candidate for any state or local elective office. In addition, under the
substitute amendment, no such employee or individual, while serving in his or her
position, may make a political contribution to a candidate for state or local office, and
no such employee or individual, for 12 months prior to becoming so employed or
retained, may have made a political contribution to a candidate for a partisan state
or local office.
Venue and prosecutorial responsibility
Currently, civil prosecutions for violations of the elections laws are brought by
the Elections Board or by a district attorney in circuit court for the county where the
violation is alleged to occur. Civil violations of the ethics or lobbying regulation laws
may be prosecuted by the Ethics Board in an administrative proceeding. Currently,
with limited exceptions, a defendant in a criminal trial is tried in circuit court for the
county where the defendant's crime is alleged to have been committed by the district
attorney for that county, 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, and except that the
district attorney may request the appointment of, or a circuit judge may appoint,
another prosecutor. Currently, a defendant in a trial to impose a civil (monetary)
forfeiture for most offenses is generally tried in circuit court for the county where the
offense is alleged to occur.
This substitute amendment provides that if the defendant in a civil or criminal
trial for a violation of the elections, ethics, or lobbying regulation laws is a resident
of this state, the trial must be held in circuit court for the county where the defendant
resides, except that a civil or criminal trial may be moved in the same manner as
currently provided for criminal trials and except that the substitute amendment
requires that a civil or criminal trial be moved to a county where the offense is alleged
to have been committed (if different than the defendant's county of residence), as
determined by the court, if the defendant so requests. Under the substitute
amendment, with the same limited exceptions, the prosecution is conducted by the
district attorney for the county where the trial is required to be held prior to any
removal, unless that district attorney requests, or the circuit judge appoints, another
prosecutor. The substitute amendment provides, however, that if the Government
Accountability Board refers any matter to the district attorney for the county in
which the alleged violator resides for prosecution and the district attorney informs
the board that he or she declines to prosecute any civil or criminal violation related
to any matter referred to the district attorney by the board, or the district attorney
fails to commence a civil or criminal prosecution related to any such matter within
60 days of the date of referral, the board may then refer the matter to the district
attorney for a prosecutorial unit that is contiguous to the prosecutorial unit of the
district attorney to whom the matter was originally referred. If there is more than
one such prosecutorial unit, the chairperson of the board determines the
prosecutorial unit of the district attorney to whom the matter is to be referred by the
public drawing of lots at a meeting of the board. The district attorney for the
contiguous prosecutorial unit may then commence a civil or criminal prosecution
related to any of the alleged violations referred to him or her by the board. The
substitute amendment provides, in addition, that if the district attorney to whom a
matter is rereferred by the board informs the board that he or she declines to
prosecute any civil or criminal violation related to any matter referred to the district
attorney by the board, or if that district attorney fails to commence any civil or
criminal prosecution related to any such matter within 60 days of the date of the
referral, the board may then refer the matter to the attorney general, who may then
commence a civil or criminal prosecution related to any of the alleged violations
referred to him or her by the board. However, the venue for the trial is not altered
by the substitution of the prosecutor. Under the substitute amendment, if a special
prosecutor is appointed in lieu of the district attorney for the county in which the
alleged violator resides, the board is not authorized to appoint another prosecutor.
The substitute amendment also provides that violations of any civil or criminal
laws by a resident of this state arising from or in relation to the official functions of
the subject of the investigation or any matter that involves the elections, ethics, or
lobbying regulation laws shall be prosecuted in circuit court for the county where the
defendant resides by the district attorney for that county, subject to the current
exceptions.
Advisory opinions
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. Currently, the Ethics
Board may authorize its executive director issue opinions on its behalf.
This substitute amendment makes all opinions issued by the Government
Accountability Board relating to campaign finance ethics, and lobbying regulation
closed to public inspection, subject to the current exceptions for opinions issued by
the Ethics Board. The substitute amendment also permits the Government
Accountability Board to authorize an employee of the board to issue informal
opinions on its behalf. The substitute amendment requires every opinion issued by
the staff to be consistent with applicable opinions of the Government Accountability
Board. The substitute amendment provides that in order to have legal force and
effect, each advisory opinion issued by the board must be supported by specific legal
authority under a statute or other law, or case or common law authority. In addition,
each opinion must include citations to that authority, and must specifically
articulate or explain which parts of the cited authority are relevant to the board's
conclusion and why they are relevant. Under the substitute amendment, no person
acting in good faith upon an opinion of the board is subject to criminal or civil
prosecution for so acting, but the board may withdraw or modify opinions and no
person is protected from liability unless that person acts in accordance with a current
opinion. The substitute amendment permits a person who disagrees with an opinion
issued to the person to request and receive a public or private hearing before the
board on the matter. The bill directs the board, promptly upon issuance of each
advisory opinion, to publish a summary of the opinion that does not reveal the
identity of the requester, except where disclosure is authorized or required under the
substitute amendment.
Implementation
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. Currently, the Ethics Board has a sum
certain appropriation to finance the cost of investigations of potential violations of
the code of ethics for public officials. This substitute amendment creates an
appropriation structure for the Government Accountability Board that is similar to
the structure that is currently provided for the existing boards, except that the
substitute amendment appropriates a sum sufficient to finance the costs of
investigations of potential violations of the elections, ethics, and lobbying regulation
laws by the Government Accountability Board. The substitute amendment makes
an appropriation to the Joint Committee on Finance to enable the committee to
provide transitional funding to the Government Accountability Board during the
2006-07 fiscal year. In addition, the substitute amendment creates a budget for the
Government Accountability Board for the 2007-09 fiscal biennium. This budget is
subject to review and revision as a part of the 2007-09 biennial budget bill.
The substitute amendment provides for the substitute amendment to become
law on the day after publication as an act, after which date the members of the
Government Accountability Board may be appointed and take office, and the board
may employ staff and expend moneys from its appropriation for general program
operations. However, the existing Elections Board and Ethics Board continue in
operation until the first day of the seventh month beginning after publication of the
act resulting from enactment of the substitute amendment. Under the substitute
amendment, the Government Accountability Board may not exercise administrative
or enforcement authority until that date. The substitute amendment also provides
that the director of the Legislative Council Staff shall provide such administrative
support to the Government Accountability Board as the board may require, without
additional compensation, until the initial legal counsel to the Government
Accountability Board is appointed and qualified, and may exercise all of the
administrative functions of the legal counsel to the Government Accountability
Board, the divisions within the board, and the administrators of the divisions.
The substitute amendment directs the Government Accountability Board to
hold one or more public hearings on the question of reaffirmation of each rule that
has been promulgated and each order that has been issued by the Elections Board
or the Ethics Board and that is in effect on the first day of the seventh month
beginning after publication or the act resulting from enactment of the substitute
amendment or the date on which the Government Accountability Board hires
individuals to initially fill the positions of legal counsel and administrator of each of
the board's statutory divisions (the "initiation date"), whichever is later. The
substitute amendment further directs the Government Accountability Board to hold
one or more public hearings on the question of reaffirmation of each formal opinion
that has been issued by the Elections Board or the Ethics Board and that has not been
withdrawn or modified on the initiation date. Similarly, the substitute amendment
directs the Government Accountability Board to hold one or more public hearings on
the question of reaffirmation of each guideline that has been issued by the Ethics
Board. The substitute amendment also provides that every rule promulgated and
every order issued by the Elections Board or the Ethics Board that is in effect on the
initiation date shall expire on its specified expiration date or 365 days after the
initiation date, whichever is earlier, unless the Government Accountability Board
repeals or amends the rule, effective on a earlier date, or the Government
Accountability Board reaffirms the rule or order before its expiration. In addition,
the substitute amendment provides that every formal opinion issued by the
Elections Board or the Ethics Board that has not been withdrawn or modified on the
initiation date remains in effect until the end of the 365-day period beginning on that
date unless the Government Accountability Board withdraws or modifies the opinion
on an earlier date or the Government Accountability Board reaffirms the opinion on
an earlier date. Similarly, the substitute amendment provides that every guideline
issued by the Ethics Board must be withdrawn by the Government Accountability
Board no later than the end of the 365-day period beginning on the initiation date
unless that board chooses to withdraw or revise the guideline at an earlier date or
unless the board specifically votes to reaffirm the current text of the guideline as
issued prior to the end of that period. The substitute amendment permits the
Government Accountability Board to extend the expiration date, the period of
effectiveness, or the circulation period of any rule, order, or formal opinion of either
board or any guideline that has been issued by the Ethics Board by not more than
three months at a time, but not more than six months in all.
The substitute amendment also directs the Government Accountability Board,
within one year after the initiation date, to review all internal operating procedures
of the Ethics Board and the Elections Board in effect on that date that affect the
manner in which the board interrelates with persons who are not employees of the
Government Accountability Board. The review must specifically address the degree
to which employees are authorized to perform their functions without direct
supervision or approval of the Government Accountability Board. While the review
is underway, the substitute amendment provides that no employee of the
Government Accountability Board may make any change in such an internal
operating procedure unless the board holds a public hearing concerning the proposed
change and the board specifically approves the change.
Records and information
Currently, except as otherwise provided by law, public records may be examined
or copied by any person unless the custodian demonstrates that the public interest
in withholding access to a record outweighs the public interest in providing access.
With certain exceptions, records obtained and prepared by the Ethics Board in
connection with an investigation are specifically exempted from public access.
This substitute amendment provides specifically that investigatory records of
the Government Accountability Board are exempted from the right of public access,
subject to the current exceptions, except that if the board commences a prosecution
of a person as a result of an investigation, the person who is the subject of the
investigation may direct the board to provide access to records of the investigation
pertaining to that person if the records are available by law to the subject person, and
except that records of the board containing a finding that a complaint does not raise
a reasonable suspicion that a violation of the law has occurred or records containing
a finding that no probable cause exists to believe that a violation of the law has
occurred are open to public access. Under the substitute amendment, except as
specifically authorized by law, an investigator, prosecutor, employee of an
investigator or prosecutor, or member or employee of the board who discloses
information related to an investigation or prosecution under the elections, ethics, or
lobbying regulation laws or other laws arising from or in relation to the official
functions of the subject of the investigation or any matter that involves elections,
ethics, or lobbying regulation or who provides public access to a record of the
investigator, prosecutor, or the board that is not accessible to the public prior to
presentation of the information or record in a court of law is guilty of a misdemeanor
and may be fined not more than $10,000 or imprisoned for not more than nine months
or both.
Closed sessions
Currently, state boards may convene in closed session to discuss the
investigation of charges against specific persons. This substitute amendment
provides that the Government Accountability Board must convene in closed session
for the purpose of deliberating concerning any investigation of a violation of the law
relating to campaign finance, ethics, or lobbying regulation. If any member of the
board knowingly attends a meeting held in violation of this requirement, the member
is subject to a forfeiture (civil penalty) of not less than $25 nor more than $300 for
each offense. Pursuant to current law, the board may also convene in closed session
to discuss the investigation of charges against specific persons in connection with
elections administration.
Nonseverability
Currently, if any part of an act is found by a court to be invalid, those parts that
are valid are severed from the invalid part and the severed parts continue in force.
This substitute amendment provides that if any part of the act resulting from
enactment of the substitute amendment is found by a court to be invalid, then all
parts of the act are void. If the act resulting from enactment of the substitute
amendment is invalidated, the substitute amendment provides that the Elections
Board and the Ethics Board are reconstituted under the laws that were in effect
before the substitute amendment became law. Under a reconstitution, the prior
members of the Elections Board and Ethics Board do not reassume their offices but
the designating and appointing authorities under current law may immediately
appoint new members to the boards. The incumbent administrators of the Elections
Division and the Ethics and Accountability Division of the Government
Accountability Board become the executive directors of the Elections Board and
Ethics Board, respectively, until the boards otherwise determine. The assets,
liabilities, positions, employees, property, contracts, orders, and rules of the
Government Accountability Board are transferred to the Elections Board and the
Ethics Board in a manner determined by the secretary of administration, except that
the secretary may not authorize expenditures by the Elections Board or the Ethics
Board for a period of more than 30 days without concurrence of the Joint Committee
on Finance.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB1-SSA1, s. 1
1Section
1. 5.02 (1s) of the statutes is amended to read:
SB1-SSA1,11,22
5.02
(1s) "Board" means the
elections government accountability board.
SB1-SSA1, s. 2
3Section
2. 5.05 (title) of the statutes is amended to read:
SB1-SSA1,11,5
45.05 (title)
Elections Government accountability board; powers and
5duties.
SB1-SSA1, s. 3
1Section
3. 5.05 (1) (intro.) of the statutes is amended to read:
SB1-SSA1,12,52
5.05
(1) General authority. (intro.) The
elections government accountability
3board shall have the responsibility for the administration of chs. 5 to 12
and, other
4laws relating to elections and election campaigns
, subch. III of ch. 13, and subch. III
5of ch. 19. Pursuant to such responsibility, the board may:
SB1-SSA1, s. 5
7Section
5. 5.05 (1) (b) of the statutes is amended to read:
SB1-SSA1,12,198
5.05
(1) (b) In the discharge of its duties and
upon after providing notice to
the 9any party
or parties being investigated who is the subject of an investigation,
10subpoena and bring before it any person
in the state and require the production of
11any papers, books
, or other records relevant to an investigation.
Notwithstanding
12s. 885.01 (4), the issuance of a subpoena requires action by the board at a meeting
13of the board. A circuit court may by order permit the inspection and copying of the
14accounts and the depositor's and loan records at any financial institution
, as defined
15in s. 705.01 (3)
, doing business in the state to obtain evidence of any violation of ch.
1611 upon showing by the board of probable cause to believe there is a violation and that
17such accounts and records may have a substantial relation to the violation. In the
18discharge of its duties, the board may cause the deposition of witnesses to be taken
19in the manner prescribed for taking depositions in civil actions in circuit court.
SB1-SSA1, s. 6
20Section
6. 5.05 (1) (c) of the statutes is amended to read:
SB1-SSA1,13,2521
5.05
(1) (c) Bring civil actions to require
forfeitures a forfeiture 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 or a license revocation for any
1violation of subch. III of ch. 13 for which the offender is subject to a revocation. The
2board may compromise and settle any civil action or potential action brought or
3authorized to be brought by it
under ch.11 which, in the opinion of the board,
4constitutes a minor violation, a violation caused by excusable neglect, or which for
5other good cause shown, should not in the public interest be prosecuted under such
6chapter. Notwithstanding s. 778.06,
an a civil action or proposed
civil action
7authorized under this paragraph may be settled for such sum as may be agreed
8between the parties. Any settlement made by the board shall be in such amount as
9to deprive the alleged violator of any benefit of his or her wrongdoing and may
10contain a penal component to serve as a deterrent to future violations. In settling
11civil actions or proposed
civil actions, the board shall treat comparable situations in
12a comparable manner and shall assure that any settlement bears a reasonable
13relationship to the severity of the offense or alleged offense.
Forfeiture Except as
14otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, 5.081, 19.535, and 19.59
15(8), forfeiture and license revocation actions brought by the board shall be brought
16in the circuit court
for the county where the defendant resides, or if the defendant
17is a nonresident of this state, in circuit court for the county wherein the violation is
18alleged to occur.
For purposes of this paragraph, a person other than a natural
19person resides within a county if the person's principal place of operation is located
20within that county. Whenever the board enters into a settlement agreement with an
21individual who is accused of a civil violation of chs. 5 to 12, subch. III of ch. 13, or
22subch. III of ch. 19 or who is investigated by the board for a possible civil violation
23of one of those provisions, the board shall reduce the agreement to writing, together
24with a statement of the board's findings and reasons for entering into the agreement
25and shall retain the agreement and statement in its office for inspection.
SB1-SSA1, s. 7
1Section
7. 5.05 (1) (e) of the statutes is amended to read:
SB1-SSA1,14,102
5.05
(1) (e) Delegate to
its executive director its
legal counsel the authority to
3issue a subpoena under par. (b), apply for a search warrant under par. (b), commence
4an action under par. (d), intervene in
an a civil action or proceeding under sub. (9),
5issue an order under s. 5.06, exempt a polling place from accessibility requirements
6under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting
7machines or an electronic voting system under s. 5.40 (5m), approve an electronic
8data recording system for maintaining poll lists under s. 6.79, or authorize
9nonappointment of an individual who is nominated to serve as an election official
10under s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.
SB1-SSA1, s. 8
11Section
8. 5.05 (1e) of the statutes is created to read:
SB1-SSA1,14,1312
5.05
(1e) Actions by the board. Any action by the board requires the
13affirmative vote of at least 4 members.
SB1-SSA1, s. 9
14Section
9. 5.05 (1m) of the statutes is created to read:
SB1-SSA1,14,1715
5.05
(1m) Legal counsel. The board shall employ outside the classified service
16an individual to serve as legal counsel who shall perform legal and administrative
17functions for the board.
SB1-SSA1, s. 10
18Section
10. 5.05 (2m), (2s) and (2w) of the statutes are created to read:
SB1-SSA1,14,2419
5.05
(2m) Enforcement. (a) The board shall investigate violations of laws
20administered by the board and may prosecute alleged civil violations of those laws,
21directly or through its agents under this subsection, pursuant to all statutes granting
22or assigning that authority or responsibility to the board. Prosecution of alleged
23criminal violations investigated by the board may be brought only as provided in par.
24(c) 11., 14., 15., and 16. and s. 978.05 (1).
SB1-SSA1,15,5
1(c) 2. a. Any person may file a complaint with the board alleging a violation of
2chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the board finds, by a
3preponderance of the evidence, that a complaint is frivolous, the board may order the
4complainant to forfeit not more than the greater of $500 or the expenses incurred by
5the division in investigating the complaint.
SB1-SSA1,16,36
4. If the board reviews a complaint and fails to find that there is a reasonable
7suspicion that a violation under subd. 2. has occurred or is occurring, the board shall
8dismiss the complaint. If the board believes that there is reasonable suspicion that
9a violation under subd. 2. has occurred or is occurring, the board may by resolution
10authorize the commencement of an investigation. The resolution shall specifically
11set forth any matter that is authorized to be investigated. To assist in the
12investigation, the board may elect to retain a special investigator. If the board elects
13to retain a special investigator, the administrator of the ethics and accountability
14division shall submit to the board the names of 3 qualified individuals to serve as a
15special investigator. The board may retain one or more of the individuals. If the
16board retains a special investigator to investigate a complaint against a person who
17is a resident of this state, the board shall provide to the district attorney for the
18county in which the person resides a copy of the complaint and shall notify the
19district attorney that it has retained a special investigator to investigate the
20complaint. For purposes of this subdivision, a person other than a natural person
21resides within a county if the person's principal place of operation is located within
22that county. The board shall enter into a written contract with any individual who
23is retained as a special investigator setting forth the terms of the engagement. A
24special investigator who is retained by the board may request the board to issue a
25subpoena to a specific person or to authorize the special investigator to request a
1circuit court to issue a search warrant. The board may grant the request by
2approving a motion to that effect at a meeting of the board if the board finds that such
3action is legally appropriate.
SB1-SSA1,16,224
5. Each special investigator who is retained by the board shall make periodic
5reports to the board, as directed by the board, but in no case may the interval for
6reporting exceed 30 days. If the board authorizes the administrator of the ethics and
7accountability division to investigate any matter without retaining a special
8investigator, the administrator shall make periodic reports to the board, as directed
9by the board, but in no case may the reporting interval exceed 30 days. During the
10pendency of any investigation, the board shall meet for the purpose of reviewing the
11progress of the investigation at least once every 90 days. The special investigator or
12the administrator shall report in person to the board at that meeting concerning the
13progress of the investigation. If, after receiving a report, the board does not vote to
14continue an investigation for an additional period not exceeding 90 days, the
15investigation is terminated at the end of the reporting interval. The board shall not
16expend more than $10,000 to finance the cost of an investigation before receiving a
17report on the progress of the investigation and recommendation to commit additional
18resources. The board may vote to terminate an investigation at any time. If an
19investigation is terminated, any complaint from which the investigation arose is
20deemed to be dismissed by the board. Unless an investigation is terminated by the
21board, at the conclusion of each investigation, the administrator shall present to the
22board one of the following: