Amendment JR7 SSA2-SB1

LRBs0008/1

JTK:cx:nwn

January 2007 Special Session

2007 - 2008 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 2, TO SENATE BILL 1

January 30, 2007 - Offered by Joint Committee on Finance.

SB1-SSA2,3,2 An Act to repeal 5.05 (1) (a), 5.05 (3), 5.05 (5), 5.05 (6), 7.21 (2m), 11.38 (5), 13.69 (8), 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (1) and (2), 19.47 (4), 19.49 (title), 19.49 (1), 19.49 (3), 19.49 (4), 19.50 (title), 19.50 (2), 19.51 (title), 19.51 (1) (a) and (b), 19.51 (3), 19.52, 19.53 (intro.), 19.53 (1) to (5), 19.53 (7) and (8), 19.535, 19.54, 19.545, 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (gm), 20.510 (1) (h), 20.510 (1) (i), 20.511 (1) (c), 20.521 (intro.), 20.521 (1) (title), 20.521 (1) (a), 20.521 (1) (g), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om), 230.08 (2) (wm) and 778.136; to renumber 19.47 (3), 19.47 (6), 19.49 (1m), 19.50 (4) and (5), 19.51 (2), 19.579, 20.510 (1) (b), 20.510 (1) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (j), 20.510 (1) (q), 20.510 (1) (t) and 20.510 (1) (x); to renumber and amend 15.617, 19.46 (2), 19.47 (5), 19.49 (2), 19.49 (5), 19.50 (intro.) and (1), 19.50 (3), 19.51 (1) (intro.), 19.53 (6), 19.55 (2) (a), 19.55 (2) (b), 20.521 (1) (b) and 20.521 (1) (h); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (1) (e), 5.05 (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) (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) (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 (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 (10), 10.06 (1) (title), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.60 (4), 11.60 (5), 11.61 (2), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20), 15.07 (1) (cm), 15.07 (4), 16.753 (2), 16.79 (2), 16.96 (3) (b), 16.973 (6), 17.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.55 (1), 19.55 (2) (c), 19.579 (title), 19.59 (1) (g) 8., 19.85 (1) (h), 20.455 (1) (b), 20.930, 46.95 (4), 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), 165.25 (3r), 165.25 (8), 165.25 (8m), 165.93 (4), 198.08 (10), 200.09 (11) (am) 2. and 3., 227.03 (6), 227.45 (1), 227.46 (1) (intro.), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 301.03 (20m), 343.11 (2m), 560.04 (2m), 778.135, 801.52, 971.225 (1) (intro.) and 978.05 (1) and (2); to repeal and recreate 15.07 (1) (a) 2., 19.47 (title) and 20.005 (3) (schedule) 20.511; and to create 5.05 (1e), 5.05 (1m), 5.05 (2m), (2s) and (2w), 5.05 (3g), 5.05 (5f) (title), 5.05 (5s) (title), (d) and (e), 5.05 (5s) (f) 2. c., 5.052, 5.054, 8.30 (2m), 12.13 (5), 12.60 (1) (bm), 15.07 (2) (b), 15.07 (5) (m), 15.60, 15.603, 19.851, 20.511 (intro.) and (1) (title) and (a), 20.511 (1) (h) and (i), 20.923 (4) (f) 3j., 230.08 (2) (e) 4h., 230.08 (2) (on), 758.19 (9), 801.50 (5t), 801.64, 971.19 (12) and 971.223 of the statutes; relating to: creation of a Government Accountability Board, enforcement of elections, ethics, and lobbying regulation laws, venue for prosecution of certain offenses, granting rule-making authority, making appropriations, 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, 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, subject to certain limited exceptions and except as otherwise 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.

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

SB1-SSA2, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB1-SSA2,11,2 5.02 (1s) "Board" means the elections government accountability board.

SB1-SSA2, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB1-SSA2,11,5 5.05 (title) Elections Government accountability board; powers and duties.

SB1-SSA2, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB1-SSA2,11,10 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, subch. III of ch. 13, and subch. III of ch. 19. Pursuant to such responsibility, the board may:

SB1-SSA2, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB1-SSA2, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB1-SSA2,12,8 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. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the board at a meeting of the board. 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.

SB1-SSA2, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB1-SSA2,13,14 5.05 (1) (c) Bring civil actions to require forfeitures a forfeiture for any violation of ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only violations with respect to reports or statements required by law to be filed with it, and other violations arising under elections for state office or statewide referenda chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or a license revocation for any violation of subch. III of ch. 13 for which the offender is subject to a revocation. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it under ch.11 which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, an a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling civil actions or proposed civil actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Forfeiture Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, 5.081, 19.535, and 19.59 (8), forfeiture and license revocation actions brought by the board shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. Whenever the board enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board for a possible civil violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

SB1-SSA2, s. 7 Section 7. 5.05 (1) (e) of the statutes is amended to read:

SB1-SSA2,13,24 5.05 (1) (e) Delegate to its executive director its legal counsel the authority to issue a subpoena under par. (b), apply for a search warrant under par. (b), commence an action under par. (d), intervene in an a civil action or proceeding under sub. (9), issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.

SB1-SSA2, s. 8 Section 8. 5.05 (1e) of the statutes is created to read:

SB1-SSA2,14,2 5.05 (1e) Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.

SB1-SSA2, s. 9 Section 9. 5.05 (1m) of the statutes is created to read:

SB1-SSA2,14,6 5.05 (1m) Legal counsel. The board shall employ outside the classified service an individual to serve as legal counsel who shall perform legal and administrative functions for the board.

SB1-SSA2, s. 10 Section 10. 5.05 (2m), (2s) and (2w) of the statutes are created to read:

SB1-SSA2,14,13 5.05 (2m) Enforcement. (a) The board shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the board. Prosecution of alleged criminal violations investigated by the board may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1).

SB1-SSA2,14,18 (c) 2. a. Any person may file a complaint with the board alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the board finds, by a preponderance of the evidence, that a complaint is frivolous, the board may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division in investigating the complaint.

SB1-SSA2,15,16 4. If the board reviews a complaint and fails to find that there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board shall dismiss the complaint. If the board believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. To assist in the investigation, the board may elect to retain a special investigator. If the board elects to retain a special investigator, the administrator of the ethics and accountability division shall submit to the board the names of 3 qualified individuals to serve as a special investigator. The board may retain one or more of the individuals. If the board retains a special investigator to investigate a complaint against a person who is a resident of this state, the board shall provide to the district attorney for the county in which the person resides a copy of the complaint and shall notify the district attorney that it has retained a special investigator to investigate the complaint. For purposes of this subdivision, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. The board shall enter into a written contract with any individual who is retained as a special investigator setting forth the terms of the engagement. A special investigator who is retained by the board may request the board to issue a subpoena to a specific person or to authorize the special investigator to request a circuit court to issue a search warrant. The board may grant the request by approving a motion to that effect at a meeting of the board if the board finds that such action is legally appropriate.

SB1-SSA2,16,10 5. Each special investigator who is retained by the board shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 30 days. If the board authorizes the administrator of the ethics and accountability division to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the board shall meet for the purpose of reviewing the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the board at that meeting concerning the progress of the investigation. If, after receiving a report, the board does not vote to continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. The board shall not expend 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 an investigation is terminated, any complaint from which the investigation arose is deemed to be dismissed by the board. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator shall present to the board one of the following:

SB1-SSA2,16,13 a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.

SB1-SSA2,16,15 b. A recommendation for further investigation of the matter together with facts supporting that course of action.

SB1-SSA2,16,17 c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.

SB1-SSA2,17,2 6. a. If the board finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the board may authorize the administrator of the ethics and accountability division to file a civil complaint against the alleged violator. In such case, the administrator may request the assistance of special counsel to prosecute any action brought by the board. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the board the names of 3 qualified individuals to serve as special counsel. The board may retain one of the individuals to act as special counsel. The staff of the board shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

SB1-SSA2,17,8 b. The board shall enter into a written contract with any individual who is retained as special counsel setting forth the terms of the engagement. The contract shall set forth the compensation to be paid such counsel by the state. The contract shall be executed on behalf of the state by the board's legal counsel, who shall file the contract in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.455 (1) (b).

SB1-SSA2,17,10 7. No individual who is appointed or retained by the board to serve as special counsel or as a special investigator is subject to approval under s. 20.930.

SB1-SSA2,17,16 8. Upon employment of any individual to serve as special counsel or as a special investigator for the board, the administrator of the ethics and accountability division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay bills of the special counsel or special investigator related to that case within the certified amount.

SB1-SSA2,17,24 11. If the board finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the board may, in lieu of civil prosecution of any matter by the board, refer the matter to the district attorney for the county in which the alleged violator resides, or if the alleged violator is a nonresident, to the district attorney for the county where the matter arises, or if par. (i) applies, to the attorney general or a special prosecutor. For purposes of this subdivision, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.

SB1-SSA2,18,6 12. The board may, by rule, prescribe categories of civil offenses which the board will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The board may authorize the administrator of the ethics and accountability division to compromise and settle such alleged offenses in the name of the board if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $1,000.

SB1-SSA2,18,16 13. If a special investigator or the administrator of the ethics and accountability division, in the course of an investigation authorized by the board, discovers evidence that a violation under subd. 2. that was not within the scope of the authorized investigation has occurred or is occurring, the special investigator or the administrator may present that evidence to the board. If the board finds that there is a reasonable suspicion that a violation under subd. 2. that is not within the scope of the authorized investigation has occurred or is occurring, the board may authorize the special investigator or the administrator to investigate the alleged violation or may elect to authorize a separate investigation of the alleged violation as provided in subd. 4.

SB1-SSA2,18,24 14. If a special investigator or the administrator of the ethics and accountability division of the board, in the course of an investigation authorized by the board, discovers evidence of a potential violation of a law that is not administered by the board 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, the special investigator or the administrator may present that evidence to the board. The board may thereupon refer the matter to the appropriate district attorney specified in subd. 11.

SB1-SSA2,19,13 15. Except as provided in subd. 17., if the board refers a matter to the district attorney specified in subd. 11. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board's referral, the board may refer the matter to the district attorney for another 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 shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the board. The district attorney may then commence a civil or criminal prosecution relating to the matter.

SB1-SSA2,19,22 16. Except as provided in subd. 17., if the board refers a matter to a district attorney under subd. 15. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board's referral, the board may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.

SB1-SSA2,19,25 17. The board is not authorized to act under subd. 15. or 16. if a special prosecutor is appointed under s. 978.045 in lieu of the district attorney specified in subd. 11.

SB1-SSA2,20,8 18. Whenever the board refers a matter to special counsel or to a district attorney or to the attorney general under this subsection, the special counsel, district attorney, or attorney general shall report to the board concerning any action taken regarding the matter. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during that period, the special counsel, district attorney, or attorney general shall file a subsequent report at the end of each 30-day period following the filing of the initial report until final disposition of the matter.

SB1-SSA2,20,12 (d) 1. No individual who serves as the legal counsel to the board or as a division administrator for the board may have been a lobbyist, as defined in s. 13.62 (11). No such individual may have served in, or have been a candidate, as defined in s. 11.01 (1), for, a partisan state or local office.