SB2: Bill Text

Under the bill, any person may file a sworn complaint with the Enforcement Division alleging a violation of the elections, ethics, or lobbying regulation laws. The division must investigate the complaint unless the division finds the complaint to be without merit. The bill also permits the division to investigate any violation of the elections, ethics, or lobbying regulation laws on its own initiative or upon direction of the board. The division may order an election official or private person to act in conformity with the elections, ethics, or lobbying regulation laws or rules of the board, and may impose a forfeiture (civil monetary penalty) for a violation. The decision of the division may be appealed to the board or may be appealed directly to circuit court. In deciding an appeal, the board is not bound by any findings of fact or conclusions of law made by the division with respect to the matter. If the decision of the division is not appealed or if the board does not modify or reverse a decision of the division after hearing an appeal, the decision of the division becomes the decision of the board. Any decision of the board is also subject to judicial review in circuit court. If the board modifies or reverses an action of the division, the division may also seek judicial review of the board's decision. The procedure does not apply to any alleged violation of the elections, ethics, or lobbying regulation laws by the board or division, nor to any matter arising in connection with a recount.

Currently, a defendant in a criminal trial is tried in the county where the defendant's crime is alleged to have been committed, except that the defendant may request the judge to move the trial to another county and the judge may grant the request if the judge believes that an impartial trial cannot be had unless the trial is moved. This bill provides that if the defendant in a criminal trial for a violation of the elections, ethics, or lobbying regulation laws is a resident of this state, the trial shall be held in circuit court for the county where the defendant resides, subject to the current exception.

Currently, opinions of the Elections Board are open to public inspection, but opinions of the Ethics Board, with limited exceptions, are closed to public inspection. However, the Ethics Board publishes summaries of its opinions without divulging information that could reveal the identity of the requester. This bill makes all opinions issued by the Government Accountability Board closed to public inspection, subject to the current exceptions for opinions issued by the Ethics Board.

The bill provides for the bill to become law on January 1, 2009, after which date the members of the Government Accountability Board may be appointed and take office. However, the existing Elections Board and Ethics Board continue in operation until June 1, 2009, subject to appropriation of money for continued operation of the boards by other legislation. Under the bill, the Government Accountability Board may not exercise administrative or enforcement authority until June 1, 2009. The bill also provides that the director of the Legislative Council Staff shall serve as executive director of the Government Accountability Board, without additional compensation, until the initial executive director of the Government Accountability Board is appointed and qualified, and may exercise all of the functions of the executive director of the Government Accountability Board, the enforcement division, and the administrator of the enforcement division.

Currently, state boards may meet in closed session to discuss the investigation of charges against specific persons. This bill provides specifically that the Government Accountability Board may meet in closed session to deliberate concerning any investigation under the board's jurisdiction.

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

SB2, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB2,6,2 5.02 (1s) "Board" means the elections government accountability board.

SB2, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB2,6,5 5.05 (title) Elections Government accountability board; powers and duties.

SB2, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB2,6,10 5.05 (1) General authority. (intro.) The elections government accountability board shall have the responsibility for the administration of chs. 5 to 12 and other laws relating to elections and election campaigns. Pursuant to such responsibility, the board may:

SB2, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB2, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB2,7,15 5.05 (1) (b) In the discharge of its duties and upon after providing notice to the any party or parties being investigated who is the subject of an investigation, subpoena and bring before it any person in the state and require the production of any papers, books, or other records relevant to an investigation. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court. The board shall delegate to the enforcement division the power to issue subpoenas and to obtain search warrants under this paragraph on behalf of the board, subject to the procedures under s. 5.066 (6). The delegation is supplemental to the board's exercise of direct authority under this paragraph.

SB2, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB2,8,9 5.05 (1) (c) Bring civil or criminal actions to require forfeitures 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. 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 actions or proposed 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 actions brought by the board shall be brought in the circuit court for the county wherein the violation is alleged to occur.

SB2, s. 7 Section 7. 5.05 (1m) of the statutes is created to read:

SB2,8,13 5.05 (1m) Executive director; legal counsel. The board shall employ an executive director outside the classified service and shall employ legal counsel to perform legal services outside the enforcement division.

SB2, s. 8 Section 8. 5.05 (2m) of the statutes is created to read:

SB2,8,20 5.05 (2m) Enforcement division. (a) The enforcement division shall investigate and prosecute alleged civil and criminal violations of laws administered by the board pursuant to all statutes granting or assigning that authority or responsibility to the board. The enforcement division shall prosecute civil and criminal actions brought by the board and shall assist the district attorneys and the attorney general in prosecuting criminal actions referred to them by the division.

SB2,8,23 (b) The board may refer any matter to the enforcement division for investigation. Any person may file a verified complaint with the enforcement division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.

SB2,9,9 (c) 1. The board shall employ at least one full-time attorney and at least one full-time staff support individual within the enforcement division. The enforcement division may, with or without approval of the board, investigate any possible civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 in the name of the board. The jurisdiction of the enforcement division is concurrent with the jurisdiction of the board, the district attorneys, and where authorized, the attorney general to conduct investigations and enforce these laws. The enforcement division may request authorization of the board to obtain the assistance of special counsel to conduct investigations or to prosecute violations of these laws. The enforcement division may also request assistance from the department of justice to conduct investigations or to prosecute violations of these laws.

SB2,9,25 2. Upon opening or concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the board shall notify the district attorney for the county wherein the violation is alleged to occur. Upon opening or concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a district attorney shall notify the board. Upon request of the board or a district attorney, the board and district attorney shall each share information in their possession relating to any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the board notifies the district attorney for any county that it has opened an investigation of an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 that is prosecutable in circuit court for that county, the district attorney shall suspend any investigation of the same alleged violation that the district attorney is conducting until the board notifies the district attorney that it has concluded its investigation and it will not prosecute the alleged violation or there elapse 30 days from the date of the board's notification that its investigation is concluded and the board does not commence a prosecution of the alleged violation.

SB2,10,10 3. The district attorney for any county may refer any matter concerning a possible civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 to the board. If the board determines not to commence a prosecution with respect to a matter concerning an alleged criminal violation of chs. 5 to 12 in an election for state or national office, or an alleged violation of subch. III of ch. 13 or subch. III of ch. 19 by an elective state official, as defined in s. 13.62 (6), or a state public official, as defined in s. 19.42 (14), that is referred to the board under this subdivision, the board shall, within 30 days of receipt of the referral, report to the district attorney in writing specifying the reasons why it has determined not to commence a criminal prosecution.

SB2,10,15 4. If a district attorney opens an investigation of a possible violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall report to the board concerning the status of the investigation no later than the end of each consecutive 90-day period, beginning on the day that the investigation is opened and ending on the day that the investigation is concluded.

SB2,10,23 5. Each individual who is retained by the board to act as an investigator shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 90 days. If the administrator of the enforcement division investigates any matter without retention of an investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 90 days. If, after receiving a report, the board does not terminate the investigation by a vote of at least 4 members of the board, the investigation is continued.

SB2,11,8 6. Prior to commencing any prosecution with respect to an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a district attorney shall provide written notice to the board. The district attorney shall not commence a prosecution with respect to an alleged violation of chs. 5 to 12 in an election for state or national office, or an alleged violation of subch. III of ch. 13 or subch. III of ch. 19 by an elective state official, as defined in s. 13.62 (6), or a state public official, as defined in s. 19.42 (14), unless the board notifies the district attorney in writing that it will not commence a prosecution with respect to that alleged violation or the board fails to commence a prosecution with respect to that alleged violation within 30 days after receiving notice from the district attorney under this subdivision.

SB2,11,13 7. If a district attorney commences a criminal prosecution for an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall report to the board concerning the status of the prosecution no later than the end of each consecutive 180-day period, beginning on the day that the prosecution is commenced and ending on the day that the prosecution is concluded.

SB2,11,18 8. If the enforcement division commences a prosecution for an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the division shall report to the board concerning the status of the prosecution no later than the end of each consecutive 180-day period, beginning on the day that the prosecution is commenced and ending on the day that the prosecution is concluded.

SB2,11,21 9. The enforcement division may file a compliant against any person only upon authorization by the board. A vote of at least 4 members of the board is required for authorization.

SB2,12,2 10. Upon employment of any individual to serve as special counsel for the enforcement division, the administrator of the division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay special counsel bills related to that case within the certified amount.

SB2,12,7 (e) The enforcement division is bound by applicable laws, rules, formal opinions, and actions of the board, except that the division may nonacquiesce in any formal opinion of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by the formal opinion in which the division nonacquiesces.

SB2,12,12 (f) Whenever under this subsection an investigation or civil prosecution relates to an alleged violation of ch. 11 that arises out of an election for county office or a county referendum within a county that is served by a board of election commissioners, all references to the district attorney for that county shall include, in addition, the board of election commissioners.

SB2, s. 9 Section 9. 5.05 (3) (a) of the statutes is amended to read:

SB2,12,18 5.05 (3) (a) The board shall upon complaint by any person or on its own motion investigate violations of the elections laws and shall notify the district attorney of for the proper county, or the attorney general or the governor where appropriate under s. 11.60 (4) or 11.61 (2) of any facts within its knowledge or evidence in its possession which may be grounds for civil action or criminal prosecution.

SB2, s. 10 Section 10. 5.05 (3m) of the statutes is created to read:

SB2,12,21 5.05 (3m) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.

SB2, s. 11 Section 11. 5.05 (5) of the statutes is repealed.

SB2, s. 12 Section 12. 5.05 (5s) (title) and (d) of the statutes are created to read:

SB2,12,24 5.05 (5s) (title) Access to records.

SB2,13,2 (d) All records of votes taken upon actions by the board are open to public inspection and copying under s. 19.35 (1).

SB2, s. 13 Section 13. 5.05 (6) of the statutes is repealed.

SB2, s. 14 Section 14. 5.05 (11) of the statutes is repealed.

SB2, s. 15 Section 15. 5.052 of the statutes is created to read:

SB2,13,9 5.052 Government accountability candidate committee. (1) The government accountability candidate committee shall organize whenever a vacancy occurs in the membership of the board that requires a nomination to be submitted to the governor under s. 15.60 (2).

SB2,13,11 (2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.

SB2,13,13 (3) Except as provided in sub. (4), the committee shall submit the following number of nominations:

SB2,13,14 (a) To fill one vacancy, 2 nominations.

SB2,13,15 (b) To fill 2 vacancies, 3 nominations.

SB2,13,16 (c) To fill 3 vacancies, 5 nominations.

SB2,13,17 (d) To fill 4 vacancies, 6 nominations.

SB2,13,18 (e) To fill 5 vacancies, 7 nominations.

SB2,13,19 (f) To fill 6 vacancies, 8 nominations.

SB2,13,21 (4) If a nomination of the governor is rejected by the senate or the assembly, the committee shall submit an additional nominee to the governor.

SB2, s. 16 Section 16. 5.054 of the statutes is created to read:

SB2,13,24 5.054 Duties of the executive director. The executive director of the board shall:

SB2,14,2 (1) Whenever a vacancy occurs on the board, call a meeting of the government accountability candidate committee.

SB2,14,4 (2) Assist the government accountability candidate committee in the performance of its functions.

SB2, s. 17 Section 17. 5.066 of the statutes is created to read:

SB2,14,6 5.066 Complaints and decision-making procedure. (1) In this section:

SB2,14,7 (a) "Division" means the enforcement division of the board.

SB2,14,10 (b) "Election official" includes any board of election commissioners under s. 7.20 or governing body of a local governmental unit that has the responsibility to administer the election laws.

SB2,14,11 (c) "Local governmental unit" has the meaning given in s. 16.97 (7).

SB2,14,12 (d) "Working day" has the meaning given in s. 227.01 (14).

SB2,14,24 (2) Any person may file a verified complaint with the division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The division shall investigate the complaint unless the division finds the complaint to be without merit. The division may, on its own motion or upon direction of the board, investigate any possible violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 whenever the division has probable cause to believe that a violation has occurred. If the division finds, by a preponderance of evidence, that a complaint is frivolous, the division may order the complainant to forfeit not more than the greater of $500 or the expenses incurred in investigating the complaint. The attorney general, when so requested by the division, shall institute proceedings to recover any forfeiture incurred under this subsection that is not paid by the person against whom it is assessed.

SB2,15,7 (3) If the complaint concerns a question as to whether an election official or a private person is acting in conformity with the law or rules of the board, the person filing the complaint shall serve a copy of the complaint upon that official or private person and that official or private person shall be a party to the case. An election official or private person may move to dismiss a complaint if it is clearly without merit. If the division finds, in response to a motion, that a complaint is clearly without merit, the division shall dismiss the complaint.

SB2,15,10 (4) If the division does not dismiss a complaint, the division shall issue a proposed decision, which shall include findings of fact and conclusions of law and may include an order under sub. (5).

SB2,15,15 (5) The division may order an election official or a private person to act in conformity with chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or rules of the board, or may, by order, impose a civil penalty under s. 11.60 or 12.60 (1) (c) or (d), 13.69, or 19.579 for any violation of ch. 11 or 12, subch. III of ch. 13, or subch. III of ch. 19 for which a civil penalty is applicable.

SB2,16,6 (6) Subject to the procedures under this subsection, the division may, in the discharge of its functions under this section and after providing notice to any party who is the subject of an investigation, subpoena and bring before it any person and require the production of any papers, books, or other records relevant to an investigation. Prior to issuing a subpoena or obtaining a search warrant, the division shall submit a written request for this purpose to the board. If the board does not disapprove the request within 10 days of receiving the request, the division may issue the subpoena or obtain the search warrant. 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 this state to obtain evidence of any violation of ch. 11 or 12, subch. III of ch. 1 3, or subch. III of ch. 19 upon a showing by the division 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 functions under this section, the division may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

SB2,16,10 (7) If the division issues a decision under sub. (4) that contains an order under sub. (5), the order is effective upon service of the order notwithstanding any appeal to the board under sub. (8) or to circuit court under sub. (11), except that the division may stay such an order pending an appeal.

SB2,16,20 (8) Any party aggrieved by a proposed decision under sub. (4) may appeal the proposed decision to the board within 20 days after service of a copy of the decision upon the party. If no appeal is filed within 20 days of service of a copy of a proposed decision upon each party to the case in which the decision is made, the decision is final and becomes the decision of the board. In appealing a decision of the division, the appellant shall indicate in its appeal whether the appellant contests any finding of fact made by the division. If an appellant does not contest a finding of fact, the validity of which is reasonably ascertainable to the appellant at the time of the appeal, that finding is conclusive against the appellant in all subsequent proceedings.

SB2,17,8 (9) If a proposed decision of the division is appealed to the board, the board shall hear the appeal at its next meeting occurring at least 3 working days after the appeal is received by the board. In reviewing the decision of the division, the board is not bound by any finding of fact that is contested or any conclusion of law made by the division. After hearing the appeal, the board may issue a decision, which shall include findings of fact and conclusions of law. In its decision, the board may affirm, modify, or reverse an order issued by the division under sub. (5), and may order an election official or a private person to act in conformity with chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or rules of the board, or may, by order, impose a civil penalty under s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 for any violation of ch. 11 or 12, subch. III of ch. 13, or subch. III of ch. 19 for which a civil penalty is applicable. If the board does not modify or reverse a decision of the division at the meeting at which an appeal of a decision is heard, the decision is affirmed.

SB2,17,12 (10) If a person aggrieved by a decision issued under sub. (4) that contains an order under sub. (5) appeals the decision to the board and the board modifies the order, the modified order is effective upon service, except that the division may stay such an order pending judicial review under s. 227.57.

SB2,17,21 (11) The defendant may appeal any decision of the division or the board in a contested case arising under this section as provided in s. 227.57. If the board modifies or reverses an order issued by the division under sub. (5), the division may seek judicial review of the decision. In seeking judicial review of a decision of the division or the board, the appellant shall indicate in its petition for review whether the appellant contests any finding of fact made by the division or the board that is not conclusive against the appellant. If the appellant does not contest any finding of fact made by the division or the board, that finding is conclusive against the appellant.

SB2,18,7 (12) When the enforcement division issues an order imposing a forfeiture under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 that is not appealed in a timely manner under sub. (8) or (11), or when the board issues an order imposing a forfeiture under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 and the period allowed under s. 227.57 for judicial review of the order expires, the division or board may file a copy of its order with the clerk of circuit court for Dane County. The clerk shall thereupon enter the order in the judgment and lien docket in the same manner as provided for entry of civil judgments under s. 806.10. The division or board may also enter the order on the judgment and lien docket of any other county under s. 806.13. The order may be enforced and satisfied in the same manner as provided for enforcement and satisfaction of civil judgments.

SB2,18,12 (13) If the division or the board issues an order requiring an election official or private person to act in conformity with chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or rules of the board, the division may file an action in circuit court for any county where the official or other person is present to obtain relief requiring compliance with the order.

SB2,18,15 (14) (a) This section does not apply to any complaint brought by an election official or private person in which the board or the division is alleged to have violated the law.

SB2,18,17 (b) This section does not apply to any matter arising in connection with a recount under s. 9.01.

SB2, s. 18 Section 18. 5.40 (7) of the statutes is amended to read:

SB2,18,25 5.40 (7) Whenever a municipality adopts and purchases voting machines or an electronic voting system, or adopts and purchases a different type of voting machine or electronic voting system from the type it was previously using, the municipal clerk or executive director of the municipal board of election commissioners shall promptly notify the county clerk or executive director of the county board of election commissioners and the executive director of the elections government accountability board in writing.

SB2, s. 19 Section 19. 5.62 (4) (b) of the statutes is amended to read:

SB2,19,6 5.62 (4) (b) The county board of election commissioners in counties having a population of more than 500,000 shall prepare the official primary ballot. The commissioners shall arrange the names of all candidates for each office whose nomination papers are filed at the county level, using the same method as that used by the elections government accountability board under s. 5.60 (1) (b).

SB2, s. 20 Section 20. 5.68 (4) of the statutes is amended to read:

SB2,19,9 5.68 (4) Except as provided under sub. (7), the The cost of compensation of election officials and trainees shall be borne in the manner provided in s. 7.03.

SB2, s. 21 Section 21. 5.68 (7) of the statutes is repealed.

SB2, s. 22 Section 22. 6.26 (2) (b) of the statutes is amended to read:

SB2,19,18 6.26 (2) (b) The municipal clerk, board of election commissioners, or elections government accountability board may appoint any applicant who qualifies under this subsection, unless the applicant's appointment has been revoked by a municipality or by the board for cause. The municipal clerk, board of election commissioners, or elections government accountability board may revoke an appointment made by the clerk, board of election commissioners, or elections government accountability board for cause at any time.