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19.37 History History: 1981 c. 335, 391; 1991 a. 269 s. 43d; 1995 a. 158; 1997 a. 94.
19.37 Annotation A party seeking fees under sub. (2) must show that the prosecution of an action could reasonably be regarded as necessary to obtain the information and that a "causal nexus" exists between that action and the agency's surrender of the information. State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct. App. 1988).
19.37 Annotation If an agency exercises due diligence but is unable to respond timely to a records request, the plaintiff must show that a mandamus action was necessary to secure the records release to qualify for award of fees and costs under sub. (2). Racine Education Association. v. Racine Board of Education, 145 Wis. 2d 518, 427 N.W.2d 414 (Ct. App. 1988).
19.37 Annotation Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains discretion to refuse counsel's participation in an in camera inspection. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).
19.37 Annotation If the trial court has an incomplete knowledge of the contents of the public records sought, it must conduct an in camera inspection to determine what may be disclosed following a custodian's refusal. State ex rel. Morke v. Donnelly, 155 Wis. 2d 521, 455 N.W.2d 893 (1990).
19.37 Annotation A pro se litigant is not entitled to attorney fees. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).
19.37 Annotation A favorable judgment or order is not a necessary condition precedent for finding that a party prevailed against an agency under sub. (2). A causal nexus must be shown between the prosecution of the mandamus action and the release of the requested information. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 499 N.W.2d 918 (Ct. App. 1993).
19.37 Annotation Actions brought under the open meetings and open records laws are exempt from the notice provisions of s. 893.80 (1). Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), 94-2809.
19.37 Annotation An inmate's right to mandamus under this section is subject to s. 801.02 (7), which requires exhaustion of administrative remedies before an action may be commenced. Moore v. Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Ct. App. 1997), 96-2547.
19.37 Annotation When requests are complex, municipalities should be afforded reasonable latitude in time for their responses. An authority should not be subjected to the burden and expense of a premature public records lawsuit while it is attempting in good faith to respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ___ Wis. 2d___, ___ N.W.2d ___, 05-1473.
19.37 Annotation Actual damages are the liability of the agency. Punitive damages and forfeitures can be the liability of either the agency or the legal custodian, or both. Section 895.46 (1) (a) probably provides indemnification for punitive damages assessed against a custodian, but not for forfeitures. 72 Atty. Gen. 99.
19.39 19.39 Interpretation by attorney general. Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general may respond to such a request.
19.39 History History: 1981 c. 335.
subch. III of ch. 19 SUBCHAPTER III
CODE OF ETHICS FOR PUBLIC
OFFICIALS AND EMPLOYEES
19.41 19.41 Declaration of policy.
19.41(1) (1) It is declared that high moral and ethical standards among state public officials and state employees are essential to the conduct of free government; that the legislature believes that a code of ethics for the guidance of state public officials and state employees will help them avoid conflicts between their personal interests and their public responsibilities, will improve standards of public service and will promote and strengthen the faith and confidence of the people of this state in their state public officials and state employees.
19.41(2) (2) It is the intent of the legislature that in its operations the board shall protect to the fullest extent possible the rights of individuals affected.
19.41 History History: 1973 c. 90; Stats. 1973 s. 11.01; 1973 c. 334 s. 33; Stats. 1973 s. 19.41; 1977 c. 277.
19.42 19.42 Definitions. In this subchapter:
19.42(1) (1) "Anything of value" means any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment, but does not include compensation and expenses paid by the state, fees and expenses which are permitted and reported under s. 19.56, political contributions which are reported under ch. 11, or hospitality extended for a purpose unrelated to state business by a person other than an organization.
19.42(2) (2) "Associated", when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent.
19.42(3) (3) "Board" means the government accountability board.
19.42(3m) (3m) "Candidate," except as otherwise provided, has the meaning given in s. 11.01 (1).
19.42(3s) (3s) "Candidate for local public office" means any individual who files nomination papers and a declaration of candidacy under s. 8.21 or who is nominated at a caucus under s. 8.05 (1) for the purpose of appearing on the ballot for election as a local public official or any individual who is nominated for the purpose of appearing on the ballot for election as a local public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under s. 8.21.
19.42(4) (4) "Candidate for state public office" means any individual who files nomination papers and a declaration of candidacy under s. 8.21 or who is nominated at a caucus under s. 8.05 (1) for the purpose of appearing on the ballot for election as a state public official or any individual who is nominated for the purpose of appearing on the ballot for election as a state public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under s. 8.21.
19.42(4g) (4g) "Clearly identified," when used in reference to a communication containing a reference to a person, means one of the following:
19.42(4g)(a) (a) The person's name appears.
19.42(4g)(b) (b) A photograph or drawing of the person appears.
19.42(4g)(c) (c) The identity of the person is apparent by unambiguous reference.
19.42(4r) (4r) "Communication" means a message transmitted by means of a printed advertisement, billboard, handbill, sample ballot, radio or television advertisement, telephone call, or any medium that may be utilized for the purpose of disseminating or broadcasting a message, but not including a poll conducted solely for the purpose of identifying or collecting data concerning the attitudes or preferences of electors.
19.42(5) (5) "Department" means the legislature, the University of Wisconsin System, any authority or public corporation created and regulated by an act of the legislature and any office, department, independent agency or legislative service agency created under ch. 13, 14 or 15, any technical college district or any constitutional office other than a judicial office. In the case of a district attorney, "department" means the department of administration unless the context otherwise requires.
19.42(5m) (5m) "Elective office" means an office regularly filled by vote of the people.
19.42(6) (6) "Gift" means the payment or receipt of anything of value without valuable consideration.
19.42(7) (7) "Immediate family" means:
19.42(7)(a) (a) An individual's spouse; and
19.42(7)(b) (b) An individual's relative by marriage, lineal descent or adoption who receives, directly or indirectly, more than one-half of his or her support from the individual or from whom the individual receives, directly or indirectly, more than one-half of his or her support.
19.42(7m) (7m) "Income" has the meaning given under section 61 of the internal revenue code.
19.42(7s) (7s) "Internal revenue code" has the meanings given under s. 71.01 (6).
19.42(7u) (7u) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
19.42(7w) (7w) "Local public office" means any of the following offices, except an office specified in sub. (13):
19.42(7w)(a) (a) An elective office of a local governmental unit.
19.42(7w)(b) (b) A county administrator or administrative coordinator or a city or village manager.
19.42(7w)(c) (c) An appointive office or position of a local governmental unit in which an individual serves for a specified term, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.
19.42(7w)(cm) (cm) The position of member of the board of directors of a local exposition district under subch. II of ch. 229 not serving for a specified term.
19.42(7w)(d) (d) An appointive office or position of a local government which is filled by the governing body of the local government or the executive or administrative head of the local government and in which the incumbent serves at the pleasure of the appointing authority, except a clerical position, a position limited to the exercise of ministerial action or a position filled by an independent contractor.
19.42(7x) (7x) "Local public official" means an individual holding a local public office.
19.42(8) (8) "Ministerial action" means an action that an individual performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of the individual's own judgment as to the propriety of the action being taken.
19.42(9) (9) "Nominee" means any individual who is nominated by the governor for appointment to a state public office and whose nomination requires the advice and consent of the senate.
19.42(10) (10) "Official required to file" means:
19.42(10)(b) (b) A member of a technical college district board or district director of a technical college, or any individual occupying the position of assistant, associate or deputy district director of a technical college.
19.42(10)(c) (c) A state public official identified under s. 20.923 except an official holding a state public office identified under s. 20.923 (6) (h).
19.42(10)(d) (d) A state public official whose appointment to state public office requires the advice and consent of the senate, except a member of the board of directors of the Bradley Center Sports and Entertainment Corporation created under ch. 232.
19.42(10)(e) (e) An individual appointed by the governor or the state superintendent of public instruction pursuant to s. 17.20 (2) other than a trustee of any private higher educational institution receiving state appropriations.
19.42(10)(f) (f) An auditor for the legislative audit bureau.
19.42(10)(g) (g) The chief clerk and sergeant at arms of each house of the legislature.
19.42(10)(h) (h) The members and employees of the Wisconsin Housing and Economic Development Authority, except clerical employees.
19.42(10)(i) (i) A municipal judge.
19.42(10)(j) (j) A member or the executive director of the judicial commission.
19.42(10)(k) (k) A division administrator of an office created under ch. 14 or a department or independent agency created or continued under ch. 15.
19.42(10)(L) (L) The executive director, executive assistant to the executive director, internal auditor, chief investment officer, chief financial officer, chief legal counsel, chief risk officer and investment directors of the investment board.
19.42(10)(m) (m) The executive director, members and employees of the World Dairy Center Authority, except clerical employees.
19.42(10)(n) (n) The chief executive officer and members of the board of directors of the University of Wisconsin Hospitals and Clinics Authority.
19.42(10)(o) (o) The chief executive officer and members of the board of directors of the Fox River Navigational System Authority.
19.42(10)(q) (q) The executive director and members of the board of directors of the Wisconsin Aerospace Authority.
19.42(10)(r) (r) The employees and members of the board of directors of the Lower Fox River Remediation Authority.
19.42(11) (11) "Organization" means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, trust or other legal entity other than an individual or body politic.
19.42(11m) (11m) "Political party" means a political organization under whose name individuals who seek elective public office appear on the ballot at any election or any national, state, or local unit or affiliate of that organization.
19.42(12) (12) "Security" has the meaning given under s. 551.102 (28), except that the term does not include a certificate of deposit or a deposit in a savings and loan association, savings bank, credit union or similar association organized under the laws of any state.
19.42(13) (13) "State public office" means:
19.42(13)(a) (a) All positions to which individuals are regularly appointed by the governor, except the position of trustee of any private higher educational institution receiving state appropriations and the position of member of the district board of a local professional baseball park district created under subch. III of ch. 229 and the position of member of the district board of a local cultural arts district created under subch. V of ch. 229.
19.42(13)(b) (b) The positions of associate and assistant vice presidents of the University of Wisconsin System and vice chancellors identified in s. 20.923 (5).
19.42(13)(c) (c) All positions identified under s. 20.923 (2), (4), (4g), (6) (f) to (h), (7), and (8) to (10), except clerical positions.
19.42(13)(e) (e) The chief clerk and sergeant at arms of each house of the legislature or a full-time, permanent employee occupying the position of auditor for the legislative audit bureau.
19.42(13)(f) (f) A member of a technical college district board or district director of a technical college, or any position designated as assistant, associate or deputy district director of a technical college.
19.42(13)(g) (g) The members and employees of the Wisconsin Housing and Economic Development Authority, except clerical employees.
19.42(13)(h) (h) A municipal judge.
19.42(13)(i) (i) A member or the executive director of the judicial commission.
19.42(13)(j) (j) A division administrator of an office created under ch. 14 or a department or independent agency created or continued under ch. 15.
19.42(13)(k) (k) The executive director, executive assistant to the executive director, internal auditor, chief investment officer, chief financial officer, chief legal counsel, chief risk officer and investment directors of the investment board.
19.42(13)(L) (L) The members and employees of the World Dairy Center Authority.
19.42(13)(m) (m) The chief executive officer and members of the board of directors of the University of Wisconsin Hospitals and Clinics Authority.
19.42(13)(n) (n) The chief executive officer and members of the board of directors of the Fox River Navigational System Authority.
19.42(14) (14) "State public official" means any individual holding a state public office.
19.42 Cross-reference Cross Reference: See also s. GAB 16.02, Wis. adm. code.
19.42 Note Law Revision Committee Note, 1983: This bill establishes consistency in the usage of the terms "person", "individual" and "organization" in the code of ethics for state public officials. The term "person" is the broadest of these terms, and refers to any legal entity. The use of the term "person" in the bill is consistent with the definition of the word in s. 990.01 (26), stats., which provides that "person" includes all partnerships, associations and bodies politic or corporate". The term "organization" is narrower, and is defined in s. 19.42 (11), stats., as "any corporation, partnership, proprietorship, firm, enterprise, franchise, association, trust or other legal entity other than an individual or body politic". "Individual", although not specifically defined in the current statutes or in this bill, is used consistently in this bill to refer to natural persons.
19.42 Annotation The term "income" is used several times in the code of ethics for state public officials. This bill clarifies the current definition of income by providing a specific cross-reference to the internal revenue code and by providing that the definition refers to the most recent version of the internal revenue code which has been adopted by the legislature for state income tax purposes.
19.42 Annotation When person holds 2 government positions, one included in and the other exempted from the definition of state public official, the applicability of subch. III depends upon the capacity in which the person acted. 64 Atty. Gen. 143.
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