SB294: Bill Text

LRB-3547/1

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2015 - 2016 LEGISLATURE

2015 Senate BILL 294

October 9, 2015 - Introduced by Senators Vukmir, LeMahieu, S. Fitzgerald, Wanggaard, Darling, Kapenga, Nass and Stroebel, cosponsored by Representatives Knudson, Bernier, Knodl, Allen, August, Ballweg, R. Brooks, Czaja, Hutton, Jagler, Katsma, Kerkman, Kleefisch, Kooyenga, Kremer, Kuglitsch, T. Larson, Loudenbeck, Nygren, A. Ott, J. Ott, Sanfelippo, Skowronski and Vorpagel. Referred to Committee on Elections and Local Government.

SB294,3,7 An Act to repeal 5.05 (1m), 5.05 (2m) (c) 3., 5.05 (2m) (c) 8., 5.05 (2m) (g), 5.05 (2s), 5.052, 5.054, 5.09, 5.68 (3m), 13.62 (4), 15.07 (1) (a) 2., 15.07 (2) (b), 15.07 (5) (m), 15.60 (title), 15.60 (2), 15.60 (3), 15.60 (5), 15.60 (7), 15.603 (title), 15.603 (1) (title), 15.603 (2) (title), 15.607, 19.42 (3), 20.511 (intro.) and (1) (title), 20.511 (1) (im), 20.923 (4) (f) 3j., 230.08 (2) (e) 4h., 230.08 (2) (on) and 758.19 (9); to renumber 5.05 (2m) (c) 2. b., 15.60 (6), 20.511 (1) (bm), 20.511 (1) (c), 20.511 (1) (d), 20.511 (1) (t) and 20.511 (1) (x); to renumber and amend 5.02 (1s), 5.05 (2), 5.05 (6a), 12.01, 15.06 (2), 15.60 (1), 15.60 (4), 15.60 (8), 15.603 (1), 15.603 (2), 19.47, 19.851, 20.511 (1) (a), 20.511 (1) (be), 20.511 (1) (g), 20.511 (1) (h), 20.511 (1) (i), 20.511 (1) (j), 20.511 (1) (jm) and 20.511 (1) (m); to consolidate, renumber and amend 5.05 (5s) (f) 2. a. and b.; to amend 5.01 (4) (a), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (1) (d), 5.05 (1) (e), 5.05 (1) (f), 5.05 (1e), 5.05 (2m) (a), 5.05 (2m) (c) 2. a., 5.05 (2m) (c) 4., 5.05 (2m) (c) 5. (intro.), 5.05 (2m) (c) 6. a., 5.05 (2m) (c) 6. b., 5.05 (2m) (c) 12., 5.05 (2m) (c) 13., 5.05 (2m) (c) 14., 5.05 (2m) (d) 1., 5.05 (2m) (h), 5.05 (2m) (i), 5.05 (2w), 5.05 (3g), 5.05 (5e), 5.05 (5s) (intro.), 5.05 (5s) (b), 5.05 (5s) (bm), 5.05 (5s) (d), 5.05 (5s) (f) 2. c., 5.05 (9), 5.05 (10), 5.05 (11), 5.055, 5.056, 5.07, 5.08, 5.40 (7), 5.58 (2), 5.58 (2m), 5.60 (1) (b), 5.62 (4) (b), 5.93, 6.26 (3), 6.275 (1) (f), 6.275 (2), 6.33 (5) (a), 6.36 (1) (b) 1. a., 6.36 (1) (bm), 6.36 (2) (a), 6.50 (2g), 6.50 (7), 6.56 (3), 6.95, 6.96, 6.97 (1), 7.03 (1) (a), 7.03 (1) (b), 7.03 (2), 7.08 (title), 7.08 (1) (a), 7.08 (4), 7.15 (1) (g), 7.41 (5), 7.52 (1) (a), 7.60 (4) (a), 7.60 (5), 7.70 (3) (b), 7.70 (3) (i), 7.70 (5) (a), 8.05 (1) (j) 3., 8.10 (5), 8.10 (6) (a), 8.15 (4) (b), 8.17 (9) (a), 8.20 (6), 8.20 (7), 8.30 (2m), 8.50 (1) (a), 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a) 1., 9.01 (1) (a) 4., 9.01 (1) (ag) 4., 9.01 (1) (ar) 3., 9.01 (5) (a), 9.01 (5) (bm), 9.01 (5) (c), 9.01 (6) (a), 9.01 (7) (a), 9.01 (8) (a), 9.01 (8) (c), 9.01 (8) (d), 9.01 (10), 10.06 (1) (title), 11.09, 11.21 (title), 11.21 (7) (intro.), 11.30 (2) (fm), 11.60 (4), 11.61 (2), 12.13 (5) (a), 13.123 (3) (b) 2., 13.23, 13.63 (1) (a), 13.685, 14.38 (10m), 15.01 (2), 15.04 (1) (d), 15.06 (5), 15.06 (6), 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), 19.43 (4), 19.43 (5), 19.46 (1) (intro.), 19.48 (intro.), 19.48 (1), 19.48 (2), 19.48 (3), 19.48 (7), 19.48 (9), 19.55 (1), 19.55 (2) (c), 19.59 (1) (g) 8., 19.85 (1) (h), 19.851 (title), 20.505 (1) (d), 20.930, 20.9305 (2) (e) (intro.), 38.16 (3) (br) 3., 45.44 (1) (b), 49.165 (4) (a), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 73.0301 (1) (d) 13., 73.0301 (1) (e), 85.61 (1), 108.227 (1) (e) 13., 108.227 (1) (f), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 165.93 (4) (a), 198.08 (10), 200.09 (11) (am) 2., 200.09 (11) (am) 3., 227.03 (6), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 301.03 (20m), 343.11 (2m), 756.04 (2) (c) 1., 778.135, 978.05 (1) and 978.05 (2); and to create 5.05 (2m) (k), 5.05 (2q), 5.05 (3d), 5.05 (5s) (am), 5.05 (5t), 5.05 (6a) (a) 3., 5.05 (6a) (b) 2., 5.05 (6a) (b) 3., 5.05 (6a) (c) 1., 5.05 (6a) (c) 4., 5.05 (16), 5.05 (17), 11.01 (4m), 12.01 (2), 13.62 (5m), 15.06 (1) (d), 15.06 (1) (e), 15.06 (2) (b), 15.06 (3) (a) 5., 15.06 (3) (a) 6., 15.06 (10), 15.61 (title), 15.61 (1) (a) 1. to 6., 15.61 (5), 15.62, 19.42 (4p), 19.42 (10) (a), 19.46 (2), 19.47 (title), 19.47 (1), (2) and (4) to (10), 19.49, 19.50, 19.55 (3), 19.55 (4), 19.552, 19.554, 19.58 (4), 20.510 (intro.) and (1) (title), 20.510 (1) (br), 20.521 (intro.) and (1), 230.08 (2) (eL) and 230.08 (2) (et) of the statutes; relating to: reorganizing the Government Accountability Board, requiring the exercise of rule-making authority, and making appropriations.

Analysis by the Legislative Reference Bureau

This bill makes the following changes to the structure and operation of the Government Accountability Board (GAB):

Board Governance

Currently, the GAB is under the direction and supervision of a board of six members. All six members are former judges appointed by the governor from nominations submitted by a committee comprised of one court of appeals judge from each court of appeals district. Currently, board members are appointed with the advice and consent of two-thirds of the members of the senate and serve six-year terms. One term expires each May 1.

This bill eliminates the GAB and replaces it with an Elections Commission, which administers and supervises elections, and an Ethics Commission, which administers and supervises ethics, campaign financing, and lobbying regulation.

Under the bill, the Elections Commission consists of at least six persons, who serve five-year terms:

1) One individual appointed by the majority leader in the senate;

2) One individual appointed by the minority leader in the senate;

3) One individual appointed by the speaker of the assembly.

4) One individual appointed by the minority leader of the assembly; and

5) Two former municipal or county clerks, selected by the leadership in both houses and nominated by the governor with the advice and consent of the senate confirmed.

In addition, the bill requires the appointment to the Elections Commission of one member for each political party, other than the two major political parties, qualifying for a separate ballot whose candidate for governor received at least 10 percent of the vote in the most recent gubernatorial election. The individual must be nominated by the governor from a list of three individuals selected by the chief officer of that political party.

The Ethics Commission consists of at least six persons who serve five-year terms:

1) One individual appointed by the majority leader in the senate;

2) One individual appointed by the minority leader in the senate;

3) One individual appointed by the speaker of the assembly;

4) One individual appointed by the minority leader of the assembly; and

5) Two individuals selected by the leadership in both houses and nominated by the governor with the advice and consent of the senate confirmed.

In addition, the bill requires the appointment to the Ethics Commission of one member for each political party, other than the two major political parties, qualifying for a separate ballot whose candidate for governor received at least 10 percent of the vote in the most recent gubernatorial election. The individual must be nominated by the governor from a list of three individuals selected by the chief officer of that political party and confirmed by a majority of the senate.

Currently, the chairperson of the board is selected by lot by the current chairperson. Under the bill, the chairperson of each commission is chosen by the affirmative vote of at least a majority of the members of the commission.

Currently, the GAB is required to employ an individual to serve as legal counsel to perform legal and administrative functions for the board. The bill eliminates the requirement that either commission hire legal counsel.

Ethics Commission

Under the bill, the Ethics Commission is supervised by an administrator who is appointed by at least a majority of the members of the commission. The administrator is appointed with the advice and consent of the senate to serve for a four-year term expiring on July 1 of the odd-numbered year.

Elections Commission

Under the bill, the Elections Commission is supervised by an administrator who is appointed by at least a majority of the members of the commission. The administrator is appointed with the advice and consent of the senate to serve for a four-year term expiring on July 1 of the odd-numbered year. The bill also provides that the administrator of the Elections Commission, rather than an employee that the commission designates, is the chief election officer of this state.

Investigations

Currently, the GAB must investigate violations of laws administered by the GAB and may prosecute alleged civil violations. Current law permits the board to refer a matter to a district attorney, special prosecutor, or to the attorney general. This bill provides that, except for violations that result in a payment not exceeding $2,500, the Elections and Ethics commissions may only investigate violations of laws administered by the respective commissions upon the filing of a sworn complaint with the respective commission. The bill prohibits any member of either commission or any employee of either commission from filing such a sworn complaint.

If, during the course of an ongoing investigation, either the Elections Commission or the Ethics Commission determines that it needs additional funding, that commission must make a request to the Joint Committee on Finance and the secretary of administration. The commission must include in its request information about the nature of the investigation for which additional funding is sought, excluding the name of any individual or organization that is the subject of the investigation.

Advisory Opinions

Current law permits any individual, organization, or governmental body to request an advisory opinion from the GAB; in response, the GAB may issue a formal or an informal advisory opinion. If the board issues an opinion on an elections matter, the board must make the opinion and records about the opinion public. Current law prohibits the board from revealing the identify of or releasing information obtained in connection with any advisory opinion requested by an individual or organization on an ethics or accountability matter unless the individual or organization consents to the release of that information. This bill requires the Ethics Commission to make this information, other than the name of the individual, organization, or governmental body making the request, public when it relates to a formal advisory opinion issued by the Ethics Commission.

Current law requires the GAB to biennially submit to the legislature a report on the performance and operation of the GAB during the preceding biennium. This bill requires the Elections and Ethics commissions to submit annual reports to the legislature and to include in those reports information about the number of investigations conducted, a description of the nature of the investigation, and, in the case of the Ethics Commission, whether the investigation related to campaign finance, ethics, or lobbying.

Transitional Provisions

Under the bill, all full-time equivalent positions currently authorized for GAB are transferred to the Elections and Ethics commissions. All incumbents in those positions except the director and general counsel of GAB are also transferred. In addition, the bill transfers the assets and liabilities, tangible personal property, contracts, rules, orders, formal opinions, and pending matters of GAB to the Elections and Ethics commissions. The bill directs the secretary of administration to determine which positions, employees, assets and liabilities, property, contracts, rules, orders, opinions, and matters are transferred to which commission and to adopt an implementation plan for the transfer containing his or her determinations.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

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

SB294,1 Section 1. 5.01 (4) (a) of the statutes is amended to read:

SB294,6,3 5.01 (4) (a) If 2 or more candidates for the same office receive the greatest, but an equal number of votes, the winner shall be chosen by lot in the presence of the board of canvassers charged with the responsibility to determine the election, or in the case of an election for state or national office or metropolitan sewerage commissioner, if the commissioner is elected under s. 200.09 (11) (am), in the presence of the chairperson of the board elections commission or the chairperson's designee.

SB294,2 Section 2. 5.02 (1s) of the statutes is renumbered 5.025 and amended to read:

SB294,6,6 5.025 Elections commission; definition. "Board In chs. 5 to 10 and 12, "commission" means the government accountability board elections commission.

SB294,3 Section 3. 5.05 (title) of the statutes is amended to read:

SB294,6,9 5.05 (title) Government accountability board Elections commission; powers and duties.

SB294,4 Section 4. 5.05 (1) (intro.) of the statutes is amended to read:

SB294,6,15 5.05 (1) General authority. (intro.) The government accountability board elections commission shall have the responsibility for the administration of chs. 5 to 12, 10 and 12 and other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19, other than laws relating to campaign financing. Pursuant to such responsibility, the board commission may:

SB294,5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB294,7,3 5.05 (1) (b) In the discharge of its duties 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. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the board commission at a meeting of the board commission. 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 commission may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

SB294,6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB294,8,7 5.05 (1) (c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 10 or 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 commission may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the opinion of the board commission, 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, 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 commission 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 commission 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. Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, and 5.081, and 19.59 (8), forfeiture and license revocation actions brought by the board commission 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 an individual resides within a county if the person's principal place of operation is located within that county. Whenever the board commission enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board commission for a possible civil violation of one of those provisions, the board commission shall reduce the agreement to writing, together with a statement of the board's commission's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

SB294,7 Section 7. 5.05 (1) (d) of the statutes is amended to read:

SB294,8,14 5.05 (1) (d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.

SB294,8 Section 8. 5.05 (1) (e) of the statutes is amended to read:

SB294,8,23 5.05 (1) (e) Delegate to its legal counsel the authority to intervene in a civil action or proceeding under sub. (9), issue 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.

SB294,9 Section 9. 5.05 (1) (f) of the statutes is amended to read:

SB294,9,4 5.05 (1) (f) Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.

SB294,10 Section 10. 5.05 (1e) of the statutes is amended to read:

SB294,9,8 5.05 (1e) Any action by the board commission, except an action relating to procedure of the commission, requires the affirmative vote of at least 4 two-thirds of the members.

SB294,11 Section 11. 5.05 (1m) of the statutes is repealed.

SB294,12 Section 12. 5.05 (2) of the statutes is renumbered 19.49 (2g) and amended to read:

SB294,9,19 19.49 (2g) Auditing. In addition to the facial examination of reports and statements required under s. 11.21 (13), the board commission shall conduct an audit of reports and statements which are required to be filed with it to determine whether violations of ch. 11 have occurred. The board commission may examine records relating to matters required to be treated in such reports and statements. The board commission shall make official note in the file of a candidate, committee, group or individual under ch. 11 of any error or other discrepancy which the board commission discovers and shall inform the person submitting the report or statement.

SB294,13 Section 13. 5.05 (2m) (a) of the statutes is amended to read:

SB294,9,25 5.05 (2m) (a) The board commission shall investigate violations of laws administered by the board commission 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 commission. Prosecution of alleged criminal violations investigated by the board commission may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1). For purposes of this subsection, the commission may only initiate an investigation of an alleged violation of chs. 5 to 10 and 12, other than an offense described under par. (c) 12., based on a sworn complaint filed with the commission, as provided under par. (c). Neither the commission nor any member or employee of the commission, including the commission administrator, may file a sworn complaint for purposes of this subsection.

SB294,14 Section 14. 5.05 (2m) (c) 2. a. of the statutes is amended to read:

SB294,10,19 5.05 (2m) (c) 2. a. Any person may file a complaint with the board commission alleging a violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19. No later than 5 days after receiving a complaint, the commission shall notify each person who or which the complaint alleges committed such a violation. Before voting on whether to take any action regarding the complaint, other than to dismiss, the commission shall give each person receiving a notice under this subd. 2. a. an opportunity to demonstrate to the commission, in writing and within 15 days after receiving the notice, that the commission should take no action against the person on the basis of the complaint. The commission may not conduct any investigation or take any other action under this subsection solely on the basis of a complaint by an unidentified complainant.

SB294,10,23 am. If the board commission finds, by a preponderance of the evidence, that a complaint is frivolous, the board commission may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division commission in investigating the complaint.

SB294,15 Section 15. 5.05 (2m) (c) 2. b. of the statutes is renumbered 19.49 (1m).

SB294,16 Section 16. 5.05 (2m) (c) 3. of the statutes is repealed.

SB294,17 Section 17. 5.05 (2m) (c) 4. of the statutes is amended to read:

SB294,12,2 5.05 (2m) (c) 4. If the board commission 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 commission shall dismiss the complaint. If the board commission believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board commission 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 commission may elect to retain a special investigator. If the board commission elects to retain a special investigator, the administrator of the ethics and accountability division commission shall submit to the board commission the names of 3 qualified individuals to serve as a special investigator. The board commission may retain one or more of the individuals. If the board commission retains a special investigator to investigate a complaint against a person who is a resident of this state, the board commission 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 an individual resides within a county if the person's principal place of operation is located within that county. The board commission 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 commission may request the board commission to issue a subpoena to a specific person or to authorize the special investigator to request a the circuit court of the county in which the specific person resides to issue a search warrant. The board commission may grant the request by approving a motion to that effect at a meeting of the board commission if the board commission finds that such action is legally appropriate.

SB294,18 Section 18. 5.05 (2m) (c) 5. (intro.) of the statutes is amended to read: