Wisconsin Ethics Commission
Proposed Rule Making Order
Introductory Clause
The Wisconsin Ethics Commission proposes an order to repeal and recreate ETH 21.30; and to create ETH 21.02, 21.03, 21.04, 21.05, 21.06, 21.07, 21.08, 21.09, and 21.10, relating to the processes for complaints and requests for advice.
Rule Summary
B.
Statutory authority: The Commission has general authority for the promulgation of rules to carry out the requirements of Chapters 11, 13, and 19.11.1304 Duties of the ethics commission. The commission shall:
(17) Promulgate rules to administer this chapter.
19.48 Duties of the ethics commission. The commission shall:
(1) Promulgate rules necessary to carry out ch. 11, subch. III of ch. 13, and this subchapter. 227.11 Extent to which chapter confers rule-making authority.
(2) Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.
C.
Explanation of agency authority: The Wisconsin Ethics Commission is charged with investigating violations of the laws it administers under s. 19.49(2)(a), Stats. It is also required to review requests for an advisory opinion under s. 19.46(2)(a)1., Stats. Pursuant to the above grants of authority, the Commission is empowered to promulgate rules to promote the orderly administration of these processes.E.
Plain language analysis: The proposed rule would clarify and further establish the procedures to be followed to submit a complaint to the Wisconsin Ethics Commission under s. 19.49 (2) (b), Stats. It would also clarify the procedures to be followed to request either a formal or informal opinion of the Commission pursuant to s. 19.46 (2), Stats.F.
Summary of, and comparison with, existing or proposed federal regulations: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.G.
Comparison with similar rules in adjacent states: Illinois
Complaints regarding campaign finance shall be filed in writing [10 ILCS5/9-20(1)]. Minimum requirements for a verified complaint include the name of the candidate or chairman or treasurer of a political committee against whom the complaint is directed [10 ILCS5/9-20(2)], the statutory provisions which are alleged to have been violated [10 ILCS5/9-20(3)], and the time, place, and nature of the alleged offense [10 ILCS5/9-20(4)]. The complaint shall be verified, dated, and signed by the person filing the complaint [10 ILCS5/9-20(4)]. Verified complaints received by the Secretary of State are processed in the following manner: a copy of the complaint is served by the Board of Elections to the complainant and respondent, and a closed preliminary hearing, with reasonable notice, is held to provide an opportunity for the complainant and respondent to testify at the hearing, and the Board determines if the complaint appears to have been filed on justifiable grounds [10 ILCS5/9-21]. The Board may dismiss the complaint if the Board fails to determine that the complaint was filed on justifiable grounds [10 ILCS5/9-21]. The parties to the complaint may dispose of the complaint by written stipulation, agreed settlement, or consent order [10 ILCS5/9-21]. The Board shall render its final judgement within 60 days of the date the complaint is filed, except that during the 60 days preceding the date of the election in reference in which the complaint is filed, the Board shall render its final judgement within 7 days of the date the complaint is filed, and during the 7 days preceding such election, the Board shall render such judgement before the date of such election, if possible [10 ILCS5/9-21]. The Board of Elections shall establish and maintain on its official website a searchable database, accessible to the public, of each complaint filed with the Board with respect to which Board action was taken, and the database must be updated within 5 business days after an action is taken or penalty is imposed [10 ILCS5/9-23.5].
Complaints regarding suspected violations of the Illinois Governmental Ethics Act (5 ILCS 420) are authorized under 5 ILCS 420/25-45, 5 ILCS 420/25-50, and the Operational Rules of the Illinois Legislative Ethics Commission R1-1 et. seq. A standard case initiation form is authorized under R17-5 and available to the public on the Illinois Office of the Legislative Inspector General webpage. Complainants shall file complaints with the Office of the Legislative Inspector. Minimum requirements for a complete case initiation form include the name of the employee or officer who is alleged to have committed a violation [R17-10(a)], the identity of the state agency that employs the employee or officer [R17-10(b)], the name, address, and telephone number of the complainant [R17-10(c)], the date and time of the alleged violation [R17-10(d)], a description of the facts and circumstances that surrounded the alleged violation [R17-10(e)], the names of any other person who witnessed or participated in the alleged violation [R17-10(f)], an address to which the completed case initiation form may be mailed [R17-10(g)], a statement of the confidentiality of the identity of the complainant [R17-10(h)], a statement that the Legislative Inspector General’s investigatory files and reports are confidential and exempt from disclosure under the Freedom of Information Act [R17-10(i)], a statement that allegations, pleadings, and related documents are exempt from disclosure under the Freedom of Information Act so long as the Commission does not make a finding of a violation [R17-10(j)], a statement that penalties may be imposed for intentionally making a false report alleging a violation [R17-10(k)], and any other information that the Legislative Inspector General reasonably requires [R17-10(l)]. Upon receipt of a completed case initiation form, the Legislative Inspector General shall create an investigation file [R17-15(a)] and commence an investigation with advance notice to the Commission [R17-25]. Only the Legislative Inspector General may bring actions before the Legislative Ethics Commission [5 ILCS 420/25-45(a)]. Cases before the Commission are commenced by the filing of a petition for leave to file a complaint with the Commission [R20-15(a)], with the Legislative Inspector General designated as the petitioner and the person alleged to have violated the act designated as the respondent [R20-15(b)]. Complaints must be filed with the Commission within 18 months after the most recent act of the alleged violation except where there is reasonable cause to believe that fraudulent concealment has occurred [5 ILCS 420/25-50(c)]. A respondent may file objections to the petition within 30 days after notice of the petition has been served on the respondent [5 ILCS 420/25-50(c-10)(e)] [R20-30]. Within 60 days after the time for a respondent to file an objection to the petition has expired, the Commission shall meet to review the sufficiency of the petition [R20-35(a)]. If the petition is sufficient, the Commission shall notify the parties by certified mail and schedule a hearing within 4 weeks after the date of the notice [5 ILCS 420/25-50(f)] [R20-35(b)]. All hearings are closed to the public [5 ILCS 420/25-50(g)] [R20-55(b)]. Within 60 days after the hearing, the Commission shall enter a decision [5 ILCS 420/25-50(h)] [R20-60(a)]. The decision shall include a description of the alleged misconduct, the decision of the Commission, including any fines levied and any recommendations of discipline, and the reasoning for that decision [R20-60(b)]. All decisions shall be sent to the parties, including the Legislative Inspector General, the ultimate jurisdictional authority, the head of the appropriate state agency, and the Attorney General [R20-60(d)]. Within 30 days after the issuance of a final decision that concludes that a violation occurred, the Commission shall make public the entire record of proceedings before the Commission, the decision, any recommendation, any discipline imposed, and the response from the agency head or ultimate jurisdictional authority to the Legislative Ethics Commission [5 ILCS 420/25-50(l)].
Iowa
Complaints regarding suspected violations of the Iowa Campaign Disclosure Act (Iowa Code § 68A) and the Iowa Government Ethics and Lobbying Act (Iowa Code § 68B) are authorized under Iowa Code § 68B.32B and Iowa Administrative Code 351-9.1 et seq. A standard complaint form is authorized under Iowa Code § 68B.32B(1) and Iowa Administrative Code 351-9.1(1), and available to the public on the Iowa Ethics and Campaign Disclosure Board webpage. Minimum requirements for a valid complaint include name and address of the complainant, a statement of the facts believed to be true that form the basis of the complaint, including the sources of information and approximate dates of the acts alleged, and a certification by the complainant under penalty of perjury that the facts stated to be true are true to the best of the complainant’s knowledge [Iowa Code § 68B.32B(1)]. Submitted complaints received by Board are processed in the following manner. Board staff shall determine if the complaint is sufficient and refer the complaint for legal review [Iowa Code § 68B.32B(2)]. If Board staff determine that the complaint is insufficient, then the complaint is returned to the complainant with a statement of deficiency and description of cure [Iowa Code § 68B.32B(2)]. If legal counsel determines that the complaint contains a legally sufficient allegation, then the complaint is deemed accepted [Iowa Administrative Code 351-9.1(2)]. If legal counsel and the Board determine that the complaint does not contain a legally sufficient allegation, then the complaint is dismissed [Iowa Code § 68B.32B(6)] [Iowa Administrative Code 351-9.1(2)]. Legal sufficiency of a complaint is determined by facts that would establish a violation of a provision of statute or rule [Iowa Code § 68B.32B(4)(a)], facts that would establish that the conduct providing the basis for the complaint occurred within 3 years of the complaint [Iowa Code § 68B.32B(4)(b)], and facts that would establish that the subject of the complaint is a party subject to the jurisdiction of the board [Iowa Code § 68B.32B(4)(c)]. The Board provides a copy of the accepted complaint to the respondent within 3 working days of the acceptance determination [Iowa Code § 68B.32B(3)]. Legally sufficient complaints are referred to Board staff for investigation of probable cause [Iowa Code § 68B.32B(6)] [Iowa Administrative Code 351-9.2(1)]. Complete investigations with probable cause determination are reported to the Board for action [Iowa Code § 68B.32B(8)] [Iowa Administrative Code 351-9.2(4)]. The Board may redirect the matter for further investigation [Iowa Administrative Code 351-9.2(5)(a)], dismiss the matter for lack of probable cause to believe a violation has occurred [Iowa Administrative Code 351-9.2(5)(b)], dismiss the matter without determination regarding probable cause as an exercise of administrative discretion [Iowa Administrative Code 351-9.2(5)(c)], make a determination that probable cause exists to believe a violation has occurred and direct administrative resolution of the matter [Iowa Administrative Code 351-9.2(5)(d)], or make a determination that probable cause exists to believe a violation has occurred and direct the issuance of a statement of charges to initiate a contested case proceeding [Iowa Administrative Code 351-9.2(5)(e)]. If the Board determines that probable cause exists to believe that a violation of any statute or rule under its jurisdiction has occurred, except for a late-filed disclosure report, the Board may order administrative resolution of the violation by imposing a civil penalty not to exceed $500 [Iowa Administrative Code 351-9.4(7)]. At any stage during the investigation or after the initiation of a contested case proceeding, the Board may approve a settlement regarding an alleged violation [Iowa Administrative Code 351-9.2(10)]. The entire record of any contested case proceeding initiated by the Board shall be a public record [Iowa Code § 68B.32B(11)].
Michigan
Complaints regarding suspected violations of the Michigan Campaign Finance Act (Act 388 of 1976) are authorized under MCL § 169.215 Section 15 and the Michigan Department of State Elections Division Campaign Financing Administrative Rules R169.51, R169.52, R169.53, R169.54, R169.55, and R169.56. A standard complaint form is authorized under MCL § 169.215 Section 15(7) and available to the public on the Elections Division Campaign Finance webpage. Complainants may file typewritten or handwritten complaints [R169.52(1)] with the Secretary of State in person or by mail [R169.51]. Minimum requirements for a valid complaint include the complainant’s signature [MCL § 169.215 Section 15(6)(a)], the complainant’s name, address, and telephone number [MCL § 169.215 Section 15(6)(b)], the complainant’s certification that any factual contention is or is not supported by evidence [MCL § 169.215 Section 15(6)(c)], the name and address of the alleged violator, a description in reasonable detail of the alleged violation, and an identification of all available evidentiary material [R169.52(2)]. Complainants who file a complaint with a false certification are responsible for a civil violation [MCL § 169.215 Section 15(8)] and may incur penalties that include payment to the Secretary of State some or all of the expenses incurred as a result of the complaint filing [MCL § 169.215 Section 15(16)(a)] or payment to the respondent some or all of the expenses, including reasonable attorney fees, incurred as a result of the complaint filing [MCL § 169.215 Section 15(16)(b)]. Incomplete, illegible, indefinite, or unsigned complaints may be summarily dismissed, and the complainant notified of dismissal in writing as to the reason for dismissal [R169.53]. Valid complaints received by the Secretary of State are processed in the following manner. Respondents are given notice of the complaint, including a copy of the complaint, within 5 business days. Respondents are given 15 business days to submit a response to the complaint, with an additional 15 business days extension granted for good cause. Complainants are provided the respondent’s complaint response and provided 10 business days from the date of response mailing to submit a rebuttal statement, with an additional 10 business days extension granted for good cause. Respondents are provided with the complainant’s rebuttal statement [MCL § 169.215 Section 15(5)]. The Secretary of State is obliged to communicate to a respondent that a complaint has been made alleging possible violation of the act or rules [R169.54(a)], the specifics of the alleged violation [R169.54(b)], the identity of the complainant [R169.54(c)], and the provision of rules relative to complaints and investigations [R169.54(d)]. No later than 45 business days following receipt of a rebuttal statement, or if no rebuttal statement is received, the Secretary of State shall post on the Secretary’s website whether there may be reason to believe that a violation of the act or rule occurred [MCL § 169.215 Section 15(10)]. The Secretary of State may conduct a preliminary review of an alleged violation to determine if there may be reason to believe that a violation of the act or rule has occurred [R169.55(1)]. The Secretary of State may commence, with notice given, a hearing to determine whether a violation of the act or rule has occurred [MCL § 169.215 Section 15(10)] [R169.55(3)(a)], attempt to correct the violation by conference, conciliation, or persuasion [MCL § 169.215 Section 15(10)] [R169.55(3)(b)] [R169.56(2)], or dismiss the allegation with notice given to complainant and respondent [R169.55(2)] [R169.56(1)]. If a conciliation agreement is signed, the Secretary of State is obliged to post the agreement on the Secretary’s website within 30 days [MCL § 169.215 Section 15(10)]. Within 30 days of determination that a violation of the act or rule has occurred, the Secretary of State shall post on the Secretary’s website any complaint, response, rebuttal statement, and any correspondence between the Secretary of State and the complainant or respondent [MCL § 169.215 Section 15(10)]. If the Secretary of State determines that a violation of the act or rule has occurred, the respondent may be assessed a civil fine not more than triple the amount of the improper contribution or expenditure plus not more than $1,000.00 for each violation [MCL § 169.215 Section 15(11)]. The Secretary of State may refer the matter to the attorney general for enforcement of a criminal penalty [MCL § 169.215 Section 15(13)] [R169.56(3)]. Complaints regarding suspected violations of the Michigan Standards of Conduct for Public Officers and Employees Act (Act 196 of 1973) are authorized under MCL § 15.345 Section 5 and the Michigan State Board of Ethics Administrative Rules R15.1, R15.1a, R.15.2, R15.3, R15.4, R15.5, R15.6, R15.7, R15.8, R15.9, R15.10. A standard complaint form is authorized under MCL § 15.346 Section 6, R15.1a, and R15.5 and available to the public on the State Board of Ethics webpage. Complainants shall file complaints in writing [R15.5(2)(a)] with the Executive Secretary at the Board of Ethics office [R15.5(2)(f)]. Minimum requirements for a valid complaint include the specification of one or more standards of prohibited conduct outlined in section 2 of the Act [MCL § 15.342 Section 2], include evidentiary facts supporting the complaint allegations [R15.5(2)(c)], contain a statement that the complainant or designee has read the complaint and believes the alleged violations to be true [R15.5(2)(d)], and contain the signature of the complainant or designee before a notary [R15.5(2)(e)]. Complaints may be dismissed if the Board of Ethics lacks jurisdiction over the person subject to the complaint [R15.5(11)(a)], if the Board lacks jurisdiction over the subject matter [R15.5(11)(b)], if the complainant lacks the legal capacity to file the complaint [R15.5(11)(c)], if the complainant is barred because of release, prior judgement, or other disposition of the claim before the complaint was filed [R15.5(11)(d)], if the complaint on its face fails to state a claim of unethical conduct [R15.5(11)(e)], if one or more complaints regarding the same matter are pending [R15.5(4)(a)], or if the Board previously addressed the subject matter [R15.5(4)(b)]. Valid complaints received by the Board of Ethics are processed in the following manner. Respondents are promptly served a copy of the complaint [R15.5(5)]. Respondents are given 21 calendar days to file an answer to the complaint with the Executive Secretary, with additional time granted for good cause [R15.5(6)]. A copy of the respondent’s answer is served to the complainant [R15.5(6)]. Complainants and respondents are given 21 calendar days before the date of the Board meeting scheduled to address the complaint to file any additional written information [R15.5(8)]. Opposing parties are given 14 days before the date of the Board meeting to file responses to the additional written material [R15.5(8)]. Upon expiration of the time provided for all submissions, the Board is presented with all materials for its consideration [R15.5(9)]. The Board may schedule a hearing [R15.5(13)] [R15.8] and the complainant and respondent shall have an opportunity to address the Board to address the complaint [R15.5(10)]. The complainant and respondent have the right to be represented at the hearing by legal counsel [R15.5(10)]. The Board shall issue a complaint decision and transmit copies of the decision to the complainant, respondent, and other persons as the Board directs [R15.5(14)]. The Board shall publish its decisions and opinions, including dissents, and make them available for the public at its office, on its website, and in the appropriate state agencies [R15.5(19)(1)]. Advisory opinions relating to matters affecting the ethical conduct of a public officer or employee are authorized under MCL § 15.345 Section 5(1)(e) and R15.6. Requests for advisory opinion must be made in writing and filed at the Board of Ethics office with the Executive Secretary [R15.6(1)]. The Board may dismiss a request for an advisory opinion if one or more requests regarding the same matter are pending [R15.6(3)(a)] or if the Board previously addressed the subject matter [R15.6(3)(b)]. The Board shall schedule a meeting to address the advisory opinion and shall afford the person requesting the opinion or the person subject to the request to speak at the meeting [R15.6(5)]. The Board may schedule a hearing to resolve the request for advisory opinion [R15.6(8)] or may issue an opinion without a hearing [R15.6(7)]. The Board may issue an advisory opinion decision if the Board lacks the jurisdiction over the person subject to the advisory opinion [R15.6(6)(a)], the Board lacks jurisdiction over the subject matter [R15.6(6)(b)], the person asserting the claim lacks the legal capacity to file the request for an advisory opinion [R15.6(6)(c)], the request for advisory opinion is barred because of release, prior judgement, or other disposition of the claim [R15.6(6)(d)], or if the request for advisory opinion on its face fails to delineate any unethical conduct [R15.6(6)(e)]. The Executive Secretary shall transmit copies of the Board’s order to the party filing the request, the person subject to the request, and other persons as the board directs [R15.6(9)]. Minnesota
