Amendment SSA1-SB11

LRBs0060/2

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2003 - 2004 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2003 SENATE BILL 11

May 20, 2003 - Offered by Committee on Education, Ethics and Elections.

SB11-SSA1,2,11 An Act to repeal 5.05 (1) (a), 5.05 (5), 15.07 (1) (a) 2., 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.47 (2), 19.47 (4), 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (h), 20.510 (1) (i), 20.511 (1) (c), 20.521 (intro.), 20.521 (1) (title), 20.521 (1) (a), 20.521 (1) (g), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om) and 230.08 (2) (wm); to renumber 20.510 (1) (bm), 20.510 (1) (c), 20.510 (1) (g), 20.510 (1) (j) and 20.510 (1) (q); to renumber and amend 15.03 and 20.521 (1) (h); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.40 (7), 5.62 (4) (b), 7.08 (title), 7.08 (7), 7.31 (5), 7.60 (4) (a), 7.60 (5), 7.70 (1), 7.70 (5) (b), 8.05 (1) (j), 8.10 (5), 8.15 (4) (b), 8.18 (2), 8.20 (6), 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a), 9.01 (1) (ag) 4., 9.01 (1) (ar) 2., 9.01 (10), 11.21 (title), 11.21 (7) (intro.), 13.123 (3) (b) 2., 13.23, 13.62 (4), 13.685 (title), 13.94 (1) (k), 14.58 (20), 15.07 (1) (cm), 15.07 (4), 16.79 (2), 16.96 (3) (b), 17.17 (1), 17.17 (4), 19.42 (3), 19.42 (10) (a), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (2), 19.47 (5), 19.50 (2), 19.54 (2), 19.55 (1), 19.55 (2) (a) to (c), 19.59 (1) (g) 8., 19.85 (1) (h), 20.455 (1) (b), 20.923 (4) (intro.), 22.07 (6), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 71.10 (3) (b), 73.0301 (1) (d) 13., 73.0301 (1) (e), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c), 125.05 (1) (b) 10., 165.25 (1), 198.08 (10), 200.09 (11) (am) 3., 227.03 (6), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m), 778.135 and 778.136; and to create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (1) (a) 2m., 15.07 (5) (m), 15.60, 15.603, 19.42 (13) (p), 19.579, 20.511 (intro.) and (1) (title) and (a), 20.511 (1) (h) and (i), 20.511 (2), 20.923 (4) (e) 2e., 20.923 (4) (f) 3j, 165.25 (4) (e), 227.03 (6m), 230.08 (2) (e) 4h. and 230.08 (2) (on) of the statutes; relating to: creation of a Government Accountability Board, making appropriations, and providing penalties.

Analysis by the Legislative Reference Bureau

Currently, the Elections Board consists of nine members. The governor appoints all of the members of the Elections Board, without confirmation by the senate, to serve for two-year terms as follows: one member is selected by the governor and one member each is designated by the chief justice of the Supreme Court, the speaker of the assembly, the senate majority leader, the minority leader in each house of the legislature, and the chief officer of each political party qualifying for a separate ballot at the September primary whose candidate for governor at the most recent gubernatorial election received at least 10% of the vote (currently, the Republican, Democratic, and Libertarian parties).

Currently, the Ethics Board consists of six members. Members of the board are nominated by the governor, and with the advice and consent of the senate appointed, to serve for staggered six-year terms. All members must be U.S. citizens and residents of this state, and no member may hold any other office or employment in the government of this state or any political subdivision thereof or in any state department. In addition, no member, for one year immediately prior to the date of appointment, may have been, and no member, while serving on the board, may become, a member of a political party, an officer or member of a committee in any partisan political club or organization, or a candidate for any partisan office.

This substitute amendment abolishes both boards and replaces them with a Government Accountability Board. Under the substitute amendment, the board is composed of at least six members serving for staggered four-year terms. Four members are nominated by the governor and appointed with the advice and consent of the senate. The governor also appoints one member to represent each political party whose candidate for a statewide state office receives at least one percent of the vote at the general election, who is designated by the chief officer of that party. Each of the four members who is not appointed to represent a political party must be appointed from nominations submitted by a Government Accountability Candidate Committee, which consists of nine members, including the chief justice of the supreme court, the dean of the University of Wisconsin law school, the dean of the Marquette University law school, and the chief officer of each of the following organizations or their successor organizations: a) the Wisconsin Counties Association; b) the Wisconsin Towns Association; c) the League of Wisconsin Municipalities; d) the League of Women Voters of Wisconsin; e) the Wisconsin Newspaper Association; and f) the State Bar of Wisconsin. The votes of six members of the committee are required to nominate a candidate. No member of the Government Accountability Board may hold a position that is subject to the code of ethics for state public officials or the code of ethics for local public officials. No member, other than a political party designee, for one year immediately prior to the date of appointment, may have been, and no member while serving on the board may become, a member of a political party, an officer or member of a committee in any partisan political club or organization, or a candidate for any partisan office. No member may be a lobbyist or an employee of a principal (person who employs a lobbyist).

The substitute amendment creates an Enforcement Division within the Government Accountability Board. The Enforcement Division is headed by an administrator who is appointed by the executive director of the board outside the classified service for a term of not less than four years nor more than six years, expiring on September 1 of an odd-numbered year. The administrator may not be removed during his or her term except for cause.

The substitute amendment also permits the executive director to appoint up to two other division administrators outside the classified service. The substitute amendment authorizes one new executive director position for the board, plus one new division administrator position, one new attorney position, and one new investigator position for the Enforcement Division. In addition, all members of the existing staffs of the Elections Board and Ethics Board and their positions are transferred to the Government Accountability Board and the staff members who have civil service rights retain those rights.

The Enforcement Division is empowered to investigate violations and bring civil and criminal actions to enforce the elections, ethics, and lobbying regulation laws. However, before bringing an action to prosecute any alleged criminal violation, the division must provide written notice to the district attorney for the county where the alleged violation occurs. If the district attorney fails to prosecute within 30 days after receiving the notice or declines to prosecute, the division may then prosecute the alleged violation. Under current law, the Elections Board and Ethics Board share civil enforcement authority with district attorneys and in some cases with the attorney general; and the district attorneys, and in some cases the attorney general, exercise criminal enforcement authority. Under the substitute amendment, the Enforcement Division has independent authority to investigate and prosecute violations of the elections, ethics, and lobbying regulation laws without the consent of the Government Accountability Board. The substitute amendment permits the Enforcement Division to request investigatory and prosecutorial assistance from the Department of Justice and directs the Department of Justice to provide such assistance upon request. The substitute amendment also permits the division to appoint special counsel, to be paid from a sum sufficient appropriation from general purpose revenue, to assist the division. Under the substitute amendment, 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 or action of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by that opinion or action.

Currently, the Elections and Ethics boards have sum certain appropriations derived from state general purpose revenue. In addition, both boards finance some of their operations with program revenue. This substitute amendment creates a separate appropriation for the Enforcement Division funded from general purpose revenue. The substitute amendment requires the board to forward the division's budget requests to the Department of Administration without change, except as concurred in by the division. Under the substitute amendment, the Enforcement Division may request supplementation of its appropriation by the Joint Committee on Finance without concurrence of the board.

Under the substitute amendment, any person may file a sworn complaint with the 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 substitute amendment 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.

The substitute amendment provides for the bill to become law on November 1, 2003, after which date the members of the Government Accountability Board may be appointed and take office, the board may employ staff and the board may expend moneys from its appropriations. However, the existing Elections Board and Ethics Board continue in operation until May 1, 2004, and the Government Accountability Board may not exercise administrative or enforcement authority until that date. The substitute amendment also provides that the director of the Legislative Council Staff shall 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, including the retention and termination of all staff not transferred to the board under the substitute amendment.

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

SB11-SSA1, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB11-SSA1,5,2 5.02 (1s) "Board" means the elections government accountability board.

SB11-SSA1, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB11-SSA1,5,5 5.05 (title) Elections Government accountability board; powers and duties.

SB11-SSA1, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB11-SSA1,5,10 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:

SB11-SSA1, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB11-SSA1, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB11-SSA1,6,9 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. The delegation is supplemental to the board's exercise of direct authority under this paragraph.

SB11-SSA1, s. 6 Section 6. 5.05 (1m) of the statutes is created to read:

SB11-SSA1,6,13 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.

SB11-SSA1, s. 7 Section 7. 5.05 (2m) of the statutes is created to read:

SB11-SSA1,6,20 5.05 (2m) Enforcement division. (a) The enforcement division shall investigate and prosecute alleged 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.

SB11-SSA1,6,23 (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.

SB11-SSA1,7,7 (c) 1. The board shall employ at least one full-time attorney and at least one full-time investigator within the enforcement division. Except as provided in subd. 2., the enforcement division may, with or without approval of the board, investigate or prosecute any 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 the attorney general to conduct investigations and enforce these laws. The enforcement division may request assistance from the department of justice to conduct investigations and prosecute violations of these laws.

SB11-SSA1,7,16 2. Prior to commencing any criminal prosecution with respect to an alleged violation of chs. 5 to 12, subch. III of ch. 13. or subch. III of ch. 19, the enforcement division shall provide written notice to the district attorney for the county in which the violation is alleged to have occurred. If the district attorney notifies the division in writing that he or she will not commence a criminal prosecution with respect to that alleged violation or the district attorney fails to commence a criminal prosecution with respect to that alleged violation within 30 days after receiving notice from the division, the division may commence a criminal prosecution with respect to that alleged violation.

SB11-SSA1,7,20 (d) 1. The enforcement division may employ special counsel to investigate any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, to bring any action authorized to be brought by the enforcement division or the board, or to enforce any order of the enforcement division or the board.

SB11-SSA1,8,2 2. When special counsel is employed, a contract in writing shall be entered into between the state and such counsel, in which shall be fixed the compensation to be paid such counsel by the state. The contract shall be executed on behalf of the state by the administrator of the enforcement division, who shall file the contract in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.455 (1) (b).

SB11-SSA1,8,6 3. Upon employment of special counsel, the administrator of the enforcement 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.

SB11-SSA1,8,11 (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 or action of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by the formal opinion or action in which the division nonacquiesces.

SB11-SSA1,8,14 (f) The enforcement division may request that the joint committee on finance supplement the appropriation under s. 20.511 (2) (a) without concurrence of the board.

SB11-SSA1, s. 8 Section 8. 5.05 (3m) of the statutes is created to read:

SB11-SSA1,8,17 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.

SB11-SSA1, s. 9 Section 9. 5.05 (5) of the statutes is repealed.

SB11-SSA1, s. 10 Section 10. 5.052 of the statutes is created to read:

SB11-SSA1,8,24 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). At its first meeting after each organization, the committee shall elect a chairperson and vice chairperson.

SB11-SSA1,9,2 (2) No person may be nominated by the committee unless the person receives the votes of at least 6 members.

SB11-SSA1,9,4 (3) Except as provided in sub. (4), the committee shall submit the following number of nominations:

SB11-SSA1,9,5 (a) To fill one vacancy, 2 nominations.

SB11-SSA1,9,6 (b) To fill 2 vacancies, 3 nominations.

SB11-SSA1,9,7 (c) To fill 3 vacancies, 5 nominations.

SB11-SSA1,9,8 (d) To fill 4 vacancies, 6 nominations.

SB11-SSA1,9,10 (4) If a nomination of the governor is rejected by the senate, the committee shall submit an additional nominee to the governor.

SB11-SSA1, s. 11 Section 11. 5.054 of the statutes is created to read:

SB11-SSA1,9,13 5.054 Duties of the executive director. The executive director of the board shall:

SB11-SSA1,9,15 (1) Whenever a vacancy occurs on the board, call a meeting of the government accountability candidate committee.

SB11-SSA1,9,17 (2) Assist the government accountability candidate committee in the performance of its functions.

SB11-SSA1, s. 12 Section 12. 5.066 of the statutes is created to read:

SB11-SSA1,9,19 5.066 Complaints and decision-making procedure. (1) In this section:

SB11-SSA1,9,20 (a) "Division" means the enforcement division of the board.

SB11-SSA1,9,23 (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.

SB11-SSA1,9,24 (c) "Local governmental unit" has the meaning given in s. 22.01 (7).

SB11-SSA1,9,25 (d) "Working day" has the meaning given in s. 227.01 (14).

SB11-SSA1,10,6 (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 potential 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.

SB11-SSA1,10,13 (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.

SB11-SSA1,10,16 (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).

SB11-SSA1,10,21 (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.

SB11-SSA1,11,8 (6) 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. 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.

SB11-SSA1,11,12 (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.

SB11-SSA1,11,22 (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.

SB11-SSA1,12,10 (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.

SB11-SSA1,12,14 (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.

SB11-SSA1,12,23 (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.

SB11-SSA1,13,9 (12) When the enforcement division issues an order imposing a forfeiture under 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 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.

SB11-SSA1,13,14 (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.

SB11-SSA1,13,17 (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.

SB11-SSA1,13,19 (b) This section does not apply to any matter arising in connection with a recount under s. 9.01.

SB11-SSA1, s. 13 Section 13. 5.40 (7) of the statutes is amended to read:

SB11-SSA1,14,2 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.

SB11-SSA1, s. 14 Section 14. 5.62 (4) (b) of the statutes is amended to read: