Amendment ASA1-AB1189

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

The substitute amendment provides for the substitute amendment to become law on January 1, 2007, after which date the members of the Government Accountability Board may be appointed and take office. However, the existing Elections Board and Ethics Board continue in operation until June 1, 2007, subject to appropriation of money for continued operation of the boards by other legislation. Under the substitute amendment, the Government Accountability Board may not exercise administrative or enforcement authority until June 1, 2007. 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.

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

Campaign activity by state employees

Currently, no state employee is authorized to engage in, and no state appointing authority is authorized to permit or require an employee to engage in, any activity on state time or with the use of state resources other than activity that is a part of the official functions of the state agency in which an employee works, as prescribed by law. In addition, with one limited exception, no person may solicit or receive from any state officer or employee any contribution or service for a political purpose while the officer or employee is engaged in his or her official duties. Under the Code of Ethics for State Public Officials and Employees, no state public official may use or attempt to use the public position held by the official to influence or gain unlawful benefits, advantages, or privileges personally or for others. Current law also specifically restricts political activity by employees who hold positions in the state classified service, and permits or in some cases requires those employees to take leaves of absence to participate in political activity.

This bill specifically prohibits an appointing authority of any state employee holding an appointive position from assigning or authorizing campaign activity, as defined in the bill, to be performed on state time, or with the use of state resources, or on any property owned or leased by the state. The bill specifically prohibits any state employee from using, or making available for use by another, state resources or property owned or leased by the state in connection with campaign activity except to the extent that the resources or property are available to be used by any person under similar circumstances. The bill provides that no state employee holding an appointive position may engage in campaign activity: 1) while engaged in his or her employment; 2) while on any form of paid leave, except vacation and paid holidays, and then only after obtaining the approval of the employee's appointing authority to use the leave for that purpose; or 3) during the established hours of employment for the employee, unless the employee first obtains a similar approval from his or her appointing authority. In addition, the bill prohibits any decision affecting the continued employment of a state employee holding an appointive position, or affecting the salary, benefits, hours, or other conditions of employment of such an employee, from being based on the failure of the employee to participate in any campaign activity or the failure to make a political contribution.

In addition, the bill extends a current restriction in the civil service law relating to the political activities of classified employees to apply to all state employees in appointive positions.

Under the bill, if a state employee who holds an appointive position becomes a candidate for partisan political office, the employee must be placed on a leave of absence for the duration of the election campaign and if elected must separate from his or her former position on assuming the duties and responsibilities of the partisan political office.

The bill provides that any violation of these prohibitions is a violation of the Code of Ethics for State Public Officials and Employees. Violators are subject to a forfeiture (civil penalty) of not more than $1,000 for each violation.

Solicitation or discouragement of political activity

The bill prohibits any state public official or state employee from knowingly soliciting or discouraging any political activity by a person who has business with the unit of government served by the official or employee. Currently, political solicitation is addressed in the campaign finance and civil service laws (see above). Discouragement of political activity is not specifically addressed in the statutes.

Violators are subject to a forfeiture of not more than $1,000 for each violation.

Training programs for state employees

Currently, the Ethics Board conducts training programs designed to explain and interpret the code of ethics for state public officials and the lobbying regulation law for state public officials and certain other persons. The board may prescribe a fee to be paid by attendees at these programs. This bill extends the coverage of these programs to include those portions of the campaign finance and civil service laws that pertain to political activity, including the portions created by the bill. The bill also directs the board to require attendance of state employees at these programs for a minimum number of hours specified by rule of the board within each biennial period, and to require each new state employee to attend such a program within six months after beginning employment. Under the bill, each state agency must pay any fees incurred by state employees in attending the programs.

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:

AB1189-ASA1, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

AB1189-ASA1,8,2 5.02 (1s) "Board" means the elections government accountability board.

AB1189-ASA1, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

AB1189-ASA1,8,5 5.05 (title) Elections Government accountability board; powers and duties.

AB1189-ASA1, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

AB1189-ASA1,8,10 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:

AB1189-ASA1, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

AB1189-ASA1, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

AB1189-ASA1,9,6 5.05 (1) (b) In the discharge of its duties and upon after providing notice to the any party or parties being investigated who is the subject of an investigation, subpoena and bring before it any person in the state and require the production of any papers, books, or other records relevant to an investigation. A circuit court may by order permit the inspection, and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court. The board shall delegate to the enforcement division the power to issue subpoenas and to obtain search warrants under this paragraph on behalf of the board, subject to the procedures under s. 5.066 (6). The delegation is supplemental to the board's exercise of direct authority under this paragraph.

AB1189-ASA1, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

AB1189-ASA1,9,25 5.05 (1) (c) Bring civil or criminal actions to require forfeitures for any violation of ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only violations with respect to reports or statements required by law to be filed with it, and other violations arising under elections for state office or statewide referenda chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it under ch.11 which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, an action or proposed action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling actions or proposed actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Forfeiture actions brought by the board shall be brought in the circuit court for the county wherein the violation is alleged to occur.

AB1189-ASA1, s. 7 Section 7. 5.05 (1m) of the statutes is created to read:

AB1189-ASA1,10,4 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.

AB1189-ASA1, s. 8 Section 8. 5.05 (2m) of the statutes is created to read:

AB1189-ASA1,10,11 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.

AB1189-ASA1,10,14 (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.

AB1189-ASA1,10,25 (c) 1. The board shall employ at least one full-time attorney and at least one full-time staff support individual within the enforcement division. The enforcement division may, with or without approval of the board, investigate 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 authorization of the board to obtain the assistance of special counsel to conduct investigations or to prosecute violations of these laws. The enforcement division may also request assistance from the department of justice to conduct investigations or to prosecute violations of these laws.

AB1189-ASA1,11,15 2. Upon opening or concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the board shall notify the district attorney for the county wherein the violation is alleged to occur. Upon opening or concluding an investigation of any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a district attorney shall notify the board. Upon request of the board or a district attorney, the board and district attorney shall each share information in their possession relating to any alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the board notifies the district attorney for any county that it has opened an investigation of a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 that is alleged to have occurred in that county, the district attorney shall suspend any investigation of the same alleged violation that the district attorney is conducting until the board notifies the district attorney that it has concluded its investigation and it will not prosecute the alleged violation or there elapse 30 days from the date of the board's notification that its investigation is concluded and the board does not commence a prosecution of the alleged violation.

AB1189-ASA1,11,24 3. The district attorney for any county may refer any matter concerning a possible civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 to the board. If the board determines not to commence a criminal prosecution with respect to a matter concerning an alleged criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 by an elective state official, as defined in s. 13.62 (6), or a state public official, as defined in s. 19.42 (14), that is referred to the board under this subdivision, the board shall, within 30 days of receipt of the referral, report to the district attorney in writing specifying the reasons why it has determined not to commence a criminal prosecution.

AB1189-ASA1,12,8 4. If a district attorney opens an investigation of a possible criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall report to the board concerning the status of the investigation no later than the end of each consecutive 90-day period, beginning on the day that the investigation is opened and ending on the day that the investigation is concluded. Within 30 days after receiving a report under this subdivision, the board may direct the district attorney to close the investigation and the district attorney shall thereupon close the investigation.

AB1189-ASA1,12,16 5. 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, a district attorney shall provide written notice to the board. If the board notifies the district attorney in writing that it will not commence a criminal prosecution with respect to that alleged violation or the board fails to commence a criminal prosecution with respect to that alleged violation within 30 days after receiving notice from the district attorney under this subdivision, the district attorney may commence a criminal prosecution with respect to that alleged violation.

AB1189-ASA1,12,24 6. If a district attorney commences a criminal prosecution for an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, the district attorney shall report to the board concerning the status of the prosecution no later than the end of each consecutive 180-day period, beginning on the day that the prosecution is commenced and ending on the day that the prosecution is concluded. Within 30 days after receiving a report under this subdivision, the board may direct the district attorney to terminate the prosecution and the district attorney shall thereupon terminate the prosecution.

AB1189-ASA1,13,5 7. If the board directs a district attorney to close an investigation of a person under subd. 4. or to terminate a prosecution of a person under subd. 6. with respect to an alleged violation of the law, the district attorney shall not open a new criminal investigation or commence a new criminal prosecution of the same person with respect to the same alleged violations of the law.

AB1189-ASA1,13,12 8. Each individual who is retained by the board to act as an investigator shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 90 days. If the administrator of the enforcement division investigates any matter without retention of an investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 90 days. If, after receiving a report, the board does not vote to terminate the investigation, the investigation is continued.

AB1189-ASA1,13,17 9. Upon employment of any individual to serve as special counsel for the enforcement division, 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.

AB1189-ASA1,13,22 (e) The enforcement division is bound by applicable laws, rules, formal opinions, and actions of the board, except that the division may nonacquiesce in any formal opinion of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by the formal opinion in which the division nonacquiesces.

AB1189-ASA1, s. 9 Section 9. 5.05 (3) (a) of the statutes is amended to read:

AB1189-ASA1,14,3 5.05 (3) (a) The board shall upon complaint by any person or on its own motion investigate violations of the elections laws and shall notify the district attorney of the proper county, or the attorney general or the governor where appropriate under s. 11.60 (4) or 11.61 (2) of any facts within its knowledge or evidence in its possession which may be grounds for civil action or criminal prosecution.

AB1189-ASA1, s. 10 Section 10. 5.05 (3m) of the statutes is created to read:

AB1189-ASA1,14,6 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.

AB1189-ASA1, s. 11 Section 11. 5.05 (5) of the statutes is repealed.

AB1189-ASA1, s. 12 Section 12. 5.05 (5s) (title) and (d) of the statutes are created to read:

AB1189-ASA1,14,9 5.05 (5s) (title) Access to records.

AB1189-ASA1,14,11 (d) All records of votes taken upon actions by the board are open to public inspection and copying under s. 19.35.

AB1189-ASA1, s. 13 Section 13. 5.05 (6) of the statutes is repealed.

AB1189-ASA1, s. 14 Section 14. 5.05 (11) of the statutes is repealed.

AB1189-ASA1, s. 15 Section 15. 5.052 of the statutes is created to read:

AB1189-ASA1,14,18 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).

AB1189-ASA1,14,20 (2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.

AB1189-ASA1,14,22 (3) Except as provided in sub. (4), the committee shall submit the following number of nominations:

AB1189-ASA1,14,23 (a) To fill one vacancy, 2 nominations.

AB1189-ASA1,14,24 (b) To fill 2 vacancies, 3 nominations.

AB1189-ASA1,14,25 (c) To fill 3 vacancies, 5 nominations.

AB1189-ASA1,15,1 (d) To fill 4 vacancies, 6 nominations.

AB1189-ASA1,15,2 (e) To fill 5 vacancies, 7 nominations.

AB1189-ASA1,15,3 (f) To fill 6 vacancies, 8 nominations.

AB1189-ASA1,15,5 (4) If a nomination of the governor is rejected by the senate or the assembly, the committee shall submit an additional nominee to the governor.

AB1189-ASA1, s. 16 Section 16. 5.054 of the statutes is created to read:

AB1189-ASA1,15,8 5.054 Duties of the executive director. The executive director of the board shall:

AB1189-ASA1,15,10 (1) Whenever a vacancy occurs on the board, call a meeting of the government accountability candidate committee.

AB1189-ASA1,15,12 (2) Assist the government accountability candidate committee in the performance of its functions.

AB1189-ASA1, s. 17 Section 17. 5.066 of the statutes is created to read:

AB1189-ASA1,15,14 5.066 Complaints and decision-making procedure. (1) In this section:

AB1189-ASA1,15,15 (a) "Division" means the enforcement division of the board.

AB1189-ASA1,15,18 (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.

AB1189-ASA1,15,19 (c) "Local governmental unit" has the meaning given in s. 16.97 (7).

AB1189-ASA1,15,20 (d) "Working day" has the meaning given in s. 227.01 (14).

AB1189-ASA1,16,7 (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. If the division finds, by a preponderance of evidence, that a complaint is frivolous, the division may order the complainant to forfeit not more than the greater of $500 or the expenses incurred in investigating the complaint. The attorney general, when so requested by the division, shall institute proceedings to recover any forfeiture incurred under this subsection that is not paid by the person against whom it is assessed.

AB1189-ASA1,16,14 (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.

AB1189-ASA1,16,17 (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).

AB1189-ASA1,16,22 (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.

AB1189-ASA1,17,13 (6) Subject to the procedures under this subsection, the division may, in the discharge of its functions under this section and after providing notice to any party who is the subject of an investigation, subpoena and bring before it any person and require the production of any papers, books, or other records relevant to an investigation. Prior to issuing a subpoena or obtaining a search warrant, the division shall submit a written request for this purpose to the board. If the board does not disapprove the request within 10 days of receiving the request, the division may issue the subpoena or obtain the search warrant. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in this state to obtain evidence of any violation of ch. 11 or 12, subch. III of ch. 1 3, or subch. III of ch. 19 upon a showing by the division of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its functions under this section, the division may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

AB1189-ASA1,17,17 (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.

AB1189-ASA1,18,2 (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.

AB1189-ASA1,18,15 (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.

AB1189-ASA1,18,19 (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.

AB1189-ASA1,19,3 (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.

AB1189-ASA1,19,14 (12) When the enforcement division issues an order imposing a forfeiture under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 that is not appealed in a timely manner under sub. (8) or (11), or when the board issues an order imposing a forfeiture under sub. (2) or s. 11.60, 12.60 (1) (c) or (d), 13.69, or 19.579 and the period allowed under s. 227.57 for judicial review of the order expires, the division or board may file a copy of its order with the clerk of circuit court for Dane County. The clerk shall thereupon enter the order in the judgment and lien docket in the same manner as provided for entry of civil judgments under s. 806.10. The division or board may also enter the order on the judgment and lien docket of any other county under s. 806.13. The order may be enforced and satisfied in the same manner as provided for enforcement and satisfaction of civil judgments.

AB1189-ASA1,19,19 (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.

AB1189-ASA1,19,22 (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.

AB1189-ASA1,19,24 (b) This section does not apply to any matter arising in connection with a recount under s. 9.01.