Amendment ASA2-SB1

LRBs0556/1

JTK:cs&wj:jf

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO 2005 SENATE BILL 1

February 21, 2006 - Offered by Representative Gundrum.

SB1-ASA2,2,20 An Act to repeal 5.05 (1) (a), 5.05 (3), 5.05 (5), 5.05 (6), 5.05 (11), 5.07, 5.08, 7.08 (7), 7.21 (2m), 9.01 (1) (ag) 4., 13.69 (8), 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (2), 19.47 (4), 19.49 (title), 19.49 (1), 19.49 (3), 19.49 (4), 19.50 (title), 19.51 (title), 19.51 (1) (a) and (b), 19.51 (3), 19.52, 19.53 (intro.), 19.53 (1) to (5), 19.53 (7) and (8), 19.535, 19.54, 19.545, 19.59 (8) (c), 19.59 (8) (cn) and (d), 20.510 (intro.), 20.510 (1) (title), 20.510 (1) (a), 20.510 (1) (bm), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (g), 20.510 (1) (h), 20.510 (1) (i), 20.510 (1) (j), 20.510 (1) (q), 20.510 (1) (t), 20.510 (1) (x), 20.521 (intro.), 20.521 (1) (title), 20.521 (1) (a), 20.521 (1) (b), 20.521 (1) (g), 20.521 (1) (h), 20.521 (1) (i), 20.923 (4) (d) 3., 20.923 (4) (d) 4., 230.08 (2) (om), 230.08 (2) (wm) and 778.136; to renumber 19.49 (1m), 19.50 (4) and (5), 19.51 (2) and 19.579; to renumber and amend 15.617, 19.46 (2), 19.49 (2), 19.49 (5), 19.50 (intro.) and (1) to (3), 19.51 (1) (intro.), 19.53 (6), 19.55 (2) (a) and 19.55 (2) (b); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (1) (e), 5.06 (2), 5.081, 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 6.56 (2) to (5), 7.08 (title), 7.15 (1) (g), 7.23 (2), 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), 8.28, 8.50 (3) (a), 8.50 (3) (e), 9.01 (1) (a), 9.01 (1) (ar) 2., 9.01 (10), 11.21 (title), 11.21 (7) (intro.), 11.22 (4), 11.38 (5), 11.60 (5), 11.61 (2), 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), 16.973 (6), 17.07 (6), 17.17 (1), 17.17 (4), 19.42 (3), 19.43 (4), 19.43 (5), 19.45 (6), 19.46 (1) (intro.), 19.47 (5), 19.55 (1), 19.55 (2) (c), 19.579 (title), 19.59 (1) (g) 8., 19.59 (8) (a) and (b), 19.85 (1) (h), 20.923 (4) (intro.), 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), 85.61 (1), 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), 227.45 (1), 227.46 (1) (intro.), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m) and 778.135; to repeal and recreate 11.60 (4), 15.07 (1) (a) 2. and 71.10 (3) (b); and to create 5.05 (1e), 5.05 (1m), 5.05 (2m), 5.05 (3g), 5.05 (5s) (title), (d) and (e), 5.052, 5.054, 12.13 (5), 12.60 (1) (bm), 15.07 (5) (m), 15.60, 15.603, 19.85 (1) (fm), 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 230.08 (2) (e) 4h. and 230.08 (2) (on) of the statutes; relating to: creation of a Government Accountability and Integrity Board, granting rule-making authority, 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 percent of the vote (currently, the Republican, Democratic, and Libertarian parties).

Currently, the Ethics Board consists of six members. Members of the Ethics 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 Ethics 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 and Integrity Board. Under the substitute amendment, the board is composed of seven members serving for staggered four-year terms who are nominated by the governor and appointed with the advice and consent of the senate and assembly. Four of the members must have prosecutorial experience, two of the members must have prior service as a nonpartisan elective official of a local governmental unit, and one must be a retired judge. Each of the members must be appointed from nominations submitted by a Government Accountability and Integrity Candidate Committee, which consists of one court of appeals judge from each of the court of appeals districts. The judges are chosen by lot by the chief justice of the supreme court in the presence of the other justices. A unanimous vote of the committee is required to nominate a candidate. No member of the Government Accountability and Integrity Board may hold another position that is subject to the code of ethics for state public officials or the code of ethics for local public officials. 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, a candidate for any partisan office or an officer or employee of a registrant under the campaign finance law. No member may be a lobbyist or an employee of a principal (person who employs a lobbyist). The concurrence of at least four members is required for the board to take action.

The substitute amendment creates three divisions within the Government Accountability and Integrity Board. The divisions are an Enforcement Division, and Accountability and Integrity Division and an Elections Division. The Enforcement Division is headed by an administrator who is appointed by 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 must be an attorney licensed to practice law in this state who has criminal justice experience. The administrator may not be removed during his or her term except for cause. The other two divisions are headed by division administrators who are appointed outside the classified service by the board to serve at its pleasure.

The substitute amendment does not authorize any new positions for the administrators. The substitute amendment transfers all members of the existing staffs of the Elections Board and Ethics Board and their positions to the Government Accountability and Integrity Board. Under the substitute amendment, the staff members who have civil service rights retain those rights. The substitute amendment does not provide any funding for continued employment of the staff members, however.

Under current law, the Elections Board and Ethics Board share civil enforcement authority with district attorneys and in some cases with county boards of election commissioners and the attorney general; and the district attorneys, and in some cases the attorney general, exercise criminal enforcement authority. Currently, the Elections Board and Ethics Board may investigate violations of the law, with or without complaint, and may enforce their respective laws. The Elections Board may file civil actions to collect forfeitures (civil monetary penalties) for violations of the law and the Ethics Board may, after an administrative hearing, assess civil forfeitures or impose certain other remedies for violations of the law. Currently, the Elections Board has an administrative procedure for processing of complaints from electors alleging that an action or failure to act on the part of an election official is contrary to law, or that an official has abused his or her discretion. Under the procedure, the board may order the official to conform his or her conduct to the law or may prosecute the official for a civil violation of the law. If either board finds a criminal violation of the law, it may refer the matter to the appropriate district attorney, or in certain cases the attorney general.

This substitute amendment substitutes a different investigatory and prosecution procedure that is uniformly applicable to the the elections, ethics and lobbying regulation laws. Under the substitute amendment, only the Government Accountability and Integrity Board has authority to investigate and prosecute civil and criminal violations of the elections, ethics and lobbying regulation laws. The administrator of the Enforcement Division initially determines whether there is a reasonable suspicion that a violation of the elections, ethics, or lobbying regulation laws has occurred and whether an investigation is appropriate. The administrator must notify the board within ten days of opening an investigation. If any member of the board requests the chairperson to call a meeting to discuss the investigation, and the member requests that the investigation be suspended until the meeting is held, the investigation is suspended until the meeting is held. If an investigation is suspended, the meeting must be held within 10 working days of receipt of the request. If the board determines to proceed with the investigation, it may direct the administrator to submit the names of three qualified investigators. The board may retain one or more of the investigators. The board may also authorize the administrator of the Enforcement Division to investigate any matter without retaining an investigator. An investigator or the administrator must report to the board concerning an investigation at least once every 90 days, after which the investigation terminates unless the board votes to continue it. If the board determines to file civil or criminal charges against an alleged offender, it may request the administrator to submit the names of three individuals to act as special counsel. Once retained, the special counsel proceeds with the case in the manner he or she sees fit, with the assistance of the Enforcement Division. The substitute amendment provides that any individual who is appointed by the board to serve as special counsel shall be a retired judge of a court of record in this state or an attorney who, at the time of appointment, has senior status as a member of the State Bar of Wisconsin, as defined by the supreme court.

The substitute amendment provides that whenever the Government Accountability and Integrity Board authorizes commencement of a prosecution, and the prosecution is not concluded in circuit court or settled within six months of the board's action, the prosecution may not proceed unless the board authorizes the prosecution to proceed for an additional period not exceeding six months. The substitute amendment permits the Government Accountability and Integrity Board, by rule, to authorize the administrator of the Enforcement Division to compromise and settle specified categories of offenses in the name of the board without a formal investigation, if the offenses by any given alleged offender do not involve payment of more than $500. The substitute amendment provides that no individual who serves as an employee in the Enforcement Division and no individual who is retained to serve as an investigator or special counsel for the division may, during such service or for 12 months after ceasing to be so employed or retained, become a candidate for a state or local elective office.

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 and Integrity Board closed to public inspection, subject to the current exceptions for opinions issued by the Ethics Board.

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 repeals all appropriations to both boards and does not make any appropriations to the Government Accountability and Integrity Board. Under the substitute amendment, the Government Accountability and Integrity Board will be unable to operate unless funding is provided for the board by other legislation.

Under the substitute amendment, any person may file a sworn complaint with the board alleging a violation of the elections, ethics, or lobbying regulation laws. The substitute amendment also permits the board to investigate any violation of the elections, ethics, or lobbying regulation laws on its own initiative.

The substitute amendment provides for the substitute amendment to become law on January 1, 2007, after which date the members of the Government Accountability and Integrity Board may be appointed and take office. However, the existing Elections Board and Ethics Board continue in operation until July 1, 2007. Under the substitute amendment, the Government Accountability and Integrity Board may not exercise administrative or enforcement authority until July 1, 2007. The substitute amendment also provides that the director of the Legislative Council Staff shall serve as executive director of the Government Accountability and Integrity Board, without additional compensation, until the initial executive director of the Government Accountability and Integrity Board is appointed and qualified, and may exercise all of the functions of the executive director of the Government Accountability and Integrity Board, the divisions within the board, and the administrators of the divisions.

Currently, except as otherwise provided by law, public records may be examined or copied by any person unless the custodian demonstrates that the public interest in withholding access to a record outweighs the public interest in providing access. With certain exceptions, records obtained and prepared by the Ethics Board in connection with an investigation are specifically exempted from public access. This substitute amendment provides specifically that investigatory records of the Government Accountability and Integrity Board are exempted from the right of public access, subject to the current exceptions, except that if the board commences a prosecution of a person as a result of an investigation, the person who is the subject of the investigation may direct the board to provide access to records of the investigation pertaining to that person if the records are available by law to the subject person, and except that records of the board containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred or records containing a finding that no probable cause exists to believe that a violation of the law has occurred are open to public access. Under the substitute amendment, any person other than the subject of an investigation who provides public access to a record of the board that is not accessible to the public is guilty of a misdemeanor and may be fined not more than $500 or imprisoned for not more than 30 days or both.

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 and Integrity Board may meet in closed session to deliberate concerning any investigation under the board's jurisdiction.

Under current law, if a court finds that any provision of a legislative act is unconstitutional and there are other provisions that are not dependent for their operation upon the unconstitutional provision, the other provisions remain valid. This substitute amendment provides that if a court finds that any provision of the act resulting from the substitute amendment is unconstitutional, the entire act is void.

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

SB1-ASA2, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB1-ASA2,6,3 5.02 (1s) "Board" means the elections government accountability and integrity board.

SB1-ASA2, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB1-ASA2,7,2 5.05 (title) Elections Government accountability and integrity board; powers and duties.

SB1-ASA2, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB1-ASA2,7,7 5.05 (1) General authority. (intro.) The elections government accountability and integrity 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:

SB1-ASA2, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB1-ASA2, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB1-ASA2,7,20 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.

SB1-ASA2, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB1-ASA2,8,20 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. Whenever the board enters into a settlement agreement with an individual who is accused of a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board for a possible violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

SB1-ASA2, s. 7 Section 7. 5.05 (1) (e) of the statutes is amended to read:

SB1-ASA2,9,5 5.05 (1) (e) Delegate to its executive director the authority to issue a subpoena under par. (b), apply for a search warrant under par. (b), commence an action under par. (d), intervene in an action or proceeding under sub. (9), 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.

SB1-ASA2, s. 8 Section 8. 5.05 (1e) of the statutes is created to read:

SB1-ASA2,9,8 5.05 (1e) Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.

SB1-ASA2, s. 9 Section 9. 5.05 (1m) of the statutes is created to read:

SB1-ASA2,9,12 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.

SB1-ASA2, s. 10 Section 10. 5.05 (2m) of the statutes is created to read:

SB1-ASA2,9,17 5.05 (2m) Enforcement division. (a) The enforcement division, under the direction and supervision of the board, 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.

SB1-ASA2,9,19 (c) 1. The board shall employ at least one full-time attorney within the enforcement division.

SB1-ASA2,9,25 2. a. Any person may file a complaint with the enforcement division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the enforcement division finds, by a preponderance of the 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 by the division in investigating the complaint. The enforcement division may, in accordance with this paragraph, 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. Only the enforcement division may investigate or prosecute civil or criminal violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.

SB1-ASA2,11,7 4. The administrator of the enforcement division shall make an initial determination as to whether there is a reasonable suspicion that a violation under subd. 2. has occurred and whether an investigation of the suspected violation is appropriate. The administrator shall notify the board within 10 days of opening an investigation of any matter. If, within 10 days of receiving notification, any member of the board requests the chairperson to call a meeting of the board be held to discuss the investigation, and the member requests that the investigation be suspended until the meeting is held, the administrator shall suspend the investigation until the board directs the investigation to proceed. The chairperson of the board shall thereupon call a meeting of the board to discuss the investigation. If an investigation is suspended, the meeting shall be held within 10 working days, as defined in s. 227.01 (14), of receiving the request. If the board believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may elect to proceed with the investigation and may, in addition, elect to retain an investigator who meets the qualifications prescribed in subd. 7. If the board elects to retain an investigator, the administrator shall submit to the board the names of 3 qualified individuals to serve as an investigator. The board may retain one or more of the investigators. Each investigator who is retained by the board 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 board authorizes the administrator to investigate any matter without retaining 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 continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator of the enforcement division shall present to the board one of the following:

SB1-ASA2,11,10 a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.

SB1-ASA2,11,12 b. A recommendation for further investigation of the matter together with facts supporting that course of action.

SB1-ASA2,11,14 c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.

SB1-ASA2,11,24 5. The enforcement division may file a complaint against any person under subd. 2 only upon authorization by the board. The enforcement division may request the assistance of special counsel to prosecute any action brought by the board. If the enforcement division requests the assistance of special counsel with respect to any matter, the administrator of the enforcement division shall submit to the board the names of 3 qualified individuals to serve as special counsel. Any individual so appointed shall meet the qualifications prescribed in subd. 7. The board may retain one of the individuals to act as special counsel. The staff of the enforcement division shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.