Amendment ASA5-SB1

LRBs0614/3

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2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 5, TO 2005 SENATE BILL 1

March 2, 2006 - Offered by Committee on Campaigns and Elections.

SB1-ASA5,2,21 An Act to repeal 5.05 (1) (a), 5.05 (5), 5.05 (6), 5.05 (11), 7.08 (7), 9.01 (1) (ag) 4., 15.07 (5) (k), 15.07 (5) (n), 15.61, 15.62, 19.42 (10) (a), 19.47 (2), 19.47 (4), 19.59 (1) (a) to (d), 19.59 (1) (g), 19.59 (6), 19.59 (8) (cm), 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) and 230.08 (2) (wm); to renumber and amend 15.03, 15.617, 19.46 (2), 19.55 (2) (a), 19.55 (2) (b) and 19.59 (1) (f); to amend 5.02 (1s), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (3) (a), 5.40 (7), 5.62 (4) (b), 6.26 (2) (b), 6.26 (2) (c), 6.56 (2) to (5), 7.08 (title), 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), 8.50 (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), 11.61 (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), 19.41 (1), 19.42 (3), 19.43 (4), 19.43 (5), 19.43 (7), 19.45 (title), 19.45 (1), 19.45 (2), 19.45 (3), 19.45 (3m), 19.45 (4), 19.45 (5), 19.45 (6), 19.45 (8) (a), 19.45 (10), 19.45 (11) (intro.), 19.45 (13), 19.46 (1) (intro.), 19.47 (5), 19.48 (1), 19.48 (4) (a), 19.48 (4) (b), 19.48 (9), 19.49 (5) (b), 19.50 (2), 19.53 (1), 19.53 (1m), 19.53 (6), 19.54 (2), 19.55 (1), 19.55 (2) (c), 19.56 (1), 19.56 (2) (b) 5., 19.56 (3) (a), 19.56 (3) (b), 19.56 (3) (c), 19.56 (3) (d), 19.56 (4), 19.58 (1), 19.58 (2), 19.59 (title), 19.59 (1m), 19.59 (3) (a), 19.59 (3) (e), 19.59 (5) (a), 19.59 (7), 19.59 (8) (a) to (c), 19.59 (8) (cn), 19.59 (8) (d), 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), 227.52 (6), 230.08 (4) (a), 234.02 (3m) (c), 560.04 (2m), 778.135 and 778.136; to repeal and recreate 11.60 (4), 15.07 (1) (a) 2., 19.579 and 71.10 (3) (b); and to create 5.05 (1m), 5.05 (2m), 5.05 (3m), 5.05 (5s) (title) and (d), 5.052, 5.054, 5.066, 15.03 (2), 15.07 (5) (m), 15.60, 15.603, 19.42 (4a), 19.42 (10) (q), 19.45 (6a), 19.45 (7a), 19.45 (8) (ba) and (ca), 19.46 (3a), 19.85 (1) (fm), 20.923 (4) (e) 2e., 20.923 (4) (f) 3j., 165.25 (4) (e), 227.03 (6m), 230.08 (2) (e) 4h., 230.08 (2) (on) and 971.19 (12) of the statutes; relating to: creation of a Government Accountability Board 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 Board. Under the substitute amendment, the board is composed of seven members serving for staggered four-year terms. Four members of the board must have prosecutorial experience. One member of the board is a retired judge of a court of record in this state. All of the members are nominated by the governor and appointed with the advice and consent of the assembly and senate. Each of the members must be appointed from nominations submitted by a Government Accountability 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 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 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 but 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 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.

The Enforcement Division is empowered to investigate violations and bring civil and criminal actions to enforce the elections, ethics, and lobbying regulation laws. 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 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 violations of the elections, ethics, and lobbying regulation laws and to prosecute civil or criminal violations without the consent of the Government Accountability Board, except that the division must obtain the concurrence of the board before issuing a subpoena or obtaining a search warrant. The substitute amendment permits the Enforcement Division to request the board to appoint special counsel to investigate or prosecute violations of the law. Under the substitute amendment, the board may retain special counsel to act as an investigator in any matter. The administrator of the Enforcement Division may also investigate any matter without retention of 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 may continue unless the board votes to terminate it. The substitute amendment also 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. 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 of the board by publishing a notice of nonacquiescence in the Wisconsin Administrative Register. Thereafter, the division is not bound by that opinion. The substitute amendment directs the Government Accountability Board and the district attorneys to share investigatory information concerning possible violations of the elections, ethics, and lobbying regulation laws and accords precedence to the board in conducting investigations and prosecutions. If a district attorney refers to the board a matter concerning a possible criminal violation of the elections, ethics, or lobbying regulation laws by a state official and the board determines not to commence a criminal prosecution, the substitute amendment directs the board to report to the district attorney within 30 days of the referral specifying the reasons why it will not commence a prosecution.

The substitute amendment directs a district attorney to notify the Government Accountability Board before commencing a criminal prosecution concerning any violation of the elections, ethics, or lobbying regulation laws. If the board notifies the district attorney that it will not commence a criminal prosecution, or the board does not commence a criminal prosecution within 30 days after receiving the notice, the district attorney may commence the prosecution.

The substitute amendment provides that if a district attorney opens an investigation of a possible criminal violation of the elections, ethics, or lobbying regulation laws, the district attorney must report to the Government Accountability Board concerning the status of the investigation no later than the end of each 90-day period until the investigation is concluded. Similarly, under the substitute amendment, if a district attorney commences a criminal prosecution for a violation of the elections, ethics, or lobbying regulation laws, the district attorney must report to the board concerning the status of the prosecution no later than the end of each 180-day period until the prosecution is concluded. Within 30 days after receiving any report, the substitute amendment permits the board to direct the district attorney to close the investigation or to terminate the prosecution, and the district attorney must do so.

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 Board. Under the substitute amendment, the Government Accountability Board will be unable to operate unless funding is provided for the board by other legislation. 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, 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.

Currently, a defendant in a criminal trial is tried in the county where the the defendant's crime is alleged to have been committed, except that the defendant may request the judge to move the trial to another county and the judge may grant the request if the judge believes that an impartial trial cannot be had unless the trial is moved. This substitute amendment provides that if the defendant in a criminal trial for a violation of the elections, ethics, or lobbying regulation laws is a resident of this state, the trial shall be held in circuit court for the county where the defendant resides, subject to the current exception.

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.

Currently, local public officials, as defined by law, are subject to a separate statutory code of ethics for local public officials which imposes standards of conduct that are more limited than the standards that apply under the code of ethics for state public officials and employees. Unlike the state code, the code of ethics for local public officials does not include any requirement to file statements of economic interests. This substitute amendment abolishes the code of ethics for local public officials and employees and extends the state code to apply to all local public officials.

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.

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

SB1-ASA5, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB1-ASA5,6,2 5.02 (1s) "Board" means the elections government accountability board.

SB1-ASA5, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB1-ASA5,6,5 5.05 (title) Elections Government accountability board; powers and duties.

SB1-ASA5, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB1-ASA5,7,5 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:

SB1-ASA5, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB1-ASA5, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB1-ASA5,7,22 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.

SB1-ASA5, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB1-ASA5,8,16 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.

SB1-ASA5, s. 7 Section 7. 5.05 (1m) of the statutes is created to read:

SB1-ASA5,8,20 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-ASA5, s. 8 Section 8. 5.05 (2m) of the statutes is created to read:

SB1-ASA5,9,2 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.

SB1-ASA5,9,5 (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.

SB1-ASA5,9,16 (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.

SB1-ASA5,9,25 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.

SB1-ASA5,10,15 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.

SB1-ASA5,10,23 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.

SB1-ASA5,11,6 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.

SB1-ASA5,11,14 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.

SB1-ASA5,11,19 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.

SB1-ASA5,12,2 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.

SB1-ASA5,12,7 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.

SB1-ASA5,12,12 (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.