SB1: Bill Text Engrossed

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 bill repeals all appropriations to both boards and does not make any appropriations to the Government Accountability Board. Under the bill, the Government Accountability Board will be unable to operate unless funding is provided for the board by other legislation. The bill 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 bill, 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 bill 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 bill provides for the bill to become law on the day after publication, 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 the first day of the sixth month beginning after publication, subject to appropriation of money for continued operation of the boards by other legislation. Under the bill, the Government Accountability Board may not exercise administrative or enforcement authority until the first day of the sixth month beginning after publication. The bill 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.

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:

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

SB1-engrossed,5,2 5.02 (1s) "Board" means the elections government accountability board.

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

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

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

SB1-engrossed,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:

SB1-engrossed, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

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

SB1-engrossed,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.

SB1-engrossed, s. 6 Section 6. 5.05 (1m) of the statutes is created to read:

SB1-engrossed,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.

SB1-engrossed, s. 7 Section 7. 5.05 (2m) of the statutes is created to read:

SB1-engrossed,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.

SB1-engrossed,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.

SB1-engrossed,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.

SB1-engrossed,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, with the approval of the board, commence a criminal prosecution with respect to that alleged violation.

SB1-engrossed,7,20 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.

SB1-engrossed,7,25 (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.

SB1-engrossed, s. 8 Section 8. 5.05 (3m) of the statutes is created to read:

SB1-engrossed,8,3 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.

SB1-engrossed, s. 9 Section 9. 5.05 (5) of the statutes is repealed.

SB1-engrossed, s. 10 Section 10. 5.05 (6) of the statutes is amended to read:

SB1-engrossed,8,17 5.05 (6) Formal opinions. Any interested person may make written request to the board executive director of the board to issue a formal opinion with respect to the person's authority or responsibilities under chs. 5 to 12. The board executive director shall within 15 days advise the person requesting an opinion whether or not a formal opinion will be issued. If a formal opinion will be issued, it shall be issued within 30 days of the request. The executive director may consult with the board before issuing a formal opinion. No person acting in good faith upon a formal opinion issued to the person by the board executive director shall be subject to civil or criminal prosecution for so acting, if the material facts are as stated in the opinion request. Nothing in this subsection requires the issuance of an opinion by the board executive director, nor precludes it the executive director from issuing an opinion or ruling in any other manner.

SB1-engrossed, s. 11m Section 11m. 5.05 (11) of the statutes is repealed.

SB1-engrossed, s. 12 Section 12. 5.052 of the statutes is created to read:

SB1-engrossed,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). The chief justice of the supreme court shall serve as chairperson of the committee.

SB1-engrossed,9,2 (2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.

SB1-engrossed,9,4 (3) Except as provided in sub. (4), the committee shall submit the following number of nominations:

SB1-engrossed,9,5 (a) To fill one vacancy, 2 nominations.

SB1-engrossed,9,6 (b) To fill 2 vacancies, 3 nominations.

SB1-engrossed,9,7 (c) To fill 3 vacancies, 5 nominations.

SB1-engrossed,9,8 (d) To fill 4 vacancies, 6 nominations.

SB1-engrossed,9,10 (4) If a nomination of the governor is rejected by the senate, the committee shall submit an additional nominee to the governor.

SB1-engrossed, s. 13 Section 13. 5.054 of the statutes is created to read:

SB1-engrossed,9,13 5.054 Duties of the executive director. The executive director of the board shall:

SB1-engrossed,9,15 (1) Whenever a vacancy occurs on the board, call a meeting of the government accountability candidate committee.

SB1-engrossed,9,17 (2) Assist the government accountability candidate committee in the performance of its functions.

SB1-engrossed, s. 14 Section 14. 5.066 of the statutes is created to read:

SB1-engrossed,9,19 5.066 Complaints and decision-making procedure. (1) In this section:

SB1-engrossed,9,20 (a) "Division" means the enforcement division of the board.

SB1-engrossed,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.

SB1-engrossed,9,24 (c) "Local governmental unit" has the meaning given in s. 16.97 (7).

SB1-engrossed,9,25 (d) "Working day" has the meaning given in s. 227.01 (14).

SB1-engrossed,10,12 (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 expanses 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.

SB1-engrossed,10,19 (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.

SB1-engrossed,10,22 (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).

SB1-engrossed,11,2 (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.

SB1-engrossed,11,18 (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 7 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.

SB1-engrossed,11,22 (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.

SB1-engrossed,12,7 (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.

SB1-engrossed,12,20 (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.

SB1-engrossed,12,24 (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.

SB1-engrossed,13,9 (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.

SB1-engrossed,13,20 (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.

SB1-engrossed,13,25 (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.

SB1-engrossed,14,3 (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.

SB1-engrossed,14,5 (b) This section does not apply to any matter arising in connection with a recount under s. 9.01.

SB1-engrossed, s. 15 Section 15. 5.40 (7) of the statutes is amended to read:

SB1-engrossed,14,13 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.

SB1-engrossed, s. 16 Section 16. 5.62 (4) (b) of the statutes is amended to read:

SB1-engrossed,14,19 5.62 (4) (b) The county board of election commissioners in counties having a population of more than 500,000 shall prepare the official primary ballot. The commissioners shall arrange the names of all candidates for each office whose nomination papers are filed at the county level, using the same method as that used by the elections government accountability board under s. 5.60 (1) (b).

SB1-engrossed, s. 17 Section 17. 6.26 (2) (b) of the statutes is amended to read:

SB1-engrossed,15,2 6.26 (2) (b) The municipal clerk, board of election commissioners, or elections government accountability board may appoint any applicant who qualifies under this subsection, unless the applicant's appointment has been revoked by a municipality or by the board for cause. The municipal clerk, board of election commissioners, or elections government accountability board may revoke an appointment made by the clerk, board of election commissioners, or elections government accountability board for cause at any time.

SB1-engrossed, s. 18 Section 18. 6.26 (2) (c) of the statutes is amended to read:

SB1-engrossed,15,7 6.26 (2) (c) No individual may serve as a special registration deputy in a municipality unless the individual is appointed by the municipal clerk or board of election commissioners of the municipality or the individual is appointed by the elections government accountability board to serve all municipalities.

SB1-engrossed, s. 19 Section 19. 7.08 (title) of the statutes is amended to read:

SB1-engrossed,15,9 7.08 (title) Elections Government accountability board.

SB1-engrossed, s. 20m Section 20m. 7.08 (7) of the statutes is repealed.

SB1-engrossed, s. 21 Section 21. 7.31 (5) of the statutes is amended to read:

SB1-engrossed,15,16 7.31 (5) The board shall conduct regular training programs to ensure that individuals who are certified by the board under this section are knowledgeable concerning their authority and responsibilities. The board shall pay all costs required to conduct the training programs from the appropriation under s. 20.510 (1) (bm).

SB1-engrossed, s. 22 Section 22. 7.60 (4) (a) of the statutes is amended to read:

SB1-engrossed,16,12 7.60 (4) (a) The board of canvassers shall make separate duplicate statements showing the numbers of votes cast for the offices of president and vice president; state officials; U.S. senators and representatives in congress; state legislators; justice; court of appeals judge; circuit judges; district attorneys; and metropolitan sewerage commissioners, if the commissioners are elected under s. 200.09 (11) (am). If a municipal judge elected under s. 755.01 (4) serves a municipality that is located partially within the county and candidates for that judgeship file nomination papers in another county, the board of canvassers shall prepare a duplicate statement showing the numbers of votes cast for that judgeship in that county for transmittal to the other county. For partisan candidates, the statements shall include the political party or principle designation, if any, next to the name of each candidate. The board of canvassers shall also prepare a statement showing the results of any county, technical college district, or statewide referendum. Each statement shall state the total number of votes cast in the county for each office; the names of all persons for whom the votes were cast, as returned; the number of votes cast for each person; and the number of votes cast for and against any question submitted at a referendum. The board of canvassers shall use one copy of each duplicate statement to report to the elections government accountability board, technical college district board, or board of canvassers of any other county and shall file the other statement in the office of the county clerk or board of election commissioners.

SB1-engrossed, s. 23 Section 23. 7.60 (5) of the statutes is amended to read:

SB1-engrossed,17,6 7.60 (5) Reporting. (a) Immediately following the canvass, the county clerk shall deliver or send to the elections government accountability board, by 1st class mail, a certified copy of each statement of the county board of canvassers for president and vice president, state officials, senators and representatives in congress, state legislators, justice, court of appeals judge, circuit judge, district attorney, and metropolitan sewerage commissioners, if the commissioners are elected under s. 200.09 (11) (am). The statement shall record the returns for each office or referendum by ward, unless combined returns are authorized under s. 5.15 (6) (b) in which case the statement shall record the returns for each group of combined wards. Following primaries the county clerk shall enclose on forms prescribed by the elections government accountability board the names, party or principle designation, if any, and number of votes received by each candidate recorded in the same manner. The county clerk shall deliver or transmit the certified statement to the elections government accountability board no later than 7 days after each primary and no later than 10 days after any other election. The board of canvassers shall deliver or transmit a certified copy of each statement for any technical college district referendum to the secretary of the technical college district board.

SB1-engrossed,17,18 (b) If the board of canvassers becomes aware of a material mistake in the canvass of an election for state or national office or a statewide or technical college district referendum prior to the close of business on the day the elections government accountability board receives returns from the last county board of canvassers with respect to that canvass, the board of canvassers may petition the elections government accountability board to reopen and correct the canvass. The elections government accountability board shall direct the canvass to be reopened and corrected if it determines that the public interest so requires. If the elections government accountability board directs the canvass to be reopened, the board of canvassers shall reconvene and transmit a certified corrected copy of the canvass statement to the elections government accountability board or secretary of the technical college district board.

SB1-engrossed, s. 24 Section 24. 7.70 (1) of the statutes is amended to read:

SB1-engrossed,17,22 7.70 (1) Recording and preserving returns. (a) Upon receipt of the certified statements from the county clerks, the elections board shall record the election results by counties and file and carefully preserve the statements.

SB1-engrossed,18,3 (b) If any county clerk fails or neglects to forward any statements, the elections board may require the clerk to do so immediately and if not received by the 8th day after a primary, or by the 11th day after any other election, the elections board may dispatch a special messenger to obtain them. Whenever it appears upon the face of any statement that an error has been made in reporting or computing, the elections board may return it to the county clerk for correction.

SB1-engrossed, s. 25 Section 25. 7.70 (5) (b) of the statutes is amended to read:

SB1-engrossed,18,11 7.70 (5) (b) For presidential electors, the elections board shall prepare a certificate showing the determination of the results of the canvass and the names of the persons elected, and the governor shall sign, affix the great seal of the state, and transmit the certificate by registered mail to the U.S. administrator of general services. The governor shall also prepare 6 duplicate originals of such certificate and deliver them to one of the presidential electors on or before the first Monday after the 2nd Wednesday in December.

SB1-engrossed, s. 26 Section 26. 8.05 (1) (j) of the statutes is amended to read:

SB1-engrossed,19,14 8.05 (1) (j) The municipal clerk shall notify in writing each candidate whose name is certified as a nominee under par. (h) of his or her nomination. If a municipal judge is elected under s. 755.01 (4), the county clerk of the county having the largest portion of the population in the jurisdiction served by the judge shall make the notification. Upon receipt of the notice, each candidate shall file a declaration of candidacy in the manner prescribed by s. 8.21 with the municipal clerk making the notification no later than 5 p.m. on the 5th day after the notification is mailed or personally delivered to the candidate by the municipal clerk, except as authorized in this paragraph. If an incumbent whose name is certified as a nominee fails to file a declaration of candidacy within the time prescribed by this paragraph, each certified candidate for the office held by the incumbent, other than the incumbent, may file a declaration of candidacy no later than 72 hours after the latest time prescribed in this paragraph. If the candidate has not filed a registration statement under s. 11.05 at the time of the notification, the candidate shall file the statement with the declaration. A candidate for municipal judge shall also file a statement of economic interests with the ethics board under s. 19.43 (4) no later than 4:30 p.m. on the 5th day after notification of nomination is mailed or personally delivered to the candidate, or no later than 4:30 p.m. on the next business day after the last day for filing a declaration of candidacy whenever that candidate is granted an extension of time for filing a declaration of candidacy under this paragraph. Upon receipt of the declaration of candidacy and registration statement of each qualified candidate, and upon filing of a statement of economic interests by each candidate for municipal judge, the municipal clerk, or the county clerk if the judge is elected under s. 755.01 (4), shall place the name of the candidate on the ballot. No later than the end of the 3rd day following qualification by all candidates, the municipal clerk, or the county clerk if the judge is elected under s. 755.01 (4), shall draw lots to determine the arrangement of candidates' names on the spring election ballot.

SB1-engrossed, s. 27 Section 27. 8.10 (5) of the statutes is amended to read: