AB388: Bill Text

Advisory Opinions

Current law permits any individual, organization, or governmental body to request an advisory opinion from the GAB; in response, the GAB may issue a formal or an informal advisory opinion. If the board issues an opinion on an elections matter, the board must make the opinion and records about the opinion public. Current law prohibits the board from revealing the identify of or releasing information obtained in connection with any advisory opinion requested by an individual or organization on an ethics or accountability matter unless the individual or organization consents to the release of that information. This bill requires the Ethics Commission to make this information, other than the name of the individual, organization, or governmental body making the request, public when it relates to a formal advisory opinion issued by the Ethics Commission.

Current law requires the GAB to biennially submit to the legislature a report on the performance and operation of the GAB during the preceding biennium. This bill requires the Elections and Ethics commissions to submit annual reports to the legislature and to include in those reports information about the number of investigations conducted, a description of the nature of the investigation, and, in the case of the Ethics Commission, whether the investigation related to campaign finance, ethics, or lobbying.

Transitional Provisions

Under the bill, all full-time equivalent positions currently authorized for GAB are transferred to the Elections and Ethics commissions. All incumbents in those positions except the director and general counsel of GAB are also transferred. In addition, the bill transfers the assets and liabilities, tangible personal property, contracts, rules, orders, formal opinions, and pending matters of GAB to the Elections and Ethics commissions. The bill directs the secretary of administration to determine which positions, employees, assets and liabilities, property, contracts, rules, orders, opinions, and matters are transferred to which commission and to adopt an implementation plan for the transfer containing his or her determinations.

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:

AB388,1 Section 1. 5.01 (4) (a) of the statutes is amended to read:

AB388,6,3 5.01 (4) (a) If 2 or more candidates for the same office receive the greatest, but an equal number of votes, the winner shall be chosen by lot in the presence of the board of canvassers charged with the responsibility to determine the election, or in the case of an election for state or national office or metropolitan sewerage commissioner, if the commissioner is elected under s. 200.09 (11) (am), in the presence of the chairperson of the board elections commission or the chairperson's designee.

AB388,2 Section 2. 5.02 (1s) of the statutes is renumbered 5.025 and amended to read:

AB388,6,6 5.025 Elections commission; definition. "Board In chs. 5 to 10 and 12, "commission" means the government accountability board elections commission.

AB388,3 Section 3. 5.05 (title) of the statutes is amended to read:

AB388,6,9 5.05 (title) Government accountability board Elections commission; powers and duties.

AB388,4 Section 4. 5.05 (1) (intro.) of the statutes is amended to read:

AB388,6,15 5.05 (1) General authority. (intro.) The government accountability board elections commission shall have the responsibility for the administration of chs. 5 to 12, 10 and 12 and other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19, other than laws relating to campaign financing. Pursuant to such responsibility, the board commission may:

AB388,5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

AB388,7,3 5.05 (1) (b) In the discharge of its duties 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. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the board commission at a meeting of the board commission. 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 commission may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

AB388,6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

AB388,8,7 5.05 (1) (c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 or a license revocation for any violation of subch. III of ch. 13 for which the offender is subject to a revocation. The board commission may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the opinion of the board commission, 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, a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board commission 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 civil actions or proposed civil actions, the board commission 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. Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, and 5.081, and 19.59 (8), forfeiture and license revocation actions brought by the board commission shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than a natural person an individual resides within a county if the person's principal place of operation is located within that county. Whenever the board commission enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board commission for a possible civil violation of one of those provisions, the board commission shall reduce the agreement to writing, together with a statement of the board's commission's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

AB388,7 Section 7. 5.05 (1) (d) of the statutes is amended to read:

AB388,8,14 5.05 (1) (d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.

AB388,8 Section 8. 5.05 (1) (e) of the statutes is amended to read:

AB388,8,23 5.05 (1) (e) Delegate to its legal counsel the authority to intervene in a civil action or proceeding under sub. (9), issue 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.

AB388,9 Section 9. 5.05 (1) (f) of the statutes is amended to read:

AB388,9,4 5.05 (1) (f) Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.

AB388,10 Section 10. 5.05 (1e) of the statutes is amended to read:

AB388,9,8 5.05 (1e) Any action by the board commission, except an action relating to procedure of the commission, requires the affirmative vote of at least 4 two-thirds of the members.

AB388,11 Section 11. 5.05 (1m) of the statutes is repealed.

AB388,12 Section 12. 5.05 (2) of the statutes is renumbered 19.49 (2g) and amended to read:

AB388,9,19 19.49 (2g) Auditing. In addition to the facial examination of reports and statements required under s. 11.21 (13), the board commission shall conduct an audit of reports and statements which are required to be filed with it to determine whether violations of ch. 11 have occurred. The board commission may examine records relating to matters required to be treated in such reports and statements. The board commission shall make official note in the file of a candidate, committee, group or individual under ch. 11 of any error or other discrepancy which the board commission discovers and shall inform the person submitting the report or statement.

AB388,13 Section 13. 5.05 (2m) (a) of the statutes is amended to read:

AB388,9,25 5.05 (2m) (a) The board commission shall investigate violations of laws administered by the board commission and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the board commission. Prosecution of alleged criminal violations investigated by the board commission may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1). For purposes of this subsection, the commission may only initiate an investigation of an alleged violation of chs. 5 to 10 and 12, other than an offense described under par. (c) 12., based on a sworn complaint filed with the commission, as provided under par. (c). Neither the commission nor any member or employee of the commission, including the commission administrator, may file a sworn complaint for purposes of this subsection.

AB388,14 Section 14. 5.05 (2m) (c) 2. a. of the statutes is amended to read:

AB388,10,19 5.05 (2m) (c) 2. a. Any person may file a complaint with the board commission alleging a violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19. No later than 5 days after receiving a complaint, the commission shall notify each person who or which the complaint alleges committed such a violation. Before voting on whether to take any action regarding the complaint, other than to dismiss, the commission shall give each person receiving a notice under this subd. 2. a. an opportunity to demonstrate to the commission, in writing and within 15 days after receiving the notice, that the commission should take no action against the person on the basis of the complaint. The commission may not conduct any investigation or take any other action under this subsection solely on the basis of a complaint by an unidentified complainant.

AB388,10,23 am. If the board commission finds, by a preponderance of the evidence, that a complaint is frivolous, the board commission may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division commission in investigating the complaint.

AB388,15 Section 15. 5.05 (2m) (c) 2. b. of the statutes is renumbered 19.49 (1m).

AB388,16 Section 16. 5.05 (2m) (c) 3. of the statutes is repealed.

AB388,17 Section 17. 5.05 (2m) (c) 4. of the statutes is amended to read:

AB388,12,2 5.05 (2m) (c) 4. If the board commission reviews a complaint and fails to find that there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board commission shall dismiss the complaint. If the board commission believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board commission may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. To assist in the investigation, the board commission may elect to retain a special investigator. If the board commission elects to retain a special investigator, the administrator of the ethics and accountability division commission shall submit to the board commission the names of 3 qualified individuals to serve as a special investigator. The board commission may retain one or more of the individuals. If the board commission retains a special investigator to investigate a complaint against a person who is a resident of this state, the board commission shall provide to the district attorney for the county in which the person resides a copy of the complaint and shall notify the district attorney that it has retained a special investigator to investigate the complaint. For purposes of this subdivision, a person other than a natural person an individual resides within a county if the person's principal place of operation is located within that county. The board commission shall enter into a written contract with any individual who is retained as a special investigator setting forth the terms of the engagement. A special investigator who is retained by the board commission may request the board commission to issue a subpoena to a specific person or to authorize the special investigator to request a the circuit court of the county in which the specific person resides to issue a search warrant. The board commission may grant the request by approving a motion to that effect at a meeting of the board commission if the board commission finds that such action is legally appropriate.

AB388,18 Section 18. 5.05 (2m) (c) 5. (intro.) of the statutes is amended to read:

AB388,12,25 5.05 (2m) (c) 5. (intro.) Each special investigator who is retained by the board commission shall make periodic reports to the board commission, as directed by the board commission, but in no case may the interval for reporting exceed 30 days. If the board commission authorizes the commission administrator of the ethics and accountability division to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the board commission, as directed by the board commission, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the board commission shall meet for the purpose of reviewing the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the board commission at that meeting concerning the progress of the investigation. If, after receiving a report, the board commission 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. The board commission shall not expend more than $10,000 $25,000 to finance the cost of an investigation before receiving a report on the progress of the investigation and a recommendation to commit additional resources. The board commission may vote to terminate an investigation at any time. If an investigation is terminated, any complaint from which the investigation arose is deemed to be dismissed by the board commission. Unless an investigation is terminated by the board commission, at the conclusion of each investigation, the administrator shall present to the board commission one of the following:

AB388,19 Section 19. 5.05 (2m) (c) 6. a. of the statutes is amended to read:

AB388,13,13 5.05 (2m) (c) 6. a. If the board commission finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the board commission may authorize the commission administrator of the ethics and accountability division to file a civil complaint against the alleged violator. In such case, the administrator may request the assistance of special counsel to prosecute any action brought by the board commission. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the board commission the names of 3 qualified individuals to serve as special counsel. The board commission may retain one of the individuals to act as special counsel. The staff of the board commission shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

AB388,20 Section 20. 5.05 (2m) (c) 6. b. of the statutes is amended to read:

AB388,13,21 5.05 (2m) (c) 6. b. The board commission shall enter into a written contract with any individual who is retained as special counsel setting forth the terms of the engagement. The contract shall set forth the compensation to be paid such counsel by the state. The contract shall be executed on behalf of the state by the board's legal counsel, who commission and the commission shall file the contract in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.505 (1) (d) 20.510 (1) (br).

AB388,21 Section 21. 5.05 (2m) (c) 8. of the statutes is repealed.

AB388,22 Section 22. 5.05 (2m) (c) 12. of the statutes is amended to read:

AB388,14,5 5.05 (2m) (c) 12. The board may commission shall, by rule, prescribe categories of civil offenses which the board commission will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The board commission may authorize the commission administrator of the ethics and accountability division to compromise and settle such alleged offenses in the name of the board commission if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $1,000 $2,500.

AB388,23 Section 23. 5.05 (2m) (c) 13. of the statutes is amended to read:

AB388,14,16 5.05 (2m) (c) 13. If a special investigator or the commission administrator of the ethics and accountability division, in the course of an investigation authorized by the board commission, discovers evidence that a violation under subd. 2. that was not within the scope of the authorized investigation has occurred or is occurring, the special investigator or the administrator may present that evidence to the board commission. If the board commission finds that there is a reasonable suspicion that a violation under subd. 2. that is not within the scope of the authorized investigation has occurred or is occurring, the board commission may authorize the special investigator or the administrator to investigate the alleged violation or may elect to authorize a separate investigation of the alleged violation as provided in subd. 4.

AB388,24 Section 24. 5.05 (2m) (c) 14. of the statutes is amended to read:

AB388,15,2 5.05 (2m) (c) 14. If a special investigator or the commission administrator of the ethics and accountability division of the board, in the course of an investigation authorized by the board commission, discovers evidence of a potential violation of a law that is not administered by the board commission arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation, the special investigator or the administrator may present that evidence to the board commission. The board commission may thereupon refer the matter to the appropriate district attorney specified in subd. 11. or may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.

AB388,25 Section 25. 5.05 (2m) (d) 1. of the statutes is amended to read:

AB388,15,7 5.05 (2m) (d) 1. No individual who serves as the legal counsel to the board or as a division commission administrator for the board may have been a lobbyist, as defined in s. 13.62 (11). No such individual may have served in a partisan state or local office.

AB388,26 Section 26. 5.05 (2m) (g) of the statutes is repealed.

AB388,27 Section 27. 5.05 (2m) (h) of the statutes is amended to read:

AB388,15,16 5.05 (2m) (h) If the defendant in an action for a civil violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the board commission. If the defendant in an action for a civil violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board commission may appoint special counsel to bring suit on behalf of the state.

AB388,28 Section 28. 5.05 (2m) (i) of the statutes is amended to read:

AB388,15,24 5.05 (2m) (i) If the defendant in an action for a criminal violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the attorney general. If the defendant in an action for a criminal violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board commission may appoint a special prosecutor to conduct the prosecution on behalf of the state.

AB388,29 Section 29. 5.05 (2m) (k) of the statutes is created to read:

AB388,16,3 5.05 (2m) (k) The commission's power to initiate civil actions under this subsection for the enforcement of chs. 5 to 10 or 12 shall be the exclusive remedy for alleged civil violations of chs. 5 to 10 or 12.

AB388,30 Section 30. 5.05 (2q) of the statutes is created to read:

AB388,16,25 5.05 (2q) Supplemental funding for ongoing investigations. The commission may request supplemental funds to be credited to the appropriation account under s. 20.510 (1) (be) for the purpose of continuing an ongoing investigation initiated under sub. (2m). A request under this subsection shall be filed with the secretary of administration and the cochairpersons of the joint committee on finance in writing and shall contain a statement of the action requested, the purposes therefor, the statutory provision authorizing or directing the performance of the action, and information about the nature of the investigation for which the commission seeks supplemental funds, excluding the name of any individual or organization that is the subject of the investigation. If the cochairpersons of the joint committee on finance do not notify the secretary of administration that the committee has scheduled a meeting for the purpose of reviewing the request within 14 working days after the commission filed the request, the secretary shall supplement the appropriation under s. 20.510 (1) (be) from the appropriation under s. 20.505 (1) (d) in an amount not to exceed the amount the commission requested. If, within 14 working days after the commission filed the request, the cochairpersons of the joint committee on finance notify the secretary that the committee has scheduled a meeting for the purpose of reviewing the commission's request under this subsection, the secretary may supplement the appropriation under s. 20.510 (1) (be) only with the committee's approval. The committee and the secretary shall notify the commission of all their actions taken under this subsection.

AB388,31 Section 31. 5.05 (2s) of the statutes is repealed.

AB388,32 Section 32. 5.05 (2w) of the statutes is amended to read:

AB388,17,6 5.05 (2w) Elections Division commission. The elections division commission has the responsibility for the administration of chs. 5 to 10 and 12. The commission administrator may designate a commission employee to serve as the commission's legal counsel.

AB388,33 Section 33. 5.05 (3d) of the statutes is created to read:

AB388,17,14 5.05 (3d) Administrator. The commission shall appoint an administrator in the manner provided under s. 15.61 (1) (b). The administrator shall be outside the classified service. The administrator shall appoint such other personnel as he or she requires to carry out the duties of the commission and may designate a commission employee to serve as the commission's legal counsel. The administrator shall perform such duties as the commission assigns to him or her in the administration of chs. 5 to 10 and 12.

AB388,34 Section 34. 5.05 (3g) of the statutes is amended to read:

AB388,17,17 5.05 (3g) Chief election officer. The board commission administrator shall designate an employee of the board to serve as the chief election officer of this state.

AB388,35 Section 35. 5.05 (5e) of the statutes is amended to read:

AB388,18,8 5.05 (5e) Biennial Annual report. The board commission shall include in its biennial submit an annual report under s. 15.04 (1) (d) and shall include in its annual report the names and duties of all individuals employed by the board commission and a summary of its determinations and advisory opinions issued under sub. (6a). Except as authorized or required under sub. (5s) (f) 2., the board commission shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the decisions or opinions. The board may also include in its biennial report any information compiled under s. 11.21 (7) The commission shall identify in its report the statutory duties of the commission administrator, together with a description of the manner in which those duties are being fulfilled. Notwithstanding sub. (5s) and s. 12.13 (5), the commission shall also specify in its report the total number of investigations conducted by the commission since the last annual report and a description of the nature of each investigation. The board commission shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as it deems desirable.

AB388,36 Section 36. 5.05 (5s) (intro.) of the statutes is amended to read:

AB388,18,14 5.05 (5s) Access to records. (intro.) Records obtained or prepared by the board commission in connection with an investigation, including the full text of any complaint received by the board commission, are not subject to the right of inspection and copying under s. 19.35 (1), except as provided in pars. (d) and (e) and except that follows:

AB388,37 Section 37. 5.05 (5s) (am) of the statutes is created to read:

AB388,18,18 5.05 (5s) (am) The commission shall provide to the joint committee on finance records obtained or prepared by the commission in connection with an ongoing investigation when required under sub. (2q).

AB388,38 Section 38. 5.05 (5s) (b) of the statutes is amended to read:

AB388,18,22 5.05 (5s) (b) Investigatory records of the board commission may be made public in the course of a prosecution initiated under chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19.

AB388,39 Section 39. 5.05 (5s) (bm) of the statutes, as created by 2015 Wisconsin Act 2, is amended to read:

AB388,19,3 5.05 (5s) (bm) The board commission shall provide investigatory records to the state auditor and the employees of the legislative audit bureau to the extent necessary for the bureau to carry out its duties under s. 13.94.

AB388,40 Section 40. 5.05 (5s) (d) of the statutes is amended to read:

AB388,19,11 5.05 (5s) (d) If the board commission commences a civil prosecution of a person for an alleged violation of chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 as the result of an investigation, the person who is the subject of the investigation may authorize the board commission to make available for inspection and copying under s. 19.35 (1) records of the investigation pertaining to that person if the records are available by law to the subject person and the board commission shall then make those records available.

AB388,41 Section 41. 5.05 (5s) (f) 2. a. and b. of the statutes are consolidated, renumbered 5.05 (5s) (f) 2. a. and amended to read:

AB388,19,22 5.05 (5s) (f) 2. a. The board commission may make records obtained in connection with an informal advisory opinion under subd. 1. public with the consent of the individual requesting the informal advisory opinion or the organization or governmental body on whose behalf it is requested. b. A person who makes or purports to make public the substance of or any portion of an informal advisory opinion requested by or on behalf of the person is deemed to have waived the confidentiality of the request for an informal advisory opinion and of any records obtained or prepared by the board commission in connection with the request for an informal advisory opinion.

AB388,42 Section 42. 5.05 (5s) (f) 2. c. of the statutes is amended to read:

AB388,20,3 5.05 (5s) (f) 2. c. The board commission shall make public formal and informal advisory opinions and records obtained in connection with requests for formal or informal advisory opinions relating to matters under the jurisdiction of the elections division commission, including the identity of individuals requesting such opinions or organizations or governmental bodies on whose behalf they are requested.

AB388,43 Section 43. 5.05 (5t) of the statutes is created to read: