AB388: Bill Text

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 of the statutes is repealed.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:

AB388,20,10 5.05 (5t) Guidance following binding court decisions. Within 2 months following the publication of a decision of a state or federal court that is binding on the commission and this state, the commission shall issue updated guidance or formal advisory opinions, commence the rule-making procedure to revise administrative rules promulgated by the commission, or request an opinion from the attorney general on the applicability of the court decision.

AB388,44 Section 44. 5.05 (6a) of the statutes is renumbered 5.05 (6a) (a) 1. and amended to read:

AB388,21,4 5.05 (6a) (a) 1. Any individual, either personally or on behalf of an organization or governmental body, may make a written or electronic request of the board commission in writing, electronically, or by telephone for an a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 of any matter to which the person is or may become a party; and any. Any appointing officer, with the consent of a prospective appointee, may request of the board an commission a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12, subch. III of ch. 13, or subch. III of ch. 19 of any matter to which the prospective appointee is or may become a party. The board commission shall review a request for an advisory opinion and may issue a formal or informal written or electronic advisory opinion to the person making the request. Except as authorized or required for opinions specified in sub. (5s) (f) 2., the board's commission's deliberations and actions upon such requests shall be in meetings not open to the public. No person acting in good faith upon an advisory opinion issued by the board is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request A member of the commission may, by written request, require the commission to review an advisory opinion.

AB388,21,11 2. To have legal force and effect, each formal and informal advisory opinion issued by the board commission must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each formal and informal advisory opinion shall include a citation to each statute or other law and each case or common law authority upon which the opinion is based, and shall specifically articulate or explain which parts of the cited authority are relevant to the board's commission's conclusion and why they are relevant.

AB388,21,17 (b) 1. The board commission may authorize its legal counsel the commission administrator or his or her designee to issue an informal written advisory opinion or to transmit an informal advisory opinion electronically on behalf of the board commission, subject to such limitations as the board commission deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the board. commission, statute or other law, and case law.

AB388,22,4 (a) 4. At each regular meeting of the commission, the administrator shall review informal advisory opinions requested of and issued by the administrator and that relate to recurring issues or issues of first impression for which no formal advisory opinion has been issued. The commission may determine to issue a formal advisory opinion adopting or modifying the informal advisory opinion. If the board commission disagrees with an a formal or informal advisory opinion that has been issued by or on behalf of the board commission, the board commission may withdraw the opinion or, issue a revised formal or informal advisory opinion and no, or request an opinion from the attorney general. No person acting after the date of the withdrawal or issuance of the revised advisory opinion is exempted from prosecution under this subsection if the opinion upon which the person's action is based has been withdrawn or revised in relevant degree.

AB388,22,8 (a) 5. Except as authorized or required under sub. (5s) (f) 2., no member or employee of the board commission may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion.

AB388,22,14 (c) 2. Any person receiving requesting a formal or informal advisory opinion under this subsection who disagrees with the opinion paragraph may request a public or private hearing before the board commission to discuss the opinion. The board commission shall grant a request for a public or private hearing under this subsection. After hearing the matter, the board may reconsider its opinion and may issue a revised opinion to the person. paragraph.

AB388,22,18 (c) 3. Promptly upon issuance of each formal advisory opinion that is not open to public access, the board commission shall publish a summary of the opinion that is consistent with applicable requirements together with the information specified under sub. (5s) (f) 2. c. on the commission's Internet site.

AB388,45 Section 45. 5.05 (6a) (a) 3. of the statutes is created to read:

AB388,22,23 5.05 (6a) (a) 3. No person acting in good faith upon a formal or informal advisory opinion issued by the commission under this subsection is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request.

AB388,46 Section 46. 5.05 (6a) (b) 2. of the statutes is created to read:

AB388,23,6 5.05 (6a) (b) 2. Any individual may request in writing, electronically, or by telephone an informal advisory opinion from the commission under this paragraph. The commission's designee shall provide a written response, a written reference to an applicable statute or law, or a written reference to a formal advisory opinion of the commission to the individual, or shall refer the request to the commission for review and the issuance of a formal advisory opinion.

AB388,47 Section 47. 5.05 (6a) (b) 3. of the statutes is created to read:

AB388,23,10 5.05 (6a) (b) 3. Any person receiving an informal advisory opinion under this paragraph may, at any time, request a formal advisory opinion from the commission on the same matter.

AB388,48 Section 48. 5.05 (6a) (c) 1. of the statutes is created to read:

AB388,23,20 5.05 (6a) (c) 1. Any individual may request in writing, electronically, or by telephone a formal advisory opinion from the commission or the review or modification of a formal advisory opinion issued by the commission under this paragraph. The individual making the request shall include all pertinent facts relevant to the matter. The commission shall review a request for a formal advisory opinion and may issue a formal advisory opinion to the individual making the request. Except as authorized or required for opinions specified in sub. (5s) (f) 2., the commission's deliberations and actions upon such requests shall be in meetings not open to the public.

AB388,49 Section 49. 5.05 (6a) (c) 4. of the statutes is created to read:

AB388,23,24 5.05 (6a) (c) 4. If the commission declines to issue a formal advisory opinion, it may refer the matter to the attorney general or to the standing legislative oversight committees.

AB388,50 Section 50. 5.05 (9) of the statutes is amended to read:

AB388,24,6 5.05 (9) Standing. The board commission has standing to commence or intervene in any civil action or proceeding for the purpose of enforcing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration. If the board delegates authority to its legal counsel under sub. (1) (e) to act in its stead, the legal counsel has standing to commence or intervene in such an action or proceeding.

AB388,51 Section 51. 5.05 (10) of the statutes is amended to read:

AB388,24,20 5.05 (10) State election administration plan. With the assistance of the election administration council and approval of the joint committee on finance as provided in this subsection, the board commission shall adopt and modify as necessary a state plan that meets the requirements of P.L. 107-252 to enable participation by this state in federal financial assistance programs authorized under that law. The board commission shall adopt the plan and any modifications only after publishing a class 1 notice under ch. 985 or posting on the Internet a statement describing the proposed plan or modification and receiving public comment thereon. After approval of the proposed plan or any modification of the plan by the board commission, the board commission shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The board commission may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.

AB388,52 Section 52. 5.05 (11) of the statutes is amended to read:

AB388,25,7 5.05 (11) Aids to counties and municipalities. From the appropriations under s. 20.511 20.510 (1) (t) and (x), the board commission may provide financial assistance to eligible counties and municipalities for election administration costs in accordance with the plan adopted under sub. (10). As a condition precedent to receipt of assistance under this subsection, the board commission shall enter into an agreement with the county or municipality receiving the assistance specifying the intended use of the assistance and shall ensure compliance with the terms of the agreement. Each agreement shall provide that if the federal government objects to the use of any assistance moneys provided to the county or municipality under the agreement, the county or municipality shall repay the amount of the assistance provided to the board commission.

AB388,53 Section 53. 5.05 (16) of the statutes is created to read:

AB388,25,12 5.05 (16) Policies and procedures. (a) Annually, the commission shall adopt written policies and procedures in order to govern its internal operations and management and shall annually report such policies and procedures to the appropriate standing committees of the legislature under s. 13.172 (3).

AB388,25,17 (b) Notwithstanding par. (a), the commission may reconsider at any time any policy or procedure adopted as provided under par. (a). If, upon reconsideration, the commission revises a previously reported policy or procedure, the commission shall report the revision to the appropriate standing committees of the legislature under s. 13.172 (3).

AB388,25,21 (c) The commission may reconsider at any time any written directives or written guidance provided to the general public or to any person subject to the provisions of chs. 5 to 10 and 12 with regard to the enforcement and administration of those provisions.

AB388,54 Section 54. 5.05 (17) of the statutes is created to read:

AB388,26,2 5.05 (17) Payments. The commission may accept payment by credit card, debit card, or other electronic payment mechanism for any amounts owed pursuant to the administration of chs. 5 to 10 or 12, and may charge a surcharge to the payer to recover charges associated with the acceptance of that electronic payment.

AB388,55 Section 55. 5.052 of the statutes is repealed.

AB388,56 Section 56. 5.054 of the statutes is repealed.

AB388,57 Section 57. 5.055 of the statutes is amended to read:

AB388,26,18 5.055 Election assistance commission standards board. The commission administrator of the elections division of the board shall, in consultation with the board commission, appoint an individual to represent this state as a member of the federal election assistance commission standards board. The administrator shall also conduct and supervise a process for the selection of an election official by county and municipal clerks and boards of election commissioners to represent local election officials of this state as a member of the federal election assistance commission standards board. The administrator shall ensure that the members of the federal election assistance commission standards board representing this state shall at no time be members of the same political party. Upon appointment or election of any new member of the federal election assistance commission standards board representing this state, the administrator shall transmit a notice of that member's appointment or election to the officer or agency designated by federal law.

AB388,58 Section 58. 5.056 of the statutes is amended to read: