19.37(2)(b)
(b) In any action filed under
sub. (1) relating to access to a record or part of a record under
s. 19.35 (1) (am), if the court finds that the authority acted in a wilful or intentional manner, the court shall award the individual actual damages sustained by the individual as a consequence of the failure.
19.37(3)
(3) Punitive damages. If a court finds that an authority or legal custodian under
s. 19.33 has arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.
19.37(4)
(4) Penalty. Any authority which or legal custodian under
s. 19.33 who arbitrarily and capriciously denies or delays response to a request or charges excessive fees may be required to forfeit not more than $1,000. Forfeitures under this section shall be enforced by action on behalf of the state by the attorney general or by the district attorney of any county where a violation occurs. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county.
19.37 Annotation
Party seeking fees under sub. (2) must show that prosecution of action could reasonably be regarded as necessary to obtain information and that "causal nexus" exists between that action and agency's surrender of information. State ex rel. Vaughan v. Faust, 143 W (2d) 868, 422 NW (2d) 898 (Ct. App. 1988).
19.37 Annotation
If agency exercises due diligence but is unable to respond timely to records request, plaintiff must show that mandamus action was necessary to secure records release to qualify for award of fees and costs under sub. (2). Racine Ed. Ass'n. v. Bd. of Ed., 145 W (2d) 518, 427 NW (2d) 414 (Ct. App. 1988).
19.37 Annotation
Assuming sub. (1) (a) applies before mandamus is issued, trial court retains discretion to refuse counsel's participation in in camera inspection. Milwaukee Journal v. Call, 153 W (2d) 313, 450 NW (2d) 515 (Ct. App. 1989).
19.37 Annotation
Where trial court has incomplete knowledge of contents of public records sought, it must conduct in camera inspection to determine what may be disclosed following custodian's refusal. State ex rel. Morke v. Donnelly, 155 W (2d) 521, 455 NW (2d) 893 (1990).
19.37 Annotation
Pro se litigant not entitled to attorney's fees. State ex rel. Young v. Shaw, 165 W (2d) 276, 477 NW (2d) 340 (Ct. App. 1991).
19.37 Annotation
A favorable judgment or order is not a necessary condition precedent to find that a party prevailed against an agency under sub. (2); a causal nexus must be shown between the prosecution of the mandamus action and the release of the requested information. Eau Claire Press Co. v. Gordon, 176 W (2d) 154, 499 NW (2d) 918 (Ct. App. 1993).
19.37 Annotation
Actions brought under the open meetings and open records laws are exempt from the notice provisions of s. 893.80 (1). Auchinleck v. Town of LaGrange, 200 W (2d) 585, 547 NW (2d) 587 (1996).
19.37 Annotation
An inmate's right to mandamus under this section is subject to s. 801.02 (7) which requires exhaustion of administrative remedies before an action may be commenced. Moore v. Stahowiak, 212 W (2d) 744, 569 NW (2d) 711 (Ct. App. 1997).
19.37 Annotation
Actual damages are liability of agency. Punitive damages and forfeitures can be liability of either agency or legal custodian or both. Section 895.46 (1) (a) probably provides indemnification for punitive damages assessed against custodian but not for forfeitures.
72 Atty. Gen. 99.
19.39
19.39
Interpretation by attorney general. Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general may respond to such a request.
19.39 History
History: 1981 c. 335.
CODE OF ETHICS FOR PUBLIC
OFFICIALS AND EMPLOYES
19.41
19.41
Declaration of policy. 19.41(1)
(1) It is declared that high moral and ethical standards among state public officials and state employes are essential to the conduct of free government; that the legislature believes that a code of ethics for the guidance of state public officials and state employes will help them avoid conflicts between their personal interests and their public responsibilities, will improve standards of public service and will promote and strengthen the faith and confidence of the people of this state in their state public officials and state employes.
19.41(2)
(2) It is the intent of the legislature that in its operations the board shall protect to the fullest extent possible the rights of individuals affected.
19.41 History
History: 1973 c. 90; Stats. 1973 s. 11.01;
1973 c. 334 s.
33; Stats. 1973 s. 19.41;
1977 c. 277.
19.42
19.42
Definitions. In this subchapter:
19.42(1)
(1) "Anything of value" means any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment, but does not include compensation and expenses paid by the state, fees and expenses which are permitted and reported under
s. 19.56, political contributions which are reported under
ch. 11, or hospitality extended for a purpose unrelated to state business by a person other than an organization.
19.42(2)
(2) "Associated", when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent.
19.42(3)
(3) "Board" means the ethics board.
19.42(4)
(4) "Candidate for state public office" means any individual who files nomination papers and a declaration of candidacy under
s. 8.21 or who is nominated at a caucus under
s. 8.05 (1) for the purpose of appearing on the ballot for election as a state public official or any individual who is nominated for the purpose of appearing on the ballot for election as a state public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under
s. 8.21.
19.42(5)
(5) "Department" means the legislature, the university of Wisconsin system, any authority or public corporation created and regulated by an act of the legislature and any office, department, independent agency or legislative service agency created under
ch. 13,
14 or
15, any technical college district or any constitutional office other than a judicial office. In the case of a district attorney, "department" means the department of administration unless the context otherwise requires.
19.42(5m)
(5m) "Elective office" means an office regularly filled by vote of the people.
19.42(6)
(6) "Gift" means the payment or receipt of anything of value without valuable consideration.
19.42(7)(b)
(b) An individual's relative by marriage, lineal descent or adoption who receives, directly or indirectly, more than one-half of his or her support from the individual or from whom the individual receives, directly or indirectly, more than one-half of his or her support.
19.42(7m)
(7m) "Income" has the meaning given under section
61 of the internal revenue code.
19.42(7u)
(7u) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
19.42(7w)
(7w) "Local public office" means any of the following offices, except an office specified in
sub. (13):
19.42(7w)(a)
(a) An elective office of a local governmental unit.
19.42(7w)(b)
(b) A county administrator or administrative coordinator or a city or village manager.
19.42(7w)(c)
(c) An appointive office or position of a local governmental unit in which an individual serves for a specified term, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.
19.42(7w)(cm)
(cm) The position of member of the board of directors of a local exposition district under
subch. II of ch. 229 not serving for a specified term.
19.42(7w)(d)
(d) An appointive office or position of a local government which is filled by the governing body of the local government or the executive or administrative head of the local government and in which the incumbent serves at the pleasure of the appointing authority, except a clerical position, a position limited to the exercise of ministerial action or a position filled by an independent contractor.
19.42(7x)
(7x) "Local public official" means an individual holding a local public office.
19.42(8)
(8) "Ministerial action" means an action that an individual performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of the individual's own judgment as to the propriety of the action being taken.
19.42(9)
(9) "Nominee" means any individual who is nominated by the governor for appointment to a state public office and whose nomination requires the advice and consent of the senate.
19.42(10)
(10) "Official required to file" means:
19.42(10)(b)
(b) A member of a technical college district board or district director of a technical college, or any individual occupying the position of assistant, associate or deputy district director of a technical college.
19.42(10)(d)
(d) A state public official whose appointment to state public office requires the advice and consent of the senate, except a member of the board of directors of the Bradley center sports and entertainment corporation created under
ch. 232.
19.42(10)(e)
(e) An individual appointed by the governor or the state superintendent of public instruction pursuant to
s. 17.20 (2) other than a trustee of any private higher educational institution receiving state appropriations.
19.42(10)(f)
(f) An auditor for the legislative audit bureau.
19.42(10)(g)
(g) The chief clerk and sergeant at arms of each house of the legislature.
19.42(10)(h)
(h) The members and employes of the Wisconsin housing and economic development authority, except clerical employes.
19.42(10)(j)
(j) A member or the executive director of the judicial commission.
19.42(10)(k)
(k) A division administrator of an office created under
ch. 14 or a department or independent agency created or continued under
ch. 15.
19.42(10)(L)
(L) The executive director, executive assistant to the executive director, internal auditor, chief investment officer, chief financial officer, chief legal counsel, chief risk officer and investment directors of the investment board.
19.42(10)(m)
(m) The executive director, members and employes of the world dairy center authority, except clerical employes.
19.42(10)(n)
(n) The chief executive officer and members of the board of directors of the University of Wisconsin Hospitals and Clinics Authority.
19.42(11)
(11) "Organization" means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, trust or other legal entity other than an individual or body politic.
19.42(12)
(12) "Security" has the meaning given under
s. 551.02 (13), except that the term does not include a certificate of deposit or a deposit in a savings and loan association, savings bank, credit union or similar association organized under the laws of any state.
19.42(13)(a)
(a) All positions to which individuals are regularly appointed by the governor, except the position of trustee of any private higher educational institution receiving state appropriations and the position of member of the district board of a local professional baseball park district created under
subch. III of ch. 229.
19.42(13)(b)
(b) The positions of associate and assistant vice presidents of the university of Wisconsin system and vice chancellors identified in
s. 20.923 (5).
19.42(13)(e)
(e) The chief clerk and sergeant at arms of each house of the legislature or a full-time, permanent employe occupying the position of auditor for the legislative audit bureau.
19.42(13)(f)
(f) A member of a technical college district board or district director of a technical college, or any position designated as assistant, associate or deputy district director of a technical college.
19.42(13)(g)
(g) The members and employes of the Wisconsin housing and economic development authority, except clerical employes.
19.42(13)(i)
(i) A member or the executive director of the judicial commission.
19.42(13)(j)
(j) A division administrator of an office created under
ch. 14 or a department or independent agency created or continued under
ch. 15.
19.42(13)(k)
(k) The executive director, executive assistant to the executive director, internal auditor, chief investment officer, chief financial officer, chief legal counsel, chief risk officer and investment directors of the investment board.
19.42(13)(L)
(L) The members and employes of the world dairy center authority.
19.42(13)(m)
(m) The chief executive officer and members of the board of directors of the University of Wisconsin Hospitals and Clinics Authority.
19.42(14)
(14) "State public official" means any individual holding a state public office.
19.42 History
History: 1973 c. 90; Stats. 1973 s. 11.02;
1973 c. 333;
1973 c. 334 ss.
33,
57; Stats. 1973 s. 19.42;
1977 c. 29,
223,
277;
1977 c. 447 ss.
35,
209;
1979 c. 34,
177,
221;
1981 c. 20,
269,
349,
391;
1983 a. 27;
1983 a. 81 s.
11;
1983 a. 83 s.
20;
1983 a. 166 ss.
1 to
4,
16;
1983 a. 484,
538;
1985 a. 26;
1985 a. 29 s.
3202 (46);
1985 a. 304;
1987 a. 72,
119;
1987 a. 312 s.
17;
1987 a. 340,
365,
399,
403;
1989 a. 31,
338;
1991 a. 39,
189,
221,
269;
1993 a. 16,
263,
399;
1995 a. 27,
56,
274;
1997 a. 27;
1997 a. 237 ss.
19m,
722q;
1997 a. 298.
19.42 Annotation
Law Revision Committee Note, 1983: This bill establishes consistency in the usage of the terms "person", "individual" and "organization" in the code of ethics for state public officials. The term "person" is the broadest of these terms, and refers to any legal entity. The use of the term "person" in the bill is consistent with the definition of the word in s. 990.01 (26), stats., which provides that "person" includes all partnerships, associations and bodies politic or corporate". The term "organization" is narrower, and is defined in s. 19.42 (11), stats., as "any corporation, partnership, proprietorship, firm, enterprise, franchise, association, trust or other legal entity other than an individual or body politic". "Individual", although not specifically defined in the current statutes or in this bill, is used consistently in this bill to refer to natural persons.
19.42 Annotation
The term "income" is used several times in the code of ethics for state public officials. This bill clarifies the current definition of income by providing a specific cross-reference to the internal revenue code and by providing that the definition refers to the most recent version of the internal revenue code which has been adopted by the legislature for state income tax purposes.
19.42 Annotation
When person holds 2 government positions, one included in and the other exempted from the (8) definition of state public official, the applicability of subch. III depends upon the capacity in which the person acted. 64 Atty. Gen. 143.
19.43
19.43
Financial disclosure. 19.43(1)
(1) Each individual who in January of any year is an official required to file shall file with the board no later than April 30 of that year a statement of economic interests meeting each of the requirements of
s. 19.44 (1). The information contained on the statement shall be current as of December 31 of the preceding year.
19.43(2)
(2) An official required to file shall file with the board a statement of economic interests meeting each of the requirements of
s. 19.44 (1) no later than 21 days following the date he or she assumes office if the official has not previously filed a statement of economic interests with the board during that year. The information on the statement shall be current as per the date he or she assumes office.
19.43(3)
(3) A nominee shall file with the board a statement of economic interests meeting each of the requirements of
s. 19.44 (1) within 21 days of being nominated unless the nominee has previously filed a statement of economic interests with the board during that year. The information on the statement shall be current as per the date he or she was nominated. Following the receipt of a nominee's statement of economic interests, the board shall forward copies of such statement to the members of the committee of the senate to which the nomination is referred.
19.43(4)
(4) A candidate for state public office shall file with the board a statement of economic interests meeting each of the requirements of
s. 19.44 (1) no later than 4:30 p.m. on the 3rd day following the last day for filing nomination papers for the office which the candidate seeks, or no later than 4:30 p.m. on the next business day after the last day whenever that candidate is granted an extension of time for filing nomination papers or a declaration of candidacy under
s. 8.05 (1) (j),
8.10 (2) (a),
8.15 (1) or
8.20 (8) (a), no later than 4:30 p.m. on the 5th day after notification of nomination is mailed or personally delivered to the candidate by the municipal clerk in the case of a candidate who is nominated at a caucus, or no later than 4:30 p.m. on the 3rd day after notification of nomination is mailed or personally delivered to the candidate by the appropriate official or agency in the case of a write-in candidate or candidate who is appointed to fill a vacancy in nomination under
s. 8.35 (2) (a). The information contained on the statement shall be current as of December 31 of the year preceding the filing deadline. Before certifying the name of any candidate for state public office under
s. 7.08 (2) (a), the elections board, municipal clerk or board of election commissioners shall ascertain whether that candidate has complied with this subsection. If not, the elections board, municipal clerk or board of election commissioners may not certify the candidate's name for ballot placement.
19.43(5)
(5) Each member of the investment board and each employe of the investment board who is a state public official shall complete and file with the ethics board a quarterly report of economic transactions no later than the last day of the month following the end of each calendar quarter during any portion of which he or she was a member or employe of the investment board. Such reports of economic transactions shall be in the form prescribed by the ethics board and shall identify the date and nature of any purchase, sale, put, call, option, lease, or creation, dissolution or modification of any economic interest made during the quarter for which the report is filed and disclosure of which would be required by
s. 19.44 if a statement of economic interests were being filed.
19.43(7)
(7) If an official required to file fails to make a timely filing, the board shall promptly provide notice of the delinquency to the state treasurer, and to the chief executive of the department of which the official's office or position is a part, or, in the case of a district attorney, to the chief executive of that department and to the county clerk of each county served by the district attorney or in the case of a municipal judge to the clerk of the municipality of which the official's office is a part, or in the case of a justice, court of appeals judge or circuit judge, to the director of state courts. Upon such notification both the state treasurer and the department, municipality or director shall withhold all payments for compensation, reimbursement of expenses and other obligations to the official until the board notifies the officers to whom notice of the delinquency was provided that the official has complied with this section.
19.43(8)
(8) On its own motion or at the request of any individual who is required to file a statement of economic interests, the board may extend the time for filing or waive any filing requirement if the board determines that the literal application of the filing requirements of this subchapter would work an unreasonable hardship on that individual or that the extension of the time for filing or waiver is in the public interest. The board shall set forth in writing as a matter of public record its reason for the extension or waiver.
