946.05(2)
(2) In this section "flag" means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.
946.05 Note
NOTE: This section was held to be unconstitutionally overbroad by the Supreme Court in State v. Janssen,
218 Wis. 2d 362,
580 N.W.2d 362 (1998).
946.05 History
History: 1977 c. 173.
946.05 Annotation
946.06
946.06
Improper use of the flag. 946.06(1)
(1) Whoever intentionally does any of the following is guilty of a Class A misdemeanor:
946.06(1)(a)
(a) Places on or attaches to the flag any word, mark, design, or advertisement not properly a part of such flag; or
946.06(1)(b)
(b) Exposes to public view a flag upon which has been placed or attached a word, mark, design, or advertisement not properly a part of such flag; or
946.06(1)(c)
(c) Manufactures or exposes to public view an article of merchandise or a wrapper or receptacle for merchandise upon which the flag is depicted; or
946.06(1)(d)
(d) Uses the flag for commercial advertising purposes.
946.06(2)
(2) This section does not apply to flags depicted on written or printed documents or periodicals or on stationery, ornaments, pictures, or jewelry, provided there are no unauthorized words or designs on such flag and provided the flag is not connected with any advertisement.
946.06(3)
(3) In this section "flag" has the meaning designated in
s. 946.05.
946.06 History
History: 1977 c. 173.
946.06 Annotation
A flag misuse statute was unconstitutional as applied to a flag hung upside down with peace symbol affixed where the context imbued the display with protected elements of communication. Spence v. State of Washington,
418 U.S. 405.
946.06 Annotation
The Washington flag desecration statute held unconstitutional in Spence, when applied to a mere display of an altered flag in the absence of a disturbance of the peace, was identical in all essential ways to this section. Koser v. County of Price,
834 F. Supp. 305 (1993).
BRIBERY AND OFFICIAL MISCONDUCT.
946.10
946.10
Bribery of public officers and employees. Whoever does either of the following is guilty of a Class D felony:
946.10(1)
(1) Whoever, with intent to influence the conduct of any public officer or public employee in relation to any matter which by law is pending or might come before the officer or employee in the officer's or employee's capacity as such officer or employee or with intent to induce the officer or employee to do or omit to do any act in violation of the officer's or employee's lawful duty transfers or promises to the officer or employee or on the officer's or employee's behalf any property or any personal advantage which the officer or employee is not authorized to receive; or
946.10(2)
(2) Any public officer or public employee who directly or indirectly accepts or offers to accept any property or any personal advantage, which the officer or employee is not authorized to receive, pursuant to an understanding that the officer or employee will act in a certain manner in relation to any matter which by law is pending or might come before the officer or employee in the officer's or employee's capacity as such officer or employee or that the officer or employee will do or omit to do any act in violation of the officer's or employee's lawful duty.
946.10 History
History: 1977 c. 173;
1993 a. 486.
946.10 Annotation
Circumstantial evidence supported an inference that the defendant intended to influence a public official's actions. State v. Rosenfeld,
93 Wis. 2d 325,
286 N.W.2d 596 (1980).
946.11
946.11
Special privileges from public utilities. 946.11(1)
(1) Whoever does the following is guilty of a Class E felony:
946.11(1)(a)
(a) Whoever offers or gives for any purpose to any public officer or to any person at the request or for the advantage of such officer any free pass or frank, or any privilege withheld from any person, for the traveling accommodation or transportation of any person or property or for the transmission of any message or communication; or
946.11(1)(b)
(b) Any public officer who asks for or accepts from any person or uses in any manner or for any purpose any free pass or frank, or any privilege withheld from any person for the traveling accommodation or transportation of any person or property or for the transmission of any message or communication; or
946.11(1)(c)
(c) Any public utility or agent or officer thereof who offers or gives for any purpose to any public officer or to any person at the request or for the advantage of such officer, any frank or any privilege withheld from any person for any product or service produced, transmitted, delivered, furnished or rendered or to be produced, transmitted, delivered, furnished or rendered by any public utility, or any free product or service whatsoever; or
946.11(1)(d)
(d) Any public officer who asks for or accepts or uses in any manner or for any purpose any frank or privilege withheld from any person for any product or service produced, transmitted, delivered, furnished or rendered by any public utility.
946.11(2)(a)
(a) "Free pass" means any form of ticket or mileage entitling the holder to travel over any part of a railroad or other public transportation system and issued to the holder as a gift or in consideration or partial consideration of any service performed or to be performed by such holder, except that it does not include such ticket or mileage when issued to an employee of the railroad or public transportation system pursuant to a contract of employment and not in excess of the transportation rights of other employees of the same class and seniority, nor does it include free transportation to police officers or fire fighters when on duty;
946.11(3)
(3) This section does not apply to notaries public and regular employees or pensioners of a railroad or other public utility who hold public offices for which the annual compensation is not more than $300 to whom no passes or privileges are extended beyond those which are extended to other regular employees or pensioners of such corporation.
946.12
946.12
Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class E felony:
946.12(1)
(1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or
946.12(2)
(2) In the officer's or employee's capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity; or
946.12(3)
(3) Whether by act of commission or omission, in the officer's or employee's capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another; or
946.12(4)
(4) In the officer's or employee's capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies; or
946.12(5)
(5) Under color of the officer's or employee's office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which the officer or employee knows is greater or less than is fixed by law.
946.12 History
History: 1977 c. 173;
1993 a. 486.
946.12 Annotation
Sub. (5) prohibits misconduct in public office with constitutional specificity. Ryan v. State,
79 Wis. 2d 83,
255 N.W.2d 910.
946.12 Annotation
Sub. (3) applies to a corrupt act under color of office and under de facto powers conferred by practice and usage. A person not a public officer may be charged with party to the crime of official misconduct. State v. Tronca,
84 Wis. 2d 68,
267 N.W.2d 216 (1978).
946.12 Annotation
An on-duty prison guard did not violate sub. (2) by fornicating with a prisoner in a cell. State v. Schmit,
115 Wis. 2d 657,
340 N.W.2d 752 (Ct. App. 1983).
946.13
946.13
Private interest in public contract prohibited. 946.13(1)(1) Any public officer or public employee who does any of the following is guilty of a Class E felony:
946.13(1)(a)
(a) In the officer's or employee's private capacity, negotiates or bids for or enters into a contract in which the officer or employee has a private pecuniary interest, direct or indirect, if at the same time the officer or employee is authorized or required by law to participate in the officer's or employee's capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer's or employee's part; or
946.13(1)(b)
(b) In the officer's or employee's capacity as such officer or employee, participates in the making of a contract in which the officer or employee has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on the officer's or employee's part.
946.13(2)
(2) Subsection (1) does not apply to any of the following:
946.13(2)(a)
(a) Contracts in which any single public officer or employee is privately interested that do not involve receipts and disbursements by the state or its political subdivision aggregating more than $15,000 in any year.
946.13(2)(b)
(b) Contracts involving the deposit of public funds in public depositories.
946.13(2)(d)
(d) Contracts for the publication of legal notices required to be published, provided such notices are published at a rate not higher than that prescribed by law.
946.13(2)(e)
(e) Contracts for the issuance to a public officer or employee of tax titles, tax certificates, or instruments representing an interest in, or secured by, any fund consisting in whole or in part of taxes in the process of collection, provided such titles, certificates, or instruments are issued in payment of salary or other obligations due such officer or employee.
946.13(2)(f)
(f) Contracts for the sale of bonds or securities issued by a political subdivision of the state; provided such bonds or securities are sold at a bona fide public sale to the highest bidder and the public officer or employee acquiring the private interest has no duty to vote upon the issuance of the bonds or securities.
946.13(2)(g)
(g) Contracts with, or tax credits or payments received by, public officers or employees for wildlife damage claims or abatement under
s. 29.889, for farmland preservation under
subch. IX of ch. 71 and
s. 91.13, soil and water resource management under
s. 92.14, soil erosion control under s.
92.10, 1985 stats., animal waste management under s.
92.15, 1985 stats., and nonpoint source water pollution abatement under
s. 281.65.
946.13(3)
(3) A contract entered into in violation of this section is void and the state or the political subdivision in whose behalf the contract was made incurs no liability thereon.
946.13(4)
(4) In this section "contract" includes a conveyance.
946.13(5)
(5) Subsection (1) (b) shall not apply to a public officer or public employee by reason of his or her holding not more than 2% of the outstanding capital stock of a corporate body involved in such contract.
946.13(6)
(6) Subsection (3) shall not apply to contracts creating a public debt, as defined in
s. 18.01 (4), if the requirements of
s. 18.14 (1) have been met. No evidence of indebtedness, as defined in
s. 18.01 (3), shall be invalidated on account of a violation of this section by a public officer or public employee, but such officer or employee and the surety on the officer's or employee's official bond shall be liable to the state for any loss to it occasioned by such violation.
946.13(7)
(7) Subsection (1) shall not apply to any public officer or public employee, who receives compensation for the officer's or employee's services as such officer or employee, exclusive of advances or reimbursements for expenses, of less than $10,000 per year, merely by reason of his or her being a director, officer, employee, agent or attorney of or for a state or national bank, savings bank or trust company, or any holding company thereof. This subsection shall not apply to any such person whose compensation by such financial institution is directly dependent upon procuring public business. Compensation determined by longevity, general quality of work or the overall performance and condition of such financial institution shall not be deemed compensation directly dependent upon procuring public business.
946.13(8)
(8) Subsection (1) shall not apply to contracts or transactions made or consummated or bonds issued under
s. 66.1103.
946.13(9)
(9) Subsection (1) does not apply to the member of a local committee appointed under
s. 289.33 (7) (a) acting as a member of that committee in negotiation, arbitration or ratification of agreements under
s. 289.33.
946.13(10)
(10) Subsection (1) (a) does not apply to a member of a local workforce development board established under
29 USC 2832 or to a member of the council on workforce investment established under
29 USC 2821.
946.13(11)
(11) Subsection (1) does not apply to an individual who receives compensation for services as a public officer or public employee of less than $10,000 annually, exclusive of advances or reimbursements for expenses, merely because that individual is a partner, shareholder or employee of a law firm that serves as legal counsel to the public body that the officer or employee serves, unless one of the following applies:
946.13(11)(a)
(a) The individual has an interest in that law firm greater than 2% of its net profit or loss.
946.13(11)(b)
(b) The individual participates in making a contract between that public body and that law firm or exercises any official discretion with respect to a contract between them.
946.13(11)(c)
(c) The individual's compensation from the law firm directly depends on the individual's procurement of business with public bodies.
946.13 History
History: 1971 c. 40 s.
93;
1973 c. 12 s.
37;
1973 c. 50,
265;
1977 c. 166,
173;
1983 a. 282;
1987 a. 344,
378,
399;
1989 a. 31,
232;
1993 a. 486;
1995 a. 27,
225,
227,
435;
1997 a. 35,
248;
1999 a. 9,
85;
1999 a. 150 s.
672.
946.13 Annotation
Conviction of a county board member for violation of sub. (1) by accepting a job as airport manager at a time when he was a member of the county board, which was a cosponsor and co-owner of the airport, was reversed under evidence that he was appointed pursuant to advice and approval of the county corporation counsel. State v. Davis,
63 Wis. 2d 75,
216 N.W.2d 31.
946.13 Annotation
Sub. (1) (b) is a strict liability offense, without the element of corrupt motive. State v. Stoehr,
134 Wis. 2d 66,
396 N.W.2d 177 (1986).
946.13 Annotation
A county board member employed by an engineering and survey firm may have a possible conflict of interest in public contracts. 60 Atty. Gen. 98.
946.13 Annotation
A member of the Wisconsin board of vocational, technical and adult education may not bid on and contract for the construction of a building project for a vocational-technical district which would entail expenditures exceeding $2,000 in any year, where availability of federal funds for use on such project is subject to his approval as a member of such board. 60 Atty. Gen. 310.
946.13 Annotation
Discussion of conflicts arising from election of a school principal to the office of alderman. 60 Atty. Gen. 367.
946.13 Annotation
Appointment of counsel for indigents involves a public contract. 62 Atty. Gen. 118.
946.13 Annotation
A county supervisor who is a pharmacist probably does not violate this section in furnishing prescription services to medicaid patients where the state is solely liable for payment. 64 Atty. Gen. 108.
946.13 Annotation
The marital property law does not change the applicability of this section to a member of a governmental body when that body employs the member's spouse.
76 Atty. Gen. 15.
946.13 AnnotationThe applicability of this section is discussed.
76 Atty. Gen. 178, 278.
946.13 Annotation
Sub. (1) (a) may be violated by members of the Private Industry Councils when private or public entities of which they are executives, directors or board members receive benefits under the Job Training Partnership Act.
77 Atty. Gen. 306.
946.14
946.14
Purchasing claims at less than full value. Any public officer or public employee who in a private capacity directly or indirectly intentionally purchases for less than full value or discounts any claim held by another against the state or a political subdivision thereof or against any public fund is guilty of a Class E felony.
946.14 History
History: 1977 c. 173.
946.15
946.15
Public construction contracts at less than full rate. 946.15(1)(1) Any employer, or any agent or employee of an employer, who induces any person who seeks to be or is employed pursuant to a public contract as defined in
s. 66.0901 (1) (c) or who seeks to be or is employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under
s. 66.0903 (3),
103.49 (3),
103.50 (3) or
229.8275 (3) or by a local governmental unit, as defined in
s. 66.0903 (1) (d), under
s. 66.0903 (6) to give up, waive or return any part of the compensation to which that person is entitled under his or her contract of employment or under the prevailing wage rate determination issued by the department or local governmental unit, or who reduces the hourly basic rate of pay normally paid to an employee for work on a project on which a prevailing wage rate determination has not been issued under
s. 66.0903 (3) or
(6),
103.49 (3),
103.50 (3) or
229.8275 (3) during a week in which the employee works both on a project on which a prevailing wage rate determination has been issued and on a project on which a prevailing wage rate determination has not been issued, is guilty of a Class E felony.
946.15(2)
(2) Any person employed pursuant to a public contract as defined in
s. 66.0901 (1) (c) or employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under
s. 66.0903 (3),
103.49 (3),
103.50 (3) or
229.8275 (3) or by a local governmental unit, as defined in
s. 66.0903 (1) (d), under
s. 66.0903 (6) who gives up, waives or returns to the employer or agent of the employer any part of the compensation to which the employee is entitled under his or her contract of employment or under the prevailing wage determination issued by the department or local governmental unit, or who gives up any part of the compensation to which he or she is normally entitled for work on a project on which a prevailing wage rate determination has not been issued under
s. 66.0903 (3) or
(6),
103.49 (3),
103.50 (3) or
229.8275 (3) during a week in which the person works part-time on a project on which a prevailing wage rate determination has been issued and part-time on a project on which a prevailing wage rate determination has not been issued, is guilty of a Class C misdemeanor.
946.15(3)
(3) Any employer or labor organization, or any agent or employee of an employer or labor organization, who induces any person who seeks to be or is employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under
s. 66.0903 (3),
103.49 (3),
103.50 (3) or
229.8275 (3) or by a local governmental unit, as defined in
s. 66.0903 (1) (d), under
s. 66.0903 (6) to permit any part of the wages to which that person is entitled under the prevailing wage rate determination issued by the department or local governmental unit to be deducted from the person's pay is guilty of a Class E felony, unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is subject to
40 USC 276c.
946.15(4)
(4) Any person employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under
s. 66.0903 (3),
103.49 (3),
103.50 (3) or
229.8275 (3) or by a local governmental unit, as defined in
s. 66.0903 (1) (d), under
s. 66.0903 (6) who permits any part of the wages to which that person is entitled under the prevailing wage rate determination issued by the department or local governmental unit to be deducted from his or her pay is guilty of a Class C misdemeanor, unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is subject to
40 USC 276c.
946.15 Note
NOTE: This section is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
946.16
946.16
Judicial officer collecting claims. Any judicial officer who causes to be brought in a court over which the officer presides any action or proceeding upon a claim placed with the officer as agent or attorney for collection is guilty of a Class B misdemeanor.
