5.05(2m)(a)(a) The board shall investigate violations of laws administered by the board 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. Prosecution of alleged criminal violations investigated by the board may be brought only as provided in
par. (c) 11.,
14.,
15., and
16. and
s. 978.05 (1).
5.05(2m)(c)2.a.a. Any person may file a complaint with the board alleging a violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19. If the board finds, by a preponderance of the evidence, that a complaint is frivolous, the board may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division in investigating the complaint.
5.05(2m)(c)2.b.
b. No complaint alleging a violation of
s. 19.45 (13) may be filed during the period beginning 120 days before a general or spring election, or during the period commencing on the date of the order of a special election under
s. 8.50, and ending on the date of that election, against a candidate who files a declaration of candidacy to have his or her name appear on the ballot at that election.
5.05(2m)(c)3.
3. Any person to whom
subch. III of ch. 13 or
subch. III of ch. 19 may have application may request the board to make an investigation of his or her own conduct or of allegations made by other persons as to his or her conduct. Such a request shall be made in writing and shall set forth in detail the reasons therefor.
5.05(2m)(c)4.
4. If the board 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 shall dismiss the complaint. If the board believes that there is reasonable suspicion that a violation under
subd. 2. has occurred or is occurring, the board 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 may elect to retain a special investigator. If the board elects to retain a special investigator, the administrator of the ethics and accountability division shall submit to the board the names of 3 qualified individuals to serve as a special investigator. The board may retain one or more of the individuals. If the board retains a special investigator to investigate a complaint against a person who is a resident of this state, the board 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 resides within a county if the person's principal place of operation is located within that county. The board 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 may request the board to issue a subpoena to a specific person or to authorize the special investigator to request a circuit court to issue a search warrant. The board may grant the request by approving a motion to that effect at a meeting of the board if the board finds that such action is legally appropriate.
5.05(2m)(c)5.
5. Each special investigator who is retained by the board shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 30 days. If the board authorizes the 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, as directed by the board, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the board 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 at that meeting concerning the progress of the investigation. If, after receiving a report, the board 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 shall not expend more than $10,000 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 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. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator shall present to the board one of the following:
5.05(2m)(c)5.a.
a. A recommendation to make a finding that probable cause exists to believe that one or more violations under
subd. 2. have occurred or are occurring, together with a recommended course of action.
5.05(2m)(c)5.b.
b. A recommendation for further investigation of the matter together with facts supporting that course of action.
5.05(2m)(c)5.c.
c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.
5.05(2m)(c)6.a.a. If the board finds that there is probable cause to believe that a violation under
subd. 2. has occurred or is occurring, the board may authorize the 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. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the board the names of 3 qualified individuals to serve as special counsel. The board may retain one of the individuals to act as special counsel. The staff of the board shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.
5.05(2m)(c)6.b.
b. The board 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 shall file the contract in the office of the secretary of state. The compensation shall be charged to the appropriation under
s. 20.455 (1) (b).
5.05(2m)(c)7.
7. No individual who is appointed or retained by the board to serve as special counsel or as a special investigator is subject to approval under
s. 20.930.
5.05(2m)(c)8.
8. Upon employment of any individual to serve as special counsel or as a special investigator for the board, the administrator of the ethics and accountability division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay bills of the special counsel or special investigator related to that case within the certified amount.
5.05(2m)(c)9.
9. At the conclusion of its investigation, the board shall, in preliminary written findings of fact and conclusions based thereon, make a determination of whether or not probable cause exists to believe that a violation under
subd. 2. has occurred or is occurring. If the board determines that no probable cause exists, it shall dismiss the complaint. Whenever the board dismisses a complaint or a complaint is deemed to be dismissed under
subd. 5., the board shall immediately send written notice of the dismissal to the accused and to the party who made the complaint.
5.05(2m)(c)10.
10. The board shall inform the accused or his or her counsel of exculpatory evidence in its possession.
5.05(2m)(c)11.
11. If the board finds that there is probable cause to believe that a violation under
subd. 2. has occurred or is occurring, the board may, in lieu of civil prosecution of any matter by the board, refer the matter to the district attorney for the county in which the alleged violator resides, or if the alleged violator is a nonresident, to the district attorney for the county where the matter arises, or if
par. (i) applies, to the attorney general or a special prosecutor. For purposes of this subdivision, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.
5.05(2m)(c)12.
12. The board may, by rule, prescribe categories of civil offenses which the board will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The board may authorize the administrator of the ethics and accountability division to compromise and settle such alleged offenses in the name of the board if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $1,000.
5.05(2m)(c)13.
13. If a special investigator or the administrator of the ethics and accountability division, in the course of an investigation authorized by the board, 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. If the board 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 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.
5.05(2m)(c)14.
14. If a special investigator or the administrator of the ethics and accountability division of the board, in the course of an investigation authorized by the board, discovers evidence of a potential violation of a law that is not administered by the board 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. The board may thereupon refer the matter to the appropriate district attorney specified in
subd. 11.
5.05(2m)(c)15.
15. Except as provided in
subd. 17., if the board refers a matter to the district attorney specified in
subd. 11. for prosecution of a potential violation under
subd. 2. or
14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board's referral, the board may refer the matter to the district attorney for another prosecutorial unit that is contiguous to the prosecutorial unit of the district attorney to whom the matter was originally referred. If there is more than one such prosecutorial unit, the chairperson of the board shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the board. The district attorney may then commence a civil or criminal prosecution relating to the matter.
5.05(2m)(c)16.
16. Except as provided in
subd. 17., if the board refers a matter to a district attorney under
subd. 15. for prosecution of a potential violation under
subd. 2. or
14. and the district attorney informs the board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the board within 60 days of the date of the board's referral, the board may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.
5.05(2m)(c)17.
17. The board is not authorized to act under
subd. 15. or
16. if a special prosecutor is appointed under
s. 978.045 in lieu of the district attorney specified in
subd. 11.
5.05(2m)(c)18.
18. Whenever the board refers a matter to special counsel or to a district attorney or to the attorney general under this subsection, the special counsel, district attorney, or attorney general shall report to the board concerning any action taken regarding the matter. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during that period, the special counsel, district attorney, or attorney general shall file a subsequent report at the end of each 30-day period following the filing of the initial report until final disposition of the matter.
5.05(2m)(d)1.1. No individual who serves as the legal counsel to the board or as a division administrator for the board may have been a lobbyist, as defined in
s. 13.62 (11). No such individual may have served in, or have been a candidate, as defined in
s. 11.01 (1), for, a partisan state or local office.
5.05(2m)(d)2.
2. No employee of the board, while so employed, may become a candidate, as defined in
s. 11.01 (1), for a state or partisan local office. No individual who is retained by the board to serve as a special investigator or as special counsel may, while so retained become a candidate, as defined in
s. 11.01 (1), for any state or local office. A filing officer shall decline to accept nomination papers or a declaration of candidacy from any individual who does not qualify to become a candidate under this paragraph.
5.05(2m)(e)
(e) No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or a special counsel may, while so employed or retained, make a contribution, as defined in
s. 11.01 (6), to a candidate for state or local office. No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or as special counsel, for 12 months prior to becoming so employed or retained, may have made a contribution, as defined in
s. 11.01 (6), to a candidate for a partisan state or local office.
5.05(2m)(f)
(f) Pursuant to any investigation authorized under
par. (c), the board has the power:
5.05(2m)(f)1.
1. To require any person to submit in writing such reports and answers to questions relevant to the proceedings as the board may prescribe, such submission to be made within such period and under oath or otherwise as the board may determine.
5.05(2m)(f)2.
2. To order testimony to be taken by deposition before any individual who is designated by the board and has the power to administer oaths, and, in such instances, to compel testimony and the production of evidence in the same manner as authorized by
sub. (1) (b).
5.05(2m)(f)4.
4. To pay witnesses the same fees and mileage as are paid in like circumstances by the courts of this state.
5.05(2m)(f)5.
5. To request and obtain from the department of revenue copies of state income or franchise tax returns and access to other appropriate information under
s. 71.78 (4) regarding all persons who are the subject of such investigation.
5.05(2m)(g)1.1. Except as provided in
subd. 2., no action may be taken on any complaint that is filed later than 3 years after a violation of
subch. III of ch. 13 or
subch. III of ch. 19 is alleged to have occurred.
5.05(2m)(h)
(h) If the defendant in an action for a civil violation of
chs. 5 to
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. If the defendant in an action for a civil violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint special counsel to bring suit on behalf of the state.
5.05(2m)(i)
(i) If the defendant in an action for a criminal violation of
chs. 5 to
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
12,
subch. III of ch. 13, or
subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint a special prosecutor to conduct the prosecution on behalf of the state.
5.05(2m)(j)
(j) Any special counsel or prosecutor who is appointed under
par. (h) or
(i) shall be independent of the attorney general and need not be a state employee at the time of his or her appointment.
5.05(2s)
(2s) Ethics and accountability division. The ethics and accountability division has the responsibility for administration of
ch. 11,
subch. III of ch. 13, and
subch. III of ch. 19.
5.05(2w)
(2w) Elections Division. The elections division has the responsibility for the administration of
chs. 5 to
10 and
12.
5.05(3g)
(3g) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.
5.05(4)
(4) Employees. All employees of the board shall be nonpartisan.
5.05(5e)
(5e) Biennial report. The board shall include in its biennial report under
s. 15.04 (1) (d) the names and duties of all individuals employed by the board 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 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 board shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as it deems desirable.
5.05(5f)
(5f) Advice to board. The joint committee on legislative organization shall be advisory to the board on all matters relating to operation of the board.
5.05(5s)
(5s) Access to records. Records obtained or prepared by the board in connection with an investigation, including the full text of any complaint received by the board, 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:
5.05(5s)(a)
(a) The board shall permit inspection of records that are distributed or discussed in the course of a meeting or hearing by the board in open session.
5.05(5s)(c)
(c) The board shall provide information from investigation and hearing records that pertains to the location of individuals and assets of individuals as requested under
s. 49.22 (2m) by the department of children and families or by a county child support agency under
s. 59.53 (5).
5.05(5s)(d)
(d) If the board commences a civil prosecution of a person for an alleged violation of
chs. 5 to
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 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 shall then make those records available.
5.05(5s)(e)
(e) The following records of the board are open to public inspection and copying under
s. 19.35 (1):
5.05(5s)(e)1.
1. Any record of the action of the board authorizing the filing of a civil complaint under
sub. (2m) (c) 6.
5.05(5s)(e)2.
2. Any record of the action of the board referring a matter to a district attorney or other prosecutor for investigation or prosecution.
5.05(5s)(e)3.
3. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.
5.05(5s)(e)4.
4. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.
5.05(5s)(f)1.1. Except as authorized or required under
subd. 2., records obtained in connection with a request for an advisory opinion issued under
s. 5.05 (6a), other than summaries of advisory opinions that do not disclose the identity of individuals requesting such opinions or organizations on whose behalf they are requested, are not subject to the right of inspection and copying under
s. 19.35 (1). Except as authorized or required under
subd. 2., the board shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the opinions.
5.05(5s)(f)2.a.a. The board may make records under
subd. 1. public with the consent of the individual requesting the advisory opinion or the organization or governmental body on whose behalf it is requested.
5.05(5s)(f)2.b.
b. A person who makes or purports to make public the substance of or any portion of an advisory opinion requested by or on behalf of the person is deemed to have waived the confidentiality of the request for an advisory opinion and of any records obtained or prepared by the board in connection with the request for an advisory opinion.
5.05(5s)(f)2.c.
c. The board shall make public advisory opinions and records obtained in connection with requests for advisory opinions relating to matters under the jurisdiction of the elections division.
5.05(6a)
(6a) Advisory opinions. Any individual, either personally or on behalf of an organization or governmental body, may make a written or electronic request of the board for an advisory opinion regarding the propriety under
chs. 5 to
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 appointing officer, with the consent of a prospective appointee, may request of the board an advisory opinion regarding the propriety under
chs. 5 to
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 shall review a request for an advisory opinion and may issue a formal 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 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. To have legal force and effect, each advisory opinion issued by the board must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each 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 conclusion and why they are relevant. The board may authorize its legal counsel to issue an informal written advisory opinion or to transmit an informal advisory opinion electronically on behalf of the board, subject to such limitations as the board deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the board. If the board disagrees with an informal advisory opinion that has been issued on behalf of the board, the board may withdraw the opinion or issue a revised advisory opinion and 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. Except as authorized or required under
sub. (5s) (f) 2., no member or employee of the board may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion. Any person receiving a formal or informal advisory opinion under this subsection who disagrees with the opinion may request a public or private hearing before the board to discuss the opinion. The board 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. Promptly upon issuance of each formal advisory opinion that is not open to public access, the board shall publish a summary of the opinion that is consistent with applicable requirements under
sub. (5s) (f).
5.05(7)
(7) Administrative meetings and conferences. The board shall conduct regular information and training meetings at various locations in the state for county and municipal clerks and other election officials. Administrative meetings shall be designed to explain the election laws and the forms and rules of the board, to promote uniform procedures and to assure that clerks and other officials are made aware of the integrity and importance of the vote of each citizen. The board may conduct conferences relating to election laws, practice and procedure. The board may charge persons attending the administrative meetings and conferences for its costs incurred in conducting the meetings and conferences at a rate not exceeding the per capita cost incurred by the board.
5.05(9)
(9) Standing. The board 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 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.
5.05(10)
(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 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 shall adopt the plan and any modifications only after publishing a class I 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, the board shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The board may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.
5.05(11)
(11) Aids to counties and municipalities. From the appropriations under
s. 20.511 (1) (t) and
(x), the board 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 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.
5.05(12)
(12) Voter education. The board may conduct or prescribe requirements for educational programs to inform electors about voting procedures, voting rights, and voting technology. The board shall conduct an educational program for the purpose of educating electors who cast paper ballots, ballots that are counted at a central counting location, and absentee ballots of the effect of casting excess votes for a single office.
5.05(13)
(13) Toll-free election information exchange. 5.05(13)(a)(a) The board shall maintain one or more toll-free telephone lines for electors to report possible voting fraud and voting rights violations, to obtain general election information, and to access information concerning their registration status, current polling place locations, and other information relevant to voting in elections.
5.05(13)(b)
(b) The board may maintain a free access system under which an elector who votes under
s. 6.96 or
6.97 may ascertain current information concerning whether the elector's vote has been counted, and, if the vote will not be counted, the reason that it will not be counted.
5.05(14)
(14) Information from county and municipal clerks. The board may request information from county and municipal clerks relating to election administration, performance of electronic voting systems and voting machines, and use of paper ballots in elections.
5.05(15)
(15) Registration list. The board is responsible for the design and maintenance of the official registration list under
s. 6.36. The board shall require all municipalities to use the list in every election and may require any municipality to adhere to procedures established by the board for proper maintenance of the list.
5.05 History
History: 1973 c. 334;
1975 c. 85,
93,
199;
1977 c. 29;
1977 c. 196 s.
131;
1977 c. 418,
427,
447;
1979 c. 32 s.
92 (8);
1979 c. 89,
154,
328;
1983 a. 27,
484,
524,
538;
1985 a. 303;
1985 a. 304 ss.
3,
155;
1989 a. 31,
192;
1999 a. 182;
2001 a. 109;
2003 a. 35,
265,
266,
327;
2005 a. 177;
2007 a. 1 ss.
2 to
19,
94,
99,
100,
103,
104,
107,
109,
111,
112,
114,
116,
127,
128;
2007 a. 20.
5.05 Cross-reference
Cross Reference: See also
GAB, Wis. adm. code.
5.05 Annotation
Notice to the district attorney, attorney general, or governor is not a prerequisite to a civil forfeiture under sub. (1) (c); notice pursuant to sub. (3) is required only as specified by s. 11.60 (4) or 11.61 (2). State Elections Board v. Hales,
149 Wis. 2d 306,
440 N.W.2d 579 (Ct. App. 1989).
5.05 Annotation
A party being investigated by the board is not entitled under sub. (1) (b) to attend and participate in all depositions conducted by the board. Notice to the party being investigated under sub. (1) (b) is limited to the board's exercise of its subpoena power and does not relate in any way to the conduct of depositions the board may wish to take. State ex rel. Block v. Circuit Court for Dane County, 2000 WI App 72,
234 Wis. 2d 183,
610 N.W.2d 213,
00-0507.
5.052
5.052
Government accountability candidate committee. 5.052(1)(1) The government accountability candidate committee shall meet whenever a vacancy occurs in the membership of the board that requires a nomination to be submitted to the governor under
s. 15.60 (2).
5.052(2)
(2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.
5.052(3)
(3) Except as provided in
sub. (4), the committee shall submit at least the following number of nominations:
5.052(4)
(4) If a nominee dies or withdraws, or if a nomination of the governor is withdrawn by the governor or rejected by the senate, the committee shall submit an additional nominee to the governor.
