5.02(19)
(19) "Special election" means any election, other than those described in
subs. (5),
(12s),
(21), and
(22), to fill vacancies or to conduct a referendum.
5.02(20)
(20) "Special primary" means the primary held 4 weeks before the special election except when the special election is held on the same day as the general election the special primary shall be held on the same day as the general primary or if the special election is held concurrently with the spring election, the primary shall be held concurrently with the spring primary.
5.02(20g)
(20g) "Special purpose district" means any local governmental unit other than a county or municipality.
5.02(20r)
(20r) "Special referendum" means any referendum held at a special election which is not held concurrently with the elections described in
sub. (5),
(12s),
(21), or
(22).
5.02(21)
(21) "Spring election" means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.
5.02(22)
(22) "Spring primary" means the nonpartisan primary held on the 3rd Tuesday in February to nominate nonpartisan candidates to be voted for at the spring election.
5.02(23)
(23) "State office" means the offices of governor, lieutenant governor, secretary of state, state treasurer, attorney general, state superintendent, justice of the supreme court, court of appeals judge, circuit court judge, state senator, state representative to the assembly and district attorney.
5.02(24)
(24) "State superintendent" means the state superintendent of public instruction.
5.02(24g)
(24g) "Voting device" means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.
5.02(24r)
(24r) "Voting machine" means a machine which serves in lieu of a voting booth and which mechanically or electronically records the votes cast by electors, who depress levers or buttons located next to the choices listed on a ballot to cast their votes.
5.02(24w)(a)
(a) The total combination of mechanical, electromechanical, or electronic equipment, including the software, hardware, and documentation required to program, control, and support the equipment, that is used to define ballots, to cast and count votes, to report or display election results, and to maintain and produce any audit trail information.
5.02(24w)(b)
(b) The practices and associated documentation for any of the following purposes:
5.02(24w)(b)1.
1. To identify equipment components and versions of such components.
5.02(24w)(b)2.
2. To test the equipment during its development and maintenance.
5.02(24w)(b)3.
3. To maintain records of equipment errors and defects.
5.02(24w)(b)4.
4. To determine specific equipment changes to be made after the initial qualification of the equipment.
5.02(25)
(25) "Ward" means a town, village or city subdivision created for the convenience of the electors therein and to facilitate the division of such municipalities into election districts of substantially equal population numbers along common boundaries observing the community of interest of existing neighborhoods and other settlements.
5.02 History
History: 1971 c. 211;
1971 c. 304 ss.
2,
29 (2);
1973 c. 280,
334;
1975 c. 93;
1977 c. 107,
187,
394;
1977 c. 427 ss.
3 to
14;
1977 c. 449;
1979 c. 32,
89,
221;
1979 c. 260 ss.
1m,
73 to
75;
1979 c. 311,
328;
1981 c. 4,
391;
1983 a. 484 ss.
5,
5c,
124m,
128;
1985 a. 303;
1985 a. 304 ss.
1m,
2,
155;
1987 a. 391 ss.
1 to
1r,
66w;
1989 a. 31;
1991 a. 5;
1993 a. 140,
184;
1995 a. 16 s.
2;
1995 a. 27 s.
9145 (1);
1995 a. 219;
1997 a. 35;
2001 a. 16,
109;
2003 a. 24,
265;
2005 a. 177,
451;
2007 a. 1;
2009 a. 397;
2011 a. 23,
32,
45,
75;
2013 a. 165.
5.05
5.05
Government accountability board; powers and duties. 5.05(1)(1)
General authority. The government accountability board shall have the responsibility for the administration of
chs. 5 to
12, other laws relating to elections and election campaigns,
subch. III of ch. 13, and
subch. III of ch. 19. Pursuant to such responsibility, the board may:
5.05(1)(b)
(b) In the discharge of its duties and after providing notice to any party who is the subject of an investigation, subpoena and bring before it any person and require the production of any papers, books, or other records relevant to an investigation. Notwithstanding
s. 885.01 (4), the issuance of a subpoena requires action by the board at a meeting of the board. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution, as defined in
s. 705.01 (3), doing business in the state to obtain evidence of any violation of
ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.
5.05(1)(c)
(c) Bring civil actions to require a forfeiture for any violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 or a license revocation for any violation of
subch. III of ch. 13 for which the offender is subject to a revocation. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding
s. 778.06, a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling civil actions or proposed civil actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Except as otherwise provided in
sub. (2m) (c) 15. and
16. and
ss. 5.08,
5.081, and
19.59 (8), forfeiture and license revocation actions brought by the board shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. Whenever the board enters into a settlement agreement with an individual who is accused of a civil violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 or who is investigated by the board for a possible civil violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.
5.05(1)(d)
(d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.
5.05(1)(e)
(e) Delegate to its legal counsel the authority to intervene in a civil action or proceeding under
sub. (9), issue an order under
s. 5.06, exempt a polling place from accessibility requirements under
s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under
s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under
s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under
s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.
5.05(1)(f)
(f) Promulgate rules under
ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration.
5.05(1e)
(1e) Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.
5.05(1m)
(1m) Legal counsel. The board shall employ outside the classified service an individual to serve as legal counsel who shall perform legal and administrative functions for the board.
5.05(2)
(2) Auditing. In addition to the facial examination of reports and statements required under
s. 11.21 (13), the board shall conduct an audit of reports and statements which are required to be filed with it to determine whether violations of
ch. 11 have occurred. The board may examine records relating to matters required to be treated in such reports and statements. The board shall make official note in the file of a candidate, committee, group or individual under
ch. 11 of any error or other discrepancy which the board discovers and shall inform the person submitting the report or statement.
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. 20.505 (1) (d).
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 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.
