J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
October 29, 2008 OAG-10-08
District Attorney
Wood County
ReStartPost Office Box 8095
Wisconsin Rapids, WI 54495-8095 BodyStart In your letter dated September 2, 2008, you ask which agency or agencies are responsible for administering the provisions of Wis. Stat. chs. 5 to 12 (election laws), Wis. Stat. ch. 13, subch. III (lobby laws), and Wis. Stat. ch. 19, subch. III (ethics laws) and for prosecuting alleged violations of those provisions following the passage of 2007 Wisconsin Act 1, which created the Government Accountability Board (“Board”). QUESTIONS PRESENTED AND BRIEF ANSWERS
I have changed the order of your questions, which are as follows:
[1.] Are there provisions of chapters 5-12, 13 and 19 that can be enforced by a District Attorney independently of the Government Accountability Board? What is the applicability of Wis. Stat. s 5.05(2m)(c)15[.]-18[.] to cases independently initiated by a district attorney?
In my opinion, unless otherwise stated in a specific statutory provision, criminal provisions and civil forfeiture provisions of the election laws, lobby laws, and ethics laws can be enforced by a district attorney independently of the Board. A referral following an investigation by the Board is not required. Wisconsin Stat. § 5.05(2m)(c)15.-18. has no application to cases independently initiated by a district attorney without a referral by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15.
[2.] Can a District Attorney request assistance from the Attorney General with any duty a District Attorney may have under chapters 5-12, 13 and 19? If so, what type of assistance?
In my opinion, a district attorney may request prosecutorial or investigative assistance from the Attorney General in connection with any duty of the district attorney under the election laws, lobby laws, or ethics laws. If there has been a referral to the district attorney by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed to serve in lieu of the district attorney. [3.] What is the scope of the A[ttorney] G[eneral]’s [prosecutorial] authority in regard to violations of chapters 5-12, 13, and 19?
In my opinion, there must be a specific statutory provision authorizing the Attorney General to independently initiate the prosecution of civil and criminal actions involving violations of the election laws, lobby laws, or ethics laws unless there is a referral to the Attorney General by the Board under Wis. Stat. § 5.05(2m)(c)16. or the Attorney General or an assistant attorney general has been appointed as special prosecutor to serve in lieu of the district attorney. [4.] What is the division of authority between the Government Accountability Board and District Attorneys to enforce chapters 5-12, lobbying under chapter 13, and state ethics violations under chapter 19 of the Wisconsin Statutes? Does the Government Accountability Board have primary . . . [authority] to enforce those provisions?
In my opinion, the Board and district attorneys possess joint and co-equal authority to investigate possible violations of those statutory provisions and to prosecute civil forfeiture actions under those statutory provisions. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those statutory provisions. The Board has no statutory authority to prosecute criminal proceedings under those provisions except as stated in Wis. Stat. § 5.05(2m)(i). PRINCIPAL STATUTORY PROVISIONS INVOLVED
I. DUTIES OF THE GOVERNMENT ACCOUNTABILITY BOARD.
Government accountability board; powers and duties. (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: . . . .
(c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 12, subch. III of ch. 13, and 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. . . . . . . .
(2m) ENFORCEMENT. (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). . . . .
(c) 2.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. . . . 4. . . . . If the board believes 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. . . .
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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.
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