Sub. (5) prohibits misconduct in public office with constitutional specificity. Ryan v. State, 79 Wis. 2d 83
, 255 N.W.2d 910
Sub. (3) applies to a corrupt act under color of office and under de facto powers conferred by practice and usage. A person who is not a public officer may be charged as a party to the crime of official misconduct. State v. Tronca, 84 Wis. 2d 68
, 267 N.W.2d 216
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).
Sub. (3) is not unconstitutionally vague. It does not fail to give notice that hiring and directing staff to work on political campaigns on state time with state resources is a violation. A legislator's duty under this section may be determined by reference to a variety of sources including the Senate Policy Manual, applicable statutes, and legislative rules and guidelines. The Senate Policy Manual and senate guidelines restricted political campaigning with public resources. State v. Chvala, 2004 WI App 53
, 271 Wis. 2d 115
, 678 N.W.2d 880
Sub. (3) regulates conduct and not speech and is not subject to an overbreadth challenge under the 1st amendment. Legislators or their employees are not prohibited from doing or saying anything related to participation in political campaigns so long as they do not use state resources for that purpose. Legitimate legislative activity is not constrained by this statute. The line between “legislative activity" and “political activity" is sufficiently clear to prevent any confusion as to what conduct is prohibited under this statute. State v. Chvala, 2004 WI App 53
, 271 Wis. 2d 115
, 678 N.W.2d 880
Enforcement of sub. (3) against a legislator does not violate the separation of powers doctrine. Enforcement does not require the courts to enforce legislative rules governing the enactment of legislation. Rather, the courts are asked to enforce a penal statute that relates to the duties of a legislator. A court may interpret an internal legislative rule to determine criminal liability if, when applied to the facts of the specific case, the rule is not ambiguous. State v. Chvala, 2004 WI App 53
, 271 Wis. 2d 115
, 678 N.W.2d 880
Sub. (3) provides, as separate elements of the crime, the requirement that the conduct be inconsistent with the duties of one's office and the requirement that the conduct be done with intent to obtain a dishonest advantage. Although both elements may be proved through the same transaction, there must nevertheless be proof as to both elements. The state is required to prove beyond a reasonable doubt that the defendant exercised his or her discretionary power with the purpose to obtain a dishonest advantage. Guilt of misconduct in office does not require the defendant to have acted corruptly. State v. Jensen, 2007 WI App 256
. See also State v. Schultz, 2007 WI App 257
, 306 Wis. 2d 598
, 743 N.W.2d 823
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 I felony:
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
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.
(2) Subsection (1)
does not apply to any of the following:
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.
Contracts involving the deposit of public funds in public depositories.
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.
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.
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.
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 s. 91.13
, 2007 stats., or s. 91.60
or subch. IX of ch. 71
, 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
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.
In this section “contract" includes a conveyance.
(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 percent of the outstanding capital stock of a corporate body involved in such contract.
(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.
(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.
(8) Subsection (1)
shall not apply to contracts or transactions made or consummated or bonds issued under s. 66.1103
(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
(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
(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:
The individual has an interest in that law firm greater than 2 percent of its net profit or loss.
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.
The individual's compensation from the law firm directly depends on the individual's procurement of business with public bodies.
In this subsection, “research company" means an entity engaged in commercial activity that is related to research conducted by an employee or officer of the University of Wisconsin System or to a product of such research.
(b) Subsection (1)
does not apply to a contract between a research company and the University of Wisconsin System or any institution or college campus within the system for purchase of goods or services, including research, if the following apply:
The contract is approved by a University of Wisconsin System employee or officer responsible for evaluating and managing potential conflicts of interest.
The contract together with all other contracts between the same parties require less than $250,000 in payments over a 24-month period.
The University of Wisconsin System submits the contract to the University of Wisconsin Board of Regents and, within 45 days, the University of Wisconsin Board of Regents does not notify the University of Wisconsin System that entering the contract would constitute a violation of sub. (1)
(c) Paragraphs (a)
apply regardless of the date on which a contract was entered into.
History: 1971 c. 40
; 1973 c. 12
; 1973 c. 50
; 1977 c. 166
; 1983 a. 282
; 1987 a. 344
; 1989 a. 31
; 1993 a. 486
; 1995 a. 27
; 1997 a. 35
; 1999 a. 9
; 1999 a. 150
; 2001 a. 109
; 2005 a. 417
; 2009 a. 28
A county board member did not violate sub. (1) by accepting a job as airport manager while he was serving as a county board member for a county that was co-owner of the airport when 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
Sub. (1) (b) is a strict liability offense. It does not include the element of corrupt motive. State v. Stoehr, 134 Wis. 2d 66
, 396 N.W.2d 177
The defendant could not have had a pecuniary interest in, or have negotiated in his private capacity for, a position that had not yet been posted. State v. Venema, 2002 WI App 202
, 257 Wis. 2d. 491, 650 N.W.2d 898
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.
A member of the Wisconsin board of vocational, technical and adult education [now Technical college] may not bid on and contract for the construction of a building project for a vocational-technical district that would entail expenditures exceeding $2,000 in any year, when availability of federal funds for use on such project is subject to his approval as a member of the board. 60 Atty. Gen. 310.
Discussion of conflicts arising from election of a school principal to the office of alderperson. 60 Atty. Gen. 367.
Appointment of counsel for indigents involves a public contract. 62 Atty. Gen. 118.
A county supervisor who is a pharmacist probably does not violate this section in furnishing prescription services to medicaid patients when the state is solely liable for payment. 64 Atty. Gen. 108.
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
This section applies to county board or department purchases aggregating more than $5,000 from a county supervisor-owned business. 76 Atty. Gen. 178
When the village board administers a community development block grant program, a member of the village board would violate this section if he or she obtained a loan in excess of $5,000 under the program. Acting as a private contractor, the board member would violate sub. (1) if he contracted to perform the construction work for a 3rd person who obtained a loan under the program. 76 Atty. Gen. 278
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
A municipality's zoning decision is not a contract under sub. (1) (a) and therefore the statute does not apply to an official's participation in a zoning decision. OAG 9-14
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 I felony.
History: 1977 c. 173
; 2001 a. 109
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.
History: 1977 c. 173
Corrupt means to influence legislation; disclosure of interest.
Any person who gives or agrees or offers to give anything of value to any person, for the service of such person or of any other person in procuring the passage or defeat of any measure before the legislature or before either house or any committee thereof, upon the contingency or condition of the passage or defeat of the measure, or who receives, or agrees to receive anything of value for such service, upon any such contingency or condition, or who, having a pecuniary or other interest, or acting as the agent or attorney of any person in procuring or attempting to procure the passage or defeat of any measure before the legislature or before either house or any committee thereof, attempts in any manner to influence any member of the legislature for or against the measure, without first making known to the member the real and true interest he or she has in the measure, either personally or as such agent or attorney, is guilty of a class A misdemeanor.
History: 1977 c. 278
; Stats. 1977 s. 946.17; 1993 a. 213
Misconduct sections apply to all public officers. Sections 946.10
apply to public officers, whether legally constituted or exercising powers as if legally constituted.
History: 1977 c. 278
; 1979 c. 110
PERJURY AND FALSE SWEARING
Whoever under oath or affirmation orally makes a false material statement which the person does not believe to be true, in any matter, cause, action or proceeding, before any of the following, whether legally constituted or exercising powers as if legally constituted, is guilty of a Class H felony:
An administrative agency or arbitrator authorized by statute to determine issues of fact;
A notary public while taking testimony for use in an action or proceeding pending in court;
An officer authorized to conduct inquests of the dead;
It is not a defense to a prosecution under this section that the perjured testimony was corrected or retracted.
An arbitrator selected from a list provided by WERC is authorized by s. 111.10 to arbitrate as provided in ch. 298 [now ch. 788] and so is “authorized by statute" within meaning of sub. (1) (d). Layton School of Art & Design v. WERC, 82 Wis. 2d 324
, 262 N.W.2d 218
Perjury consists of a false statement that the defendant knew was false, was made under oath in a proceeding before a judge, and was material to the proceeding. Materiality is determined by whether the trial court could have relied on the testimony in making a decision, not on whether it actually did. State v. Munz, 198 Wis. 2d 379
, 541 N.W.2d 821
(Ct. App. 1995), 95-0635
A defendant may be charged with multiple counts of perjury based on testimony given in the same proceeding when each charge requires proof of an additional fact that the others do not. State v. Warren, 229 Wis. 2d 172
, 599 N.W.2d 431
(Ct. App. 1999), 99-0129
Issue preclusion does not bar the prosecution of a defendant for perjury who was tried and acquitted on a single issue when newly discovered evidence suggests that the defendant falsely testified on the issue. The state must show that: 1) the evidence came to the state's attention after trial; 2) the state was not negligent in failing to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence is not merely cumulative. State v. Canon, 2001 WI 11
, 241 Wis. 2d 164
, 622 N.W.2d 270