Chapter ETH 21

ETH 21.02(12) (12) “Staff counsel” means an employee of the commission designated by the administrator to serve as legal counsel of the commission pursuant to s. 19.47 (2), Stats.

ETH 21.02(13) (13) “Sufficient allegations” means allegations of fact and reasonable inferences drawn from those allegations that, if proven, would satisfy each element of the applicable law.

ETH 21.02 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23; correction in (1), (11) made under s. 35.17, Stats., Register July 2023 No. 811.

ETH 21.03 ETH 21.03 Receipt and preliminary review of complaints.

ETH 21.03(1) (1) Complaint form and contents. A complaint shall be filed in writing. The complaint, together with all attachments shall not exceed 10 pages without prior approval of the administrator. A complaint shall include all of the following:

ETH 21.03(1)(a) (a) The full name and address of the complainant.

ETH 21.03(1)(b) (b) The full name and address of the respondent against whom the complaint is filed. If multiple persons are alleged to have committed a violation, a complainant shall file a separate complaint for each respondent.

ETH 21.03(1)(c) (c) An allegation of a violation of ch. 11, subch. III of ch. 13, or subch. III of ch. 19, Stats.

ETH 21.03(1)(d) (d) A concise statement of the facts supporting each alleged violation that differentiates between statements based on personal knowledge and those based on information and belief. Statements not based on personal knowledge shall identify the source of the information.

ETH 21.03(1)(e) (e) Citation to any legal authority which the complainant relies on in support of their complaint. Citations to cases shall include a public domain cite, if available. Citations shall also include page or paragraph numbers, if appropriate.

ETH 21.03(1)(f) (f) Any relevant documentation supporting the allegations, if available.

ETH 21.03(1)(g) (g) The notarized signature of the complainant, the complainant’s attorney, or other authorized person filing the complaint on behalf of the complainant.

ETH 21.03(1)(h) (h) If a complaint is filed by an attorney or other authorized person on behalf of the complainant, the attorney or other authorized person shall include a notice of representation that includes the name and address of the attorney or other authorized person.

ETH 21.03(2) (2) Preliminary review. The administrator shall conduct a preliminary review of each complaint filed with the commission and shall dismiss a complaint or the relevant portion of a complaint if it does not comply with sub. (1) or if any of the following applies:

ETH 21.03(2)(a) (a) The complainant does not file the complaint within the time period specified by s. 19.49 (2) (f), Stats.

ETH 21.03(2)(b) (b) The commission does not have jurisdiction over the violation alleged.

ETH 21.03(2)(c) (c) The complaint does not contain sufficient allegations to establish that a violation of ch. 11, subch. III of ch. 13, or subch. III of ch. 19, Stats., has potentially occurred.

ETH 21.03(3) (3) Notice of dismissals. The administrator shall inform the commission of each complaint that was dismissed under sub. (2) since its last meeting.

ETH 21.03 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.04 ETH 21.04 Acknowledgement and notice of complaints. After preliminary review of a complaint under s. ETH 21.03 (2), but within 5 calendar days of receipt of the complaint, the administrator shall:

ETH 21.04(1) (1) Send a written notice to the complainant that provides all of the following:

ETH 21.04(1)(a) (a) An acknowledgement that the commission received the complaint.

ETH 21.04(1)(b) (b) A notice if the complaint or any portion of the complaint was dismissed under s. ETH 21.03 (2).

ETH 21.04(1)(b)1. 1. If the complaint or any portion of the complaint was dismissed for failure to comply with the requirements of s. ETH 21.03 (1), the notice shall include an explanation of the relevant requirements and inform the complainant that the complainant may re-file the complaint once it conforms to the requirements of s. ETH 21.03 (1).

ETH 21.04(1)(b)2. 2. If the complaint or any portion of the complaint was dismissed pursuant to s. ETH 21.03 (2) (a), the notice shall indicate the relevant deadline to file the complaint, if known.

ETH 21.04(1)(b)3. 3. If the complaint or any portion of the complaint was dismissed pursuant to s. ETH 21.03 (2) (b), the notice shall inform the complainant of the governmental agency with jurisdiction over the matter, if known.

ETH 21.04(1)(b)4. 4. If the complaint or any portion of the complaint was dismissed pursuant to s. ETH 21.03 (2) (c), the notice shall specify what additional allegations would be required to satisfy each element of the applicable law, if known.

ETH 21.04(2) (2) If the complaint was not dismissed, send a written notice to the respondent that provides all of the following:

ETH 21.04(2)(a) (a) A statement that the respondent has 15 calendar days from receipt of the notice to submit a written response demonstrating to the commission that the commission should take no action against the respondent on the basis of the complaint.

ETH 21.04(2)(b) (b) A notice that an extension of the deadline to file a written response may be granted by the administrator for good cause shown.

ETH 21.04(2)(c) (c) If any portion of the complaint was dismissed upon preliminary review under s. ETH 21.03 (2), a statement describing which allegations have been dismissed.

ETH 21.04(2)(d) (d) A copy of the complaint.

ETH 21.04 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.05 ETH 21.05 Response form and contents. A response to a complaint, if any, shall be filed in writing. The response, together with all attachments shall not exceed 10 pages without prior approval of the administrator. A response, if any, shall include all of the following:

ETH 21.05(1) (1) The case number assigned to the case.

ETH 21.05(2) (2) A concise statement of the facts supporting the respondent’s response to each alleged violation that differentiates between statements based on personal knowledge and those based on information and belief. Statements not based on personal knowledge shall identify the source of the information.

ETH 21.05(3) (3) Citation to any legal authority which the respondent relies on in support of their response. Citations to cases shall include a public domain cite, if available. Citations shall also include page or paragraph numbers, if appropriate.

ETH 21.05(4) (4) Any relevant documentation supporting the response, if available.

ETH 21.05(5) (5) If a response is filed by an attorney or other authorized person on behalf of the respondent, the attorney or other authorized person shall include a notice of representation that includes the name and address of the attorney or other authorized person.

ETH 21.05 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.06 ETH 21.06 Preliminary requests for information. Before the commission makes a determination of reasonable suspicion, the administrator may request from any person any of the following:

ETH 21.06(1) (1) If the complaint alleges a violation by any local registrant, a copy of the campaign registration statement and any campaign finance reports filed by the local registrant.

ETH 21.06(2) (2) If the complaint alleges a violation of s. 11.1303, Stats., any information or documentation related to the specifications provided in s. ETH 1.96.

ETH 21.06(3) (3) Any public records or other publicly available information.

ETH 21.06 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.07 ETH 21.07 Determination of reasonable suspicion.

ETH 21.07(1) (1) In making its determination as to whether reasonable suspicion of a violation exists, the commission may consider the complaint, the response, information provided upon request under s. ETH 21.06, publicly available information, and the analysis and recommendations of commission staff.

ETH 21.07(2) (2) If the commission finds no reasonable suspicion or fails to find there is reasonable suspicion that a violation has occurred or is occurring, the commission shall dismiss the complaint and the parties shall be notified pursuant to s. ETH 21.10.

ETH 21.07(3) (3) If the commission finds reasonable suspicion that a violation has occurred or is occurring, the commission may do any of the following:

ETH 21.07(3)(a) (a) Authorize an investigation by resolution. The resolution shall specifically set forth any matter that is authorized to be investigated.

ETH 21.07(3)(b) (b) Issue a written warning.

ETH 21.07(3)(c) (c) Extend a settlement offer.

ETH 21.07 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.08 ETH 21.08 Determination of probable cause.

ETH 21.08(1) (1) At the conclusion of its investigation, the commission 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 has occurred or is occurring.

ETH 21.08(2) (2) In making its determination as to whether probable cause of a violation exists, the commission may consider the complaint, the response, information provided upon request pursuant to s. ETH 21.06, publicly available information, information obtained pursuant to an investigation, and the analysis and recommendations of commission staff.

ETH 21.08(3) (3) If the commission finds that no probable cause exists, it shall dismiss the complaint and the parties shall be notified pursuant to s. ETH 21.10.

ETH 21.08(4) (4) If the commission finds that there is probable cause to believe that a violation has occurred or is occurring, the commission may do any of the following:

ETH 21.08(4)(a) (a) Authorize the administrator to file a civil complaint against the alleged violator.

ETH 21.08(4)(b) (b) Issue a written warning.

ETH 21.08(4)(c) (c) Extend a settlement offer.

ETH 21.08(4)(d) (d) Refer the matter to one of the following:

ETH 21.08(4)(d)1. 1. To the district attorney for the county in which the alleged violator resides.

ETH 21.08(4)(d)2. 2. If the alleged violator is a nonresident, to the district attorney for the county where the matter arises.

ETH 21.08(4)(d)3. 3. If the alleged violator is a district attorney, a circuit court judge, or a candidate for either such office, to the attorney general.

ETH 21.08 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.09 ETH 21.09 Exercises of prosecutorial discretion. Pursuant to the authority granted in s. 19.49 (2) (b) 4., Stats., the commission may vote to terminate a complaint or investigation at any time notwithstanding a finding of reasonable suspicion or probable cause that a violation has occurred or is occurring. If a complaint or investigation is terminated, it is deemed to be dismissed by the commission and the parties shall be notified pursuant to s. ETH 21.10.

ETH 21.09 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.10 ETH 21.10 Notification of dismissal. After a determination that either no reasonable suspicion or no probable cause of a violation exists, or where any complaint is deemed to be dismissed by the commission, the administrator shall send a written notice to the complainant and respondent within 5 calendar days.

ETH 21.10 History History: CR 22-052: cr. Register July 2023 No. 811, eff. 8-1-23.

ETH 21.30 ETH 21.30 Requests for written advice.

ETH 21.30(1) (1) General provisions.

ETH 21.30(1)(a) (a) A person may request either a formal or an informal advisory opinion of the commission. An informal opinion may be issued by the administrator and is issued only to the person requesting the opinion. A formal opinion is issued by the commission itself, allows an opportunity for a hearing, and the request and opinion are anonymized and published on the commission’s Internet site.

ETH 21.30(1)(b) (b) If a person requests in writing the commission’s written advice regarding the propriety of a matter to which the person is or may become a party, the administrator may advise the person in writing.

ETH 21.30(1)(c) (c) The written advice shall be consistent with all applicable formal advisory opinions issued by the commission, statute or other law, and case law as required by s. 19.46 (2) (b) 1., Stats., as well as the United States and Wisconsin constitutional law.

ETH 21.30(1)(d) (d) Written advice prepared by the administrator has the full force and effect of written advice given by the ethics commission.

ETH 21.30(2) (2) Requests for informal opinions.

ETH 21.30(2)(a) (a) If a person requests an informal opinion, the administrator shall determine if any of the following applies:

ETH 21.30(2)(a)1. 1. If the request cannot be answered by existing statute, opinion precedent, or case law, the request shall be considered by the commission at its next regular meeting.

ETH 21.30(2)(a)2. 2. If the request can be answered by existing statute, opinion precedent, or case law, the administrator may issue an informal opinion on behalf of the commission. If the administrator issues an informal opinion on behalf of the commission, all of the following applies:

ETH 21.30(2)(a)2.a. a. Any such opinion shall include a notice to the requestor that the opinion shall be reported to the commission at its next regular meeting pursuant to s. 19.46 (2) (a) 4., Stats. The notice shall advise the requestor that if the commission disagrees with the opinion, the commission may withdraw the opinion, issue a revised opinion, or request an opinion from the attorney general. The notice shall also state that if the opinion is withdrawn or revised, no person relying upon the withdrawn or revised opinion is exempted from prosecution under s. 19.46 (2) (a) 3., Stats., after withdrawal or revision. If the commission issues a revised opinion, the revised opinion provides exemption from civil or criminal prosecution under s. 19.46 (2) (a) 3., Stats.

ETH 21.30(2)(a)2.b. b. Any such opinion shall be reported to the commission at its next regular meeting pursuant to s. 19.46 (2) (a) 4., Stats.

ETH 21.30(2)(b) (b) The administrator, assistant administrator, or staff counsel may request any additional information from the requestor that is necessary to issue the opinion.

ETH 21.30(3) (3) Requests for formal opinions.

ETH 21.30(3)(a) (a) If a person requests a formal opinion or requests a review or modification of a previously issued formal opinion, the commission shall review the request and may issue a formal opinion.

ETH 21.30(3)(b) (b) The administrator, assistant administrator, or staff counsel may request any additional information from the requestor that is necessary to issue the opinion.

ETH 21.30(3)(c) (c) Any person requesting a formal opinion may request a public or private hearing before the commission to discuss the opinion pursuant to s. 19.46 (2) (b), Stats. Any such request for a hearing must be received no later than 21 calendar days prior to the requested hearing date. The commission shall grant any such request for a public or private hearing.

ETH 21.30(4) (4) Voluntary waiver of confidentiality. In addition to waiver by making an opinion public or purporting to make an opinion public as provided in s. 19.55 (4) (b), Stats., a person who receives an informal or formal opinion may voluntarily waive confidentiality of the request and any records obtained or prepared by the commission in connection with the request for an informal or formal opinion by submitting a statement in writing to the administrator that the person is waiving confidentiality. Any records obtained or prepared by the commission includes the opinion.

ETH 21.30 History History: Cr. Register, June, 1976, No. 246, eff. 7-1-76; am. Register, September, 1976, No. 249, eff. 10-1-76; am. Register, October, 1976, No. 250, eff. 11-1-76; am. Register, April, 1985, No. 352, eff. 5-1-85; correction made under s. 13.92 (4) (b) 6., Stats., Register June 2016 No. 726; CR 17-038: am. Register March 2018 No. 747 eff. 4-1-18; CR 22-052: r. and recr. Register July 2023 No. 811, eff. 8-1-23; correction in (1) (c), (2) (a) 2. a. made under s. 35.17, Stats., Register July 2023 No. 811.