AB981: Bill Text

AB981,9,25 5.05 (2m) (c) 6. a. If the commission office of the secretary of state finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission secretary of state may authorize the commission administrator to file a civil complaint against the alleged violator. In such case, the administrator secretary may request the assistance of special counsel to prosecute any action brought by the commission. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the commission the names of 3 qualified individuals to serve as special counsel. The commission may retain one of the individuals to act as special counsel office. The staff of the commission office of the secretary of state shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

AB981,10,14 b. The commission secretary of state 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 commission and the commission shall file the contract kept in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.510 (1) 20.575 (2) (br).

AB981,14 Section 14. 5.05 (2m) (c) 7. of the statutes is amended to read:

AB981,10,18 5.05 (2m) (c) 7. No individual who is appointed or retained by the commission secretary of state to serve as special counsel or as a special investigator is subject to approval under s. 20.930.

AB981,15 Section 15. 5.05 (2m) (c) 9. of the statutes is amended to read:

AB981,11,3 5.05 (2m) (c) 9. At the conclusion of its investigation, the commission office of the secretary of state 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 commission office determines that no probable cause exists, it the secretary of state shall dismiss the complaint. Whenever the commission secretary dismisses a complaint or a complaint is deemed to be dismissed under subd. 5., the commission office shall immediately send written notice of the dismissal to the accused and to the party who made the complaint.

AB981,16 Section 16. 5.05 (2m) (c) 10. of the statutes is amended to read:

AB981,11,6 5.05 (2m) (c) 10. The commission office of the secretary of state shall inform the accused or his or her counsel of exculpatory evidence in its possession.

AB981,17 Section 17. 5.05 (2m) (c) 11. of the statutes is amended to read:

AB981,11,16 5.05 (2m) (c) 11. If the commission office of the secretary of state finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission secretary of state may, in lieu of civil prosecution of any matter by the commission office, 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.

AB981,18 Section 18. 5.05 (2m) (c) 12. of the statutes is amended to read:

AB981,11,24 5.05 (2m) (c) 12. The commission office of the secretary of state shall, by rule, prescribe categories of civil offenses which the commission secretary of state will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The commission may authorize the commission administrator to compromise and settle such alleged offenses in the name of the commission if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $2,500.

AB981,19 Section 19. 5.05 (2m) (c) 13. of the statutes is amended to read:

AB981,12,10 5.05 (2m) (c) 13. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission secretary of state, 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 commission secretary. If the commission secretary 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 commission secretary 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.

AB981,20 Section 20. 5.05 (2m) (c) 14. of the statutes is amended to read:

AB981,12,21 5.05 (2m) (c) 14. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission secretary of state, discovers evidence of a potential violation of a law that is not administered by the commission office of the secretary of state arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, the special investigator or the administrator may present that evidence to the commission secretary. The commission secretary may thereupon refer the matter to the appropriate district attorney specified in subd. 11. or may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.

AB981,21 Section 21. 5.05 (2m) (c) 15. of the statutes is amended to read:

AB981,13,12 5.05 (2m) (c) 15. Except as provided in subd. 17., if the commission secretary of state 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 commission secretary that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the commission secretary, 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 commission secretary within 60 days of the date of the commission's referral, the commission secretary 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 commission shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the commission. The district attorney may then commence a civil or criminal prosecution relating to the matter.

AB981,22 Section 22. 5.05 (2m) (c) 16. of the statutes is amended to read:

AB981,13,23 5.05 (2m) (c) 16. Except as provided in subd. 17., if the commission secretary of state 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 commission secretary that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the commission secretary, 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 commission secretary within 60 days of the date of the commission's referral, the commission secretary may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.

AB981,23 Section 23. 5.05 (2m) (c) 17. of the statutes is amended to read:

AB981,14,3 5.05 (2m) (c) 17. The commission secretary of state 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.

AB981,24 Section 24. 5.05 (2m) (c) 18. of the statutes is amended to read:

AB981,14,12 5.05 (2m) (c) 18. Whenever the commission secretary of state 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 commission secretary of state 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.

AB981,25 Section 25. 5.05 (2m) (d) 1. of the statutes is repealed.

AB981,26 Section 26. 5.05 (2m) (d) 2. of the statutes is renumbered 5.05 (2m) (d) and amended to read:

AB981,14,23 5.05 (2m) (d) No employee of the commission office of the secretary of state, while so employed, may become a candidate, as defined in s. 11.0101 (1), for a state or partisan local office. No individual who is retained by the commission office of the secretary of state to serve as a special investigator or as special counsel may, while so retained, become a candidate, as defined in s. 11.0101 (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.

AB981,27 Section 27. 5.05 (2m) (e) of the statutes is amended to read:

AB981,15,10 5.05 (2m) (e) No individual who serves as an employee of the commission office of the secretary of state and no individual who is retained by the commission office of the secretary of state to serve as a special investigator or a special counsel may, while so employed or retained, make a contribution to a candidate for state or local office. No individual who serves as an employee of the commission office of the secretary of state and no individual who is retained by the commission office of the secretary of state 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 to a candidate for a partisan state or local office. In this paragraph, contribution has the meaning given in s. 11.0101 (8).

AB981,28 Section 28. 5.05 (2m) (f) (intro.) of the statutes is amended to read:

AB981,15,13 5.05 (2m) (f) (intro.) Pursuant to any investigation authorized under par. (c), the commission secretary of state has the power:

AB981,29 Section 29. 5.05 (2m) (f) 1. of the statutes is amended to read:

AB981,15,18 5.05 (2m) (f) 1. To require any person to submit in writing such reports and answers to questions relevant to the proceedings as the commission office of the secretary of state may prescribe, such submission to be made within such period and under oath or otherwise as the commission office may determine.

AB981,30 Section 30. 5.05 (2m) (f) 2. of the statutes is amended to read:

AB981,15,23 5.05 (2m) (f) 2. To order testimony to be taken by deposition before any individual who is designated by the commission secretary of state 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).

AB981,31 Section 31. 5.05 (2m) (h) of the statutes is amended to read:

AB981,16,6 5.05 (2m) (h) If the defendant in an action for a civil violation of chs. 5 to 10 or 12 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the commission secretary of state. If the defendant in an action for a civil violation of chs. 5 to 10 or 12 is the attorney general or a candidate for that office, the commission secretary of state may appoint special counsel to bring suit on behalf of the state.

AB981,32 Section 32. 5.05 (2m) (i) of the statutes is amended to read:

AB981,16,13 5.05 (2m) (i) If the defendant in an action for a criminal violation of chs. 5 to 10 or 12 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 10 or 12 is the attorney general or a candidate for that office, the commission secretary of state may appoint a special prosecutor to conduct the prosecution on behalf of the state.

AB981,33 Section 33. 5.05 (2m) (k) of the statutes is amended to read:

AB981,16,17 5.05 (2m) (k) The commission's power of the secretary of state to initiate civil actions under this subsection for the enforcement of chs. 5 to 10 or 12 shall be the exclusive remedy for alleged civil violations of chs. 5 to 10 or 12.

AB981,34 Section 34. 5.05 (2q) of the statutes is amended to read:

AB981,17,17 5.05 (2q) Supplemental funding for ongoing investigations. The commission secretary of state may request supplemental funds to be credited to the appropriation account under s. 20.510 (1) 20.575 (2) (be) for the purpose of continuing an ongoing investigation initiated under sub. (2m). A request under this subsection shall be filed with the secretary of administration and the cochairpersons of the joint committee on finance in writing and shall contain a statement of the action requested, the purposes therefor, the statutory provision authorizing or directing the performance of the action, and information about the nature of the investigation for which the commission secretary of state seeks supplemental funds, excluding the name of any individual or organization that is the subject of the investigation. If the cochairpersons of the joint committee on finance do not notify the secretary of administration that the committee has scheduled a meeting for the purpose of reviewing the request within 14 working days after the commission secretary of state filed the request, the secretary of administration shall supplement the appropriation under s. 20.510 (1) 20.575 (2) (be) from the appropriation under s. 20.505 (1) (d) in an amount not to exceed the amount the commission secretary of state requested. If, within 14 working days after the commission secretary of state filed the request, the cochairpersons of the joint committee on finance notify the secretary of administration that the committee has scheduled a meeting for the purpose of reviewing the commission's secretary of state's request under this subsection, the secretary of administration may supplement the appropriation under s. 20.510 (1) 20.575 (2) (be) only with the committee's approval. The committee and the secretary of administration shall notify the commission secretary of state of all their actions taken under this subsection.

AB981,35 Section 35. 5.05 (2w) of the statutes is amended to read:

AB981,17,20 5.05 (2w) Elections commission Secretary of state. The elections commission secretary of state has the responsibility for the administration of chs. 5 to 10 and 12.

AB981,36 Section 36. 5.05 (3d) of the statutes is amended to read:

AB981,18,4 5.05 (3d) Administrator Personnel. The commission shall appoint an administrator in the manner provided under s. 15.61 (1) (b). The administrator shall be outside the classified service. The administrator secretary of state shall appoint such other personnel as he or she requires to carry out the duties of the commission office of the secretary of state in the administration of chs. 5 to 10 and 12 and may designate a commission an employee to serve as the commission's legal counsel. The administrator shall perform such duties as the commission assigns to him or her in the administration of chs. 5 to 10 and 12.

AB981,37 Section 37. 5.05 (3g) of the statutes is amended to read:

AB981,18,7 5.05 (3g) Chief election officer. The commission administrator secretary of state shall serve as the chief election officer of this state.

AB981,38 Section 38. 5.05 (4) of the statutes is amended to read:

AB981,18,10 5.05 (4) Employees. All employees of the commission office of the secretary of state involved in the administration of chs. 5 to 10 and 12 shall be nonpartisan.

AB981,39 Section 39. 5.05 (5e) of the statutes is amended to read:

AB981,19,2 5.05 (5e) Annual report. The commission office of the secretary of state shall submit an annual report under s. 15.04 (1) (d) and shall include in its annual report the names and duties of all individuals employed by the commission office and a summary of its determinations and advisory opinions issued under sub. (6a). Except as authorized or required under sub. (5s) (f), the commission office shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the decisions or opinions. The commission office shall identify in its report the statutory duties of the commission administrator secretary of state, together with a description of the manner in which those duties are being fulfilled. Notwithstanding sub. (5s) and s. 12.13 (5), the commission office of the secretary of state shall also specify in its report the total number of investigations conducted by the commission office since the last annual report and a description of the nature of each investigation. The commission office shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as it deems desirable.

AB981,40 Section 40. 5.05 (5f) of the statutes is amended to read:

AB981,19,7 5.05 (5f) Advice to commission the secretary. The joint committee on legislative organization shall be advisory to the commission secretary of state on all matters relating to operation of the commission office of the secretary of state with regard to the administration of chs. 5 to 10 and 12.

AB981,41 Section 41. 5.05 (5s) (intro.), (a), (am), (b), (bm), (c), (d), (e) (intro.), 1., 2. and (f) of the statutes, as affected by 2021 Wisconsin Act 38, are amended to read:

AB981,19,13 5.05 (5s) Access to records. (intro.) Records obtained or prepared by the commission office of the secretary of state in connection with an investigation, including the full text of any complaint received by the commission office, are not subject to the right of inspection and copying under s. 19.35 (1), except as follows:

AB981,20,4 (a) The commission office shall permit inspection of records that are distributed or discussed in the course of a meeting or hearing by the commission office in open session. The commission office shall post on its Internet site the draft minutes of each meeting or hearing conducted by the commission office in open session no later than 48 hours after the completion of the meeting or hearing. The commission office shall post minutes approved by the commission office no later than 48 hours after the minutes are approved. The commission office may indicate whether minutes posted on its Internet site have been approved by the commission office or are in draft form. Minutes posted pursuant to this paragraph shall include a summary of every action that the commission voted on, a record of each member's vote for or against every action requiring a vote, a record of all motions and seconds made by each member, including the full text of each motion debated and voted on by the commission, and a record of each member's status as being present or absent for any part of a meeting or hearing taken by the office. The commission office shall maintain all minutes published under this paragraph on its Internet site so that the minutes are accessible to the public at all times.

AB981,20,7 (am) The commission office shall provide to the joint committee on finance records obtained or prepared by the commission office in connection with an ongoing investigation when required under sub. (2q).

AB981,20,9 (b) Investigatory records of the commission office may be made public in the course of a prosecution initiated under chs. 5 to 10 or 12.

AB981,20,12 (bm) The commission office shall provide investigatory records to the state auditor and the employees of the legislative audit bureau to the extent necessary for the bureau to carry out its duties under s. 13.94.

AB981,20,16 (c) The commission office 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).

AB981,20,22 (d) If the commission office commences a civil prosecution of a person for an alleged violation of chs. 5 to 10 or 12 as the result of an investigation, the person who is the subject of the investigation may authorize the commission office 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 commission office shall then make those records available.

AB981,20,24 (e) (intro.) The following records of the commission office are open to public inspection and copying under s. 19.35 (1):

AB981,21,2 1. Any record of the action of the commission office authorizing the filing of a civil complaint under sub. (2m) (c) 6.

AB981,21,4 2. Any record of the action of the commission office referring a matter to a district attorney or other prosecutor for investigation or prosecution.

AB981,21,9 (f) The commission office shall make public formal and informal advisory opinions and records obtained in connection with requests for formal or informal advisory opinions relating to matters under the jurisdiction of the commission office, including the identity of individuals requesting such opinions or organizations or governmental bodies on whose behalf they are requested.

AB981,42 Section 42. 5.05 (5t) of the statutes is amended to read:

AB981,21,17 5.05 (5t) Guidance following binding court decisions. Within 2 months following the publication of a decision of a state or federal court that is binding on the commission secretary of state and this state, the commission secretary of state shall issue updated guidance or formal advisory opinions, commence the rule-making procedure to revise administrative rules promulgated by the commission, or request an opinion from the attorney general on the applicability of the court decision.

AB981,43 Section 43. 5.05 (6a) of the statutes is amended to read:

AB981,22,8 5.05 (6a) Advisory opinions. (a) 1. Any individual, either personally or on behalf of an organization or governmental body, may make a request of the commission the secretary of state in writing, electronically, or by telephone for a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12 of any matter to which the person is or may become a party. Any appointing officer, with the consent of a prospective appointee, may request of the commission secretary a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12 of any matter to which the prospective appointee is or may become a party. The commission secretary shall review a request for an advisory opinion and may issue a formal or informal written or electronic advisory opinion to the person making the request. Except as authorized or required for opinions specified in sub. (5s) (f), the commission's deliberations and actions of the secretary and the office of the secretary upon such requests shall be in meetings not open to the public. A member of the commission may, by written request, require the commission to review an advisory opinion.

AB981,22,15 2. To have legal force and effect, each formal and informal advisory opinion issued by the commission secretary of state must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each formal and informal 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 commission's conclusion of the secretary and why they are relevant.

AB981,22,19 3. No person acting in good faith upon a formal or informal advisory opinion issued by the commission secretary of state under this subsection is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request.

AB981,23,6 4. At each regular meeting of the commission, the administrator shall review informal advisory opinions requested of and issued by the administrator and that relate to recurring issues or issues of first impression for which no formal advisory opinion has been issued. The commission secretary of state may determine to issue a formal advisory opinion adopting or modifying the informal advisory opinion. If the commission secretary disagrees with a formal or informal advisory opinion that has been issued by or on behalf of the commission secretary, the commission secretary may withdraw the opinion, issue a revised formal or informal advisory opinion, or request an opinion from the attorney general. 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.

AB981,23,10 5. Except as authorized or required under sub. (5s) (f), no member or employee of the commission office of the secretary of state may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion.

AB981,23,16 (b) 1. The commission may authorize the commission administrator or his or her designee to issue an informal written advisory opinion or transmit an informal advisory opinion electronically on behalf of the commission, subject to such limitations as the commission deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the commission secretary of state, statute or other law, and case law.

AB981,23,22 2. Any individual may request in writing, electronically, or by telephone an informal advisory opinion from the commission secretary of state under this paragraph. The commission's designee secretary shall provide a written response, a written reference to an applicable statute or law, or a written reference to a formal advisory opinion of the commission secretary to the individual, or shall refer the request to the commission for review and the issuance of a formal advisory opinion.

AB981,23,25 3. Any person receiving an informal advisory opinion under this paragraph may, at any time, request a formal advisory opinion from the commission secretary of state on the same matter.

AB981,24,9 (c) 1. Any individual may request in writing, electronically, or by telephone a formal advisory opinion from the commission secretary of state or the review or modification of a formal advisory opinion issued by the commission secretary under this paragraph. The individual making the request shall include all pertinent facts relevant to the matter. The commission secretary shall review a request for a formal advisory opinion and may issue a formal advisory opinion to the individual making the request. Except as authorized or required for opinions specified in sub. (5s) (f), the commission's deliberations and actions of the secretary and the office of the secretary of state upon such requests shall be in meetings not open to the public.

AB981,24,13 2. Any person requesting a formal advisory opinion under this paragraph may request a public or private hearing before the commission secretary of state to discuss the opinion. The commission secretary shall grant a request for a public or private hearing under this paragraph.

AB981,24,17 3. Promptly upon issuance of each formal advisory opinion, the commission secretary of state shall publish the opinion together with the information specified under sub. (5s) (f) on the commission's Internet site of the office of the secretary of state.

AB981,24,20 4. If the commission secretary of state declines to issue a formal advisory opinion, it the secretary may refer the matter to the attorney general or to the standing legislative oversight committees.

AB981,44 Section 44. 5.05 (7) of the statutes is amended to read:

AB981,25,7 5.05 (7) Administrative meetings and conferences. The commission office of the secretary of state 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 commission, opinions, and guidance issued by the office, 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 commission office may conduct conferences relating to election laws, practice, and procedure. The commission office 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 commission office.

AB981,45 Section 45. 5.05 (9) of the statutes is amended to read:

AB981,25,12 5.05 (9) Standing. The commission secretary of state 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, other than laws regulating campaign financing, or ensuring their proper administration.

AB981,46 Section 46. 5.05 (10) of the statutes is amended to read:

AB981,25,25 5.05 (10) State election administration plan. With the approval of the joint committee on finance as provided in this subsection, the commission secretary of state 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 commission secretary shall adopt the plan and any modifications only after publishing a class 1 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 commission secretary, the commission secretary shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The commission secretary may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.

AB981,47 Section 47. 5.05 (11) of the statutes is amended to read: