Rule-Making Notices (Hearing Notices)

This rule is not subject to s. 227.135 (2), as affected by 2011 Wis. Act 21. The scope statement for this rule, submitted to the Legislative Reference Bureau on 03/16/2010 and published in Register No. 651b on 04/01/2010, was sent to the Legislative Reference Bureau prior to June 8, 2011, the effective date of 2011 Wis. Act 21.

Related statute or rule

Section 40.03 (2) (p), Stats.

Plain language analysis

(a)   Clarify statutory authority of the ETF Secretary to hold board elections in any reasonable manner, including by electronic means.

  When warranted, holding board elections electronically can promote efficiency and minimize costs. It is clear that the Secretary has authority under s. 40.03 (2) (p), Stats., to choose the means of holding board elections. However, the provisions in the existing administrative rule contemplate only a paper-based board election process. The changes to the rule provide that the Secretary may choose to hold a board election using a paper-based process, electronically by use of the Internet, by a combination of methods or by any other reasonable means.

(b)   Simplify Wis. Admin. Code section ETF 10.10

  Changes have been made to make provisions in Wis. Admin. Code section ETF 10.10 more understandable and eliminate provisions that create inefficiencies. Some of the clarification in language includes: creation of section headers, re-arranging and renumbering of subsections, additional definitions, and breaking-up sections into subparagraphs.

Summary of, and comparison with, existing or proposed federal regulations

There are no existing or proposed federal regulations relevant to electronic elections for board members of public pension systems.

Comparison with rules in adjacent states

Illinois – The relevant regulations governing board elections to the State Employees' Retirement System of Illinois are found in 80 Ill. Adm. Code 1540.330, Board Elections. The code sets forth procedures for standard paper ballot elections, and does not include provisions for electronic voting.

Iowa – Iowa law establishes the Iowa Benefits Advisory Committee (BAC) under Iowa Code section 97B.8B. Regulations governing the BAC are provided in IAC 495-3.1. State law gives Iowa Public Employees' Retirement System authority to adopt election rules, however the regulations do not provide for election procedures. There are likewise no regulations governing or authorizing electronic voting methods.

Michigan – M.C.L.A. 38.3 governs membership for the Retirement Board of the State Employees' Retirement System. Members are appointed in different employment categories by the governor. Similarly, under M.C.L.A. 38.1322, the governor appoints members to the board of the Public School Employees' Retirement System. Because members are appointed, there are therefore no regulatory provisions governing elections, including electronic voting procedures.

Minnesota – Regulations governing board elections for the Minnesota State Retirement System are found in Chapter 7900. The regulations cover standard paper ballots and do not include special provisions for electronic voting procedures.

Summary of factual data and analytical methodologies

ETF worked closely with the Employee Trust Funds Board and Teachers Retirement Board in formulating the needs for electronic voting methods. The rule was put before the boards on two occasions for input and commentary. Analysis hinged on the benefits of paperless elections, including: efficiency and cost, and convenience for voters.

Accuracy, integrity, objectivity and consistency of data

The present rule changes were a result of recommendations from the relevant governing boards and considerations of the efficiency and convenience attributable to electronic voting procedures. ETF conducted analysis with integrity in an accurate, objective, and consistent manner in accordance with its fiduciary responsibilities to its members.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

The rule does not have an effect on small businesses because the elections rule governs procedures for electing members to governing boards of a public agency whose members are public employees or annuitants.

Effect on Small Business

There is no effect on small business.

Agency Contact Person

Steve Hurley, Director of the Office of Policy, Privacy and Compliance, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: [phone]. E-mail address: [e-mail].

Fiscal Estimate

The rule will not have any fiscal effect on the administration of the Wisconsin Retirement System, nor will it have any fiscal effect on the private sector, the state or on any county, city, village, town, school district, technical college district, or sewerage districts.

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
ETF 10.10 Employee trust funds board and teachers retirement board elections
Subject
Election of members to employee trust funds and teachers retirement board
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
ETF seeks to clarify the Secretary's authority under s. 40.03 (2) (p), Stats., to choose alternate means of holding elections of members to the Teachers Retirement Board and Employee Trust Funds Board. When warranted, holding board elections electronically can promote efficiency and minimize costs. Additional changes to the rule are made for the simplification of the elections provisions.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
There is no economic and fiscal impact on small business, business sectors, public utility rate payers, local governmental units and the state's economy as a whole. The rule change addresses the need to clarify statutory authority of the ETF Secretary to hold board elections in any reasonable manner, including electronic means, and to simplify the current code governing board elections procedures. These changes will not have a fiscal effect.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Implementing the rule changes will provide more clarity in the board elections rule, and will afford the Secretary the authority to utilize electronic voting methods in electing members to the board. Electronic voting will provide cost-effective, efficient, faster, and more convenient options for board elections.
Long Range Implications of Implementing the Rule
There are no long range economic or fiscal impacts of the rule.
Compare With Approaches Being Used by Federal Government
Electronic voting methods have become increasingly utilized in all layers of government.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois – The relevant regulations governing board elections to the State Employees' Retirement System of Illinois are found in 80 Ill. Adm. Code 1540.330, Board Elections. The code sets forth procedures for standard paper ballot elections, and does not include provisions for electronic voting.   Iowa – Iowa law establishes the Iowa Benefits Advisory Committee (BAC) under Iowa Code section 97B.8B. Regulations governing the BAC are provided in IAC 495-3.1. State law gives Iowa Public Employees' Retirement System authority to adopt election rules, however the regulations do not provide for election procedures. There are likewise no regulations governing or authorizing electronic voting methods.   Michigan – M.C.L.A. 38.3 governs membership for the Retirement Board of the State Employees' Retirement System. Members are appointed in different employment categories by the governor. Similarly, under M.C.L.A. 38.1322, the governor appoints members to the board of the Public School Employees' Retirement System. Because members are appointed, there are therefore no regulatory provisions governing elections, including voting procedures.   Minnesota – Regulations governing board elections for the Minnesota State Retirement System are found in Chapter 7900. The regulations cover standard paper ballots and do not include special provisions for electronic voting procedures.

Notice of Proposed Rulemaking
Without Public Hearing

Public Defender Board

rulemaking_notices CR 12-017 CR 12-017

The State of Wisconsin Public Defender Board (SPD) announces the revision of section PD 3.03, relating to determination of financial eligibility, the determination of eligibility for the assignment of publicly appointed counsel.

The proposed rule brings an existing rule into conformity with sections 977.02 (3) (b) and (c), Stats., enacted pursuant to 2011 Act 32. Pursuant to section 227.16 (2) (b), Stats., a public hearing is not required.

Submittal of Written Comments

Interested persons are invited to comment on the rule by March 15, 2012. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email: [e-mail].

Copies of Proposed Rule

To view the rule online, go to:
http://www.wisspd.org/CAR2.asp

To view the rule fiscal note online, go to:
http://www.wisspd.org/CAR2.asp

You may contact Kathy Pakes at [e-mail] or by telephone at [phone] to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail.

Analysis Prepared by the Wisconsin Public Defender Board

Statutes interpreted

Section 977.02.

Statutory authority

Sections 977.02 (3) (b) and (c); 977.06; Wis. Stats. and s. 977.02 (3) authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Wis. Stats. ss. 977.02 (3) (b) & (c) directs the State Public Defender to consider a person's available assets and income.

Explanation of agency authority

The executive budget act of the 2011 legislature, Act 32, sections 3559d and 3559h, made the following changes to the way by which the SPD considers the assets and income of persons applying for public defender representation:

Assets:

Prior legislation, 2009 Act 164, directed the State Public Defender, in determining whether someone was eligible for public defender representation, to consider assets in the manner described in s. 49.145 (3) (a) (Wisconsin Works). 2011 Act 32, s. 3559d changed these Act 164 provisions relating to W2, and directs the SPD to make the eligibility determination based on a combined equity value of available assets, without regard to asset valuation under Wis. Stats. s. 49.145 (3) (a). See Wis. Stats. s. 977.02 (3) (b).

Income:

Prior legislation, 2009 Act 164, directed the SPD to use 115% of the federal poverty guidelines as the applicable cost of living when making a determination of eligibility. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.

Pursuant to 2011 Act 32, s. 3559h eligibility will not automatically change when the federal poverty guideline is updated. Instead, for purposes of determining eligibility, the cost of living is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, the state public defender will still use 115% of the 2011 rate in its determination of financial eligibility. See, Wis. Stats. s. 977.02 (3) (c).

Related statute or rule

None.

Plain language analysis

2011 Act 32 froze income eligibility for state public defender representation at 115% of the 2011 federal poverty guidelines. These changes bring the administrative rules into conformity with Act 32.

Summary of, and comparison with, existing or proposed federal regulations

In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA.

The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)]

A person is considered “financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(b)] if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to:

•   the cost of providing the person and the person's dependents with the necessities of life, and

•   the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond.

Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.

Comparison with rules in adjacent states

Iowa: Iowa Code sec. 815.9

Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship.

Illinois:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Michigan:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Minnesota:

Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at: http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm

In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney.

Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.

Summary of factual data and analytical methodologies

N/A

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

N/A

Effect on Small Business

None.

Fiscal Estimate

http://www.wisspd.org/CAR2.asp

Agency Contact Person

Questions regarding these rules may be directed to Kathy Pakes at [e-mail] or 315 N. Henry Street, 2nd Floor, Madison, WI 53703.

Proposed Rule

PD 3.03 (2) and (3) are amended to read:

PD 3.03 (2) The state public defender shall consider assets in the manner described in s. 49.145 (3) (a), Stats., and shall consider assets as available to pay the costs of legal representation if the assets exceed the resource limitations of s. 49.145 (3) (a), Stats., treat assets as available to the person to pay the costs of legal representation if the assets exceed $2500 in combined equity value except that the state public defender shall exclude the equity value of vehicles up to a total equity value of $10,000 and shall exclude the first $30,000 of the equity value of the home that serves as the individual's homestead. exclusion from consideration for the applicant's homestead shall be limited to the first $30,000 of equity .

(3) Subject to subs. (4) and (5), the state public defender shall consider income as available to pay the costs of legal representation if the gross income exceeds 115 percent of the amount specified in 42 U.S.C. s. 9902(2) (2011) the income limitations of s. 49.145 (3) (b), Stats.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
Original X Updated Corrected
Administrative Rule Chapter, Title and Number
PD 3.03; PD 6.025
Subject
Eligibility Guidelines for Public Defender Representation
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR FED PRO PRS SEG SEG-S			20.550 (1)
Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	Increase Existing Revenues Decrease Existing Revenues		X Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy X Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
Wis. Stats. Sec. 977.02 authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Sec. 977.02 (3) directs the State Public Defender to consider a person's available assets and income. Sec. 977.02 (3) (c) directs the SPD to consider as income only that income which exceeds the income limitations in s. 49.145 (3) (b). The executive budget act of the 2011 legislature, Act 32, sections 3559d and 3559h, made the following changes to the way by which the SPD considers the assets and income of persons applying for public defender representation. Assets: Prior legislation, 2009 Act 164, directed the State Public Defender, in determining whether someone was eligible for public defender representation, to consider assets in the manner described in s. 49.145 (3) (a) (Wisconsin Works). 2011 Act 32 changed these Act 164 provisions relating to W2, and directs the SPD to make the eligibility determination based on a combined equity value of available assets, without regard to asset valuation under Wis. Stats. Sec. 49.145 (3) (a). Income: Prior legislation, 2009 Act 164, tied eligibility to the federal poverty guidelines. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted. Pursuant to 2011 Act 32, eligibility will not automatically change when the federal poverty guideline is updated. Instead, income eligibility is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, eligibility for state public defender representation will still be determined by the 2011 rate.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, local governments (counties) will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
N/A
Long Range Implications of Implementing the Rule
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, the counties will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
Compare With Approaches Being Used by Federal Government
In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA. The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)] A person is considered “financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(b)] if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to: •   the cost of providing the person and the person's dependents with the necessities of life, and •   the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond. Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Iowa: Iowa Code sec. 815.9 Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship. Illinois: Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis. Michigan: Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis. Minnesota: Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at: http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney. Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.

Notice of Proposed Rulemaking
Without Public Hearing

Public Defender Board

rulemaking_notices CR 12-018 CR 12-018