Chapter 946

946.03 946.03 Sedition.

946.03(1) (1) Whoever does any of the following is guilty of a Class F felony:

946.03(1)(a) (a) Attempts the overthrow of the government of the United States or this state by the use or threat of physical violence; or

946.03(1)(b) (b) Is a party to a conspiracy with or a solicitation of another to overthrow the government of the United States or this state by the use or threat of physical violence; or

946.03(1)(c) (c) Advocates or teaches the duty, necessity, desirability or propriety of overthrowing the government of the United States or this state by the use or threat of physical violence with intent that such government be overthrown; or

946.03(1)(d) (d) Organizes or assists in the organization of an assembly with knowledge that the purpose of the assembly is to advocate or teach the duty, necessity, desirability or propriety of overthrowing the government of the United States or this state by the use or threat of physical violence with intent that such government be overthrown.

946.03(2) (2) Whoever permits any premises under his or her care, control or supervision to be used by an assembly with knowledge that the purpose of the assembly is to advocate or teach the duty, necessity, desirability or propriety of overthrowing the government of the United States or this state by the use or threat of physical violence with intent that such government be overthrown or, after learning that the premises are being so used, permits such use to be continued is guilty of a Class I felony.

946.03 History History: 1977 c. 173; 2001 a. 109.

946.06 946.06 Improper use of the flag.

946.06(1) (1) Whoever intentionally does any of the following is guilty of a Class A misdemeanor:

946.06(1)(a) (a) Places on or attaches to the flag any word, mark, design, or advertisement not properly a part of such flag; or

946.06(1)(b) (b) Exposes to public view a flag upon which has been placed or attached a word, mark, design, or advertisement not properly a part of such flag; or

946.06(1)(c) (c) Manufactures or exposes to public view an article of merchandise or a wrapper or receptacle for merchandise upon which the flag is depicted; or

946.06(1)(d) (d) Uses the flag for commercial advertising purposes.

946.06(2) (2) This section does not apply to flags depicted on written or printed documents or periodicals or on stationery, ornaments, pictures, or jewelry, provided there are no unauthorized words or designs on such flag and provided the flag is not connected with any advertisement.

946.06(3) (3) In this section “flag” means anything that is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.

946.06 History History: 1977 c. 173; 2003 a. 243.

946.06 Annotation A flag misuse statute was unconstitutional as applied to a flag hung upside down with a peace symbol affixed. The context imbued the display with protected elements of communication. Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974).

946.06 Annotation The Washington flag desecration statute held unconstitutional in Spence, 418 U.S. 405 (1974), when applied to a mere display of an altered flag in the absence of a disturbance of the peace, was identical in all essential ways to this section. Koser v. County of Price, 834 F. Supp. 305 (1993).

subch. II of ch. 946 SUBCHAPTER II

BRIBERY AND OFFICIAL MISCONDUCT

946.10 946.10 Bribery of public officers and employees. Whoever does either of the following is guilty of a Class H felony:

946.10(1) (1) Whoever, with intent to influence the conduct of any public officer or public employee in relation to any matter which by law is pending or might come before the officer or employee in the officer’s or employee’s capacity as such officer or employee or with intent to induce the officer or employee to do or omit to do any act in violation of the officer’s or employee’s lawful duty transfers or promises to the officer or employee or on the officer’s or employee’s behalf any property or any personal advantage which the officer or employee is not authorized to receive; or

946.10(2) (2) Any public officer or public employee who directly or indirectly accepts or offers to accept any property or any personal advantage, which the officer or employee is not authorized to receive, pursuant to an understanding that the officer or employee will act in a certain manner in relation to any matter which by law is pending or might come before the officer or employee in the officer’s or employee’s capacity as such officer or employee or that the officer or employee will do or omit to do any act in violation of the officer’s or employee’s lawful duty.

946.10 History History: 1977 c. 173; 1993 a. 486; 2001 a. 109.

946.10 Annotation Circumstantial evidence supported an inference that the defendant intended to influence a public official’s actions. State v. Rosenfeld, 93 Wis. 2d 325, 286 N.W.2d 596 (1980).

946.10 Annotation A sworn juror is a public employee under sub. (2). State v. Sammons, 141 Wis. 2d 833, 417 N.W.2d 190 (Ct. App. 1987).

946.11 946.11 Special privileges from public utilities.

946.11(1) (1) Whoever does the following is guilty of a Class I felony:

946.11(1)(a) (a) Whoever offers or gives for any purpose to any public officer or to any person at the request or for the advantage of such officer any free pass or frank, or any privilege withheld from any person, for the traveling accommodation or transportation of any person or property or for the transmission of any message or communication; or

946.11(1)(b) (b) Any public officer who asks for or accepts from any person or uses in any manner or for any purpose any free pass or frank, or any privilege withheld from any person for the traveling accommodation or transportation of any person or property or for the transmission of any message or communication; or

946.11(1)(c) (c) Any public utility or agent or officer thereof who offers or gives for any purpose to any public officer or to any person at the request or for the advantage of such officer, any frank or any privilege withheld from any person for any product or service produced, transmitted, delivered, furnished or rendered or to be produced, transmitted, delivered, furnished or rendered by any public utility, or any free product or service whatsoever; or

946.11(1)(d) (d) Any public officer who asks for or accepts or uses in any manner or for any purpose any frank or privilege withheld from any person for any product or service produced, transmitted, delivered, furnished or rendered by any public utility.

946.11(2) (2) In this section:

946.11(2)(a) (a) “Free pass” means any form of ticket or mileage entitling the holder to travel over any part of a railroad or other public transportation system and issued to the holder as a gift or in consideration or partial consideration of any service performed or to be performed by such holder, except that it does not include such ticket or mileage when issued to an employee of the railroad or public transportation system pursuant to a contract of employment and not in excess of the transportation rights of other employees of the same class and seniority, nor does it include free transportation to police officers or fire fighters when on duty.

946.11(2)(b) (b) “Privilege” means anything of value not available to the general public, but does not include compensation or fringe benefits provided as a result of employment by a public utility to a regular employee or pensioner when the following conditions are satisfied:

946.11(2)(b)1. 1. The regular employee or pensioner is not compensated specifically for services performed for a purpose related to the election or nomination for election of an individual to state or local office, the recall from or retention in office of an individual holding a state or local office, or for the purpose of payment of expenses incurred as a result of a recount at an election.

946.11(2)(b)2. 2. The regular employee or pensioner is not compensated in excess of that provided to other regular employees or pensioners of like status.

946.11(2)(c) (c) “Public utility” has the meaning designated in s. 196.01 (5) and includes a telecommunications carrier, as defined in s. 196.01 (8m).

946.11(3) (3) This section does not apply to notaries public and regular employees or pensioners of a railroad or other public utility who hold public offices for which the annual compensation is not more than $300 to whom no passes or privileges are extended beyond those which are extended to other regular employees or pensioners of such corporation.

946.11 History History: 1975 c. 93; 1977 c. 173; 1985 a. 135; 1993 a. 496; 2001 a. 109; 2015 a. 117; 2017 a. 365 s. 111.

946.12 946.12 Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:

946.12(1) (1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer’s or employee’s office or employment within the time or in the manner required by law; or

946.12(2) (2) In the officer’s or employee’s capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer’s or employee’s lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer’s or employee’s official capacity; or

946.12(3) (3) Whether by act of commission or omission, in the officer’s or employee’s capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer’s or employee’s office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another; or

946.12(4) (4) In the officer’s or employee’s capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies; or

946.12(5) (5) Under color of the officer’s or employee’s office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which the officer or employee knows is greater or less than is fixed by law.

946.12 History History: 1977 c. 173; 1993 a. 486; 2001 a. 109.

946.12 Annotation Sub. (5) prohibits misconduct in public office with constitutional specificity. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).

946.12 Annotation 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 (1978).

946.12 Annotation 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).

946.12 Annotation 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, 03-0442.

946.12 Annotation Affirmed. 2005 WI 30, 279 Wis. 2d 216, 693 N.W.2d 747, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 681 N.W.2d 230, 03-0106.

946.12 Annotation Affirmed. 2005 WI 31, 279 Wis. 2d 220, 694 N.W.2d 56, 03-0106.

946.12 Annotation Sub. (3) regulates conduct and not speech and is not subject to an overbreadth challenge under the 1st amendment to the U.S. Constitution. 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, 03-0442.

946.12 Annotation Affirmed. 2005 WI 30, 279 Wis. 2d 216, 693 N.W.2d 747, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 681 N.W.2d 230, 03-0106.

946.12 Annotation Affirmed. 2005 WI 31, 279 Wis. 2d 220, 694 N.W.2d 56, 03-0106.

946.12 Annotation 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, 03-0442.

946.12 Annotation Affirmed. 2005 WI 30, 279 Wis. 2d 216, 693 N.W.2d 747, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 681 N.W.2d 230, 03-0106.

946.12 Annotation Affirmed. 2005 WI 31, 279 Wis. 2d 220, 694 N.W.2d 56, 03-0106.

946.12 Annotation 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 the defendant’s 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, 306 Wis. 2d 572, 743 N.W.2d 468, 06-2095. See also State v. Schultz, 2007 WI App 257, 306 Wis. 2d 598, 743 N.W.2d 823, 06-2121.

946.13 946.13 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:

946.13(1)(a) (a) 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

946.13(1)(b) (b) 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.

946.13(2) (2) Subsection (1) does not apply to any of the following:

946.13(2)(a) (a) 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.

946.13(2)(b) (b) Contracts involving the deposit of public funds in public depositories.

946.13(2)(c) (c) Contracts involving loans made pursuant to s. 67.12.

946.13(2)(d) (d) 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.

946.13(2)(e) (e) 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.

946.13(2)(f) (f) 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.

946.13(2)(g) (g) 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.

946.13(3) (3) 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.

946.13(4) (4) In this section “contract” includes a conveyance.

946.13(5) (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.

946.13(6) (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.

946.13(7) (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.

946.13(8) (8) Subsection (1) shall not apply to contracts or transactions made or consummated or bonds issued under s. 66.1103.

946.13(9) (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.

946.13(10) (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.

946.13(11) (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:

946.13(11)(a) (a) The individual has an interest in that law firm greater than 2 percent of its net profit or loss.

946.13(11)(b) (b) 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.

946.13(11)(c) (c) The individual’s compensation from the law firm directly depends on the individual’s procurement of business with public bodies.

946.13(12) (12) 

946.13(12)(a) (a) In this subsection:

946.13(12)(a)1. 1. “Research company” means an entity engaged in commercial or nonprofit activity that is related to research conducted by an employee or officer of the system or to a product of such research.

946.13(12)(a)2. 2. “System” means the University of Wisconsin System.