ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
October 29, 2008 OAG-10-08
Mr. Todd P. Wolf
District Attorney
Wood County
Post Office Box 8095
Wisconsin Rapids, WI 54495-8095
Dear Mr. Wolf:
In your letter dated September 2, 2008, you ask which agency or agencies are responsible for administering the provisions of Wis. Stat. chs. 5 to 12 (election laws), Wis. Stat. ch. 13, subch. III (lobby laws), and Wis. Stat. ch. 19, subch. III (ethics laws) and for prosecuting alleged violations of those provisions following the passage of 2007 Wisconsin Act 1, which created the Government Accountability Board (“Board”). QUESTIONS PRESENTED AND BRIEF ANSWERS
I have changed the order of your questions, which are as follows:
[1.] Are there provisions of chapters 5-12, 13 and 19 that can be enforced by a District Attorney independently of the Government Accountability Board? What is the applicability of Wis. Stat. s 5.05(2m)(c)15[.]-18[.] to cases independently initiated by a district attorney?
In my opinion, unless otherwise stated in a specific statutory provision, criminal provisions and civil forfeiture provisions of the election laws, lobby laws, and ethics laws can be enforced by a district attorney independently of the Board. A referral following an investigation by the Board is not required. Wisconsin Stat. § 5.05(2m)(c)15.-18. has no application to cases independently initiated by a district attorney without a referral by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15. [2.] Can a District Attorney request assistance from the Attorney General with any duty a District Attorney may have under chapters 5-12, 13 and 19? If so, what type of assistance?
In my opinion, a district attorney may request prosecutorial or investigative assistance from the Attorney General in connection with any duty of the district attorney under the election laws, lobby laws, or ethics laws. If there has been a referral to the district attorney by the Board under Wis. Stat. § 5.05(2m)(c)11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed to serve in lieu of the district attorney. [3.] What is the scope of the A[ttorney] G[eneral]’s [prosecutorial] authority in regard to violations of chapters 5-12, 13, and 19?
In my opinion, there must be a specific statutory provision authorizing the Attorney General to independently initiate the prosecution of civil and criminal actions involving violations of the election laws, lobby laws, or ethics laws unless there is a referral to the Attorney General by the Board under Wis. Stat. § 5.05(2m)(c)16. or the Attorney General or an assistant attorney general has been appointed as special prosecutor to serve in lieu of the district attorney. [4.] What is the division of authority between the Government Accountability Board and District Attorneys to enforce chapters 5-12, lobbying under chapter 13, and state ethics violations under chapter 19 of the Wisconsin Statutes? Does the Government Accountability Board have primary . . . [authority] to enforce those provisions?
In my opinion, the Board and district attorneys possess joint and co-equal authority to investigate possible violations of those statutory provisions and to prosecute civil forfeiture actions under those statutory provisions. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those statutory provisions. The Board has no statutory authority to prosecute criminal proceedings under those provisions except as stated in Wis. Stat. § 5.05(2m)(i). PRINCIPAL STATUTORY PROVISIONS INVOLVED
I. DUTIES OF THE GOVERNMENT ACCOUNTABILITY BOARD.
Government accountability board; powers and duties. (1) GENERAL AUTHORITY. The government accountability board shall have the responsibility for the administration of chs. 5 to 12, other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19. Pursuant to such responsibility, the board may: . . . .
(c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 12, subch. III of ch. 13, and subch. III of ch. 19 or a license revocation for any violation of subch. III of ch. 13 for which the offender is subject to a revocation. . . . . . . .
(2m) ENFORCEMENT. (a) The board shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the board. Prosecution of alleged criminal violations investigated by the board may be brought only as provided in par. (c)11., 14., 15., and 16. and s. 978.05(1). . . . .
(c) 2.a. Any person may file a complaint with the board alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. . . . 4. . . . . If the board believes there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. . . .
. . . .
11. If the board finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the board may, in lieu of civil prosecution of any matter by the board, 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.
. . . .
14. If a special investigator or the administrator of the ethics and accountability division of the board, in the course of an investigation authorized by the board, discovers evidence of a potential violation of a law that is not administered by the board arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation, the special investigator or the administrator may present that evidence to the board. The board may thereupon refer the matter to the appropriate district attorney specified in subd. 11.
15. Except as provided in subd. 17., if the board 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 board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, 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 board within 60 days of the date of the board’s referral, the board 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 board shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the board. The district attorney may then commence a civil or criminal prosecution relating to the matter.
16. Except as provided in subd. 17., if the board 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 board that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the board, 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 board within 60 days of the date of the board’s referral, the board may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.
17. The board 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. 18. Whenever the board 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 board 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.
. . . .
(h) If the defendant in an action for a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the board. If the defendant in an action for a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint special counsel to bring suit on behalf of the state. (i) If the defendant in an action for a criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 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 12, subch. III of ch. 13, or subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint a special prosecutor to conduct the prosecution on behalf of the state. (j) Any special counsel or prosecutor who is appointed under par. (h) or (i) shall be independent of the attorney general and need not be a state employee at the time of his or her appointment.
