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Announcement

Wisconsin Creates Government Accountability Board to Regulate Elections

July 12, 2007

2007 Wisconsin Act 1 creates a new state agency, the Government Accountability Board (GAB), to regulate elections, ethics, lobbying and campaign finance in Wisconsin.1 GAB will replace the Wisconsin Elections Board and Wisconsin Ethics Board by merging the personnel and functions of these two agencies into one.

On Wednesday, July 11, 2007, the Assembly unanimously confirmed the final three members of GAB. A few weeks earlier, the Senate confirmed the other three GAB members. All six members, each of whom is a former elected judge in Wisconsin, had been nominated in June by Governor Doyle. Confirmed and now able to begin work, the members of GAB are:

  • Michael W. Brennan of Marshfield, former Clark County Circuit Court Judge;
  • Thomas Cane of Wausau, departing from the Wisconsin Court of Appeals – District III;
  • David G. Deininger of Monroe, former Wisconsin Court of Appeals Judge – District IV;
  • William Eich of Madison, former Wisconsin Court of Appeals Judge – District IV;
  • James Mohr of Eagle River, former Vilas County Circuit Court Judge; and,
  • Gerald C. Nichol of Madison, former Dane County Circuit Court Judge.

As detailed below, GAB’s first task will be to hire an executive director and two division administrators. Then, in addition to all of its other duties, GAB must review all of the existing internal operating procedures, guidelines, rules, orders and formal opinions issued by the Elections Board and Ethics Board. Within its first 12 months, GAB must review and reaffirm each of these items or it will terminate by law automatically.

Needless to say, there will be significant activity during the next year that will directly affect lobbying and political activities in Wisconsin. To assist in your understanding of GAB, we have prepared this overview of the new agency, its powers and its responsibilities.

NOMINATION, APPOINTMENT AND CONFIRMATION PROCESS
All members of GAB are appointed from nominations submitted to the governor by a nominating committee: the Government Accountability Candidate Committee. The Candidate Committee consists of one Court of Appeals judge from each of the four Court of Appeals districts. The members of the Candidate Committee serve for two-year terms and shall be selected by lot by the chief justice of the Wisconsin Supreme Court in the presence of the other justices. Service on the Candidate Committee is mandatory.

On March 1, 2007, four Court of Appeals judges were selected to serve on the Candidate Committee: Patricia Curley (Milwaukee), Neal Nettesheim (Waukesha), Thomas Cane (Wausau) and Margaret Vergeront (Madison). Judge Cane withdrew his name given his upcoming retirement and interest in serving on GAB. He was replaced by Greg Peterson (Wausau).

For the initial creation of GAB, the Candidate Committee nominated eight former elected judges and, of those eight names, six were forwarded by Governor Doyle to the legislature. The Candidate Committee must be unanimous in its selection of nominees. In the event of any vacancy – anticipated or unexpected – the Candidate Committee will meet and decide on a pool of names to forward to the governor (the exact number of names sent to the governor depends on the number of vacancies that need to be filled). The governor will then nominate as many individuals as necessary to fill the vacancies. And, the nominee must then be confirmed by the Senate – by a two-thirds vote of those senators present and voting.

BOARD MEMBERSHIP
GAB consists of six members, each of whom is a former elected judge in Wisconsin. Board members will serve six-year, staggered terms. To qualify for membership, the former judge:

  • cannot currently hold state or local public office (except as a reserve judge);
  • for one year prior to the date of nomination or while serving on GAB, cannot be or have been a member of a political party or partisan organization or an officer or employee of a candidate committee or political action committee;
  • cannot become a candidate for state or local office;
  • for one year prior to the date of service or while serving on GAB, cannot make or have made a contribution to a candidate for partisan state or local office; and,
  • cannot be a lobbyist or an employee of a lobbying principal.

The GAB chairperson will be chosen by lot. To take any action, it will require at least four affirmative votes, and a “majority of the membership” constitutes a quorum. The law does not require or suggest how often GAB should meet. Members will be paid a per diem equal to the amount a reserve judge is paid for a day in court – currently $467 – as well as reimbursement for actual and necessary expenses.

STAFF
The first thing GAB must do is build a staff. The day-to-day operation of GAB will be the responsibility of a “legal counsel” who will essentially function as the new executive director. Reporting to GAB and the executive director will be two division administrators – one responsible for an Elections Division, the other responsible for an Ethics and Accountability Division.

The executive directors from the two existing agencies (Kevin Kennedy at the Elections Board and Roth Judd at the Ethics Board) are not automatically transferred to GAB, and their current employment will terminate along with the existence of their respective agencies. Instead, Kennedy and Judd must apply to GAB to be the new executive director or to fill either division administrator position. All of the other current staff members of the two agencies will be transferred to GAB automatically.

Since the February 17, 2007 effective date, the law has required that Terry Anderson, the head of Legislative Council, serve as GAB’s interim executive director. Anderson’s actions to date in this position have been minimal, and he has allowed Kennedy and Judd to remain in their positions, continuing to oversee their respective agencies. However, with the confirmation of board members and beginning of the hiring process, Anderson’s role is likely to increase until a new executive director for GAB is hired.

The Elections Division will:

  • administer state elections;
  • manage the statewide voter database (“SVRS”); and,
  • oversee state compliance with federal Help America Vote Act (“HAVA”) and subsequent federal legislation.

The Ethics and Accountability Division will:

  • be responsible for campaign finance, ethics and lobbying regulation;
  • administer registration of political committees and lobbyists;
  • oversee all reporting by political committees and lobbyists;
  • conduct audits of reporting; and,
  • provide guidance to regulated communities.

An individual who serves as the executive director or as one of the two division administrators may not – at any time – have been a lobbyist or a candidate for partisan state or local office. While employed by GAB, all employees are prohibited from becoming a candidate for a state or partisan local office, or make contributions to candidates for state or local office. Moreover, no employee may make or have made for 12 months prior to being employed a contribution to a candidate for state or local office. Similar restrictions apply to individuals retained by GAB as special investigators or special prosecutors.

INITIAL REVIEW OF ELECTIONS BOARD AND ETHICS BOARD PRACTICES
Within one-year of its initiation date (with the possibility of a single three-month extension), GAB must “reaffirm” at one or more public hearings all Elections Board and Ethics Board regulations, orders, formal opinions and written guidelines. That is, GAB must essentially review all of the non-statutory guidance ever issued by these agencies and reaffirm the guidance as “good law.” If no action is taken to reaffirm, the item will automatically expire. Alternatively, an action by GAB to “amend” or “repeal” a regulation must go through the administrative rulemaking process. “Internal operating procedures” for both agencies also must be reviewed by GAB and possibly subject to public hearings.

The law is unclear on whether a summary reaffirmation could occur or whether each item or category must be separately reaffirmed by GAB. Based on comments during the legislative process, there are some public officials who expect and envision GAB to be engaged in an extensive and comprehensive reaffirmation process. How exactly the review occurs, of course, will ultimately be determined by GAB itself.

2007 Act 1 also significantly revises the advisory opinion process going forward. First, deliberation and consideration of such requests shall generally occur in GAB meetings that are not open to the public. Second, advisory opinions shall generally not be publicly released without first redacting any identifying information about the requester. GAB, that is, will be following the current Ethics Board approach of publishing generic summaries of these opinions and not the Elections Board approach of publicly releasing the opinion itself.

Lastly, to have “legal force and effect,” each advisory opinion issued by GAB “must be supported by specific legal authority,” include citation to the law relied on and “shall specifically articulate or explain which parts of the cited authority are relevant to the board’s conclusion and why they are relevant.” Subject to limitations that GAB deems appropriate, the agency’s staff is still allowed to issue informal advisory opinions.

INVESTIGATIONS AND ENFORCEMENT
“Any person” – including citizens, interest group representatives, candidates, political parties or even GAB staff – may file a complaint with GAB. If an initial review of the complaint by GAB determines that there is “reasonable suspicion,” an investigation may be authorized by resolution and then commenced. Frivolous complaints may result in up to a $500 penalty or payment of GAB’s costs associated with investigating the complaint.

At the time an investigation is commenced with a special investigator, GAB must notify the local district attorney for the county in which the person being investigated “resides” or the principal place of a business location. The reason for the notice is that, in the event a matter is prosecuted, the statute directs that it be brought “in the circuit for the county where the defendant resides” or the county in which a business is located.

With a finding of “reasonable suspicion” that a violation has occurred, an investigation may occur “in-house” using GAB staff or through a special investigator retained by the agency. Recommendations for an investigator will come from staff and with final selection by GAB itself. A special investigator has the ability through GAB to subpoena documents or testimony and request search warrants.

During an investigation, all of those involved are subject to strict confidentiality restrictions. Prior to the presentation of information in court or in a resolution of the matter by GAB, no disclosure should occur and GAB will discuss the pending matter only in closed session. The penalty for an unauthorized disclosure is a fine up to $10,000, imprisonment for up to nine months, or both.

The special investigator must regularly update GAB on the status of an investigation and then report to GAB its findings and a determination of whether there is probable cause to bring either a civil or criminal action. If it is a civil matter, GAB may hire a “special counsel” to prosecute the case, take care of it “in house” with GAB staff, or refer the matter to a district attorney. If the matter is criminal, GAB shall refer the matter to the appropriate district attorney or, in the event that the district attorney declines or fails to prosecute the matter, to a district attorney in a contiguous county. If the second district attorney declines or fails to prosecute, the matter may be referred to the attorney general. (If the defendant is a district attorney or judge, other jurisdictional provisions apply.)

GAB has the authority to compromise and settle any civil action or potential action on terms agreed on by the parties. Whenever a settlement agreement is entered into, GAB must publish a statement of its findings and reasons for entering into the settlement agreement.

CONCLUSION
Clearly, there is a great deal of uncertainty at this point at how GAB will operate and, accordingly, how Wisconsin politics will be regulated. The target “initiation date” for GAB’s operation is September 1, 2007. However, if the executive director or division administrator positions have yet to be filled, the initiation date will be delayed until 31 days after these positions are filled. In the meantime, an informational hearing has been scheduled on July 24, 2007 at 10:00 a.m. with the Senate Committee on Labor, Elections and Urban Affairs. Presentations will be made at that time by Terry Anderson, Roth Judd and Kevin Kennedy.

We cannot emphasize enough the potential impact of this new regulatory framework on organizations that participate in this state’s political process. It will be, at the least, dramatic. The comprehensive review by GAB of more than 30 years of Elections and Ethics Board rule, advisory opinions and practices will be unprecedented and its effects unpredictable. The new “regulators” – all of them respected and with years of judicial experience – will add another dimension to the process. This dramatic change will take place, of course, in the midst of an evolution in the constitutional concepts that underlie campaign finance law – most recently demonstrated in the U.S. Supreme Court’s 5-4 decision in FEC v. Wisconsin Right to Life, Inc. In addition, the calls for significant legislative change remain persistent at both the state and federal levels, involving as well administrative and regulatory developments through the Internal Revenue Service and the Federal Election Commission. All of these developments promise opportunity for constructive change, but they also pose uncertainty and risk that warrant careful consideration by those active in the political process.

We are familiar with all of the members of GAB and have been working with the enabling legislation since GAB was first proposed. Accordingly, please contact Mike Wittenwyler (wittenwyler@gklaw.com or 608-284-2616) or another Political Law team member if you have questions or need any additional information.


1 During a special session held in January, the legislation was approved 33-0 in the Senate, 97-2 in the Assembly (Boyle and Schneider voting against). While there was a series of hearings, only minor amendments were made to the original proposal – legislation agreed on in advance by Governor Doyle, Senate Majority Leader Robson and Assembly Speaker Huebsch.

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