This legal update will review the processes of requesting an opinion or advice from the Wisconsin Ethics Commission, as well as the steps one needs to take in order to file a complaint alleging violations of the Code of Ethics for Local Public Officials. To review the basics of the Code of Ethics for Local Public Officials, please refer to the previously published article “Code of Ethics for Local Public Officials” by Attorney Shana Lewis.
Requesting an Opinion
Any individual who is or may become a party to an ethics, lobbying, or campaign finance law matter can personally, or on behalf of an organization or governmental body, request an advisory opinion from the Ethics Commission for clarification on rules. Any appointing officer may request an advisory opinion regarding any matter to which the prospective appointee is or may become a party. Requests and commission replies are confidential, unless the requestor makes them public.
If an individual wants to request an advisory opinion, the request must either be made (1) in writing and sent to the Wisconsin Ethics Commission, PO Box 7125, Madison, WI, 53707-7125 or (2) sent electronically to the correct email address found below.
- General Agency Questions: ethics@wi.gov
- Campaign Finance: campaignfinance@wi.gov
- Lobbying: ETHLobbying@wi.gov
- Code of Ethics: ethics@wi.gov
The request itself should present each question for which an opinion is desired, give all relevant facts in a specific manner, identify all parties to the questions presented, and include any law that is known to the requestor about the issue at hand. A request that is presented by an attorney on behalf of a client should also set forth: a tentative conclusion to the question presented, reasoning upon which that conclusion was based, relevant statutory provisions, including case law, opinions from the Attorney General, prior opinions of the Ethics Commission and other authorities and whether or not these opinions support the tentative conclusion the attorney has offered.
County, municipal and other local government attorneys may ask the Wisconsin Ethics Commission to issue an opinion concerning the interpretation of the Code of Ethics for Local Public Officials, or Wis. Stat. § 19.59. All written requests for advice are confidential. The request coming from counsel needs to include all of the information mentioned in the prior paragraph to be considered a valid request.
Requests that require the resolution of questions of fact should not be submitted to the Ethics Commission because it has no authority to decide these questions, and the Commission does not issue opinions on whether past actions have constituted a violation of law.
Once the request is received, staff of the Commission will confirm receipt with the person making the request and then the staff will prepare an analysis that documents relevant statutes, case law and constitutional law. For formal opinion requests, the staff will also confirm whether or not the requester would like a public hearing on the matter. Once analysis is complete, the staff will contact the Commission to schedule the opinion request for the next available Commission meeting.
If it is an urgent matter that demands a quick turnaround, a special Commission meeting may be scheduled. Requestors should be advised that an informal advisory opinion may be more suitable for urgent matters. As of March 7th, 2017, the Ethics Commission was delegated the authority to issue informal advisory opinions and the policy outlining this delegation can be found here. If an individual wishes to request an informal advisory opinion it needs to explicitly state that an informal opinion is requested.
It should also be noted that it is prima facie evidence of intent to comply with the Ethics Code for State Public Officials and the lobbying law when a person refers a matter to the Ethics Commission and abides by the advisory opinion given by the Commission, as long as the material facts are as stated in the opinion request.[1]
Filing a Complaint
The Wisconsin Ethics Commission has jurisdiction over complaints regarding Chapter 11, Chapter 13 (Subchapter III), and Chapter 19 (Subchapter III) of the Wisconsin Statutes. The Code of Ethics for Local Public Officials is found within Section 19.59, and if a violation of the Code is alleged, the complainant must follow these steps to ensure that their complaint is received by the Ethics Commission:
- Fill out the Wisconsin Ethics Commission Complaint Form.
- You must include your full name and address, as anonymous complaints are not accepted. You must also file a separate complaint for each person(s) that are alleged to have committed a violation. Make sure to state the section of law that has been violated because any complaints that fail to allege a violation of Subchapter III of Chapter 19 will not be considered. Within Section 4 of the Complaint Form, ensure your statement of facts for each alleged violation is concise and indicate whether the allegation is based off of first-hand knowledge or information and belief. If it is based upon information and belief, you must identify the source of the information. Be advised to include any citations to legal authority and attach additional pages and documentation when necessary but do not exceed ten (10) total pages.
- Notarize the complaint form by a notary public. If an attorney is filing the complaint on behalf of the complainant, include a notice of representation that includes the attorney’s name and address.
- Send the complaint form by paper or email electronically to ethics.complaints@wi.gov.
Once the complaint is received by the Ethics Commission and deemed to be a valid sworn complaint within the jurisdiction of the Commission, it will be assigned to a staff member, and the parties will be informed of the receipt of the complaint within five (5) days. The respondent (one who committed alleged violation) has fifteen (15) days to respond after notice is given. The Commission will then determine if it has met the threshold of reasonable suspicion, which has been defined as “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”[2] Reasonable suspicion only means that the Commission has “found or failed to find sufficient legal justification to open an investigation to determine whether a violation of the law has occurred, and [is] not a definitive determination that a respondent violated any provision of the law.”[3] If that definition has been met, the Commission will inform the parties of their determination and then decide to either: (1) guide the parties directly into settlement negotiations, or (2) authorize an investigation to come to a resolution.
If the Commission chooses to authorize an investigation, it will set the parameters of the investigation and begin looking into the matter. This can either be through the use of administration and staff or through the hiring of a special investigator. After a period of no more than thirty (30) days of reporting to the Commission, the Commission determines whether probable cause exists to believe that a violation has occurred, or is occurring, and concludes the recommended course of action.[4] If there is no probable cause found, the complaint is dismissed, and the party will be notified.
If there is probable cause found, the Commission may authorize the Administrator to do one of the following: (1) file a civil complaint against the alleged visitor; (2) request the assistance of special counsel to file a civil complaint and prosecute the action bought by the Commission; or (3) refer the matter to an appropriate district attorney or the Attorney General.
The Commission documents the status of the complaint in their Complaint Tracking Database and should give reasonable notice to the parties of the status of their complaint.
To review the steps in this process once more view the flowchart created by the Commission. Any questions pertaining to the steps in obtaining an advisory opinion or filing a complaint can be directed to the Commission’s email specified at the top of this article.
[1] Wis. Stat. § 19.46(2).
[2] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[3] Wisconsin Ethics Commission, Revised Ethics Commission Complaint Procedures p. 3 (Dec. 6, 2016), https://ethics.wi.gov/Resources/EthicsCommissionComplaintProcedures.pdf.
[4] Wis. Stat. § 19.49(2)(b)4.
