Audit: GAB has failed to follow the law

Part 151 of 151 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – An audit of the state Government Accountability Board shows an agency that has failed to follow its own laws and a staff that has failed to follow the directives of the six former judges who preside over the “nonpartisan” board.

The Legislative Audit Bureau’s report, released Friday, finds the GAB, the state’s regulator of campaign finance and election laws, has failed to fulfill its statutorily required duties in a timely manner, and staff members did not “consistently follow a GAB-approved penalty schedule for enforcing campaign finance, lobbying, and code of ethics laws.”

“The audit, unfortunately, was not surprising,” said Assembly Speaker Robin Vos, R-Rochester, in a statement. “We know that the GAB routinely doesn’t follow the law and there’s no accountability whatsoever. The audit is another illustration of why we must change the GAB.”

‘OUT OF CONTROL’: An audit released Friday finds the state Government Accountability Board has failed to comply with laws, and its staff has not kept the board informed of its activities.

Vos has made clear the Legislature’s Republican majority plans to reform an oversight agency that many believe has run amok in pursuing secret, partisan John Doe investigations into conservative organizations and has been less than accountable when it comes to those activities.

Recently, attorneys in a state lawsuit suggested that the GAB may have altered documents related to their contracted employees involved in the sweeping John Doe into 29 conservative organizations. While a judge’s ruling has stalled the probe, the conservative plaintiffs in the lawsuit are seeking the public release of hundreds of documents on the accountability board’s activities.

That information is expected to include financial activity the GAB would not release to the Legislature or the Legislative Audit Bureau, citing strict confidentiality constraints infused into the 2007 law that created the GAB. Wisconsin Attorney General J.B. Van Hollen earlier this year backed up the board, giving the GAB cover to keep just about anything and everything related to its involvement in the John Doe probe out of the public eye.

The audit bureau describes a staff that deals in secrets, even keeping them from their bosses, the retired judges who make up the board.

“Staff did not regularly provide GAB with complete information on their enforcement efforts,” the report states.

The audit found that, from February 2010 through April 2014, GAB staff did not conduct 16 statutorily required post-election reviews to identify individuals with ongoing felony sentences who may have voted. State law requires the GAB to “notify the relevant district attorney if such individuals are identified.”

“Not until May 2014, when staff informed GAB that they had completed the review for the November 2012 election, did staff inform GAB in an open meeting that they had not conducted reviews for 16 elections held from February 2010 through April 2014,” the audit states.

Staff indicated to auditors that they had not conducted the reviews, in part, because of “concerns about the reliability of the information that identifies individuals with ongoing felony sentences.”

Staff apparently completed the reviews by July.

The report also found that GAB staff did not access penalties for 655 of 674 campaign finance reports that were late and should have resulted in penalties under the manual that GAB staff created.

“All 19 penalties that staff did assess were for amounts inconsistent with GAB’s penalty schedule and the staff’s manual,” the audit notes.

Staff members indicated that they “focused on obtaining compliance … rather than assessing penalties for statutory violations.”

“Staff were unable to provide us with complete information on penalties assessed for violations of campaign contribution limits, or on the number of penalties assessed for violations of lobbying laws, the amounts assessed, or why penalties were sometimes not assessed or were waived even though violations had occurred,” the report states.

“For example, staff did not regularly update GAB on the extent to which they assessed penalties for violations of these laws, the amounts assessed, and the amounts paid.”

State Rep. Dave Craig, R-Big Bend, one of the most ardent voices for GAB reform, said the language of the audit is raw and strong.

“That’s an out of control staff,” Craig said of the GAB administrators.

Kevin Kennedy, the GAB’s director and general counsel, in a statement said the agency has “welcomed the opportunity for an outside evaluation of its performance …”

He says the audit bureau “recognizes the extraordinary demands placed on the GAB in the last several years,” including the overseeing of the unprecedented spate of partisan recall elections in 2011 and 2012.

“In many ways we are still recovering and catching up with tasks that had to be relegated to the back burner so we could concentrate on our top priorities — preparing for and overseeing elections along with promoting accountability and transparency in government through campaign finance, ethics and lobbying disclosure and enforcement,” Kennedy said.

Kennedy also says, arguably disingenuously, that “LAB found no problems with the GAB’s financial accounting or spending, and called for no significant changes regarding the core duties and performance of the Board or its staff.”

But the audit bureau did not have full access to the agency’s financial reports, at least those related to its secret investigation.

“In July 2014, the Attorney General opined that statutes prohibit GAB from providing certain records to us. If we had been able to access all records, our conclusions may have differed,” the audit states.

The audit bureau includes such access in its recommendations to the Legislature:

It recommends that the Legislature could consider modifying statutes to:

  • affirm the Legislative Audit Bureau’s broad access to records (includes access to the GAB’s financials)
  • require GAB to determine whether any votes were cast in the names of individuals who died before Election Day
  • reflect recent court decisions related to campaign finance

The GAB and the Legislature have not kept up with U.S. Supreme Court decisions broadening First Amendment rights through campaign contributions, hence the controversies surrounding the John Doe investigation.

The audit bureau also recommends that GAB staff report to the Joint Legislative Audit Committee by April 15, 2015 on the agency’s efforts to:

  • improve how voter registration records are maintained
  • improve their oversight of campaign finance laws
  • improve their oversight of lobbying laws
  • improve their oversight of code of ethics laws
  • improve their procedures for considering complaints