The Wisconsin State Ethics Board has filed a complaint against Judge Annette Ziegler for violating the State Ethics Statute. The complaint charges that when Judge Ziegler sat on five cases in the last three years involving West Bend Savings Bank, of which her husband is a director, she violated the following statute:
Wis. Stat. 19.46 Conflict of interest prohibited; exception. (1) Except in accordance with the board’s advice under sub. (2) and except as otherwise provided in sub. (3), no state public official may: (a) Take any official action substantially affecting a matter in which the official, a member of his or her immediate fan’lily, or an organization with which the official is associated has a substantial financial interest.
(It should be noted that the Board did not charge her for cases handled by a clerk – only for the five cases she directly sat on).
The statute in question does NOT define “substantial financial interest.” 28 U.S.C. § 455(d)(4), the federal judicial code, defines “financial interest” as “a relationship as director, adviser, or other active participant in the affairs of a party.” The Wisconsin Code of Judicial Conduct uses the exact same language to define “economic interest” (The Wisconsin Judicial Commission is meeting Friday; whether Judge Ziegler violated this rule will likely be on the agenda).
While the federal statute and state regs are out there, THE STATUTE IN QUESTION DOES NOT DEFINE “SUBSTANTIAL FINANCIAL INTEREST.” You can read Wis. Stat. § 19.42 and see that there is no definition of “substantial” or “financial interest.” There are three published cases interpreting this particular statutory section – none involves the definition of this term. I searched “Substantial financial interest” and “Director” in All Wisconsin Cases and Administrative Opinions on LexisNexis and got nothing.
In their complaint, the State Ethics Board tries to play a word game – they should be stopped from doing do. They cite the text of the Statute under which they file, “Take any official action substantially affecting a matter in which . . . an organization with which the official is associated has a substantial financial interest.” They then offer the 19.42 definitions of “anything of value,” “associated,” “organization,” and “state public official.” Well, CLEARLY, “anything of value” is NOT the same as “substantial financial interest,” and it is the latter term that is in the statute.
So, BECAUSE THERE IS NO STATUTORY DEFINITION THAT AUTOMATICALLY EQUATES DIRECTORSHIP WITH “SUBSTANTIAL FINANCIAL INTEREST,” we must ask whether Judge Ziegler’s husband has a “substantial financial interest” in West Bend Savings Bank by virtue of his directorship there.
A report in the Wisconsin State Journal notes that “‘West Bend Savings Bank is a mutual bank – meaning it is owned by the deposit holders, not the board. It is not a stock company. The Zieglers don’t gain any financial benefit from West Bend Savings Bank’s legal proceedings,’ Graul said, adding that J.J. Ziegler’s pay as director is not affected by the bank’s performance.”
Because there is no stock whose price may go up and down, the case for a “substantial financial interest” becomes harder for the Ethics Board to prove. The question then is whether the flat amount Mr. Ziegler gets paid (all we know is that it is more than $1000 each year) is a “substantial financial interest.” I think this is probably a somewhat subjective inquiry – is it a substnatial interest in view of the Zielger family’s total financial picture. It is also probably somewhat objective – would a reasonable person consider that annual payment a “substantial financial interest”?
What that exact dollar figure is can be debated. The Wisconsin Judicial Conduct Advisory Committee has said that $20,000 is not “de minimis” interpreting another rule. To be substantial, then, it has to be well over $20,000 I would think.
On the whole, the Ethics Board is grasping at straws. They wanted in on the action, to prove relevant one last time before they are abolished. One last headline, one last opportunity to pontificate. But Lester Pines has his work cut out for him – it will take some legal manuevering to get a flat rate part time directorship defined as a “substantial financial interest.”
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For the record, I also stumbled across one semi-relevant Opinion of the Attorney General (80 Wis. Op. Att’y Gen. 30), which is non-binding but respected, which held that the term “provider” should be interpreted in a corporate and not a medical context regarding a human services statute, and thus includes a corporation’s director. While the Ethics Board, desparate for precedent, may cite that opinion in argument, I believe it is a weak application, if not a straight-up misapplication, of the law.
What a bunch of socialists … these airheads can’t get anything done democratically so they need to use the court to get their con men and women onto the court. I find it hillarious that even when their chosen government branch of law-creation is lost to serious judges and justices these people can’t help but whine about the illegitimacy of it all.
$20,000 is not substantial and according to “netty’ it’s not where they make thier ‘real’ money.
She admitted she should have recused herself, in an article in the MJS.
Face it, you made a wrong life choice by being an anal repentive, I mean Neochronic.
$5 says if the individual involved had a “D” after her name, the term “Director” would be enough to make the charges appropriate and guilt assumed.
And vice-versa.
You’re a law student… if there’s no statutory definition of “substantial financial interest,” then you look to the caselaw. If there is no caselaw, then it’s a novel issue to be interpretted by the Ethics Board, subject to Supreme Court review. Unless you can provide evidence that they’re acting in bad faith, I don’t see any “word games.” Looking to a similarly worded federal statute is a commonly accepted way of interpretting state laws. What’s the problem?
If this goes to the Supreme Court, I hope she recuses herself
She is going to get a small fine, which she should, but that is it. Let’s all just move on.
Looks like Mr. Chapman is a law student as well. As he says, there is no definition of “substantial financial interest,” so you go to caselaw and then the Ethics Board. This is standard procudure and used to clarify laws all the time. What it could do is force a rewriting of the law to make it more clear. And if it went to the WI Supreme Court, well, that’d just be hilarious.
and Dan Chapman beat me to that remark….nuts…
You are all right that the statute lacks a definition of “substantial financial interest,” and there is nothing in the case law or AG opinions to help answer the question. So, yes, it ultimately falls to the Ethics Board and a court to make the definition.
However, the word game here is for the Ethics Board in its complaint to submit the statutory definition of “anything of value” as the definition of “substantial financial interest.” While it can define “substantial financial interest” as it chooses, that is not license to do violence to the clear meaning of language. “Anything of value” is a perposterous interpretation of “substantial financial interest” on its face.
[...] is not on her side when it comes to the State Judicial Commission (an entirely different question than the State Ethics Board). But it does not appear the jury starts on her side [...]
[...] Ethics Board had never filed against a sitting judge before. As I explained at the time, I thought it was a bogus charge based on a bad interpretation of law by an agency [...]
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What a bunch of socialists …