Section 17.025. Temporary vacancies.

 

(1)   Existence. Whenever the duly qualified incumbent of an office enumerated in sub. (4) is found to be unable to perform all of the functions of the office by incapacitation caused by illness or injury of any nature, a temporary vacancy exists.

(2)   How convened.

(a) Voluntary petition. Whenever the incumbent of an office enumerated in sub. (4) , or the incumbent's duly appointed guardian, files a written petition for a hearing to determine the incumbent's incapacitation with any member of the board requesting a hearing, the disability board shall be convened within 5 days from the date of filing said petition.

(b) Involuntary petition. Whenever a written petition duly signed by any 4 members of the disability board is filed with the board requesting a hearing to determine the incapacitation of the incumbent of an office enumerated in sub. (4) , the board shall be convened within 5 days from the date of filing said petition. The petition shall be signed by at least one member of each of the political parties represented on the board.

(3)   Hearing.

(a) When held. Whenever the disability board has been convened it shall conduct a hearing to determine whether a temporary vacancy exists.

(b) Proceedings. In the conduct of the hearing any member of the board shall have the right to administer oaths, to summon and compel attendance of witnesses, and to sign and issue a subpoena. The board shall keep a record of its proceedings and a phonographic transcript shall be taken, made a part of the files and transcribed only by order of the board. The files and records of the board in proceedings under this section shall be kept in locked files and shall not be open to inspection except upon specific permission of the board. In any action or special proceeding in a court of record, such files and records shall be made available by special order of such court.

(c) Quorum. A quorum shall consist of 6 members. Findings shall be effective only by a secret affirmative vote of 6 members of the disability board. Said findings shall be final without right of appeal, except that after a finding of disability or inability to act, the affected incumbent may appeal such finding pursuant to ch. 227 . The appeal shall be limited to the board record. The finding of disability or inability to act shall remain in effect during the pendency of such appeal.

(d) Findings. After a hearing by the disability board and a finding of disability or inability to act has been filed, a written certificate of temporary incapacity signed and authorized by the board members shall be filed in the office of the secretary of state not later than the next succeeding legal workday and when so filed shall create a temporary vacancy in such affected elected office. In the event of a finding of no disability by failure to secure 6 affirmative votes in support of the petition, the board shall dismiss the petition.

(e) Rehearing. The disability board shall conduct rehearings in accordance with pars. (b) and (c) . A rehearing before the disability board to reconsider an existing finding of temporary incapacitation shall be held when petitioned as provided in sub. (2) , but no such rehearing shall be held unless 3 months have elapsed from the date of the conclusion of the original hearing or the most recent rehearing. When the existing finding of disability or inability to act was made pursuant to a voluntary petition under sub. (2) (a) and more than 3 months have elapsed since such finding, such affected incumbent may file a declaration of fitness. Upon the filing of such declaration the board may reconvene on call of any member and conduct a rehearing to determine such incumbent's ability to serve. Failure to reconvene the board within 15 days from the date of filing of such declaration shall result in voiding the finding of disability or inability to act, and restore the incumbent to office.

(f) Removal of disability. After a board rehearing and a finding of a removal of the disability and, therefore, an ability to act, a written certificate of such finding shall be signed and authorized by the board members and shall be filed in the office of the secretary of state not later than the next succeeding legal workday and when so filed shall rescind the previously filed certificate of temporary incapacity. At such time the regularly elected incumbent shall resume the office.

(4)   Affected offices and how filled during disability. Whenever the board has made a finding that a temporary vacancy exists in the following offices, such office shall be filled for the period of such temporary vacancy or the balance of the unexpired term, whichever is the shorter period, as follows:

(a) Governor. When the temporary vacancy exists in the office of governor, the duties of the governor shall automatically be assumed by the lieutenant governor as required by article V, section 7 , of the constitution .

(b) Lieutenant governor. When the temporary vacancy exists in the office of lieutenant governor during the continuance of a vacancy in the office of governor, the duties of the office of governor shall be assumed by the secretary of state as required by article V, section 8 , of the constitution .

(c) Secretary of state; state treasurer. When the temporary vacancy exists in the office of secretary of state or in the office of state treasurer, the duties of the office shall be assumed, respectively, by the first emergency interim successor designated under s. 323.53 (2) or, if no such designation has been made for the respective office, then by a deputy appointed by the governor.

(d) Attorney general; state superintendent. When the temporary vacancy exists in the office of attorney general or in the office of state superintendent of public instruction, the duties of the office shall be assumed, respectively, by the deputy under s. 15.04 (2) or, if such office is vacant, by a deputy appointed by the governor.

1971 c. 40 s. 93 ; 1975 c. 332 ; 1977 c. 196 s. 131 ; 1977 c. 449 ; 1979 c. 361 s. 113 ; 1983 a. 192 ; 1991 a. 316 ; 1995 a. 27 s. 9145 (1) ; 1997 a. 27 ; 2009 a. 42 .