The agency, not the hearing examiner, is responsible for credibility determinations. When the agency reverses the examiner, the agency must state the basis for rejecting the findings and give the reason why it made its independent finding. It is a denial of due process if the agency makes a determination without benefit of the examiners findings, conclusions, and impressions of the testimony. Hakes v. LIRC, 187 Wis. 2d 581
, 523 N.W.2d 155
(Ct. App. 1994).
An agency's alteration of a hearing examiner's finding of facts without conferring with the hearing examiner violated sub. (2) and rendered the decision procedurally defective. The altered findings, implicitly addressing the issue of the subject's credibility on a critical issue, logically related to the ultimate determination and violated due process. Epstein v. Benson, 2000 WI 195
, 238 Wis. 2d 717
, 618 N.W.2d 224
Under sub. (2), if the decision of the administrative agency varies in any respect from that of the ALJ, the agency is required to provide an explanation of the basis for each variance, but there is no requirement that the agency indulge in the elaborate opinion procedure of an appellate court. Sub. (2) provides for no opportunity to be heard before the agency when a hearing examiner conducts the original hearing. Each party has the opportunity to file objections to the proposed decision. The agency may direct whether such argument shall be written or oral. Daniels v. Chiropractic Examining Board, 2008 WI App 59
, 309 Wis. 2d 485
, 750 N.W.2d 951
Sub. (5) requires the use of a hearing examiner if an examining board member participates in the decision to commence a proceeding against a licensee, but does not require such use if a board member is involved only in the investigation. 66 Atty. Gen. 52.
Discussion of circumstances under which hearing examiner has power to entertain motion to dismiss proceedings. 68 Atty. Gen. 30.
A witness subpoenaed under sub. (1) must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.
Except as provided in sub. (2)
, every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53
. The agency shall by rule establish a procedure for determination of parties.
Except as otherwise provided in this subsection, a proposed or final decision of the employment relations commission, hearing examiner or arbitrator concerning an appeal of the decision of the director of the office of state employment relations made under s. 230.09 (2) (a)
shall not be accompanied by findings of fact or conclusions of law. If within 30 days after the commission issues a decision in such an appeal either party files a petition for judicial review of the decision under s. 227.53
and files a written notice with the commission that the party has filed such a petition, the commission shall issue written findings of fact and conclusions of law within 90 days after receipt of the notice. The court shall stay the proceedings pending receipt of the findings and conclusions.
Although its procedures are not subject to ch. 227, the finding of the City of Milwaukee Board of Fire and Police Commissioners was insufficient in failing to specify what particular wrongful acts the officers performed or why those acts constituted conduct unbecoming an officer under the circumstances, and in failing to make separate findings as to each officer, because in making its determination the board is required to state specific findings of fact and conclusions of law in the manner required of state agencies under this section. State ex rel. Heffernan v. Board, 247 W 77, overruled. Edmonds v. Board of Fire & Police Commrs. 66 Wis. 2d 337
, 224 N.W.2d 575
Service of decision. 227.48(1)(1)
Except as provided in s. 196.40
, every decision when made, signed and filed, shall be served forthwith by personal delivery or mailing of a copy to each party to the proceedings or to the party's attorney of record.
Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under s. 227.49 (1)
for filing a petition for rehearing, under s. 227.53 (1) (a)
for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.
History: 1975 c. 94
; 1975 c. 414
; Stats. 1975 s. 227.11; 1981 c. 378
; 1985 a. 182
; Stats. 1985 s. 227.48; 2011 a. 155
Service of a decision is complete on the date of its mailing regardless of its receipt by the addressee. In re Proposed Incorporation of Pewaukee, 72 Wis. 2d 593
, 241 N.W.2d 603
Formal notice under sub. (2) of the right to judicial review need be given only with a decision arising out of a contested case proceeding. Collins v. Policano, 231 Wis. 2d 420
, 605 N.W.2d 260
(Ct. App. 1999), 99-0255
Costs upon frivolous claims. 227.483(1)
If a hearing examiner or the tax appeals commission finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner or tax appeals commission shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
If the costs and fees awarded under sub. (1)
are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
To find a petition for a hearing or a claim or defense to be frivolous under sub. (1)
, the hearing examiner must find at least one of the following:
That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
If the proceeding relates to mining for ferrous minerals, as defined in s. 295.41 (18)
, that the petition, claim, or defense was commenced, used, or continued primarily for the purpose of causing delay to an activity authorized under a license that is the subject of the hearing.
History: 2003 a. 118
; 2011 a. 68
; 2013 a. 1
Costs to certain prevailing parties. 227.485(1)
The legislature intends that hearing examiners and courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504
"Hearing examiner" means the agency or hearing examiner conducting the hearing.
"Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
"Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employees.
"State agency" does not include the citizens utility board.
"Substantially justified" means having a reasonable basis in law and fact.
In any contested case in which an individual, a small nonprofit corporation or a small business is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
In determining the prevailing party in cases in which more than one issue is contested, the examiner shall take into account the relative importance of each issue. The examiner shall provide for partial awards of costs under this section based on determinations made under this subsection.
If the hearing examiner awards costs under sub. (3)
, he or she shall determine the costs under this subsection, except as modified under sub. (4)
. The decision on the merits of the case shall be placed in a proposed decision and submitted under ss. 227.47
. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5)
and include an order for payment of costs in the final decision.
A final decision under sub. (5)
is subject to judicial review under s. 227.52
. If the individual, small nonprofit corporation or small business is the prevailing party in the proceeding for judicial review, the court shall make the findings applicable under s. 814.245
and, if appropriate, award costs related to that proceeding under s. 814.245
, regardless of who petitions for judicial review. In addition, the court on review may modify the order for payment of costs in the final decision under sub. (5)
An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the case. This subsection applies whether the person files the tax return individually or in combination with a spouse.
If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under s. 20.865 (1) (a)
Each state agency that is ordered to pay costs under this section or that recovers costs under sub. (10)
shall submit a report annually, as soon as is practicable after June 30, to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3)
, the number, nature and amounts of the claims paid, the claims involved in the contested case in which the costs were incurred, the costs recovered under sub. (10)
and any other relevant information to aid the legislature in evaluating the effect of this section.
If the examiner finds that the motion under sub. (3)
is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the examiner must find one or more of the following:
The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
The party or the party's attorney knew, or should have known, that the motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
History: 1985 a. 52
; Stats. 1985 s. 227.115; 1985 a. 182
; 1985 a. 332
; Stats. 1985 s. 227.485; 1987 a. 186
; 1997 a. 27
; 2003 a. 145
That the state loses a case does not justify the automatic imposition of fees and costs. An award depends upon whether the state's position had arguable merit. Behnke v. DHSS, 146 Wis. 2d 178
, 430 N.W.2d 600
(Ct. App. 1988).
Sub. (4) requires a party who prevails in an agency's proposed decision to seek costs within 30 days of the proposed decision, thereby permitting the hearing examiner to make appropriate findings on entitlement to, and amount of, costs to be awarded. Any disputes regarding that decision can then be resolved, along with the merits of the underlying matter, in one final decision. Gordon v. State Medical Examining Board, 225 Wis. 2d 552
, 593 N.W.2d 481
(Ct. App. 1999), 98-2144
Petitions for rehearing in contested cases. 227.49(1)(1)
A petition for rehearing shall not be a prerequisite for appeal or review. Any person aggrieved by a final order may, within 20 days after service of the order, file a written petition for rehearing which shall specify in detail the grounds for the relief sought and supporting authorities. An agency may order a rehearing on its own motion within 20 days after service of a final order. This subsection does not apply to s. 17.025 (3) (e)
. No agency is required to conduct more than one rehearing based on a petition for rehearing filed under this subsection in any contested case.
The filing of a petition for rehearing shall not suspend or delay the effective date of the order, and the order shall take effect on the date fixed by the agency and shall continue in effect unless the petition is granted or until the order is superseded, modified, or set aside as provided by law.
Rehearing will be granted only on the basis of:
The discovery of new evidence sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence.
Copies of petitions for rehearing shall be served on all parties of record. Parties may file replies to the petition.
The agency may order a rehearing or enter an order with reference to the petition without a hearing, and shall dispose of the petition within 30 days after it is filed. If the agency does not enter an order disposing of the petition within the 30-day period, the petition shall be deemed to have been denied as of the expiration of the 30-day period.
Upon granting a rehearing, the agency shall set the matter for further proceedings as soon as practicable. Proceedings upon rehearing shall conform as nearly may be to the proceedings in an original hearing except as the agency may otherwise direct. If in the agency's judgment, after such rehearing it appears that the original decision, order or determination is in any respect unlawful or unreasonable, the agency may reverse, change, modify or suspend the same accordingly. Any decision, order or determination made after such rehearing reversing, changing, modifying or suspending the original determination shall have the same force and effect as an original decision, order or determination.
History: 1975 c. 94
; 1975 c. 414
; 1977 c. 139
; 1979 c. 208
; 1985 a. 182
; Stats. 1985 s. 227.49.
This section does not require service of a petition for rehearing within 20 days of service of the order, only filing. DOR v. Hogan, 198 Wis. 2d 792
, 542 N.W.2d 148
(Ct. App. 1995), 95-0438
Filing of a petition for rehearing under sub. (1) is not accomplished upon its mailing. A petition is filed when it is physically delivered to and received by the relevant authority. Currier v. Wisconsin Department of Revenue, 2006 WI App 12
, 288 Wis. 2d 693
, 709 N.W.2d 520
Ex parte communications in contested cases. 227.50(1)(a)(a)
Except as provided in par. (am)
, in a contested case, no ex parte communication relative to the merits or a threat or offer of reward shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by any of the following:
An official of the agency or any other public employee or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter. This subdivision does not apply to an advisory staff which does not participate in the proceeding.
A party to the proceeding, or any person who directly or indirectly would have a substantial interest in the proposed agency action or an authorized representative or counsel.
An ex parte communication which is authorized or required by statute.
An ex parte communication by an official or employee of an agency which is conducting a class 1 proceeding.
Any communication made to an agency in response to a request by the agency for information required in the ordinary course of its regulatory functions by rule of the agency.
In a contested case before the public service commission, an ex parte communication by or to any official or employee of the commission other than the hearing examiner or a commissioner.
A hearing examiner or other agency official or employee involved in the decision-making process who receives an ex parte communication in violation of sub. (1)
shall place on the record of the pending matter the communication, if written, a memorandum stating the substance of the communication, if oral, all written responses to the communication and a memorandum stating the substance of all oral responses made, and also shall advise all parties that the material has been placed on the record; however, any writing or memorandum which would not be admissible into the record if presented at the hearing shall not be placed in the record, but notice of the substance or nature of the communication shall be given to all parties. Any party desiring to rebut the communication shall be allowed to do so, if the party requests the opportunity for rebuttal within 10 days after notice of the communication. The hearing examiner or agency official or employee may, if deeming it necessary to eliminate the effect of an ex parte communication received, withdraw from the proceeding, in which case a successor shall be assigned.
History: 1975 c. 94
; 1975 c. 414
; 1977 c. 418
; 1985 a. 182
; Stats. 1985 s. 227.50; 2013 a. 28
The failure to notify the parties of the receipt of an ex parte communication was harmless error. Seebach v. PSC, 97 Wis. 2d 712
, 295 N.W.2d 753
(Ct. App. 1980).
When the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases apply.
When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally acted upon by the agency, and, if the application is denied or the terms of the new license are limited, until the last day for seeking review of the agency decision or a later date fixed by order of the reviewing court.
Except as otherwise specifically provided by law, no revocation, suspension, annulment or withdrawal of any license is lawful unless the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If an agency finds that public health, safety or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined.
History: 1975 c. 414
; 1985 a. 182
; Stats. 1985 s. 227.51.
See also chs. SPS 1
, Wis. adm. code.
Summary suspension of occupational licenses is discussed. 76 Atty. Gen. 110
Judicial review; decisions reviewable.
Administrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form, are subject to review as provided in this chapter, except as otherwise provided by law and except for the following:
Decisions of the department of revenue other than decisions relating to alcohol beverage permits issued under ch. 125
Decisions of the department of employee trust funds.
Those decisions of the division of banking that are subject to review, prior to any judicial review, by the banking review board, and decisions of the division of banking relating to savings banks or savings and loan associations, but no other institutions subject to the jurisdiction of the division of banking.
Decisions of the office of credit unions.
Decisions of the chairperson of the government accountability board or the chairperson's designee.
Those decisions of the department of workforce development which are subject to review, prior to any judicial review, by the labor and industry review commission.
See s. 50.03 (11)
for review under subchapter I of chapter 50.