A flood plain zoning ordinance adopted by the DNR under s. 87.30 (1) was a "rule" under s. 227.01. Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804
, 280 N.W.2d 702
A rule: 1) is a regulation, standard, statement of policy, or general order; 2) is of general application; 3) has the effect of law; 4) is issued by an agency; 5) is to implement, interpret, or make specific legislation administered by the agency. The terms "rule" and "order" are mutually exclusive. Wis. Elec. Power Co. v. DNR, 93 Wis. 2d 222
, 287 N.W.2d 113
(1980). See also Cholvin v. Department of Health and Family Services, 2008 WI App 127, ___ Wis. 2d ___, ___ N.W.2d ___, 07-1350
Principles of statutory construction apply to the construction of rules. Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472
, 305 N.W.2d 89
School boards are not "boards" under sub. (1). Racine Unified School District v. Thompson, 107 Wis. 2d 657
, 321 N.W.2d 334
(Ct. App. 1982).
When a fundamental and well-defined public policy is evidenced by a rule, a discharge from employment for refusal to violate that rule is actionable. Winkelman v. Beloit Memorial Hospital, 168 Wis. 2d 12
, 483 N.W.2d 211
The definition of "rule" under sub. (13) is applied. Plumbing Apprenticeship Committee v. DILHR, 172 Wis. 2d 299
, 493 N.W.2d 744
(Ct. App. 1992).
Materials developed by an agency as a reference aid for its staff that are`couched in terms of advice and guidelines rather than setting forth law-like pronouncements are not a rule within the meaning of sub. (13) because they are not intended to have the effect of law. Chenequa Land Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, 275 Wis. 2d 533
, 685 N.W.2d 573
If an administrative rule is properly adopted and is within the power of the legislature to delegate there is no material difference between it and a law. 63 Atty. Gen. 159.
Agencies are subject to rule-making procedures in making discretionary choices even if those choices are based on opinions of the attorney general. Rule-making procedures do not apply if the opinion describes what a law mandates. 68 Atty. Gen. 363.
Compliance with other statutes.
Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute.
History: 1985 a. 182
Chapter 227 contemplates the limited use of civil procedure statutes that do not conflict with ch. 227. Wagner v. State Medical Examining Board, 181 Wis. 2d 633
, 511 N.W.2d 874
Application of this chapter. 227.03(3)
Any provision of s. 227.42
that is inconsistent with a requirement of title 45 of the code of federal regulations does not apply to hearings held under ch. 49
This chapter does not apply to proceedings before the department of workforce development relating to housing discrimination under s. 106.50
, except as provided in s. 106.50 (6)
Only the provisions of this chapter relating to rules are applicable to matters arising out of protection against discrimination in a public place of accommodation or amusement under s. 106.52
The provisions of this chapter relating to contested cases do not apply to proceedings involving the revocation of aftercare supervision under s. 48.366 (5)
or 938.357 (5)
, the revocation of parole, extended supervision or probation, the grant of probation, prison discipline, mandatory release under s. 302.11
or any other proceeding involving the care and treatment of a resident or an inmate of a correctional institution.
(4m) Subchapter III
does not apply to any decision of an agency to suspend or restrict or not issue or renew a license if the agency suspends or restricts or does not issue or renew the license pursuant to a memorandum of understanding entered into under s. 49.857
Orders of the government accountability board under s. 5.06 (6)
are not subject to this chapter.
Except as provided in s. 230.44 (4) (bm)
, this chapter does not apply to proceedings before the employment relations commission in matters that are arbitrated in accordance with s. 230.44 (4) (bm)
This chapter does not apply to determinations made by the secretary of administration or the secretary of revenue under s. 229.50 (1)
Statements of policy and interpretations of law; discrimination prohibited. 227.10(1)
Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. A statement of policy or an interpretation of a statute made in the decision of a contested case, in a private letter ruling under s. 73.035
or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.
No agency may promulgate a rule which conflicts with state law.
No rule, either by its terms or in its application, may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry.
A rule may discriminate for or against a person by reason of physical condition or developmental disability as defined in s. 51.01 (5)
only if it is strictly necessary to a function of the agency and is supported by data demonstrating that necessity.
Each person affected by a rule is entitled to the same benefits and is subject to the same obligations as any other person under the same or similar circumstances.
Nothing in this subsection prohibits the administrator of the division of merit recruitment and selection in the office of state employment relations from promulgating rules relating to expanded certification under s. 230.25 (1n)
An agency's revised interpretation of a statute constituted administrative rule-making under s. 227.01 (4) [now s. 227.10] and declaratory relief under s. 227.40 was accordingly proper. What constitutes a rule is discussed. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223
, 240 N.W.2d 403
The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705
, 247 N.W.2d 714
A memorandum announcing general policies and specific criteria governing all decisions on good time for mandatory release parole violations was a "rule" and should have been promulgated properly. State ex rel. Clifton v. Young, 133 Wis. 2d 193
, 394 N.W.2d 769
(Ct. App. 1986).
An administrative agency cannot regulate the activities of another agency or promulgate rules to bind another agency without express statutory authority. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450
, 626 N.W.2d 57
Extent to which chapter confers rule-making authority. 227.11(1)(1)
Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
Rule-making authority is expressly conferred as follows:
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the bounds of correct interpretation.
Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20
or unless the member of the public requests that information.
History: 1985 a. 182
; 1991 a. 209
The Designer Section of the Examining Board of Architects, Professional Engineers, Designers and Land Surveyors does not have rulemaking authority. 74 Atty. Gen. 200
Incorporation of local, comprehensive planning goals.
Each agency, where applicable and consistent with the laws that it administers, is encouraged to design the rules promulgated by the agency to reflect a balance between the mission of the agency and the goals specified in s. 1.13 (2)
History: 1999 a. 9
Rule making; considerations for small business. 227.114(1)(1)
In this section, "small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
When an agency proposes or revises a rule that may have an effect on small businesses, the agency shall consider each of the following methods for reducing the impact of the rule on small businesses:
The establishment of less stringent compliance or reporting requirements for small businesses.
The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses.
The consolidation or simplification of compliance or reporting requirements for small businesses.
The establishment of performance standards for small businesses to replace design or operational standards required in the rule.
The exemption of small businesses from any or all requirements of the rule.
The agency shall incorporate into the proposed rule any of the methods specified under sub. (2)
which it finds to be feasible, unless doing so would be contrary to the statutory objectives which are the basis for the proposed rule.
In addition to the requirements under s. 227.17
, the agency shall provide an opportunity for small businesses to participate in the rule-making process, using one or more of the following methods:
The inclusion in the notice under s. 227.17
of a statement that the rule may have an impact on small businesses.
The direct notification of any small business that may be affected by the rule.
The conduct of public hearings concerning the impact of the rule on small businesses.
The use of special hearing procedures to reduce the cost or complexity of participation in the rule-making process by small businesses.
Prior to the notice required under s. 227.17 (1) (a)
, the agency shall notify the secretary of commerce that it proposes to promulgate a rule that will have an effect on small businesses.
When an agency, under s. 227.20 (1)
, files with the legislative reference bureau a rule that is subject to this section, the agency shall include with the rule a summary of the analysis prepared under s. 227.19 (3) (e)
and a summary of the comments of the legislative standing committees, if any. If the rule does not require the analysis under s. 227.19 (3) (e)
, the agency shall include with the rule a statement of the reason for the agency's determination under s. 227.19 (3m)
. The legislative reference bureau shall publish the summaries or the statement in the register with the rule.
A small business may commence an action against an agency for injunctive relief to prevent the imposition of a penalty if the small business is subject to the penalty as the result of any of the following:
The small business acted or failed to act due to the failure by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement to respond to a specific question in a reasonable time.
The small business acted or failed to act in response to inaccurate advice given to the small business by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement.
The small business may commence the action in the circuit court for the county where the property affected is located or, if no property is affected, in the circuit court for the county where the dispute arose.
The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par. (b) 1.
The agency shall designate a small business regulatory coordinator to act as a contact person for small business regulatory issues and shall publicize that person's electronic mail address and telephone number.
Rules that do not affect small businesses directly, including, but not limited to, rules relating to county or municipal administration of state and federal programs.
Review of rules affecting housing. 227.115(2)
(2) Report on rules affecting housing.
If a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state, the department shall prepare a report on the proposed rule before it is submitted to the legislative council staff under s. 227.15
. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department.
(3) Findings of the department to be contained in the report.