Chapter ETF 11

ETF 11.09 ETF 11.09 Proposed decision.

ETF 11.09(1) (1) Contents. The proposed decision shall be in the same form and comply with the same standards as is required for a final decision. If the hearing examiner concludes that the decision may depend upon the interpretation of an ambiguous statute, the proposed decision shall include the hearing examiner’s basis for concluding that the statute is ambiguous as a matter of law and a recommended interpretation giving the same weight to the interpretations of the department, attorney general and administrative rules as is required for a final decision. If the proposed decision does not dispose of an issue raised by a party, the hearing examiner shall state in the proposed decision why ch. 40, Stats., or this chapter does not permit such a disposition.

ETF 11.09(2) (2) Copy to each party. A copy of the proposed decision shall be mailed to each party or the party’s attorney of record, with notice of the opportunity to file an objection and the manner and time limit for doing so.

ETF 11.09(3) (3) Objections. Any party may file a written objection to the proposed decision with the hearing examiner within 20 days of the date of the notice of the proposed decision. The party shall specify, in detail, the following:

ETF 11.09(3)(a) (a) Each provision of the proposed decision to which the party objects and the basis for each objection.

ETF 11.09(3)(b) (b) Each change the party requests the board to make in the proposed decision and the legal grounds for the change. If minor, the requested change may be described as a specific edit to the proposed decision. If extensive or major changes are requested, the party may attach a draft proposed decision, clearly marked as that party’s draft, to that party’s objections.

ETF 11.09(3)(c) (c) Any written objections to the proposed decision shall be included in the record of the appeal that is forwarded to the board.

ETF 11.09 Note Note: The written objection shall be filed with the division of hearings and appeals at the following address: 5005 University Avenue Suite 201, P.O. Box 7875, Madison, WI 53707-7875.

ETF 11.09(4) (4) Argument. A party filing objections to a proposed decision shall attach to the objections a written copy of any argument by the party in support of the objections. The board shall consider only written arguments, timely filed with the objection. The board shall not entertain oral argument.

ETF 11.09(5) (5) Agenda. Board staff shall place the appeal on the agenda for the regular board meeting next following the expiration of the time limit for filing objections. The appeals coordinator shall provide each board member with a copy of the record, including the proposed decision and the timely filed objections to the proposed decision. If board members would have less than 7 calendar days to review the record, proposed decision and timely objections, or the board’s agenda is already full, the appeal may instead be added to the agenda of the subsequent regular board meeting. Nothing in this subsection shall prevent the board from electing to hear an appeal case at a special meeting of the board.

ETF 11.09 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (3) (intro.) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1), (3) (intro.), cr. (3) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (5) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.10 ETF 11.10 Ex parte communications.

ETF 11.10(1) (1) The secretary and department employees may respond to any request made by the board or a board member for information required in the ordinary course of exercising the board’s regulatory and supervisory functions, even if the information requested may pertain to the subject matter of an appeal currently pending before the board or a hearing examiner.

ETF 11.10(2) (2) Except as provided in sub. (1), no person involved in an appeal proceeding or factually related matter as a party, an advocate for any party or as a witness may make any ex parte communication relative to the merits of the appeal to the hearing examiner or a board member prior to the final decision of the case.

ETF 11.10 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.

ETF 11.105 ETF 11.105 Board member conflict of interest.

ETF 11.105(1) (1) No board member or employee of the department may participate in any appeal directly related to a specific benefit, credit, claim or application of the person.

ETF 11.105(2) (2) No board member may participate in deciding an appeal to which the board member is a party. No board member who is the director of the office of state employment relations, or the director’s designee, may participate in deciding an appeal to which the office of state employment relations is a party. No board member who is the chief executive, chairperson or member of the governing body of a participating employer may participate in deciding an appeal in which that particular participating employer is a party. A board member barred under this subsection from participating in the board’s decision of an appeal shall not make any ex parte communications to the board or another board member concerning that appeal and shall not participate in any way in the board’s quasi-judicial deliberations.

ETF 11.105 Note Note: See s. 40.01 (3), Stats.

ETF 11.105 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.

ETF 11.11 ETF 11.11 Counsel for the board.

ETF 11.11(1) (1) In accordance with s. 40.03 (3), Stats., board staff shall arrange for legal counsel to advise the board during its consideration of a final decision.

ETF 11.11(2) (2) Any legal counsel asked to represent the board under sub. (1) shall fully disclose any real or apparent conflict of interest to the board chair and state whether counsel is able to render objective advice to the board. The board chair may waive the conflict on behalf of the board.

ETF 11.11(3) (3) Counsel appointed under sub. (1) shall provide legal representation to the board including all of the following:

ETF 11.11(3)(a) (a) Advising the board during its deliberations and making specific recommendations for action by the board.

ETF 11.11(3)(b) (b) Drafting findings of fact and conclusions of law.

ETF 11.11 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 09-047: am. (1) and (2), r. and recr. (3) Register May 2010 No. 653, eff. 6-1-10.

ETF 11.12 ETF 11.12 Final decision.

ETF 11.12(1) (1) Form. Final decisions, and proposed decisions to be considered by the board, shall be in writing and include:

ETF 11.12(1)(a) (a) Findings of fact, consisting of a concise and separate statement of the ultimate conclusion upon each material issue of fact, without recital of evidence. If the findings of fact do not include an ultimate conclusion on an issue raised by a party, a statement shall be made indicating why ch. 40, Stats., or this chapter do not authorize the hearing examiner to make such a ruling.

ETF 11.12(1)(b) (b) Conclusions of law based on the factual findings.

ETF 11.12(1)(c) (c) A list of names and addresses of all persons who are considered parties for purposes of judicial review.

ETF 11.12(1)(d) (d) An order stating either that the department determination is affirmed or, where the department determination is not affirmed, remanding the matter to the department with instructions to take necessary action on the matter, consistent with the final decision. In the following cases, the decision shall include the specified additional orders and findings:

ETF 11.12(1)(d)1. 1. ‘Disability; employer certification.’ Where the appeal is of a determination denying a disability annuity under s. 40.63, Stats., and the sole basis of the denial was the absence of an employer certification that the employee’s leave of absence or termination is the result of the disability, the decision shall include a finding whether the employer’s negative certification or failure to certify was reasonable and correct. If the employer’s action was unreasonable or incorrect, the decision shall include an order to the employer to make the certification and an order to the department to process the disability application when the certification is received.

ETF 11.12(1)(d)2. 2. ‘Participating employee; protective occupation.’ Where the issue of the appeal is whether a person is a participating employee or protective occupation participant, an affirmative decision shall include an order to the participating employer to make the necessary report on that person as required by s. 40.06 (1) (e), Stats.

ETF 11.12(1)(d)3. 3. ‘Overpayment refund.’ If the final decision concludes that the appellant has overpaid the Wisconsin retirement system and a refund is due, the final decision shall include an order to the appeals coordinator to compute the amount of the refund, as provided in this chapter. That computation shall be incorporated by reference into the final decision and order to the department to pay the refund.

ETF 11.12(1)(d)4. 4. ‘Group insurance.’ If the appeal involves a right or benefit under a group insurance plan provided under ch. 40, Stats., and the insurer is not the public employee trust fund, a final decision favorable to the insured shall include the group insurance board decision of whether the insurer’s continued failure to grant the right or benefit to the insured shall be regarded as a breach of the contract between the insurer and the board.

ETF 11.12(1)(e) (e) The final decision shall be signed by the board chair or designee.

ETF 11.12(2) (2) Standards. Final decisions of the board shall be drafted to meet the following standards:

ETF 11.12(2)(a) (a) Findings. Each finding of the final decision shall be based on evidence in the record which proves the findings to a reasonable certainty by the greater weight of the credible evidence, or to a higher standard of proof expressly required by this chapter or other law.

ETF 11.12(2)(b) (b) Factual basis. The factual basis of the final decision shall be solely the evidence and matters officially noticed. Hearsay evidence may be relied upon as the basis for factual findings to the same extent permitted in a Wisconsin court of law.

ETF 11.12(2)(c) (c) Specific statutory authorization. The final decision may not order or authorize any action solely to further a purpose of the public employee trust fund unless the action is specifically authorized by a provision of ch. 40, Stats., other than s. 40.01 (2), Stats.

ETF 11.12(2)(d) (d) Consistent with law. The final decision may not be contrary to law. Where the final decision concerns a benefit program qualifying for tax exempt or tax deferred treatment under federal law, the final decision shall be consistent with the applicable federal code and regulations to the extent necessary to preserve the qualified status of the program.

ETF 11.12(3) (3) Interpretation of ambiguous statute. If the final decision necessarily depends on the interpretation of a statute which is ambiguous as a matter of law, the board shall interpret the statute. As soon as possible after a statute is found ambiguous under this subsection, the department shall propose an administrative rule interpreting the ambiguous statute.

ETF 11.12(4) (4) Due deference to rule, attorney general opinion. In interpreting a provision of ch. 40, Stats., the board shall give great weight to a written opinion of the attorney general and to the interpretation of the department. The board shall give controlling weight to an administrative rule of the department interpreting the statute.

ETF 11.12(5) (5) Closed session deliberations. The board shall meet in closed session, in its quasi-judicial capacity to review the proposed decision of an appeal and take action on the appeal, as follows:

ETF 11.12(5)(a) (a) Parties to the appeal and their attorneys of record may not be present during the closed session, except that board staff and advisory staff of the department who were not involved in the proceedings or in making the underlying department determination may be present at the discretion of the board.

ETF 11.12(5)(b) (b) Following the closed session on the appeal, the board shall reconvene in open session to briefly summarize the board’s action on the appeal for the minutes. The summary shall, so far as possible, respect the confidentiality of individual personal information.

ETF 11.12(5)(c) (c) As an alternative to agreeing upon a final decision to be reduced to writing, the board may order an appeal to be returned to a hearing examiner for additional fact finding.

ETF 11.12(6) (6) Variance from proposed decision. The board’s final decision may vary from the proposed decision but, if so, the board’s final decision shall include an explanation of the basis for each variance.

ETF 11.12(7) (7) Notice. The appeals coordinator shall mail a copy of the final decision to each party or that party’s attorney of record by first class mail. Each party, or that party’s attorney of record shall also be mailed notice of the right to petition the board for a rehearing, the right to judicial review of an adverse decision, the time limits for filing a petition for rehearing or judicial review and the name of the board to be named as respondent.

ETF 11.12(8) (8) Board contact with parties. Unless the board specifically requests information from the parties, no party to an appeal of a determination made by the department may contact any member of the board about that appeal prior to the issuance of a final decision by the board.

ETF 11.12 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (2) (b), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1) (a), cr. (8) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (1) (d) 3., (7) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.13 ETF 11.13 Record.

ETF 11.13(1) (1) The hearing examiner and appeals coordinator shall create a record of each appeal, which shall include all of the following:

ETF 11.13(1)(a) (a) All applications, pleading, motions, intermediate rulings and exhibits and appendices.

ETF 11.13(1)(b) (b) Evidence received or considered, stipulations and admissions.

ETF 11.13(1)(c) (c) Statement of matters officially noticed.

ETF 11.13(1)(d) (d) Questions and offers of proof, objections and rulings thereon.

ETF 11.13(1)(e) (e) Any proposed findings or decisions and exceptions.

ETF 11.13(1)(f) (f) Any decision, opinion or report by the board or hearing examiner.

ETF 11.13(1)(g) (g) A record of oral proceedings, whether a stenographic, electronic or other record.

ETF 11.13(1)(h) (h) Letters and e-mails sent to the hearing examiner or the board by a party.

ETF 11.13(2) (2) The written record shall be maintained as an adjunct to the appropriate participant file, as determined by the department, until a final decision has been rendered and the time limit for all further judicial review has expired without an appeal being filed. Thereafter, only the portions of the record as deemed necessary for the administration of the department shall be retained.

ETF 11.13(3) (3) The appeals coordinator shall arrange for a stenographic, electronic or other record of the hearing proceedings to be made. A written transcript of the hearing shall be prepared upon request of a party, the hearing examiner, the board or the department. If a written transcript is prepared, the stenographic, electronic or other record need not be retained.

ETF 11.13(4) (4) When no written transcript is prepared, any party to the appeal and, subject to s. 40.07, Stats., any other person may request a copy of the stenographic, electronic or other record of oral proceedings. The department shall provide a copy to authorized recipients and may charge fees as provided in s. ETF 10.71.

ETF 11.13 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: cr. (1) (h), am. (3) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (1) (intro.), (3) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

ETF 11.14 ETF 11.14 Petition for rehearing.

ETF 11.14(1) (1) Time limits; address. A party aggrieved by the final decision may file a petition for rehearing within 20 days after notice of the final decision is mailed. The petition for rehearing is subject to the following requirements:

ETF 11.14(1)(a) (a) The petition shall be mailed to the appropriate board in care of the appeals coordinator, department of employee trust funds. Alternatively, the petition may be personally served on a person designated by the board as its agent to accept personal service.

ETF 11.14(1)(b) (b) The petition is deemed filed on the date it is received.

ETF 11.14(1)(c) (c) The petition shall be disposed of within 30 days of its filing. The petition is deemed denied if not otherwise disposed of within 30 days of its filing.

ETF 11.14(2) (2) Grounds. The board or, when delegated under sub. (4), the hearing examiner may grant a rehearing but only on the basis of one or more of the following:

ETF 11.14(2)(a) (a) A material error of law.

ETF 11.14(2)(b) (b) A material error of fact.

ETF 11.14(2)(c) (c) The discovery of new evidence no later than 20 days after notice of the final decision is mailed that is sufficiently strong to reverse or modify the original decision, which could not have been previously discovered by due diligence.

ETF 11.14(3) (3) Contents. The petition for rehearing shall specify, in detail, the grounds for the relief requested, including the specific, material error of fact or law or the newly discovered evidence and cite supporting legal authorities for granting the petition.

ETF 11.14 Note Note: The board requests that, whenever possible, a party limit the petition for rehearing to no more than 6 pages. Another party responding for or against the petition is requested, whenever possible, to limit the response to no more than 4 pages.

ETF 11.14(4) (4) Decision on petition. The board chair shall determine whether the petition shall be added to the agenda of the next board meeting or whether to delegate final authority to decide the petition to the hearing examiner who presided over the appeal. The parties to the appeal shall immediately be notified of the decision to grant or deny the petition. If the board itself considers and grants the petition, the appeal will be referred to a hearing examiner and proceedings conducted under sub. (6). If the decision is delegated to the hearing examiner:

ETF 11.14(4)(a) (a) The appeals coordinator shall immediately forward the petition for rehearing and the record to the hearing examiner, who shall consider and grant or deny the petition within 20 days.

ETF 11.14(4)(b) (b) No hearing on the petition is required.

ETF 11.14(4)(c) (c) If the hearing examiner grants the rehearing, the examiner shall proceed to rehear the case under sub. (6).

ETF 11.14(4)(d) (d) The examiner’s decision to deny the petition is the final decision of the board.

ETF 11.14(5) (5) Board motion. The board may order a rehearing on its own motion within 20 days of service of the final order.

ETF 11.14(6) (6) Conduct of rehearing. A rehearing, if granted, shall be conducted as soon as practicable.

ETF 11.14(6)(a) (a) The proceedings shall conform to those for the original hearing, except as the board or hearing examiner may otherwise direct.

ETF 11.14(6)(b) (b) If, after the rehearing, the original decision appears unreasonable or unlawful, the hearing examiner shall prepare for the consideration of the board a proposed decision reversing, changing or modifying the original final decision. The board shall consider the examiner’s proposed decision at a subsequent board meeting and issue a final decision as provided in s. ETF 11.12.

ETF 11.14 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (2) (c), (4) (intro.) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (4) (a) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.15 ETF 11.15 Judicial review.