Chapter ETF 11

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.

ETF 11.15(1) (1) Interested parties. Each person included as a party by the hearing examiner who appeared before the hearing examiner in the proceedings, including the department, may seek judicial review of the final board decision. If, in the opinion of the secretary, the final decision of an appeal results in violation of a fiduciary duty owed to the public employee trust fund, the secretary shall seek judicial review of the board decision.

ETF 11.15(2) (2) Respondent for review of Wisconsin retirement board, teachers retirement board, group insurance board or deferred compensation board decision. Unless otherwise expressly provided by statute, final decisions of the Wisconsin retirement board, teachers retirement board, group insurance board and deferred compensation board are subject to judicial review as provided in s. 227.53, Stats., and as follows:

ETF 11.15(2)(a) (a) Board is respondent. The petition for review shall name the board as the sole respondent and shall be mailed by certified mail to the respective board or personally served on a person designated by the board to serve as its agent to accept personal service. The petitioner shall also serve copies of the petition for review upon each party to the appeal before the board, or that party’s attorney of record.

ETF 11.15(2)(b) (b) Deadlines. The following time limits shall be observed:

ETF 11.15(2)(b)1. 1. The petition for review is timely only if filed with the court and served upon the board within 30 days. The 30 day period commences on the day after the earlier of personal service upon the party or mailing of the board’s final decision to all parties. However, if the party has requested a rehearing, the deadline for filing and serving the petition for review is 30 days after the application for rehearing is finally disposed of whether by action of the hearing examiner, board action or operation of law.

ETF 11.15(2)(b)2. 2. Within 30 days of instituting review proceedings, the petitioner shall serve a copy of the petition for review upon each party to the appeal before the board, or that party’s attorney of record. The court may dismiss the petition for failure to serve each party listed as a party for purposes of review in the board’s final decision. Service shall be by certified mail or, when service is admitted in writing, by first class mail.

ETF 11.15(2)(b)3. 3. Parties to the appeal before the board may participate in the review as provided in s. 227.53, Stats. Within 20 days of being served with the petition for review, a party may serve upon the petitioner, the board and the attorney general a notice of appearance. This notice shall clearly state the person’s position with reference to each material allegation in the petition for review and to the affirmance, vacation or modification of the board decision under review. Proof of service of the notice shall be filed with the clerk of the reviewing court within 10 days after the service.

ETF 11.15 Note Note: See s. 227.53, Stats., for details of judicial review proceedings and pleading.

ETF 11.15(3) (3) Respondent for review of etf board decision. Final decisions of the employee trust fund board are subject to judicial review only by certiorari. The certiorari petition or complaint shall name the employee trust funds board as the respondent and shall be filed in Dane county, where the board is deemed to reside.

ETF 11.15 Note Note: In the absence of a statutory deadline for filing the certiorari petition, see State ex rel Casper v. Board of Trustees, 30 Wis. 2d 170, 140 N.W. 2d 301 (1966) which sets a 6 month deadline.

ETF 11.15(4) (4) Agent for service upon board. Except as provided in this subsection, no person or employee of the department is authorized to accept service for the board. From time to time the board may by motion designate a person, either by name or position, as agent to accept personal service for the board. Persons holding the following positions, whose names shall be disclosed by the department upon request, are designated as agents to accept personal service on behalf of the board:

ETF 11.15(4)(a) (a) The general counsel of the department.

ETF 11.15(4)(b) (b) The division administrator or program director administering the particular program which is the subject matter of the underlying appeal to the board.

ETF 11.15(4)(c) (c) The deputy secretary of the department.

ETF 11.15(4)(d) (d) The secretary of the department or his or her designees.

ETF 11.15 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 09-048: am. (4) (a), cr. (4) (c), (d) Register May 2010 No. 653.

ETF 11.16 ETF 11.16 Miscellaneous provisions.

ETF 11.16(1) (1) Computing time. For the purposes of this chapter, unless otherwise specified, the time in which an action shall be taken when expressed in days shall be computed by excluding the first day and including the last, except that if the last day falls on a day the department offices are closed to the public, the action may be taken on the next day the offices are open.

ETF 11.16(2) (2) Computing refund of overpayment. If the final decision of an appeal determines that a participant overpaid the department and is entitled to a refund, the board shall direct the appeals coordinator to calculate the refund due under s. 40.08 (6), Stats. No interest shall be paid upon a refund except as expressly authorized in ch. 40, Stats. A refund from a Wisconsin retirement system account shall not include interest but shall include investment earnings as provided in s. 40.08 (6), Stats. The appeals coordinator’s calculation shall be appended to and become part of the board’s final decision. The appeals coordinator shall do all of the following:

ETF 11.16(2)(a) (a) Treat the overpayment as a separate account, participating in the variable and core rate trusts to the same extent as the participant, unless another treatment is expressly provided by ch. 40, Stats.

ETF 11.16(2)(b) (b) Make all calculations consistent with the board’s final decision and based on the actual amounts and dates of payments made to the department.

ETF 11.16(3) (3) Costs to certain prevailing parties; special circumstances. If the hearing examiner entertains a motion for costs, as provided in s. 227.485, Stats., the examiner shall find that special circumstances exist that make the award of costs against the department unjust in the following cases:

ETF 11.16(3)(a) (a) An appeal of the denial of a disability annuity application when the department determination was based on the employer’s negative certification, or failure to certify, under s. 40.63 (1) (c), Stats. This paragraph does not prohibit the award of costs against an employer which is a state agency.

ETF 11.16(3)(b) (b) An appeal of a determination that a person was not a participating employee or protective occupation participant if the department determination was in accord with the employer’s determination and the factual information furnished to the department by the employer. This paragraph does not prohibit the award of costs against an employer which is a state agency, or against the office of state employment relations in an appeal of its determination under s. 40.06 (1) (dm), Stats.

ETF 11.16(3)(c) (c) An appeal of a determination involving a group health insurance plan other than the standard plan when the department determination was in accord with the insurer’s determination and the information furnished to the department by the insurer.

ETF 11.16(4) (4) Department and board mailing address. Mail to a board shall be addressed to the board, in care of the appeals coordinator and mailed or delivered to the department.

ETF 11.16 Note Note: The mailing address of the department is: department of employee trust funds, Post Office Box 7931, Madison, Wisconsin 53707-7931.

ETF 11.16 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-062: r. (2) (c) Register June 2008 No. 630, eff. 7-1-08; CR 09-057: am. (2) (a) Register May 2010 No. 653, eff. 6-1-10; CR 11-044: am. (4) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (2) (intro.) Register May 2021 No. 785, eff. 6-1-21.