Wisconsin Legislature: ETF 11.08(3)(c)

(c) For the purpose of determining timeliness of an appeal request, notice of the department determination is conclusively presumed to have been given to the addressee and all listed recipients of copies on the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, the day the determination is dated is presumed to be the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, a request for an appeal is presumed received on the day stated by the date stamp affixed to incoming department correspondence. If the request for an appeal is made by e-mail, the request is presumed to be received by the department on the date the e-mail enters the information processing system designated or used by the department for the purpose of receiving electronic mail provided the following are true:

1. The e-mail transmission is in a form capable of being processed by the department’s information processing system.

2. The department is able to retrieve the e-mail from the information processing system.

(5) Official notice. The hearing examiner shall take notice of all rules published in the Wisconsin administrative code or register and the written opinions of the attorney general. The hearing examiner may take official notice of any generally recognized fact or established technical or scientific fact, provided the parties are notified of the facts to be noticed and given opportunity to contest their validity.

(6) Department records. No additional identification or evidence of authenticity, beyond a statement or certification from a custodian or deputy custodian, is required as a pre-requisite for admitting into evidence documents or photocopies of documents from the department record of a particular participating employer, participant or annuitant, including beneficiary claim documents. When a photocopy of a departmental record is offered under this subsection, any party shall be permitted, upon request, to compare the photocopy and the original.

(7) Close of hearing and evidence. Evidence in any appeal shall be closed when due opportunity to furnish relevant evidence, including proper examination of witnesses and rebuttal, has been afforded to all parties. If by stipulation of the parties or direction of the examiner, documentary evidence is introduced after close of testimony, the evidence is closed when the document is received or when the specified time for furnishing it has expired without it being submitted. The examiner may extend the original time limit for filing documentary evidence. Before the examiner makes a proposed or final decision, the examiner may reopen the hearing for the taking of further evidence.

History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (1), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (4) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: r. (3), am. (4) (a), (b) Register May 2021 No. 785, eff. 6-1-21; correction in (4) (a) made under s. 35.17, Stats., Register May 2021 No. 785.

ETF 11.07 Informal disposition.

(1) Disposition of an appeal under this section requires no further action by the hearing examiner or board. After the parties have informed the hearing examiner in writing that the appeal has been disposed of informally pursuant to this section, the hearing examiner shall forward the record to the appeals coordinator.

(2) An appeal may be resolved informally by an agreement between all parties to dismiss the appeal with or without prejudice. The department shall then make an order dismissing the appeal as agreed, attach it to the agreement and file it with the record.

(3) If the appellant withdraws the appeal, in writing, the appeal shall be immediately dismissed by the department. This dismissal shall be with prejudice if more than 90 days have elapsed from notice of the determination appealed from, or if an applicable time limit or statute of limitations expired while the dismissed appeal was pending.

History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (1) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.08 Final disposition by hearing examiner.

(1) The hearing examiner’s findings, conclusions and order dismissing an appeal as provided in this section shall be the final decision of the board.

(2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:

(a) If the examiner determines that a party has defaulted, resolving the issues on appeal, or that the appellant has failed to appear or pursue the appeal.

(b) If the examiner determines that the appeal is wholly or partially time-barred for one or more of the following reasons:

1. The appeal was not filed within 90 days after the department determination appealed from was sent by mail or e-mail to the person aggrieved by the determination. The entire appeal shall be dismissed.

2. The issue is the classification of an employee as a protective occupation participant or participating employee and with respect to service rendered more than 7 years prior to the date the appeal is received by the department. Any portion of the appeal not time-barred may proceed. In s. 40.06 (1) (e) 1., Stats., and this subdivision only, “appeal ... received by the department” means the request by the employee to review the employer’s determination, not the challenge to the department’s resulting determination.

3. The appeal concerns a request to correct an alleged error with respect to service credits or contribution, premium or benefit payments and the request was made more than 7 full calendar years after the date of the alleged error or beyond another applicable limitation specifically provided by statute. If the alleged error is the result of fraud the applicable limitation is instead 3 years from the date the aggrieved person discovered the facts constituting the fraud. Any portion of the appeal not time-barred may proceed.

4. The appeal involves a claim barred by s. 41.04 (2) (c), 1979 Stats., or an applicable statute of limitation, including but not limited to ss. 893.43 and 893.93 (1m) (a), Stats. Any portion of the appeal not time-barred may proceed.

(c) The appeal is moot. When an appeal seeks correction of an administrative error, and the department has acknowledged and corrected the error, the appeal, or the appropriate portion of the appeal, is moot. Any portion of the appeal not moot may proceed.

(d) The appellant does not have a substantial interest affected by the determination made by the department.

(e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.

(f) No issue has been identified which can be resolved by the hearing examiner or board under this chapter or ch. 40, Stats.

(g) There is no remaining issue to be decided from the issues that are set forth in the department determination letter.

(3) In addition to final decision-making authority granted by sub. (2), the hearing examiner shall also make the final decision of the board if the issues on appeal are limited to one or more of the following:

(a) The numeric result of a mathematical calculation by the department, not involving any challenge to the application of law in choosing the appropriate values or formulas used to make the calculation.

(b) The amount of a reduction in duty disability benefits under s. 40.65, Stats., resulting from receipt of other benefits.

(c) The appeal of denial of a disability annuity under s. 40.63, Stats., where the sole reason for the department’s denial was that the employer did not certify as provided in s. 40.63 (1) (c), Stats., that the employee’s leave of absence or termination was the result of the disability.

(4) The hearing examiner shall issue the final decision of an appeal if the board has adopted a motion delegating final decision making authority to the hearing examiner for that specific appeal.

(5) The hearing examiner shall not exercise final decision-making authority under sub. (2) (c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.

(5m) The hearing examiner shall issue the final decision of an appeal if each of the parties informs the hearing examiner in writing that they agree to have the appeal decided pursuant to a motion for summary judgment. The motion must be filed with the hearing examiner and include the signatures of the parties.

(6) The hearing examiner may issue a proposed decision if the grant of final authority under this section is not, in the examiner’s opinion, clearly applicable to the particular appeal before the examiner.

History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2) (b) 1. Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b) 1., cr. (2) (f), (g), (5m) Register July 2012 No. 679, eff. 8-1-12; correction in (2) (b) 4. made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (2) (b) 3. Register May 2021 No. 785, eff. 6-1-21.

ETF 11.09 Proposed decision.

(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.

(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.

(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:

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

(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.

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

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.

(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.

(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.

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 Ex parte communications.

(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.

(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.

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

ETF 11.105 Board member conflict of interest.

(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.

(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.

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

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

ETF 11.11 Counsel for the board.

(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.

(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.

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

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

(b) Drafting findings of fact and conclusions of law.

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 Final decision.

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

(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.

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

(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:

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.

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.

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.

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.

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

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

(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.

(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.

(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.

(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.

(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.

(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.

(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:

(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.

(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.

(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.

(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.

(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.

(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.

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 Record.