Chapter 227

227.46(1)(h) (h) Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.

227.46(1)(i) (i) Take other action authorized by agency rule consistent with this chapter.

227.46(2) (2) Except as provided in sub. (2m) and s. 227.47 (2), in any contested case which is a class 2 or class 3 proceeding, where a majority of the officials of the agency who are to render the final decision are not present for the hearing, the hearing examiner presiding at the hearing shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case. The proposed decision shall be a part of the record and shall be served by the agency on all parties. Each party adversely affected by the proposed decision shall be given an opportunity to file objections to the proposed decision, briefly stating the reasons and authorities for each objection, and to argue with respect to them before the officials who are to participate in the decision. The agency may direct whether such argument shall be written or oral. If an agency’s decision varies in any respect from the decision of the hearing examiner, the agency’s decision shall include an explanation of the basis for each variance.

227.46(2m) (2m) In any hearing or review assigned to a hearing examiner under s. 227.43 (1) (bg), the hearing examiner presiding at the hearing shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case. The proposed decision shall be a part of the record and shall be served by the division of hearings and appeals in the department of administration on all parties. Each party adversely affected by the proposed decision shall be given an opportunity to file objections to the proposed decision within 15 days, briefly stating the reasons and authorities for each objection, and to argue with respect to them before the administrator of the division of hearings and appeals. The administrator of the division of hearings and appeals may direct whether such argument shall be written or oral. If the decision of the administrator of the division of hearings and appeals varies in any respect from the decision of the hearing examiner, the decision of the administrator of the division of hearings and appeals shall include an explanation of the basis for each variance. The decision of the administrator of the division of hearings and appeals is a final decision of the agency subject to judicial review under s. 227.52. The department of transportation may petition for judicial review.

227.46(3) (3) With respect to contested cases except a hearing or review assigned to a hearing examiner under s. 227.43 (1) (bg), an agency may by rule or in a particular case may by order:

227.46(3)(a) (a) Direct that the hearing examiner’s decision be the final decision of the agency;

227.46(3)(b) (b) Except as provided in sub. (2) or (4), direct that the record be certified to it without an intervening proposed decision; or

227.46(3)(c) (c) Direct that the procedure in sub. (2) be followed, except that in a class 1 proceeding both written and oral argument may be limited.

227.46(4) (4) Notwithstanding any other provision of this section, in any contested case, if a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposed decision is served upon the parties and an opportunity is afforded to each party adversely affected to file objections and present briefs or oral argument to the officials who are to render the decision. Except as provided in s. 227.47 (2), the proposed decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the hearing examiner or a person who has read the record. The parties by written stipulation may waive compliance with this subsection.

227.46(5) (5) In any class 2 proceeding, if the decision to file a complaint or otherwise commence a proceeding to impose a sanction or penalty is made by one or more of the officials of the agency, the hearing examiner shall not be an official of the agency and the procedure described in sub. (2) shall be followed.

227.46(6) (6) The functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner. A hearing examiner or agency official may at any time disqualify himself or herself. In class 2 and 3 proceedings, on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a hearing examiner or official, the agency or hearing examiner shall determine the matter as part of the record and decision in the case.

227.46(7) (7) 

227.46(7)(a) (a) Notwithstanding any other provision of law, the hearing examiner presiding at a hearing may order such protective measures as are necessary to protect the trade secrets of parties to the hearing.

227.46(7)(b) (b) In this subsection, “trade secret” has the meaning specified in s. 134.90 (1) (c).

227.46(8) (8) If the hearing examiner assigned under s. 227.43 (1) (b) renders the final decision in a contested case and the decision is subject to judicial review under s. 227.52, the department of natural resources may petition for judicial review. If the hearing examiner assigned under s. 227.43 (1) (br) renders the final decision in a contested case and the decision is subject to judicial review under s. 227.52, the department of transportation may petition for judicial review.

227.46 History History: 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 196 s. 131; 1977 c. 277, 418, 447; 1979 c. 208; 1983 a. 189 s. 329 (2); 1985 a. 29; 1985 a. 182 ss. 33g, 57; 1985 a. 236; Stats. 1985 s. 227.46; 1987 a. 365; 1993 a. 16; 2007 a. 1.

227.46 Annotation An agency’s decision not to accept a hearing examiner’s order on grounds that altered sanctions were justified by the “seriousness of the facts” was insufficient. Heine v. Chiropractic Examining Board, 167 Wis. 2d 187, 481 N.W.2d 638 (Ct. App. 1992).

227.46 Annotation 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 examiner’s findings, conclusions, and impressions of the testimony. Hakes v. LIRC, 187 Wis. 2d 582, 523 N.W.2d 155 (Ct. App. 1994).

227.46 Annotation 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 App 195, 238 Wis. 2d 717, 618 N.W.2d 224, 99-1338.

227.46 Annotation Under sub. (2), if the decision of the administrative agency varies in any respect from that of the administrative law judge, 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, 07-1072.

227.46 Annotation 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.

227.46 Annotation Discussing circumstances under which a hearing examiner has the power to entertain a motion to dismiss proceedings. 68 Atty. Gen. 30.

227.46 Annotation A witness subpoenaed under sub. (1) must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.

227.47 227.47 Decisions.

227.47(1) (1) 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.

227.47(2) (2) 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 administrator of the division of personnel management in the department of administration made under s. 230.09 (2) (a) or (d) 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.

227.47 History History: 1975 c. 414 s. 15; 1977 c. 418; 1979 c. 208; 1985 a. 182 ss. 33r, 57; Stats. 1985 s. 227.47; 1993 a. 16, 491; 2003 a. 33 ss. 2376, 2377, 9160; 2015 a. 55.

227.47 Annotation Absent controlling legislation to the contrary, determinations by administrative agencies acting in a judicial capacity are generally given preclusive effect in subsequent court actions between the same parties. Certain conditions must, however, be met: 1) the administrative proceeding must have been properly before the agency; 2) the administrative agency must have been acting in a judicial capacity; 3) the issues for which preclusion is sought must have been actually determined by the administrative agency; and 4) the parties must have had an adequate opportunity to litigate those issues before the administrative agency. Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis.2d 381, 497 N.W.2d 756 (Ct. App. 1993).

227.48 227.48 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 by mailing or, with the consent of the parties, by electronically mailing a copy to each party to the proceedings or to the party’s attorney of record.

227.48(2) (2) 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.

227.48 History History: 1975 c. 94 s. 3; 1975 c. 414 ss. 13, 17; Stats. 1975 s. 227.11; 1981 c. 378; 1985 a. 182 ss. 33rm, 57; Stats. 1985 s. 227.48; 2011 a. 155; 2021 a. 242.

227.48 Annotation 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 (1976).

227.48 Annotation 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.

227.483 227.483 Costs upon frivolous claims.

227.483(1) (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.

227.483(2) (2) 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.

227.483(3) (3) 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:

227.483(3)(a) (a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

227.483(3)(b) (b) 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.

227.483(3)(c) (c) 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.

227.483 History History: 2003 a. 118; 2011 a. 68; 2013 a. 1.

227.485 227.485 Costs to certain prevailing parties.

227.485(1) (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.

227.485(2) (2) In this section:

227.485(2)(a) (a) “Hearing examiner” means the agency or hearing examiner conducting the hearing.

227.485(2)(b) (b) “Nonprofit corporation” has the meaning designated in s. 181.0103 (17).

227.485(2)(c) (c) “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.

227.485(2)(d) (d) “Small nonprofit corporation” means a nonprofit corporation which employs fewer than 25 full-time employees.

227.485(2)(e) (e) “State agency” does not include the citizens utility board.

227.485(2)(f) (f) “Substantially justified” means having a reasonable basis in law and fact.

227.485(3) (3) 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.

227.485(4) (4) 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.

227.485(5) (5) 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 and 227.48. 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.

227.485(6) (6) 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).

227.485(7) (7) 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.

227.485(8) (8) 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), (g) or (q).

227.485(9) (9) 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.

227.485(10) (10) 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:

227.485(10)(a) (a) The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.

227.485(10)(b) (b) 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.

227.485 History History: 1985 a. 52; Stats. 1985 s. 227.115; 1985 a. 182 ss. 33s, 57; 1985 a. 332 s. 253; Stats. 1985 s. 227.485; 1987 a. 186; 1997 a. 27, 79; 2003 a. 145.

227.485 Annotation 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).

227.485 Annotation This section 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.

227.49 227.49 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.

227.49(2) (2) 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.

227.49(3) (3) Rehearing will be granted only on the basis of:

227.49(3)(a) (a) Some material error of law.

227.49(3)(b) (b) Some material error of fact.

227.49(3)(c) (c) The discovery of new evidence sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence.

227.49(4) (4) Copies of petitions for rehearing shall be served on all parties of record. Parties may file replies to the petition.

227.49(5) (5) 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.

227.49(6) (6) 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.

227.49 History History: 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 139; 1979 c. 208; 1985 a. 182 s. 33t; Stats. 1985 s. 227.49.

227.49 Annotation 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.

227.49 Annotation 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. DOR, 2006 WI App 12, 288 Wis. 2d 693, 709 N.W.2d 520, 05-0292.

227.49 Annotation In this case, where the analysis set forth in an order of the Public Service Commission (PSC) denying a petition for rehearing under this section was analogous to the PSC’s decision in the underlying matter, the decision denying the rehearing met the definition of an administrative decision for purposes of being subject to judicial review under s. 227.52. The substantial evidence standard under s. 227.57 (6) therefore applied with respect to review of the PSC’s findings of fact underlying the PSC’s decision on whether to grant rehearing. Town of Holland v. PSC, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

227.50 227.50 Ex parte communications in contested cases.

227.50(1) (1) 

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:

227.50(1)(a)1m. 1m. 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.

227.50(1)(a)2. 2. 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.

227.50(1)(am) (am) Paragraph (a) does not apply to any of the following:

227.50(1)(am)1. 1. An ex parte communication which is authorized or required by statute.

227.50(1)(am)2. 2. An ex parte communication by an official or employee of an agency which is conducting a class 1 proceeding.

227.50(1)(am)3. 3. 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.

227.50(1)(am)4. 4. 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, the chairperson, or a commissioner.

227.50(2) (2) 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.