ETF 11.08(5)(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.

ETF 11.08(5m)(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.

ETF 11.08(6)(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.

ETF 11.08 HistoryHistory: 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(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)(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 NoteNote: 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 HistoryHistory: 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(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 11.105(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 11.11(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.