A rule: 1) is a regulation, standard, statement of policy, or general order; 2) is of general application; 3) has the effect of law; 4) is issued by an agency; 5) is to implement, interpret, or make specific legislation administered by the agency. The terms “rule" and “order" are mutually exclusive. Wis. Elec. Power Co. v. DNR, 93 Wis. 2d 222
, 287 N.W.2d 113
(1980). See also Cholvin v. Department of Health and Family Services, 2008 WI App 127
, 313 Wis. 2d 749
, 758 N.W.2d 118
Principles of statutory construction apply to the construction of rules. Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472
, 305 N.W.2d 89
School boards are not “boards" under sub. (1). Racine Unified School District v. Thompson, 107 Wis. 2d 657
, 321 N.W.2d 334
(Ct. App. 1982).
When a fundamental and well-defined public policy is evidenced by a rule, a discharge from employment for refusal to violate that rule is actionable. Winkelman v. Beloit Memorial Hospital, 168 Wis. 2d 12
, 483 N.W.2d 211
The definition of “rule" under sub. (13) is applied. Plumbing Apprenticeship Committee v. DILHR, 172 Wis. 2d 299
, 493 N.W.2d 744
(Ct. App. 1992).
Materials developed by an agency as a reference aid for its staff that are couched in terms of advice and guidelines rather than setting forth law-like pronouncements are not a rule within the meaning of sub. (13) because they are not intended to have the effect of law. Chenequa Land Conservancy, Inc. v. Village of Hartland, 2004 WI App 144
, 275 Wis. 2d 533
, 685 N.W.2d 573
If an administrative rule is properly adopted and is within the power of the legislature to delegate, there is no material difference between it and a law. 63 Atty. Gen. 159.
Agencies are subject to rule-making procedures in making discretionary choices even if those choices are based on opinions of the attorney general. Rule-making procedures do not apply if the opinion describes what a law mandates. 68 Atty. Gen. 363.
Regulatory Reform: Moving Policymaking from State Agencies to the Legislature. Jensen. Wis. Law. Oct. 2018.
Compliance with other statutes.
Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute.
History: 1985 a. 182
Chapter 227 contemplates the limited use of civil procedure statutes that do not conflict with ch. 227. Wagner v. State Medical Examining Board, 181 Wis. 2d 633
, 511 N.W.2d 874
Application of this chapter. 227.03(3)
Any provision of s. 227.42
that is inconsistent with a requirement of title 45 of the code of federal regulations does not apply to hearings held under ch. 49
This chapter does not apply to proceedings before the department of workforce development relating to housing discrimination under s. 106.50
, except as provided in s. 106.50 (6)
Only the provisions of this chapter relating to rules are applicable to matters arising out of protection against discrimination in a public place of accommodation or amusement under s. 106.52
The provisions of this chapter relating to contested cases do not apply to proceedings involving the revocation of community supervision or aftercare supervision under s. 938.357 (5)
, the revocation of parole, extended supervision, or probation, the grant of probation, prison discipline, mandatory release under s. 302.11
, or any other proceeding involving the care and treatment of a resident or an inmate of a correctional institution.
does not apply to any decision of an agency to suspend or restrict or not issue or renew a license if the agency suspends or restricts or does not issue or renew the license pursuant to a memorandum of understanding entered into under s. 49.857
Orders of the elections commission under s. 5.06 (6)
are not subject to this chapter.
Except as provided in s. 230.44 (4) (bm)
, this chapter does not apply to proceedings before the employment relations commission in matters that are arbitrated in accordance with s. 230.44 (4) (bm)
This chapter does not apply to determinations made by the secretary of administration or the secretary of revenue under s. 229.50 (1)
History: 1985 a. 182
; 1989 a. 31
; 1991 a. 32
; 1993 a. 16
; 1995 a. 27
, 9130 (4)
; 1995 a. 77
; 1997 a. 3
; 1999 a. 82
; 2003 a. 33
; 2007 a. 1
; 2013 a. 20
; 2015 a. 55
Considerations for small business. 227.04(1)(a)
“Minor violation" means a rule violation that does not cause serious harm to the public, is committed by a small business, and the violation is not willful, the violation is not likely to be repeated, there is a history of compliance by the violator, or the small business has voluntarily disclosed the violation.
Each agency shall promulgate a rule that requires the agency to disclose in advance the discretion that the agency will follow in the enforcement of rules against a small business that has committed a minor violation. The rule promulgated under this subsection may include the reduction or waiver of penalties for a voluntary disclosure, by a small business, of actual or potential violations of rules.
The rule promulgated under this subsection shall specify the situations in which the agency will allow discretion in the enforcement of a rule against a small business that has committed a minor violation. The rule shall consider the following criteria for allowing discretion in the enforcement of the rule and the assessment of a penalty, including a forfeiture, fine, or interest:
The difficulty and cost of compliance with the rule by the small business.
The financial capacity of the small business, including the ability of the small business to pay the amount of any penalty that may be imposed.
The compliance options available, including options for achieving voluntary compliance with the rule.
The opportunities available to the small business to understand and comply with the rule.
Fairness to the small business and to other persons, including competitors and the public.
The rule promulgated under this subsection shall specify the situations in which the agency will not allow discretion in the enforcement of a rule against small businesses that have committed minor violations and shall include all of the following situations in which discretion is not allowed:
The violation results in a substantial economic advantage for the small business.
The small business has violated the same rule or guideline more than 3 times in the past 5 years.
The violation may result in an imminent endangerment to the environment, or to public health or safety.
A rule promulgated under this subsection applies to minor violations committed after the effective date of the rule.
Consistent with the requirements under sub. (2m)
and, to the extent possible, each agency shall do all of the following:
Provide assistance to small businesses to help small businesses comply with rules promulgated by the agency.
In deciding whether to impose a fine against a small business found to be in violation of a rule, consider the appropriateness of a written warning, reduced fine, or alternative penalty if all of the following apply:
The small business has made a good faith effort to comply with the rule.
The rule violation does not pose a threat to public health, safety, or welfare.
Establish methods to encourage the participation of small businesses in rule making under s. 227.114 (4)
Each agency shall fully document every instance in which it made the decision to utilize discretion in penalizing businesses as provided in this section, including the reasons for its decision, and shall keep records of those instances on file for not fewer than 5 years.
History: 2011 a. 46
; 2013 a. 296
An agency, other than the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds, shall identify the applicable provision of federal law or the applicable state statutory or administrative code provision that supports any statement or interpretation of law that the agency makes in any publication, whether in print or on the agency's Internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers.
History: 2017 a. 369
ADMINISTRATIVE RULES AND
Statements of policy and interpretations of law; discrimination prohibited. 227.10(1)(1)
Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. A statement of policy or an interpretation of a statute made in the decision of a contested case, in a private letter ruling under s. 73.035
or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.
No agency may promulgate a rule which conflicts with state law.
No agency may seek deference in any proceeding based on the agency's interpretation of any law.
No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter, except as provided in s. 186.118 (2) (c)
and (3) (b) 3.
The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
No agency may promulgate a rule or take any other action that requires one or more lots to be merged with another lot, for any purpose, without the consent of the owners of the lots that are to be merged.
No rule, either by its terms or in its application, may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry.
A rule may discriminate for or against a person by reason of physical condition or developmental disability as defined in s. 51.01 (5)
only if it is strictly necessary to a function of the agency and is supported by data demonstrating that necessity.
Each person affected by a rule is entitled to the same benefits and is subject to the same obligations as any other person under the same or similar circumstances.
Nothing in this subsection prohibits the director of the bureau of merit recruitment and selection in the department of administration from promulgating rules relating to expanded certification under s. 230.25 (1n)
Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now s. 227.20]. Here, failure to file the guideline as a rule did not deprive the department of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. Department of Industry, Labor, and Human Relations, 228 NW 2d 649, 68 Wis. 2d 345
When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223
, 240 N.W.2d 403
When the department of transportation (DOT) revised its application of a statute to bring DOT's practices into conformity with the plain meaning of the statute, DOT followed a course it was obliged to pursue when confronted with its error. This is not a regulation, standard, statement of policy, or general order. Neither is it a statement of general policy or interpretation of a statute. Therefore, there was no requirement that DOT comply with the filing procedures mandated in connection with promulgation of administrative rules. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223
, 240 N.W.2d 403
The department of transportation (DOT) engaged in administrative rule making when it changed its interpretation of a statute whose terms did not specifically require the interpretation, the interpretation was administered as law, and DOT relied upon the interpretation to deny the issuance of a license in a form in direct contrast to the manner in which the statute was previously administered by the DOT. Those who are or will be affected generally by such an interpretation should have the opportunity to be informed as to the manner in which the terms of the statute regulating their operations will be applied. This is accomplished by the issuance and filing procedures under ch. 227 and the rule is invalid until such measures are taken. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223
, 240 N.W.2d 403
The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705
, 247 N.W.2d 714
A memorandum announcing general policies and specific criteria governing all decisions on good time for mandatory release parole violations was a “rule" and should have been promulgated properly. State ex rel. Clifton v. Young, 133 Wis. 2d 193
, 394 N.W.2d 769
(Ct. App. 1986).
An agency may use policies and guidelines to assist in the implementation of administrative rules provided they are consistent with state and federal legislation. Tannler v. Department of Health and Social Services, 211 Wis. 2d 179
, 564 NW 2d 735 (1997)
An administrative agency cannot regulate the activities of another agency or promulgate rules to bind another agency without express statutory authority. George v. Schwarz, 2001 WI App 72
, 242 Wis. 2d 450
, 626 N.W.2d 57
When an agency changes its interpretation of an ambiguous statute, the agency is engaging in rulemaking. The rulemaking exemption described in Schoolway Transportation Co.
, 72 Wis. 2d 223
(1976), does not apply when the agency fails to identify a plain and unambiguous statutory command necessitating the agency's new interpretation. Lamar Central Outdoor, LLC v. Division of Hearings & Appeals, 2019 WI 109
, 389 Wis. 2d 486
, 936 N.W.2d 573
Under ss. 227.10 (2m) and 227.11 (2) (a), created by 2011 Wis. Act 21
, an agency must have explicit authority to impose license and permit conditions and must have explicit authority for rulemaking. Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority. OAG 1-16
The attorney general applied a 3-step analytical inquiry to determine whether a rule “contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in” a statute, in violation of s. 227.11 (2) (a) 3.: 1) examine whether both a rule and a statute contain a “specific standard, requirement, or threshold” governing the same subject matter conduct; 2) compare the two standards, requirements, or thresholds to determine if the rule is “more restrictive” than the statute; and 3) if the rule is more restrictive than the statute, evaluate whether the rule is otherwise “explicitly permitted by statute or by a rule,” as provided under sub. (2m). If the rule is more restrictive than the statute, and not otherwise explicitly permitted, the rule may not be enforced or administered. OAG 4-17
Despite its procedurally lawful promulgation in the past, in light of changes to this section and s. 227.11 by 2011 Act 21
, a rule may not be prospectively enforced or administered if it contains a “standard, requirement, or threshold” that is more restrictive than the relevant statute. OAG 4-17
Agency rule-making authority. 227.11(1)(1)
Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
Rule-making authority is expressly conferred on an agency as follows:
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.