Current through August 26, 2024
(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.
(c) A list of names and addresses of all
persons who are considered parties for purposes of judicial review.
(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.
