Section 227.10. Statements of policy and interpretations of law; discrimination prohibited.

 

(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.

(2)  No agency may promulgate a rule which conflicts with state law.

(2m)  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.

(3)  

(a) 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.

(b) 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.

(c) 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.

(d) No rule may use any term removed from the statutes by chapter 83, laws of 1977 .

(e) 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) .

1985 a. 182 ; 1987 a. 399 ; 2003 a. 33 ss. 2368 , 9160 ; 2011 a. 21 ; 2013 a. 277 ; 2015 a. 55 . 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 , (1975). An agency's revised interpretation of a statute constituted administrative rule-making under s. 227.01 (4) [now s. 227.10] and declaratory relief under s. 227.40 was accordingly proper. What constitutes a rule is discussed. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223 , 240 N.W.2d 403 (1976). 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 (1976). 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 , 00-2711 . 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