Section 227.46. Hearing examiners; examination of evidence by agency.

 

(1)  Except as provided under s. 227.43 (1) , an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any contested case. Subject to rules of the agency, examiners presiding at hearings may:

(a) Administer oaths and affirmations.

(b) Issue subpoenas authorized by law and enforce subpoenas under s. 885.12 .

(c) Rule on offers of proof and receive relevant evidence.

(d) Take depositions or have depositions taken when permitted by law.

(e) Regulate the course of the hearing.

(f) Hold conferences for the settlement or simplification of the issues by consent of the parties.

(g) Dispose of procedural requests or similar matters.

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

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

(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.

(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.

(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:

(a) Direct that the hearing examiner's decision be the final decision of the agency;

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

(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.

(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.

(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.

(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.

(7)  

(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.

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

(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.

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 . 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). 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). 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 195 , 238 Wis. 2d 717 , 618 N.W.2d 224 . Under sub. (2), if the decision of the administrative agency varies in any respect from that of the ALJ, 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 . 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. Discussion of circumstances under which hearing examiner has power to entertain motion to dismiss proceedings. 68 Atty. Gen. 30. A witness subpoenaed under sub. (1) must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.