Section ETF 11.12 - Final decision(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.Wis. Admin. Code Department of Employee Trust Funds ETF 11.12
Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (2) (b), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1) (a), cr. (8) Register July 2012 No. 679, eff. 8-1-12.Amended by, CR 19-126: am. (1) (d) 3., (7) Register May 2021 No. 785, eff.6/1/2021