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517.01 Generally
Where the hearing examiner erred in deciding, in a proposed decision and order, an issue that was not properly noticed, circumstances were consistent with a remand for further proceedings before the hearing examiner. Williams v. DOC, 97-0086-PC-ER, 3/24/99
It is not necessary that a party engaged in an oral argument concerning a proposed decision explicitly address every argument of the opposing party to avoid a conclusion of waiver or admission of that party's arguments. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
The Commission declined to grant oral argument before the Commission relating to a motion to dismiss based on mootness. The Commission distinguished its practice of granting oral argument in appeals where an evidentiary hearing has been held by an individual hearing examiner. Friedrichs v. DOC, 96-0023-PC, 11/22/96
The Commission did not have the option of treating appellant’s submission as a motion for reconsideration where the Commission had already issued a final decision in the case. Appellant’s submission was treated as a petition for rehearing and was subject to the requirements of §227.49, Stats. Dusso v. DER & DRL, 94-0490-PC, 7/23/96
Where, in the objections to the proposed decision, appellant stated that one of respondent's witnesses lied under oath, the Commission declined respondent's subsequent request to direct the appellant to identify the witness and the alleged lie or lies so that respondent could carry out an investigation. Dorsey et al. v. DER, 94-0471-PC, etc., 1/23/96
Appellant was not permitted to reopen the record to add evidence of the same nature as evidence previously offered, where there was no showing that this additional evidence would not have been available for the hearing if it had been requested earlier. Hutchison v. DER, 92-0577-PC, 12/13/94
A party was not permitted to reopen the record after the issuance of a proposed decision where the party offered no reason why the information could not have been presented at the hearing already held. Lyons v. WGC, 93-0206-PC, 12/5/94
Appellant's request to reopen the hearing record and hold it open until the occurrence of a number of personnel transactions was denied where the preponderance of the evidence indicated that the events would have no effect on the issue presented by the appellant's appeal. Even if the subsequent transactions occurred differently than expected, they could generate appeals which would cause further uncertainty and delay. Hutchison v. DER, 92-0577-PC, 10/24/94; rehearing denied, 12/13/94
Appellant's request for oral argument with respect to a hearing examiner's proposed decision was granted over respondent's objection, where appellant was proceeding without counsel, the case turned on factual findings which were at least to some extent disputed at hearing, and his request appeared to have been founded at least in part on the contention that he would be better able to present his arguments verbally than in writing. Peck v. DER, 92-0130-PC, 9/8/93
Appellant's petition for rehearing was granted where the order dismissing appellant's appeal at her request was issued under a misapprehension of appellant's intent and was premised on a material error of fact. Although the appellant had previously indicated she had wished to withdraw her appeal, a letter from the Commission to appellant to confirm this intent was improperly addressed, appellant changed her mind before she received the Commission's dismissal order and, at that time, wrote the Commission to continue her appeal. Wipperfurth v. DER, 92-0135-PC, 11/13/92
The Commission lacked jurisdiction over an appeal filed in February of 1991 regarding a discharge decision where in April of 1990, the Commission had dismissed with prejudice an appeal filed by the same appellant regarding the same discharge decision. Briskey v. DHSS, 91-0016-PC, 4/5/91
The Commission granted the complainant's request for an evidentiary hearing on the issue of remedy even though, in the proposed decision and order, the examiner had addressed the remedy issue. The examiner had chosen to address the issue in the proposed decision, even though it had not been briefed, because it appeared that there might not be any disagreement between the parties. Oestreich v. DHSS & DMRS, 87-0038-PC-ER, 2/12/91
The Commission declined to grant a request from counsel representing complainants in three other proceedings pending before the Commission for a delay in the issuance of a final decision in the captioned matter. The request was for a delay until hearings could be held in the other three cases. Wood v. DOT, 86-0037-PC-ER, 5/5/88; affirmed by Milwaukee County Circuit Court, Wood v. Wis. Pers. Comm. & DOT, 88-CV-09-178, 5/10/89; affirmed by Court of Appeals, 009-178, 11/22/89
The provisions of §222.49(1), Stats., relating to petitions for rehearing are inapplicable to an interim, rather than final, order. The interim order had found subject matter jurisdiction. Spilde v. DER, 86-0040-PC, 1/8/87
The appellant's request for reconsideration was denied where she sought to have the Commission adopt additional facts in the absence of newly discovered evidence. Atkinson v. DILHR & DER, 86-0042-PC, 6/12/86
In considering appellant's motion to reopen the hearing filed after a proposed decision had been issued and oral arguments heard, the Commission considered the statutory bases identified for granting a petition for rehearing and denied the motion given the timing of the request, the nature of the proposed additional evidence and a lack of justification for reopening. Conley v. DHSS, 83-0075-PC, 5/18/84
The Commission denied appellant's request to reopen the hearing after a proposed decision had been issued but before the final decision, where the "new evidence" was available at the time of the original hearing but simply was not offered. Conley v. DHSS, 83-0075-PC, 5/18/84
The Commission lacked the authority to entertain a petition for rehearing filed by a would-be intervenor more than 20 days after service of the underlying Commission decision on all parties of record, but less than 20 days after the petitioner received a copy of the decision. Martin v. Transportation Commn. & DER, 80-366-PC, 3/21/83
The Commission has the authority to order a hearing reopened for additional testimony following the issuance of a proposed decision by the hearing examiner, and it would exercise its discretion to do so, where the appellant's offer of a medical report was rejected by the examiner as hearsay, and the appellant was unrepresented by counsel, it was not unreasonable for him to have expected that the document, which was entitled "Practitioner's Report on Accident or Industrial Disease in Lieu of Testimony," would have been received in evidence, and the document related to the central question in the appeal. Blied v. DOT, 81-290-PC, 3/4/83
A petition for rehearing was denied where the appeal originally had been dismissed for lack of jurisdiction without reaching the respondent's motion to dismiss for failure of prosecution, because said motion would have to be granted even if the Commission were to determine that it had jurisdiction. Jansen et al. v. DOT & DP, 78-170-PC, etc., 10/4/82
517.55 Timeliness of objection/request
The Commission considered respondent's request for reconsideration relating to the ruling on costs even though it was filed after the Commission had entered an order which awarded appellant certain costs if appellant filed an affidavit or other evidence regarding his adjusted gross income in accordance with §227.485(7), Stats., and if there was no meritorious objection thereto. The request for reconsideration relied on case law that had apparently not been included in the published advance sheets as of the date of the request for reconsideration. Smith v. DMRS, 90-0032-PC, 1/5/96; affirmed by Dane County Circuit Court; Smith v. Shaw et al., 90 CV 5059, 96 CV 283, 12/10/96
Respondent's objection to the additional two months provided complainant for filing objections to the proposed decision was rejected where complainant resided in California, was out of the country for a part of the period in question, had made closing argument rather than filed post-hearing briefs and requested a copy of the hearing tapes in order to prepare his objections. Schmitt v. UW-Milwaukee, 90-0047-PC-ER, 9/24/93
The Commission lacks authority to toll, due to mental illness, the limitation on the time period for filing a petition for rehearing. DePagter v. UW-Madison, 93-0003-PC-ER, 7/22/93
The complainant's petition for rehearing was denied where the Commission had affidavits of mailing reflecting that the complainant's Initial Determination and dismissal order were mailed to his address even though he alleged he did not receive them. The Commission is not required to establish service through the use of certified mail. Stewart v. DOR, 92-0062-PC-ER, 3/10/93
The Commission lacked the authority to consider appellant's supplementary motion for attorney's fees and costs arising from attempts by appellant's counsel to obtain full compliance or a compromise settlement with respect to the remedy ordered by the Commission where the decision and order was served on May 15 and the supplementary motion was filed on August 26. Arneson v. UW, 90-0184-PC,11/13/92
The Commission lacked the authority to grant a request filed in June of 1991 to modify the Commission's interim decision and order issued in April of 1990, which had been followed by a July, 1990 final decision, regardless of the equitable factors advanced by the appellant. Showsh v. DATCP, 90-0120-PC, 12/23/91
The Commission lacked the authority to grant a request filed in 1989 to reopen an appeal which was dismissed with prejudice pursuant to a settlement agreement on November 18, 1987, or to open a new appeal arising from the alleged breach of the settlement agreement. Krueger v. DHSS, 89-0070-PC, 1/10/90
Where, after promulgation of a proposed decision and order in a case arising from the decision not to select the complainant for a vacant position, the respondent argued that the complainant was illegally certified for the vacancy and therefore lacked standing and failed to make out a prima facie case, the argument came too late because there was no opportunity for the complainant to have made a record on this point at the hearing. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
The Commission lacked the authority to consider appellant's petition for rehearing which was filed 7§ months after the Commission issued an order to dismiss due to lack of prosecution. Peters v. DER, 84-0148-PC, 10/31/85; affirmed by Brown County Circuit Court, Peters v. Wis. Pers. Comm., 85-CV-3056, 4/14/86; affirmed by Court of Appeals District 111, 86-1067, 4/15/87
The Commission declined to consider respondent's objections to a proposed decision and order which were received four days after the twice-extended due date without justification for the failure to meet the established deadline. Novak v. DER, 83-0104-PC, 1/17/85
The Commission declined to consider respondent's request for oral arguments which was received twelve days after the once-extended due date without explanation as to why the deadline had not been met. Wentz v. DER, 84-0068-PC, 1/17/85
The Commission lacked the authority to reconsider interim and final orders that were issued six months prior to appellant's motion to reconsider. Appellant contended that the case should be reopened due to events that occurred several months after the issuance of the final decision. Smith v. DILHR & DP, 81-412-PC, 83-0001-PC, 6/9/83
The 20 day period for filing a petition for rehearing begins on the date of mailing of the decision to each party, rather than on the date a non-party may have received the decision. The intervening respondent, though not a party at the time the decision was issued, is still precluded from petitioning for rehearing more than twenty days after service was complete. Martin v. Trans. Comm. & DER, 80-366-PC, 5/23/83
The pendency of a petition for judicial review may act to suspend the Commission's authority to reconsider its determination. Martin v. Trans. Comm. & DER, 80-366-PC, 5/23/83
A petition for rehearing was untimely where the Commission's decision was mailed January 21, 1983, and the petition for rehearing was received by the Commission on February 18, 1983, since §227.12, Stats., provides that petitions for rehearing must be filed "within 20 days after service of the order." DuPlessis v. DHSS, 80-PC-ER-111, 3/17/83
518.01 Number present and voting
Where only two of the three commissioners voted on a motion for substitution of hearing examiner, one voting against and one voting in favor (and one abstaining), the motion was denied because it failed to obtain a majority (two votes) of a quorum. The Commission's prior order designating the hearing examiner remained in effect. [Opinions, constituting dicta, on both sides of the substantive issue of substitution, are set out as part of the decision]. Bridges v. DHSS, 85-0170-PC-ER, 5/17/88
518.02 Disqualification of commissioner/examiner
There was insufficient basis for granting complainant's motion for substitution of examiners, made first after the examiner denied complainant's request to introduce more than one thousand pages of documents at hearing and renewed during the post-hearing briefing schedule. The complainant had introduced other exhibits and declined to identify which of the one thousand pages were critical to her case. King v. DOC, 94-0057-PC-ER, 11/18/98
The complainant failed to establish adequate grounds for disqualification where he alleged 1) the hearing examiner twice corrected complainant's grammar, 2) the hearing examiner held several telephone conversations with respondent's representative where there was no allegation that the conversations related to the merits of the case rather than to procedural or non-substantive matters, 3) the examiner established deadlines for the complainant but not for the respondent, 4) the examiner ignored complainant's requests for certain materials in the respondent's possession, where complainant's allegations amounted to a disagreement with the various interim decisions on discovery disputes issued by the examiner, and 5) the examiner did not allow the complainant to express himself during telephone conferences, where an examination of the case file did not support contentions 3) and 5). The fact that the complainant's motion to disqualify was filed shortly after the examiner had written the parties a letter ruling on several matters which were in dispute, suggested that the motion was motivated by disagreement with the ruling rather than by some bias on the part of the examiner. Asadi v. UW, 85-0058-PC-ER, 1/24/92
Nothing in the Commission's rules or the Wisconsin Administrative Procedure Act provides for the parties to have any input into the selection of the hearing examiner for a particular case, other than the party's right to make a substitution request. The complainant had requested that the presiding examiner be removed and be replaced by "a member of a protected class (Black, Hispanic, Asian or Native American.)" Asadi v. UW, 85-0058-PC-ER, 1/24/92
Petitioner's motion for the appointment of a new tribunal was granted where observations and concerns of Commission staff were transmitted to the employer and allegedly were part of respondent's motivation for requiring a psychological exam and allegedly were cited in the termination letter. Iwanski v. DHSS, 89-0074-PC-ER, etc., 12/2/91
In dicta, the Commission rejected appellant's allegation that the examiner was biased where it appeared that the appellant had waited to raise his allegation until the examiner had issued his proposed decision and where there was no apparent tie between the facts serving as the basis for the appellant's allegation of bias and the matter before the Commission. Mincy v. DER, 90-0229-PC, 10/3/91
There was no absence of fairness nor an appearance of the absence of fairness in having a commissioner, whose spouse is lieutenant governor, participate in deciding a FEA claim filed against a state agency. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
Hearing examiner A denied appellant's request that consolidated appeals be reassigned to examiner B who had been designated for one of the cases prior to their consolidation. There was no suggestion that examiner A was unqualified to serve and a review of a document serving as the basis for one of the appeals revealed a potential conflict of interest by examiner B relative to a potential witness. Thompson v. UW, 88-0058, 0103-PC, 10/31/88
Complainant's motion to disqualify a commissioner from participating in rendering the final decision of the Commission was denied where the complainant had contended that the commissioner was prejudiced because the commissioner had presided at the hearing and had prepared a proposed decision and order favorable to the respondent. Brownlee v. State Public Defender, 83-0107-PC-ER, 12/6/85
In interpreting "personal bias or other disqualification" as used in §227.09(6), Stats. (1983), the Commission looked to the standards for use by a judge in a civil or criminal action. Dolphin v. DATCP, 79-PC-ER-31, 5/26/83
The Commission denied respondent's motion to prohibit any consultation by the Commission with the former Commissioner who had served as the hearing examiner in the case. The motion was based on the fact that the hearing examiner had, 3 months after issuing a proposed decision and order but before the Commission had issued a final decision, attended a conference that was attended by approximately 500 other people, including both the complainant and a division administrator for respondent. The examiner lunched at a table with the complainant and six other persons. The Commission noted that granting the motion would preclude consultation with the examiner regarding her impressions of the material witnesses on which she based her conclusions of credibility. Dolphin v. DATCP, 79-PC-ER-31, 5/26/83
519 Findings, conclusions and order
Where an agency rejects or reverses the recommended findings and order of its hearing examiner, due process of law requires that the examiner first be consulted as to his or her personal impressions of the witnesses. The record of the agency must affirmatively show that it had the benefit of the examiner's first-hand impressions of the material witnesses. Braun v. Industrial Comm., 36 Wis 2d 56-57 (1967). The agency must prepare a separate statement or memorandum opinion setting forth the reasons, facts and ultimate conclusions relied upon in rejecting the recommendations of the examiner and substituting its own findings. Appleton v. ILHR Dept., 67 Wis. 2d 162 (1975). DILHR & Martin v. Pers. Comm., Dane County Circuit Court, 79-CV-389, 6/30/80
The proposed decision erred where it addressed matters outside the scope of the notice of hearing. Complainant claimed he was discriminated against based on arrest and conviction record. The statement of the issue was phrased in terms of whether respondent discriminated on the basis of arrest or conviction record in connection with the last paragraph of a letter it issued to complainant. The letter stated that it served as a last chance warning to complainant that "any subsequent driving while intoxicated or similar charges" would result in termination of his employment. The statement of the issue did not provide adequate notice to the parties that the Commission would consider whether respondent's conduct violated §111.322(2), Stats, which prohibits circulating any statement which implies or expresses any limitation, specification or discrimination; or an intent to make such limitation, specification or discrimination because of any prohibited basis. The original charge of discrimination did not mention the circulation issue. The initial determination also did not mention that issue, nor had either party addressed that issue prior to the issuance of the proposed decision and order. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Adjudicative bodies should decide cases on the basis of the result the law requires, regardless of whether the particular legal theory is brought to bear by the parties or, sua sponte, by the adjudicative body, so long as the parties have sufficient notice and an adequate opportunity to be heard on the issue in question. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Appellant's contention that the hearing examiner's observations as to witness credibility were entitled to deference was inapplicable where the Commission adopted the examiner's proposed findings of fact but went on to substitute its conclusions of law for those set forth in the proposed decision. Showsh v. DATCP, 87-0201-PC, 3/14/89; reversed on other grounds by Brown County Circuit Court, Showsh v. Wis. Pers. Comm., 89-CV-445, 6/29/90; affirmed by Court of Appeals, 90-1985, 4/2/91
Respondent's action to reallocate the appellant's position (rather than to reclassify the position) was affirmed despite reference in Commission's order in predecessor case (Marx v. DP, 78-138-PC) for respondent to use an "effective date of reclassification", where the reference in the order to "reclassification" had been in error and reallocation of the appellant's position was consistent with applicable law. Marx v. DATCP & DER, 82-0050-PC, 3/18/87
521.2 Applicable standards
Neither §227.485(3), Stats., nor Wisconsin case law construing that provision provides that the government agency must be substantially justified in its position throughout the period up until the matter is decided, i.e. the hearing before the Commission. The Commission did not abuse its discretion in determining that the employing agency was substantially justified in taking its position at the time that it imposed discipline. [Note: In its decision, the Commission did not address any contention that the issue of whether the respondent was substantially justified should be viewed in terms of the information known to the respondent at the time of hearing.] Showsh v. Wis. Pers. Comm., Brown County Circuit Court, 90 CV 1001, 7/25/91
The agency has the burden of establishing that its position was substantially justified. DER v. Wis. Pers. Comm. (Anderson), Dane County Circuit Court, 87CV7397, 11/7/88
In order for the agency to demonstrate that its position had a reasonable basis in law and fact, and was therefore "substantially justified," it must show that it had a reasonable basis in truth for the facts it claims justified its position, that it had a reasonable or well accepted theory of the law that it urged as support for its position and that there was a reasonable, material connection between the facts asserted and the legal theory urged. DER v. Wis. Pers. Comm. (Anderson), Dane County Circuit Court, 87CV7397, 11/7/88
A circuit court's decision, in the context of a review under ch. 227, Stats., that the Commission's determination regarding appellant's managerial status was unreasonable, must be taken into consideration in deciding appellant's subsequent fee petition but is not conclusive. In reviewing the request for costs, the issue is not whether the Commission reached an erroneous conclusion of law, but, first, whether respondent relied on a particular contention (cited by the court as legal error by the Commission) as part of its case, and second, if so whether such reliance was substantially justified under the circumstances. Murray v. DER, 91-0105-PC, 4/6/95; affirmed by Dane County Circuit Court, Murray v. Wis. Pers. Comm., 95-CV-0988, 12/15/95
An application for fees and costs requires analyzing respondent's position in the administrative proceeding as well as its underlying action. Davis v. ECB, 91-0214-PC, 12/5/94
Where it was concluded that respondent was substantially justified in taking its primary positions during the administrative proceeding, it was unnecessary to analyze each specific argument advanced by the respondent in the case. Davis v. ECB, 91-0214-PC, 12/5/94
Under a request for attorneys fees/costs under the EAJA, the state agency has the burden of affirmatively proving it was "substantially justified" in its position, or that "special circumstances existed that would make the award unjust," using a standard of proof which falls between arbitrary and frivolous action and automatic award to the prevailing party. The state agency's action at both the prelitigation and litigation stages are analyzed, citing Escalada-Coronel v. DMRS, 86-0186-PC, 4/2/87. Higgins v. Wis. Racing Bd., 92-0020-PC, 3/31/94
The Commission will look to both the position of the agency on the underlying transaction that triggered the administrative proceeding and its position in the administrative proceeding for purpose of determining whether the agency's "position" was substantially justified as provided in the law. Escalada-Coronel v. DMRS, 86-0189-PC, 4/2/87
The agency has the burden of showing its position had a reasonable basis in law and fact. Escalada-Coronel v. DMRS, 86-0189-PC, 4/2/87
The standard of "substantially justified falls in between the common law "bad faith" exception and an automatic award of attorney's fees to prevailing parties, citing Berman v. Schweiker, 531 F. Supp. 1149, 1153-1154 (N.D. Ill., 1982). Escalada-Coronel v. DMRS, 86-0189-PC, 4/2/87
The Commission concluded that under the law there was a reasonable basis in law and fact for the respondent's position and denied appellant's motion for costs. Respondent's case was far from the strongest and was insufficient to have countered the appellant's case and to have avoided the Commission's conclusions on the merits that there was no rational basis for the inconsistent treatment of the appellant's application. However, the respondent's case was also far from the weakest where the respondent made at least an arguable contention that its conduct was dictated by a prior decision of the Commission and where respondent's conduct was also consistent with a relatively long standing interpretation of its authority in the area rather than being a "one-shot" approach. Escalada-Coronel v. DMRS, 86-0189-PC, 4/2/87
521.5 Specific issues
To the extent that a party to a proceeding to which the EAJA applies is properly represented by a non-lawyer, these are the "agents" referred to in the fee award coverage of the statutes. DER v. Wis. Pers. Comm. (Anderson), Dane County Circuit Court, 87CV7397, 11/7/88
Law clerk and paralegal services may properly be awarded under the EAJA's reference to attorney fees. DER v. Wis. Pers. Comm. (Anderson), Dane County Circuit Court, 87CV7397, 11/7/88
Copying charges and the charge for tape recordings of hearings are not recoverable because they are not among the categories of costs specified in §814.04(2), Stats. The "allowed by law" language restricts the costs recoverable to those categories specified in the listing that follows. DER v. Wis. Pers. Comm. (Anderson), Dane County Circuit Court, 87CV7397, 11/7/88
A party before an administrative agency such as the Commission can anticipate that the agency will follow its precedents unless it provides a rational and reasonable basis for departing from them. However, if an agency takes a position contrary to a Commission precedent, while it presumably would be subject to rejection by the Commission, it would not be subject to the imposition of costs pursuant to §227.485, Stats., as long as it had a reasonable basis in law for its position. Pearson v. UW, 84-0219-PC, 2/12/97 B
The statutory framework which provides for the submission of an application for costs within 30 days after service of the proposed decision and for submission of a response within 15 working days of respondent's receipt of the application does not prohibit either amendments or replies. Olson et al. v. DER, 92-0071-PC, etc., 12/5/94
Appellants were permitted, more than 30 days after the decision on the merits of their appeal, to file an amendment to their fee application to address respondent's assertion that their application was fatally defective because it did not establish that appellants met the maximum income criterion. Olson et al. v. DER, 92-0071-PC, etc., 12/5/94
In an appeal from two suspensions which was decided in favor of the appellant on the ground that respondent failed to provide adequate hearings prior to imposing the suspensions, where the parties stipulated to an issue that did not include a separate due process issue, the respondent's contention that appellant's costs should be limited to so much of the costs as could be apportioned to the procedural due process question because the Commission did not reach the just cause question, was rejected. Rentmeester v. Wis. Lottery, 91-0243-PC, 9/9/94
Where appellant based her request for a higher fee on a Consumer Price Index baseline from 1982-84, but the EAJA did not become effective until November of 1985, the Commission reduced appellant's hourly fee request by a pro rata amount. Rentmeester v. Wis. Lottery, 91-0243-PC, 9/9/94
Photocopying and office costs are not allowable under §814.04(2), Stats. Rentmeester v. Wis. Lottery, 91-0243-PC, 9/9/94
Appellant's request for fees at the rate of $100 per hour was rejected due to appellant's failure to show that an increase was justifiable under the allowable factors recited in s. 227.485(1)2., Stats., which includes the factor of limited availability of qualified attorneys. Higgins v. Wis. Racing Bd., 92-0020-PC, 3/31/94
The following expenses are not recoverable under the EAJA: cost for preparing a hearing transcript and a copy of the transcript, respondent's charge for providing copies of appellant's personnel file and professional investigator fees. Higgins v. Wis. Racing Bd., 92-0020-PC, 3/31/94
Respondent demonstrated "a reasonable basis in truth for the facts alleged" where the parties had submitted the merits of their dispute on a stipulation of fact. Shew v. DHSS, 92-0506-PC, 3/29/94
Appellant's petition for attorney's fees and costs was granted where respondent narrowly read the meaning of the word "act" in §230.36(3)(c)3., Stats. for which it did not have a "reasonable basis in law for the theory propounded." Shew v. DHSS, 92-0506-PC, 3/29/94
Section 814.04(2), Stats. does not cover the cost of medical records, but does provide for payment of postage. Shew v. DHSS, 92-0506-PC, 3/29/94
The Commission has authority to award attorney's fees against respondent state agencies after finding liability under the Fair Employment Act and to award fees under the Equal Access to Justice Act, irrespective of the decision in Wis. Dept. of Trans. v. Wis. Pers. Comm., 176 Wis.2d 731, 500 NW2d 664 (1993). Keul v. DHSS, 87-0052-PC-ER, 2/3/94
The Commission lacked the authority to consider appellant's supplementary motion for attorney's fees and costs arising from attempts by appellant's counsel to obtain full compliance or a compromise settlement with respect to the remedy ordered by the Commission where the decision and order was served on May 15 and the supplementary motion was filed on August 26. Arneson v. UW, 90-0184-PC, 11/13/92
In a consolidated case including an appeal of a discharge decision and a discrimination complaint in which the employe prevailed, the Equal Access to Justice Act (§227.485, Stats.) does not preempt the Commission's authority to award fees under Watkins v. Labor and Industry Review Commission, 117 Wis. 2d 753, 345 N.W. 2d 482 (1984) for a FEA violation. Fees were assessed against respondent under Watkins so it was unnecessary to make an EAJA analysis. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 10/1/92
The prevailing market rate and the presence of a form of contingency fee contract are not "special factors" to be used as a basis for awarding a fee in excess of $75 per hour. Arneson v. UW, 90-0184-PC, 5/14/92
Costs of copying and hearing tapes are outside the costs permitted by §814.04(2). Arneson v. UW, 90-0184-PC, 5/14/92
Costs incurred in connection with judicial review proceedings which resulted in the reversal of the Commission's adverse decision are implicitly authorized. Kumrah v. DATCP, 87-0058-PC, 4/17/90
Fees to a litigant unrepresented by counsel as compensation for the time he or she spends on the case are not authorized for payment under §227.485, Stats. Heikkinen v. DOT, 90-0006-PC, 4/16/90
Compensation for wrongful denial of career advancement is outside the scope of allowable fees and costs under §227.485, Stats. Heikkinen v. DOT, 90-0006-PC, 4/16/90
The Commission lacks authority to award fees under §227.485, Stats., arising from a proceeding before another agency. Duello v. UW-Madison, 87-0044-PC-ER, 3/9/90
The 30 day filing requirement is mandatory rather than directory and the appellant's application for fees and costs was denied where it was filed more than 30 days after the date of service of the Interim Decision and Order. Doyle v. DNR & DMRS, 86-0192-PC, 2/8/89, rehearing denied, 3/17/89
Appellant's request was premature in that it was filed before a decision on the merits was issued. Appellant was permitted to renew his request. Doyle v. DNR & DMRS, 86-0192-PC, 87-0007-PC-ER, 11/3/88
Complainant's motion for attorney's fees and costs upon the issuance of an interim decision finding probable cause was premature. Snow v. DHSS, 86-0051-PC-ER, 6/20/88
The Commission adjusted the maximum hourly fee of $75.00 upward to reflect a cost of living increase. Anderson et al. v. DER, 86-0098-PC, 11/18/87; affirmed in part, reversed in part by Dane County Circuit Court, DER v. Wis. Pers. Comm., 87CV7397, 11/7/88 (Note: the effect of the decision was to affirm the Commission’s decision in all respects except as to the award of copying charges and the charge for tape recordings of the hearings)
Where attorneys for one appellant submitted nothing as to prevailing market rates, their claimed fees (some of which were in excess of the statutory maximum) were reduced to the level charged by the attorneys for the other appellant. McCready & Paul v. DHSS, 85-0216, 0217-PC, 9/10/87
Costs should not be allowed for legal fees accrued before another forum. McCready & Paul v. DHSS, 85-0216, 0217-PC, 9/10/87
Appellants' attorneys fees attributable to proceedings before the Commission but not directly related to the appellants' successful motion for summary judgment were not rendered "not in connection with the contested case" or unreasonable. McCready & Paul v. DHSS, 85-0216, 0217-PC, 9/10/87
It is not unreasonable to allow recovery for hours spent by a more senior attorney who was serving in a supervisory capacity to the appellants' attorney where it could reasonably be assumed that the involvement by the senior attorney was part of the delivery of legal services to the client and served to advance the clientts interests. McCready & Paul v. DHSS, 85-0216, 0217-PC, 9/10/87
The Commission concluded that appellant's motion for costs was not frivolous where in its underlying decision on the merits the Commission concluded there was no rational basis for the inconsistent treatment of applicants resulting from exceptions to a stated policy and where the appellant's motion generated a matter of first impression. The Commission, therefore, denied respondent's counter-motion for costs. Escalada-Coronel v. DMRS, 86-0189-PC, 4/2/87
521.7(1) Reclassification/reallocation
No costs were awarded to appellant relating to his successful appeal of the decision to deny his request for reclassification of his position where respondent was substantially justified in relying on information gained from appellant’s previous supervisor regarding the time spent by appellant on certain duties, significant areas of dispute existed throughout the administrative proceedings which were unresolved by the hearing record. Briggs v. DNR & DER, 95-0196-PC, 10/22/96
Costs were denied where respondent demonstrated a reasonable basis in truth for the facts alleged, a reasonable basis in law for their legal theories and a reasonable connection between the facts alleged and the legal theory advanced. The case involved application of outdated position standards where the legal principles were not clear cut or well defined by precedent. Fulk, et al. v. DHSS & DER, 95-0004-PC, etc., 5/28/96
Where the determining factual issue in the case was whether appellants had the requisite supervisory duties, respondent was substantially justified where the documentary evidence lent strong support to respondent's case but the testimony of a witness lent strong support to the appellants' case. Von Ruden et al. v. DER, 91-0149-PC, etc., 11/17/95
Fees were denied despite a reviewing court's conclusion that the Commission's decision on a mixed question of law and fact did not pass muster under the standards applicable to review under ch. 227, Stats., where the record reflected that respondent's position with respect to the underlying controversy had a reasonable basis in fact and in law. Although the court concluded that the Commission had reached an erroneous conclusion of law, this conclusion was never advanced by, and could not be attributed to, the respondent. Murray v. DER, 91-0105-PC, 4/6/95; affirmed by Dane County Circuit Court, Murray v. Wis. Pers. Comm., 95-CV-0988, 12/15/95
Fees were denied where respondent followed its standard practice in terms of analyzing positions for reallocation and relied on the appellants' official position descriptions as well as management's opinion as to the nature of the work performed and class level. Olson et al. v. DER, 92-0071-PC, etc., 3/9/95
Appellant was not entitled to fees where the underlying legal question turned on an interpretation of a policy which respondent had promulgated and administered, there were no provisions in any of the statutes, rules or policies potentially governing the transaction which specifically addressed the question presented by the case, and in its brief of the merits, appellant acknowledged that the "existing regulatory scheme [was] of debatable applicability and… highly ambiguous as regards the situation presented by this appeal." Zentner v. DER, 93-0032-PC, 8/18/94
The appellants were not entitled to fees and costs where the application of the classification specifications to the duties and responsibilities of appellants' positions did not lead to an obvious result, the positions were not specifically identified in the position standard and the language of the position standard was general and required the exercise of discretion in its interpretation and application. Christofferson et al. v. DER & UW, 90-0058-PC, etc., 2/7/91
Respondent was substantially justified in taking its position relating to the reallocation of the appellants' positions, where respondent conducted the survey in its usual manner, where the type of analysis involved required weighing of evidence, opinion, and argument, Anderson et al. v. DER, 86-0098-PC, 11/18/87, was distinguished. Manthei et al. v. DER, 86-0116,etc.-PC, 1/13/88
Respondent lacked a "reasonable basis in law and fact" for its decision to deny reclassification where, inter alia, respondent's personnel specialist had little knowledge about the specific responsibilities of those "comparable" positions that were presented by respondent as evidence of the correctness of its decision. Anderson et al. v. DER, 86-0098-PC, 11/18/87; affirmed in part, reversed in part by Dane County Circuit Court, DER v. Wis. Pers. Comm., 87CV7397, 11/7/88 (Note: the effect of the decision was to affirm the Commission’s decision in all respects except as to the award of copying charges and the charge for tape recordings of the hearings)
521.7(2) Discipline
Where appellant, who did not have the burden of proof, did not appear at the hearing on whether she was entitled to fees and costs under the Equal Access to Justice Act, she was deemed to have admitted the accuracy of the evidence adduced at the hearing, pursuant to §PC 5.03(8), Wis. Adm. Code. There were no indicators of credibility issues as to the witnesses who did appear, such as inconsistent testimony. Klemmer v. DHFS, 97-0054-PC, 10/9/98
Appellant's request for attorney fees and costs was denied in a case arising from a letter of discipline. The letter of discipline became a moot issue when appellant accepted a voluntary demotion and respondent withdrew the letter, but at the subsequent hearing on the question of fees and costs, respondent met its burden of showing it was substantially justified in imposing the disputed discipline. Respondent had a reasonable basis in truth for the facts alleged and for the legal theory advanced. Respondent established that a reasonable connection existed between the facts alleged and the legal theory it advanced. Klemmer v. DHFS, 97-0054-PC, 10/9/98
Where the record was insufficient to conduct the analysis of whether appellant was a prevailing party and whether respondent's position was substantially justified, the parties were directed to participate in a conference with the Commission to determine whether an economical method existed for further proceedings. The appeal arose from a disciplinary action. Respondent rescinded the discipline, after the appeal was filed, when appellant voluntarily demoted to a lower-classified position in a different institution. Klemmer v. DHFS, 97-0054-PC, 4/8/98
In an appeal of a constructive demotion respondent's underlying action and the positions it advanced during the administrative proceeding were substantially justified, in part because the concept of constructive demotion is not found in the literal language of the civil service code, but relies on an extension of a court decision. Davis v. ECB, 91-0214-PC, 12/5/94
Appellant was entitled to fees and costs in an appeal from two suspensions which was decided in favor of the appellant on the ground that respondent failed to provide adequate hearings prior to imposing the suspensions. Rentmeester v. Wis. Lottery, 91-0243-PC, 9/9/94
In an appeal from two suspensions, where there was no factual dispute about the predisciplinary procedures that were involved, there were only a few witnesses as to the alleged facts which served as the basis for the discipline and the law in these areas was rather straightforward, the appellant's allocation of 1/3 of her total legal costs and fees to her appeal was excessive where the appeal was heard on a consolidated basis with two other cases with respect to which appellant did not prevail and the issues surrounding the other cases were much more complicated from both a factual and legal perspective. Appellant's request for 131.5 attorney hours was reduced to 60 hours which was what respondent contended was the maximum amount of time necessary to litigate the appeal. Rentmeester v. Wis. Lottery, 91-0243-PC, 9/9/94
Respondent was not "substantially justified" in an appeal of a discharge decision where although the interpretation of the underlying administrative rule could be debated, it was doubtful that it could be interpreted as respondent contended and where respondent failed to provide the appellant a chance to follow its rules at it had interpreted them. Higgins v. Wis. Racing Bd., 92-0020-PC, 3/31/94
Attorney fees were denied where a one-day suspension was reduced to a written reprimand. The one-day suspension was consistent with respondent's progressive discipline policy and a second rationale for respondent's decision, though not convincing, was not without some reasonable degree of support. Larsen v. DOC, 90-0374-PC, 8/26/92
Where respondent's decision to suspend the appellant for 30 days and to demote him to a non-supervisory position was rejected due to an inadequate predisciplinary proceeding and where respondent failed to provide appellant with notice of the charges against him and failed to warn him that disciplinary action of any kind was being considered, the appellant was entitled to fees and costs. The decision in Showsh v. DATCP, 87-0201-PC, 9/5/91, was distinguished. Arneson v. UW, 90-0184-PC, 5/14/92
Fees and costs were denied after the circuit court had reversed the Commission's conclusion that the predisciplinary hearing provided to the appellant had been adequate where the threshold question of the applicability of the due process clause to the subject personnel transaction turned on a legal issue as to which there was conflicting precedent and even upon application of the due process clause, it was by no means obvious that respondent failed to provide appellant with adequate notice of the charges against him. Showsh v. DATCP, 87-0201-PC, 9/5/91
Fees and costs were denied after a decision by the Commission to reduce the duration of a suspension from 10 to 5 days. Respondent had failed to sustain its burden with respect to two of the three incidents of alleged misconduct but still had a reasonable basis for its action where the Commission had disagreed as to whether certain statements made by the appellant were actually threatening and where the respondent had relied on the information available to it at the time the decision was made to impose discipline. Showsh v. DATCP, 89-0043-PC, 7/2/90; affirmed by Brown County Circuit Court, Showsh v. Wis. Pers. Comm., 90 CV 1001, 7/25/90
Fees and costs were denied after a decision by the Commission to reduce a 30 day suspension to a written reprimand where the case turned on what had occurred during an altercation involving appellant and another employe between whom there had been a long history of animosity and whose accounts of the incident were diametrically opposed. Although the Commission concluded that respondent failed to sustain its burden of proving the appellant had pushed or tripped the other employe, both witnesses had credibility problems and the respondent had made its suspension decision after conducting an internal investigation and making its own credibility determinations with respect to the differing accounts. Powers v. UW, 88-0029-PC, 6/27/90
The appellant was entitled to fees arising from an appeal of a layoff decision where a reviewing court reversed the Commission's decision affirming the respondent's decision and called the Commission's (and by necessary implication, respondent's) interpretation of the administrative rule underlying the respondent's action "unnatural and contorted." Kumrah v. DATCP, 87-0058-PC, 4/17/90
In an appeal of a layoff decision, there was no basis for a conclusion not to award attorney's fees on the grounds that respondent's position was "substantially justified" as having a "reasonable basis in law and fact" where there was no basis on which to conclude that DMRS had actually approved the specific rule interpretation that led respondent to take the appealed action. Kumrah v. DATCP, 87-0058-PC, 4/17/90
Appellant's application for costs was denied where the respondent's rule interpretation, which served as the basis for the underlying layoff decision, had a reasonable basis in law, where there were several identifiable policy concerns that underlay the respondent's interpretation and where the respondent's interpretation was relatively longstanding. [In its decision on the merits, the Commission had rejected the respondent's interpretation of the rule.] Givens v. DILHR, 87-0039-PC, 3/28/88; affirmed by Dane County Circuit Court, DILHR v. Wis. Pers. Comm. (Givens), 88-CV-2029, 1/6/89
Appellants were entitled to costs in appeals arising from discharge actions where respondent did not have a reasonable basis in law and fact for its handling of the predisciplinary proceedings and the respondent's position at the appeal level also was not "substantially justified" because it was saddled with some very significant weaknesses. Respondent's agents misled one appellant as to the severity of the matter and as to whether management was going to pursue a particular work rule violation. As to both appellants there were various failures of notice and failure to follow internal policy as to predisciplinary procedures. The Commission had previously granted appellant's motion for summary judgment and rejected the discharge actions after concluding that the process followed by respondent prior to discharge had denied appellants due process of law. McCready & Paul v. DHSS, 85-0216, 0217-PC, 9/10/87
521.7(8) Other
Respondent was substantially justified in taking its position where the Commission did not resolve any factual disputes between the parties but did rely upon an earlier decision of the Commission in another matter to analyze the legal issue and respondent’s concerns that an interpretation, such as was ultimately adopted by the Commission, would interfere with its management prerogatives was not without some reasonable basis. Pearson v. UW, 84-0219-PC, 2/12/97 B
There were sufficient plausible analogies in case law to support a reasonable argument that respondent had the lawful authority not to enforce a statutory provision prohibiting a nonresident from competing for a position in the absence of a determination of a critical need, where respondent relied on an attorney general's opinion that the provision was unconstitutional. Respondent was substantially justified in its reliance on the attorney general’s opinion. Smith v. DMRS, 90-0032-PC, 1/5/96; affirmed by Dane County Circuit Court; Smith v. Shaw et al., 90 CV 5059, 96 CV 283, 12/10/96
Costs were denied where there was a reasonable basis in law for respondent's argument that a previous decision of the Commission was inapplicable to the appellant's situation and where a second question presented by the case was apparently one of first impression. Appellant had prevailed in an appeal of a layoff where respondent failed to inform appellant of her demotion opportunities. Lyons v. WGC, 93-0206-PC, 2/20/95
Appellant's petition for attorney's fees and costs was granted where respondent narrowly read the meaning of the word "act" in §230.36(3)(c)3., Stats. for which it did not have a "reasonable basis in law for the theory propounded." Shew v. DHSS, 92-0506-PC, 3/29/94
Appellant's motion for fees and costs in an appeal of a decision with respect to appellant's starting salary was denied where the Commission's decision upholding the respondent's posture that equitable estoppel should not be applied was reversed upon judicial review and where there was nothing in the reviewing court's decision on which to conclude that the Commission's decision did not have some arguable merit. Siebers v. DHSS, 87-0028-PC, 6/15/90
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.