Employees who file appeals of actions taken under Sec. 230.09(2)(a) or (d), Stats., have the choice to proceed with their appeal by formal hearing or by arbitration (informal hearing) as provided by Sec. 230.44(4)(bm), Stats. This means the arbitration option is only available with respect to appeals concerning reallocations, reclassifications, and regrades. This subject matter includes the reallocation and reclassification of positions, the denial of reallocation and reclassification, decisions as to the effective dates of reclassifications and reallocations, and decisions as to the filling of positions by competition or by regrade of the incumbent. The arbitration option is unavailable for other kinds of cases.

The adoption of an arbitration-type approach to these kinds of cases eliminates much of the procedural apparatus that accompanies this kind of appeal when it is conducted as a formal hearing of a class 3 proceeding under the Administrative Procedure Act (APA) (Ch. 227, Stats.), as reflected in the applicable rules (Chs. PC 4 and 5, Wis. Adm. Code). Arbitration proceedings are exempted from APA coverage, except to a limited extent as provided by statute (Sec. 230.44(4)(bm), Stats.) and by the Commission's rules (Ch. PC 6, Wis. Adm. Code).

Major Differences between (Formal) APA Hearing and (Informal) Arbitration Hearing

The primary differences between the arbitration process and the APA hearings are noted below. Employees should consider these differences to determine whether they wish to proceed by APA hearing or by Arbitration hearing.

1. Time Considerations: Under the APA, following hearing and receipt of post-hearing arguments or briefs, the examiner must prepare a proposed written decision and serve this on both parties. The parties then may file objections and arguments with the Commission. The Commission then makes a final decision which may be reviewed in district court. The district court decision is subject to appeal in the court of appeals and possibly the supreme court. It is not unusual for this process to consume several months between the close of hearing and the Commissionís final decision, and in cases that are appealed to court, the entire process can take several years. Arbitration proceedings should (on average) take less time because the arbitrator's verbal decision at the close of hearing is final at the Commission level, and the permitted bases for judicial review are extremely limited.

2. Case Complexity: As detailed above, arbitration proceedings provide the parties no opportunity to file post-hearing briefs to summarize the evidence and present their arguments. The employee must consider if this factor could impact his or her case. Complex appeals involving multiple, complex position comparisons and multiple issues might be better suited to an APA proceeding where the examiner has more time to review the record and where the parties have an opportunity to submit post-hearing briefs.

3. Review of Examiner's Decision: An election to proceed by arbitration involves a waiver, for all practical purposes, of any review of the arbitrator's verbal decision. An employee who elects arbitration is relying entirely on the arbitrator's opinion to decide the outcome. However, if the employee chooses arbitration and wins, the election of this process should eliminate in the great majority of cases, potentially lengthy and expensive further proceedings before the Commission and the judiciary. It also should be noted, however, that under current OSER policy, Commission classification decisions are effective for pay purposes retroactive to the original effective date of the transaction being appealed, regardless of how long it takes for the finalization of the classification decision.

4. Attorney Fees: Section 227.485, Stats., provides that a person who is a prevailing party in an APA hearing is eligible to have his or her attorney's fees and costs paid unless there is a determination that the agency which lost the case nevertheless had at least "a reasonable basis in law and fact," s. 227.485(2)(f), Stats., for its action or decision. Attorney's fees and costs are unavailable in arbitration hearings. The significance of this factor depends on the amount of reimbursable costs and fees an employee anticipates incurring, and an assessment of the degree of support the respondent agency appears to have for its case.

5. Discovery: Parties to APA hearings before the Commission have access to formal discovery under s. PC 4.03, Wis. Adm. Code. This means that prior to the Commission hearing a party can ask the other party to answer in writing relevant questions relating to the appeal, can ask for copies of documents, can depose witnesses, etc. This discovery process is unavailable in an arbitration (although it is likely the employee still would have the right under the open records law to request documents). Waiver of discovery could be particularly significant in a complicated case which the employee feels requires extensive prehearing preparations, including formal discovery, to be able to prepare an effective case. Further information about discovery is found in Ch. 804, Stats.

6. Precedent: An arbitration decision cannot be cited as precedent. This could be of particular significance where there are a number of cases involving similar positions and there is an interest in obtaining a ruling that will provide precedent for the other positions.