After an appeal is filed, a representative of the Commission will contact the parties to schedule a prehearing conference, which is normally conducted by telephone. At that conference, a Commission staff attorney will often assess whether there is some possibility the parties can agree to settle the dispute, short of hearing. The conference is often an appropriate time to raise jurisdictional issues, timeliness objections, and procedural questions. The parties may be ready to set a hearing date and agree on a statement of the issue for the hearing. Various logistical matters are also often addressed during the prehearing conference and in many instances it will be appropriate to reconvene the conference at a later date.
Hearings are usually held before a staff attorney acting as hearing examiner pursuant to s. 227.46(1), Stats. In the alternative, s.230.44(4)(bm), Stats., provides for an arbitration-type procedure for appeals of classification actions.
Pursuant to the latter provision, an employee involved in an appeal of a classification action may elect an arbitration-type proceeding, in which the hearing examiner acts as an arbitrator and at the close of the hearing renders an oral decision which is final and binding on the parties. Since the arbitration process is exempt from the coverage of the Administrative Procedure Act, these hearings are less formal than non-arbitration hearings. For information about the specific differences between the arbitration-type procedure and the contested case procedure, [click here].
If the hearing is not conducted as a Sec. 230.44(4)(bm), Stats., arbitration, the proceeding is subject to the contested case hearing requirements of Wisconsin’s Administrative Procedure Act found in Ch. 227, Stats., and is somewhat more formal in nature. Following the hearing, the parties may or may not file post-hearing briefs. The examiner then prepares a proposed decision which is served on the parties in accordance with s. 227.46(2), Stats. The parties have the opportunity to file written objections and arguments with respect to the proposed decision, or may request oral argument. After the Commission has considered the parties’ objections and arguments, it issues a final decision which may be appealed to circuit court pursuant to s. 227.52, Stats.
Although WERC personnel are lawyers, no one from the Commission will be serving any of the disputing parties as a lawyer in a lawyer-client relationship. WERC personnel provide dispute resolution information and assistance to all parties to a dispute on a fair and impartial basis. Unlike a lawyer representing a client, WERC personnel do not exclusively represent the interests of any one party.
Some appellants before the Commission choose to retain an attorney to represent them in the proceedings but there is no requirement to do so and it is more common for appellants to proceed without an attorney. Additional information about the appeal process has been prepared for parties who are not represented by an attorney.
More specific information about the procedures followed by the WERC in processing personnel appeals cases can also be found in the Commission’s administrative rules, Chs. ERC 91-95, Wis. Adm. Code.