2023 Wisconsin Statutes & Annotations › Chapter 227 - Administrative procedure and review. › 227.10 - Statements of policy and interpretations of law; discrimination prohibited.

227.10
Statements of policy and interpretations of law; discrimination prohibited.
(1)
Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. A statement of policy or an interpretation of a statute made in the decision of a contested case, in a private letter ruling under s. 73.035 or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.
(2)
No agency may promulgate a rule which conflicts with state law.
(2g)
No agency may seek deference in any proceeding based on the agency's interpretation of any law.
(2m)
No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter, except as provided in s. 186.118 (2) (c) and (3) (b) 3. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
(2p)
No agency may promulgate a rule or take any other action that requires one or more lots to be merged with another lot, for any purpose, without the consent of the owners of the lots that are to be merged.
(3)
(a)
No rule, either by its terms or in its application, may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry.
(b)
A rule may discriminate for or against a person by reason of physical condition or developmental disability as defined in s. 51.01 (5) only if it is strictly necessary to a function of the agency and is supported by data demonstrating that necessity.
(c)
Each person affected by a rule is entitled to the same benefits and is subject to the same obligations as any other person under the same or similar circumstances.
(d)
No rule may use any term removed from the statutes by chapter 83, laws of 1977.
(e)
Nothing in this subsection prohibits the director of the bureau of merit recruitment and selection in the department of administration from promulgating rules relating to expanded certification under s. 230.25 (1n).
History:  1985 a. 182; 1987 a. 399; 2003 a. 33 ss. 2368, 9160; 2011 a. 21; 2013 a. 277; 2015 a. 55; 2017 a. 67, 369.
Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now s. 227.20]. Here, failure to file the guideline as a rule did not deprive the Department of Industry, Labor and Human Relations of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).
When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
When the Department of Transportation (DOT) revised its application of a statute to bring DOT's practices into conformity with the plain meaning of the statute, DOT followed a course it was obliged to pursue when confronted with its error. This is not a regulation, standard, statement of policy, or general order. Neither is it a statement of general policy or interpretation of a statute. Therefore, there was no requirement that DOT comply with the filing procedures mandated in connection with promulgation of administrative rules. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
The Department of Transportation (DOT) engaged in administrative rule making when it changed its interpretation of a statute whose terms did not specifically require the interpretation, the interpretation was administered as law, and DOT relied upon the interpretation to deny the issuance of a license in a form in direct contrast to the manner in which the statute was previously administered by DOT. Those who are or will be affected generally by such an interpretation should have the opportunity to be informed as to the manner in which the terms of the statute regulating their operations will be applied. This is accomplished by the issuance and filing procedures under this chapter, and the rule is invalid until such measures are taken. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714 (1976).
A memorandum announcing general policies and specific criteria governing all decisions on good time for mandatory release parole violations was a “rule" and should have been promulgated properly. State ex rel. Clifton v. Young, 133 Wis. 2d 193, 394 N.W.2d 769 (Ct. App. 1986).
An agency may use policies and guidelines to assist in the implementation of administrative rules provided they are consistent with state and federal legislation. Tannler v. Department of Health & Social Services, 211 Wis. 2d 179, 564 N.W.2d 735 (1997).
An administrative agency cannot regulate the activities of another agency or promulgate rules to bind another agency without express statutory authority. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57, 00-2711.
When an agency changes its interpretation of an ambiguous statute, the agency is engaging in rulemaking. The rulemaking exemption described in Schoolway Transportation Co., 72 Wis. 2d 223 (1976), does not apply when the agency fails to identify a plain and unambiguous statutory command necessitating the agency's new interpretation. Lamar Central Outdoor, LLC v. Division of Hearings & Appeals, 2019 WI 109, 389 Wis. 2d 486, 936 N.W.2d 573, 17-1823.
An agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with sub. (2m). Clean Wisconsin, Inc. v. DNR, 2021 WI 71, 398 Wis. 2d 386, 961 N.W.2d 346, 16-1688.
Sub. (2m) targets, in a general sense, only the distinction between explicit and implicit agency authority. It requires courts to strictly construe an agency's authorizing statute as granting the agency no implicit authority. Sub. (2m) does not, however, strip an agency of the legislatively granted explicit authority it already has. Nor does it negate a more targeted “directive from the legislature” to “liberally construe” the specific statutes that expressly confer an agency's authority. Accordingly, for purposes of sub. (2m), if the legislature clearly expresses in a statute's text that an agency can undertake certain actions, the breadth of the resulting authority will not defeat the legislature's clear expression. Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.
Nothing in the language of 2011 Wis. Act 21 alters existing, properly promulgated rules. Under sub. (2m), agencies may continue to implement and enforce existing rules, including standards therein, provided the rule was “promulgated in accordance with” the rulemaking procedures in place at the time the rule was adopted. OAG 4-20.
Making “Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.