Section ERC 18.08 - Hearings(1) SCOPE. Hearings shall be open to the public and limited to the litigation of and oral argument on issues of fact or law raised by the parties and remaining for disposition. The commission or examiner conducting the hearing shall inquire fully into all matters in issue, to obtain a full and complete record upon which the duties of the commission may be properly performed.(2) BY WHOM CONDUCTED. The hearing shall be conducted by an examiner assigned by the commission unless the commission decides to hear the case.(3) RIGHTS OF PARTIES AT HEARING. (a)Opportunity to be heard. Any party shall have the right to appear in person or by counsel or by any other representative to present the case by oral, documentary, or other evidence, and to conduct cross examination. Any party shall be entitled, on request, to a reasonable period for oral argument at an appropriate time during the hearing and to submit closing arguments in writing within a time period after the hearing specified for that purpose by the commission or examiner.(b)Effect of failure to appear. Unless good cause is shown, any party failing to appear and participate after due notice waives the rights listed in par. (a), except the right to submit closing arguments in writing within a time period after the hearing specified for that purpose by the commission or examiner, and shall not later introduce any evidence. The commission or examiner may rely on the record as made at the hearing. (c)Impartiality. Parties have the right to have their case heard and decided by impartial individuals. Commission members and examiners shall recuse themselves from participation in proceedings which they are or become incapable of hearing or deciding without evident partiality or the appearance of partiality. Parties have the right to request by motion, on grounds of lack of impartiality, that a commission member or examiner voluntarily recuse himself or herself from participation in a proceeding. The filing of a recusal request does not necessarily require that the commission member or examiner recuse himself or herself from further participation in the proceeding. Parties dissatisfied with the commission member or examiner's response to a recusal request have the right to request by motion, on grounds of a lack of impartiality, that the commission remove the commission member or examiner from participation in a proceeding.(4) POWERS OF COMMISSION OR EXAMINER CONDUCTING HEARING. Subject to this chapter, the commission or examiner conducting a hearing may take the following action: (a) Administer oaths and affirmations.(b) Issue subpoenas in the name of the commission.(c) Rule on offers of proof, receive relevant evidence and exclude irrelevant, immaterial, or unduly repetitious evidence.(e) Take or cause depositions to be taken and to determine their scope.(f) Regulate the time, place and course of the hearing.(g) Dispose of procedural requests or other similar matters.(h) During the course of the hearing, hold conferences for the settlement, simplification or adjustment of the issues by consent of the parties.(i) Take any other action necessary under the foregoing or authorized by law.(5) TRANSCRIPTS; TRANSCRIPT CORRECTIONS. Hearings shall be stenographically transcribed by a commission-selected reporter. Any party requesting the commission to provide a transcript of a commission proceeding shall pay the fee specified in s. ERC 10.08(6). Corrections of the official transcript may be made by stipulation or motion when they involve errors affecting substance. When corrections are ordered, the necessary physical corrections shall be made in the official transcript.(6) EVIDENCE. (a)Stipulations of fact. Stipulations of fact may be introduced in evidence with respect to any issue.(b)Witnesses. Except as provided in s. ERC 18.06(2) (b), witnesses shall be examined orally under oath at the hearing.(c)Rules of evidence. Hearings in proceedings under this chapter shall be conducted in accordance with the rules of evidence and official notice provided in s. 227.45, Stats. That section provides, in part, that the commission or examiner shall not be bound by common law or statutory rules of evidence; shall admit all testimony having reasonable probative value; shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05, Stats.; and shall give effect to rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.(d)Compelling witness attendance or evidence production at hearing. The commission or examiner or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence at the hearing. 1. 'Subpoenas issued by commission or examiner.' The commission or examiner may issue a subpoena at the request of a party or on the commission's or examiner's own motion. In advance of the time set in the subpoena for attendance, each witness who appears by subpoena shall receive for attendance the fees and mileage provided for witnesses in civil cases in courts of record in s. 814.67, Stats. The service of the subpoena and the payment of the witness and mileage fee shall be the responsibility of the party, if any, requesting the subpoena or of the commission if the subpoena was issued on the commission's or examiner's own motion.2. 'Subpoenas issued by a party's attorney of record.' A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07(4), Stats., and shall be served in the manner provided in s. 805.07(5), Stats., including payment of attendance fees and mileage provided for witnesses in civil cases in courts of record in s. 814.67, Stats. The attorney shall, at the time of issuance, send a copy of the subpoena to the commission or examiner.3. 'Enforcement of subpoenas.' Any person who shall willfully and unlawfully fail or neglect to appear or testify or to produce books, papers and records as required by a subpoena issued under subds. 1. or 2., shall, on commission application to a circuit court, be ordered to appear before the commission or examiner, to testify or produce evidence if so ordered, and failure to obey the order of the court may be punished by the court as a contempt of court. Any party may, by motion, request that the commission enforce a subpoena by application to a circuit court. (7) OBJECTIONS. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, shall be stated orally with a short statement of the grounds of the objection and included in the transcript of the hearing. An objection is not waived by the objecting party's further participation in the hearing.(8) CLOSE OF EVIDENCE. Once the commission or examiner declares the taking of evidence completed, no additional evidence may be submitted except on motion for good cause.(9) WRITTEN CLOSING ARGUMENTS. Any party shall be entitled, on request made before the close of the evidence, to file a written brief within a time period set by the commission or examiner. The filing of briefs may also be directed on the commission's or examiner's own motion when warranted by the nature of the proceeding or particular issues.(10) WAIVER OF PROCEDURES. The parties to any proceeding, with the approval of the commission or examiner, may agree to waive any one or more of the procedural steps or decisions which would otherwise precede the issuance by the commission or examiner of a final order or other final disposition.(11) SANCTIONS FOR DISRUPTIVE OR CONTEMPTUOUS CONDUCT.(a)Sanctions. If a party, representative or other person, without reasonable excuse, fails to cease engaging in disruptive or contemptuous conduct in connection with a proceeding after being directed to do so by the commission or examiner, the commission or examiner may take any action authorized by s. 227.46(1), Stats., and appropriate in relation to the disruptive or contemptuous conduct.(b)Opportunity to show cause. Before issuing a sanctions order in writing or orally on the record, the examiner or commission shall provide the affected party, representative or other person a reasonable opportunity to show cause why the proposed sanctions order should not be issued.Wis. Admin. Code Employment Relations Commission ERC 18.08
CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.