Citation Numbers: 68 Op. Att'y Gen. 30
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 2/15/1979
Status: Precedential
Modified Date: 7/6/2016
ALVIN M. TANDBERG, Executive Secretary Wisconsin Real EstateExamining Board
I.
You state that in the past the Wisconsin Real Estate Examining Board took the position that where a written verified complaint was filed with the Board by an individual charging a licensee with violations of the subsections set forth in sec.
The Board also had rules in the area which utilized the word "shall." See Wis. Adm. Code sections REB 3.02 and REB 3.03 (3).
You indicate that this procedure was followed in some cases even where an investigation by the Board indicated that no action was necessary. In certain instances a civil action involving some or all of the transactions was pending, and the attorney for the complainant may have wished to develop additional information for the civil action.
Section
440.03 GENERAL DUTIES AND POWERS OF THE DEPARTMENT. (1) The department [of regulation and licensing] may adopt rules defining uniform procedures to be used by the board of nursing and all examining boards attached to the department for receiving, filing and investigating complaints, for commencing disciplinary proceedings and for conducting hearings.
440.20 DISCIPLINARY PROCEEDINGS. Any person may file a complaint before any examining board or the board of nursing and request any board to commence disciplinary proceedings against any permittee, registrant or license or certificate holder.
452.10 (2)(intro.) Subject to the rules promulgated under s.
440.03 (1), the examining board may also on its own motion, or *Page 32 upon complaint in writing, duly signed and verified by the complainant, and upon not less than 10 days' notice to the broker or salesman, suspend any broker's or salesman's license or registration if it has reason to believe, and may limit or revoke such license or registration or reprimand the holder thereof as provided hereafter, if it finds that the holder of the license or registration has:
You inquire:
Does the wording of section
452.10 (2) stats., which reads "the examining board may on its own motion, or upon complaint in writing, ________", and of section440.20 stats. which reads "any person may file a complaint before any examining board or the board of nursing and request any board to commence disciplinary proceedings against any permittee, registrant or licensee or certificate holder", make it permissive and discretionary for the board to order or deny a hearing upon the filing of a written complaint, or is it mandatory that such hearing be held?
Neither sec.
Section 227.075 (1), Stats., which grants a person a right to a hearing under certain circumstances, is not applicable, because sec. 227.075 (3), Stats., provides that the section does not apply "to actions where hearings at the discretion of the agency are expressly authorized by law." That is the case here.
The Department of Regulation and Licensing has promulgated rules pursuant to sec.
A request in essentially the following form: "Wherefore, the complainant demands that the board hear evidence relevant to matters recited herein, determine, and impose the discipline warranted;" and, (Emphasis added.)
Wisconsin Administrative Code sections
II.
You state that the Wisconsin Real Estate Examining Board no longer hears its owns cases but uses a hearing officer in all of its hearings; and that as hearings are ordered by the Board, whether on its own motion or written complaint, the entire file is turned over to the Consumer Complaints Division of the Department of Regulation and Licensing for hearing before a hearing officer. You indicate that a problem arises when a preliminary motion to dismiss is filed before hearing.
You inquire whether the Board or the hearing officer has power to dismiss the hearing or deny the motion. You further inquire whether, if the hearing officer denies the motion to dismiss, he or she must render a proposed decision for the Board's consideration and action prior to proceeding to a hearing.
At the outset, I advise that the Examining Board has a duty to preside over the proceedings itself or to utilize a hearing officer as permitted by sec. 227.09, Stats., as amended by ch.
Most of the proceedings before your Board involve the denial, limitation, suspension or revocation of licenses; and the Board's present practice of having the hearing examiner conduct the hearing without the presence of a majority of the officials of the agency who are to render the final decision necessitates the use of the procedure set forth in sec. 227.09 (2), Stats. In my opinion, no contested motion to dismiss should be granted until an actual hearing is convened on notice. The hearing need not always be an evidentiary hearing. At the outset of the hearing, the hearing officer would have power to entertain such motion. Under the circumstances above, the hearing officer rather than the Board would make the initial decision as to whether to grant or deny the motion. If the hearing officer decides to deny the motion, it will be unnecessary for the officer to render a proposed decision, since a denial of such a motion is not a final decision subject to court review. Cf. State v. WERC,Mutual Fed. S L Asso. v. Sav. L. Adv. Comm.,
BCL:RJV *Page 35