{.dissenting). The majority holds that the Department of Natural Resources lacked authority to adopt a rule providing a procedure for the department secretary's review of decisions by hearing examiners acting on the agency's behalf. I think that authority is found in sec. 227.46(3), Stats., which provides as follows:
227.46 Hearing examiners; examination of evidence by agency.
(3) With respect to contested cases, an agency may by rule...:
(a) Direct that the hearing examiner's decision be the final decision of the agency;
(b) ... direct that the record be certified to it without an intervening proposed decision; or
(c) Direct that the procedure in sub. (2) be followed... .1
*678The statute authorizes the DNR to specify, by rule, how a final agency decision is to be arrived at in contested cases. The rule, Wis. Adm. Code sec. NR 2.20, provides, in essence, that where the case is heard by a hearing examiner, the hearing examiner's decision will become the agency's final decision if no party seeks review by the secretary within twenty days after its issuance.
To determine whether an administrative agency has exceeded its statutory authority in promulgating a rule, "we ... look to the enabling statute to determine whether there is express or implied authorization for the rule." Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis. 2d 688, 705, 457 N.W.2d 879, 886 (Ct. App. 1990) (emphasis added).
To "expressly" authorize a rule, the enabling statute need not spell out every detail of the rule. If it did, no rule would be necessary. Accordingly, whether the exact words used in an administrative rule appear in the statute is not the question. Rather, the reviewing court should identify the elements of the enabling statute and match the rule against those elements. If the rule matches the statutory elements, then the statute expressly authorizes the rule. Id. at 705-06, 457 N.W.2d at 886.
We considered the powers conferred upon the agency by sec. 227.46(3), Stats, (then sec. 227.09(3)), in Town of Two Rivers v. DNR, 105 Wis. 2d 721, 736-38, 315 N.W.2d 377, 384-85 (Ct. App. 1981), overruled on other grounds, Milwaukee Metro. Sewerage Dist. v. DNR, 126 Wis. 2d 63, 72, 375 N.W.2d 648, 652 (1985), concluding that, under the terms of the statute, and those of related laws, the department retains the "ultimate decision-making authority" in contested cases no *679matter what procedures are designed for their conduct and review; and we expressly noted that such ultimate authority should reside in the department, since it bears "final accountability" for decisions rendered under the statutes it administers. In so concluding, we noted that the department's own rules — notably Wis. Adm. Code sec. NR 2.20 — reflected its "awareness of its power to be the ultimate decision maker" in such cases. Two Rivers at 737, 315 N.W.2d at 384.
The majority's opinion dismisses Two Rivers with a single sentence: "Two Rivers speaks to the effect of Wis. Adm. Code sec. NR 2.20, not its validity." Majority op. at 673 (emphasis in original). It may be, as the majority suggests, that we were not called upon in Two Rivers to rule upon the precise point raised here: whether sec. 227.46(3), Stats., expressly or impliedly authorizes adoption of sec. NR 2.20. But we recognized in that case that the statute reposed ultimate deci-sional authority in contested cases in the agency, and that sec. NR 2.20 is one of several rules adopted under that authority. I would carry it further and hold in this case that sec. NR 2.20 was properly adopted under the authority granted to the agency by sec. 227.46(3).
The statute says that the DNR may adopt rules for the conduct of its hearings which "[d]irect that the hearing examiner's decision be the final decision of the agency." Section 227.46(3)(a), Stats. I think the converse is plainly implied: that the department may also adopt rules for the conduct of its hearings that direct that the examiner's decision not be final. Indeed, in Two Rivers we rejected as "not compelling" an argument claim that the department's "powers [under sec. 227.46(3)] to act as ultimate decision maker are limited to individual cases rather than to a general power to take away authority from the independent hearing *680examiner in [certain specified] cases." 105 Wis. 2d at 738, 315 N.W.2d at 385.
I conclude that sec. 227.46(3), Stats., either expressly or by fair implication,2 authorizes the department to adopt a rule such as Wis. Adm. Code sec. NR 2.20. I would thus affirm the circuit court in all respects.3
Section 227.46(2), Stats., provides that where the officials of the agency who are to render the decision are not present for the hearing, the hearing examiner is to prepare a proposed decision "in a form that may be adopted as the final decision in the case" by the agency. And " [i] f [the] agency's decision varies . . . from the decision of the hearing examiner, the agency's decision shall include an explanation of the... variance."
See Kimberly-Clark Corp. v. Public Serv. Comm'n, 107 Wis. 2d 177, 181, 320 N.W.2d 5, 7 (Ct. App. 1982), aff'd, 110 Wis. 2d 455, 329 N.W.2d 143 (1983) (agency's powers derived from statutes "conferring the power expressly or by fair implication").
The public intervenor raises several other arguments which, because of its decision on the "statutory authorization" issue, the majority does not address. Included among them are these: that the secretary's review did not comply with Wis. Adm. Code sec. NR 2.20; that the fact that the secretary was faced with an examiner's decision "reversing" the department's initial determination created an impermissible "conflict of interest" on his part; and that the secretary's decision was tainted by illegal ex parte contacts. In my view, none of these arguments warrants reversal.
As to the first, a review of the secretary's decision demonstrates quite plainly, I think, that he complied with the requirements of the rule. His decision is both lengthy and thorough and, read in context with an earlier decision denying the public intervenor's motion to dismiss the proceedings, establishes such compliance. Nor does the record suggest any partiality on the secretary's part. The decision is painstakingly documented and the public intervenor has provided no basis for invalidating it on grounds of actual or "apparent" bias, or on any theory of inherent or "per se" conflict of interest arising from the combination of investigatory and adjudicatory functions in the agency. See State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 685, 242 N.W.2d 689, 696 (1976) (combination ofinvestiga-*681tory and adjudicatory functions provides no grounds for per se disqualification of decisionmaker).
The public intervenor also challenges the decision on grounds that the secretary had received improper ex parte communications when copies of correspondence between the governor and representatives of the paper industry about the case were sent to him, and in certain other instances. But in all such instances the letters were disclosed well in advance of the decision in this case and I agree with the attorney general that there is no evidence in the record indicating that any such letter affected the fairness of the proceedings. See sec. 227.50(2), Stats., which requires agency decisionmakers receiving ex parte communications to place them on the record and provides a procedure for any party desiring to respond to or rebut them.