Jan. 4, 2016 – A state department of justice (DOJ) employee demoted after questioning whether the DOJ could legally use taxpayer funds for the attorney general’s security detail at a Republican National Convention did not have whistleblower law protection.

That’s what the Wisconsin Supreme Court recently ruled (3-2) in Wisconsin Department of Justice v. Wisconsin Department of Workforce Development, 2015 WI 114 (Dec. 30, 2015), affirming a three-judge panel for the District IV Court of Appeals.

In 2008, Joell Schigur was nearing the end of her two-year probationary period as “public integrity director” with the DOJ’s Division of Criminal Investigation (DCI) when she learned that DCI would be providing 24-hour security detail for then-Attorney General J.B. Van Hollen to attend the Republican Convention in Minneapolis. Van Hollen was not attending the Republican Convention in his capacity as attorney general.

A few days later, Schigur sent an email to her superior, Mike Myszewski, and two other DOJ employees. She stated a concern that Van Hollen was not representing the DOJ at the event, and using DCI resources for off-duty political activity could violate state law.

Myszewski responded that he didn’t think Van Hollen’s DCI security agents would be engaging in improper political activity since certain groups had threatened to disrupt the Republican Convention with violence. Schigur then clarified the concern that using state resources could be the unlawful conduct, not the agents participating in the event.

Myszewski had recently taken over as Schigur’s supervisor. In January 2008, before Schigur sent the emails in April 2008, Myszewski gave Schigur a positive performance review, her seventh, and recommended that her probation end early and she receive permanent status as director. However, Schigur’s probation status was never removed.

About a month after sending the emails, she was demoted for failing to successfully complete her probation and sent back to her previous job as a special agent of the unit.

The final evaluation stated that Schigur had been “persistently unwilling to carry out administration policies, argumentative, disrespectful, suspicious of management, and insubordinate.” It also said she was “openly critical and defiant of management’s policies and decision making.” That was the only bad review she had received.

Schigur filed a complaint with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development (DWD), alleging DOJ’s action was retaliatory and violated the state’s whistleblower laws, Wis. Stat section 230.80-89, which prohibits retaliation against employees for lawfully disclosing certain “information.”

“Information” includes information gained by the employee which the employee reasonably believes demonstrates a substantial waste of public funds.

An administrative law judge ultimately ruled that DOJ unlawfully retaliated against Schigur, based on the emails. DOJ’s motion for reconsideration was denied.

But a Dane County Circuit Court judge reversed, concluding that Schigur’s emails did not disclose “information” as that term is used in the state’s whistleblower statute. On appeal, the three-judge appeals court panel affirmed the circuit court’s decision.

Majority Affirms

In a 3-2 decision, a Wisconsin Supreme Court majority affirmed. Justice Annette Ziegler wrote the majority opinion, joined by Chief Justice Roggensack and Justice Michael Gableman. Justices Shirley Abrahamson and Ann Walsh Bradley dissented. Justice David Prosser and recently appointed Justice Rebecca Bradley did not participate.

The majority ruled that Schigur’s email communications to Myszewski were not entitled to protection under the state whistleblower laws because they conveyed an opinion about the lawfulness of using DCI security for Van Hollen’s off-duty political activity.

“[A]n opinion alone, as to the lawfulness or appropriateness of government activity is not ‘information’ as that term is defined in Wis. Stat. § 230.80(5),” Justice Ziegler wrote.

Even assuming that Schigur’s emails contained protected “information,” the majority ruled, it was not a “disclosure” because the recipients already knew the information.

The majority explained that protected “information” only includes information gained by the employee that the employee reasonably believes demonstrates inappropriate activities enumerated in the statute. Here, Schigur did not “gain the information.”

It was her merely her opinion that using DCI security detail at the Republican Convention could be an unlawful use of public funds. “But one person’s ultimate conclusion that certain conduct is unlawful or inappropriate does not, alone, demonstrate unlawful or inappropriate government conduct,” Justice Ziegler wrote.

“[T]he conduct itself is the ‘information’ that is disclosed, not the opinion that the conduct is unlawful or inappropriate,” Ziegler continued.

The majority rejected Schigur’s argument that DOJ could not retaliate if it believed the information Schigur disclosed was protected but takes disciplinary action anyway:

“We conclude that Schigur’s argument that the DOJ believed that she ‘disclosed information’ rests on a misinterpretation of Wis. Stat. § 230.80(8)(c) and therefore fails.”

Dissent

Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Abrahamson, concluding Schigur lawfully “disclosed information” under Wis. Stat. section 230.81 and was therefore protected from disciplinary retaliation by her DOJ employer.

The dissent took issue with the majority interpretation of the whistleblower law despite the statutory directive to construe it liberally in order to serve the statute’s purpose.

“The majority’s contention that a statute cannot be construed liberally unless it is ambiguous is a heretofore unknown rule of statutory interpretation,” Justice A. Bradley wrote. “It sub silencio overrules the widely accepted rule of statutory interpretation set forth in Kalal – that a plain-meaning interpretation cannot contravene a textually manifest statutory purpose.” It said this ruling would have “far-reaching consequences.”

The dissent also concluded that the emails Schigur sent constituted “information” because they included facts underlying the concern that the security detail would be unlawful, including a copy of a state regulation that she thought would be violated.

“The facts demonstrate a ‘reasonable belief’ for her concern that there may be a violation of a law or regulation and a ‘reasonable belief’ that there may be ‘mismanagement’ of or ‘a substantial waste of public funds,’” Justice A. Bradley wrote.

The dissent said that under the majority’s decision, government employees will be less willing to call out governmental misconduct, which can lead to government corruption. And those who do act as whistleblowers will be less protected from retaliation.

It also noted that under the majority’s ruling, a government attorney may not be protected from a “legal opinion” that certain government conduct is illegal.

“The firing of an attorney because she does not give the legal opinion that her supervisor wants should violate the statute,” A. Bradley wrote.

“However, under the majority’s analysis, the attorney could be fired without recourse for providing an ethical, but unpopular, legal opinion.”