*1 Department of Wisconsin Justice, State Petitioner-Respondent,
v. Department State of Wisconsin of Workforce Respondent, Development, Respondent-Appellant-Petitioner. Joell Schigur,
Supreme Court argument 2013AP1488. Oral October No.
Decided December 2015 WI (Also 545.) reported in 875 N.W.2d *3 respondent-appellant-petitioner, there For Fox, S.C., were briefs Peter J. Fox and Fox & *4 by argument Monona, and oral Peter J. Fox. petitioner-respondent, was ar- For the the caused attorney general, gued by Collins, S. assistant Winn attorney Schimel, D. with whom on the brief was Brad general.
697 ZIEGLER, J. This is 1.ANNETTE KINGSLAND published appeals, a decision of the court of a review of App DWD, 361 Wis. 2d 861 DOJ v. 2015 WI the Dane 789, which affirmed the decision of N.W.2d County court,1 reversed the decision of circuit which Rights Department Equal of the of Work- Division ("DWD"). Equal Rights Development Divi- force Schigur sion of the DWD concluded that Joell ("Schigur") preponderance proven had of the ("DOJ") Department evidence that the of Justice vio- (2011-12),2the subchap- §§ lated Wis. Stat. 230.80-89 designated "Employee ter of Wis. Stat. ch. 230 Protec- by taking retaliatory against tion," action her because lawfully disclosed, she DOJ believed she lawfully disclosed, information under 230.81. Schigur April 15, 2008, 2. On attended staff meeting for Bureau Directors of DOJ's Division ("DCI") Investigation superior, at which her Criminal Myszewski ("Myszewski"), explained Mike then-Attorney provide DCI would Wisconsin's General security J. B. Van Hollen with 24-hour at the 2008 Republican National Convention Minnesota. A few days Myszewski Schigur later, sent an e-mail to employed by two other individuals the DOJ in which stated her that use of at she concern state resources might the event violate state law and Office of State ("OSER") Employment regulations. Relations One position later, month was removed from her as presided. B. The Honorable Juan Colas subsequent Ail references to the Wisconsin Statutes are to the 2011—12 version unless otherwise indicated. *5 Integrity DCI Public Director and returned to her Special Agent In-Charge. previous position as question This case involves a narrow of statutory interpretation: we must determine whether Schigur's Myszewski e-mail to communications are protection §§ 230.80-.89, entitled to under Wis. Stat. given "only particular certain disclosures made a way regarding subject matter covered in the qualify protection." will statute for Hutson v. Wis.Pers. Comm'n, 612, 2003 WI 263 Wis. 2d Simply stated, N.W.2d 212. we examine whether Schigur's opinion appro- alone, as to the lawfulness or activity priateness government of is "information" protection such that it is entitled under Schigur's portions §§ 230.80-.89, whether other security relating proposed e-mails to the detail consti- "disclosure[s]" tute of information under Wis. Stat. Schigur's protected § 230.81, and whether disclosure Schigur because the DOJ believed that had "disclosed under the information" statute. arguments Schigur specific
¶ 4. makes two on argues First, review. she that disclosure of a "belief— namely opinion regarding appro- her the lawfulness activity priateness government disclosure —is §§ 230.80-.89, "information" under Wis. Stat. and that may discipline sending the DOJ therefore not her for e-mail communications that disclosed such a belief. Schigur argues Second, the DOJ believed that Schigur engaged activity protected under Schigur protec- §§ 230.80-.89, and that is entitled to discipline response, tion from on that basis as well. In argues, among things, expressing the DOJ other "disclosing in- belief about known information is not statute, under the and that for- formation" raise it in the by failing argument feited her second below. proceeding administrative *6 (1) alone, as to an opinion We conclude that: 5. ¶ of government or appropriateness the lawfulness term is defined "information" as that is not activity (2) facts of this 230.80(5); specific under Wis. Stat. § Schigur's without that case, assuming deciding and regarding proposed contained "information" e-mail of the information to detail, the communication security was not a Cindy Jed and O'Donnell Myszewski, Sperry, the infor- under Wis. Stat. 230.81 because "disclosure" of the already recipients known to mation was (3) the DOJ be- e-mails; argument and Schigur's information" rests on a mis- lieved that she "disclosed 230.80(8)(c) fails. Ac- and therefore interpretation of the court of appeals. we affirm the decision cordingly, I. FACTUAL BACKGROUND 28, 2006, DCI Administrator Jim May 6. On ("Warren") from her Schigur position Warren promoted within DCI to the Agent In-Charge position as Special Integrity. Schigur Director of DCI's Bureau of Public and period to a subject two-year probationary was every evaluations probationary performance received three months. From 2006 to November September 2007, probationary perfor- Joell received six positive Warren. mance evaluations from 3, 2008, 7. On became January Myszewski DCI's Administrator Acting Schigur's supervisor. 22, 2008, February Myszewski completed Schigur's On seventh evaluation. probationary performance evaluation was and recommended that again positive, from and receive Schigur probation per- "be removed manent status as a director." a staff 15, 2008, attended Schigur On April At the meeting, Directors. DCI Bureau for meeting then- informed attendees Myszewski would be J. B. Van Hollen Attorney General Wisconsin National Convention the Republican attending DCI would pro- Myszewski explained Minnesota. at the security 24-hour General with Attorney vide the unit, Jed head of DCI's tactical event, and that detail. security would plan Sperry ("Sperry"), sent an e-mail On April O'Donnell Cindy Sperry, Myszewski, of the DOJ's Divi- ("O'Donnell"), the Administrator ("DMS"), stated Services which of Management sion in part: meeting, a discussion was April 15th staff
In our *7 Attorney a General with regarding providing held security special agents while he detail of hour in Republican [Convention] National attends indi- Sperry was selected as the SAC Jed Minnesota. coordinating this effort. responsible vidual for in the bulletin Employee State Relations Office of (attached) per- clarified numbered OSER-0053-MRS Ac- employees. activities for state political missible 6(h), may partici- employee state cording to Section a alternate, political a delegate, proxy pate as a duty and not on he or she is off provided convention property. state resources to providing state
I am concerned politi- in participates he Attorney General while regulations and duty may violate OSER activity off cal hopes that concern in expressing I am this state law. possible avoid further evaluated to this decision will be General, agency and our Attorney our scrutiny of our special agents. OSER- OSER bulletin attached to the e-mail
Schigur 0053-MRS. 23, 2008, Myszewski 10. On e-mailed April in He wrote
Schigur. part: your I both and [e-mail] have read the attached great you OSER bulletin with Thank interest. for your calling my poten- about the attention concerns political improper activity by agent(s) tial of our who security Attorney provide will for the General at the [Republican September. Convention] National in I will your up forward concerns the chain of command so they can evaluated. be However, duty I not think agent do that an on DCI protecting Attorney political who is at a General event, groups at which certain have threatened to violently disrupt, political activity constitutes on the part agent. of an day, responded The same with Schigur an-
other message, e-mail which read in part: clarify,
To regarding agents the concern is not political participating activity; rather can state [Attorney General] resources be used at political representing DOJ, event where he is not Party. Republican rather the up] [came Parallel issues investigation. the Jensen/Chvala looking Thanks for into this further. May On Myszewski O'Donnell
met with presented her with her final *8 probationary The performance evaluation. evaluation that, stated the time since her during previous evalua- tion, Schigur had "been persistently unwilling to carry out policies, administration argumentative, disrespect- ful, insubordinate" suspicious management, as management's "openly defiant of critical and as well making."3 policies and decision May 22, 2008, the DOJ removed Effective Integrity position Schigur her as DCI Public from previous position her as returned her to Director and Agent In-Charge. Special PROCEDURAL BACKGROUND
II. Schigur complaint July filed a 14. On Rights Equal The Division of the DWD. with the unlawfully alleged complaint had retali- that the DOJ by terminating probation against her ated demoting her e-mailing position previous for her to her regarding Myszewski Schigur's concerns about Republican security proposed National detail at the Rights Equal September 26, 2008, the On Convention. Determination" issued an "Initial Division of the DWD probable that the DOJ was cause believe that there "[t]aking any §§ re- 230.80-.89 violated lawfully employee taliatory dis- action because employee respondent had closed, or the believed 230.81, sec. Stats." disclosed, information under hearing on the administrative was certified for an case Schigur's complaint. merits of September September 30, 2009, 28 to 15. From liability hearing Ad- was held before on the DOJ's ("ALJ"). Judge Cohn Deborah Little ministrative Law hearing day that: of the The ALJ stated on the first evaluation, Myszewski provides purported ex In the involving However, the issues amples of this behavior. the DOJ are not before this Schigur's performance at quality of Judge the Administrative Law explained, As will be court. Schigur's (putative) disclosure of infor below concluded was "a factor" Myszewski April in her 2008 e-mails mation to and rein Schigur's probation decision to terminate the DOJ's In-Charge. Special Agent state as *9 Schigur complaint Ms. filed a with the Wisconsin Equal Rights alleging [DOJ] Division... the Law, violated the Wisconsin Whistle Blower Section Statutes, by taking 230.80-230.89 of the Wisconsin retaliatory lawfully action because she disclosed —or [DOJ] the that she had believed disclosed information under Section 230.81 Wis. Stats. 29, 2011,
On the April Equal Rights Division of the DWD issued "Non-Final Decision and Memorandum had Opinion" finding proven by prepon- derance of the evidence that the DOJ had violated Wis. Stat. 230.80-.89 by taking retaliatory action §§ against disclosed, her "because she lawfully disclosed, [DOJ] believed that she had lawfully infor- under mation" 230.81. 7, 2011, 16. On July the DOJ filed a motion for
reconsideration of the ALJ's non-final In decision. its motion, the DOJ argued that, for the first time among other things, Schigur had not "disclose "informa- [d]" 230.81(l)(a) tion" under Wis. Stat. 230.80(5)(a), §§ In respectively. response, Schigur submitted that DOJ had right no to ask for reconsideration of a written decision of an Division Equal Rights ALJ. On 19, 2011, September the ALJ denied the DOJ's motion. The ALJ stated that she believed possessed she au- thority to reconsider her decision, non-final but the issues raised DOJ were "best on addressed appeal." 4, 2011, On October a remedy was hearing
held before the ALJ. 4, 2012, On April Equal Rights Division of the DWD issued a second "Non-Final Deci- sion and Memorandum Opinion" ordering DOJ to take certain remedy actions to its violation of Wis. 230.80-.89. §§ April Equal Rights 30, 2012, 18. On Divi- a "Final Decision and Memo- sion of the DWD issued again Opinion." randum The decision found that *10 Schigur proven by preponderance had of the evidence by §§ Wis. Stat. 230.80-.89 that the DOJ had violated taking retaliatory against action her "because she lawfully [DOJ] disclosed, or the that she had believed lawfully The disclosed, information" under 230.81. "Schigur concluded that disclosed 'informa- decision 230.80(5) Stat. in her tion' as defined under Wis. sec. April supervisor," [e-mails] 23, 21 and 2008 to her Schigur proven preponderance the pass had that the "DOJ decided that she failed to evidence probation her to as a Bureau Director and reinstated position Special Agent In-Charge former as a her because she disclosed information under Wis. Stat. sec. again 230.81." The decision ordered the DOJ to take remedy certain actions to its violation. May petition
¶
29, 2012,
19. On
the DOJ filed a
judicial
April
30,
of the
2012 decision
for
review
May
County
21, 2013, the
Dane
circuit court. On
reversing circuit court issued a decision and order
Equal Rights
of the
Division of the DWD.
decision
Schigur
"informa-
court found that
had not disclosed
230.80(5),
tion" as that term is defined Wis.
Schigur's communications were therefore not
and that
July
protection
§§
2,
On
entitled to
under
230.80-.89.
Schigur
appeal.
2013,
filed a notice of
February
appeals
5, 2015, the court of
20. On
DWD,
DOJ v.
2015
affirmed the circuit court's decision.
App
¶22,
31,
196,
2d
III. STANDARD OF REVIEW appeal, scope 21. "In an administrative is identical to that of the circuit court and is our review DNR, set forth in Wis. Stat. 227.57." Andersen v. 41, 2011 WI (citation omitted). 332 Wis. 2d 796 N.W.2d interpret
In this case we interpretation §§ 230.80-.89. "The of a statute and its application undisputed question facts is a of law (citation omitted). Id., In that we review de novo." *11 appropriate a level an cases we accord of deference to agency's interpretation application aof statute. e.g., ¶¶ See, id., However, 26-29. the ALJ did below any statutory questions not examine we answer today. Therefore, there is no decision to which we might defer.
[4 6]—
"[Statutory interpretation 'begins
¶ 22.
with the
language
meaning
of the statute. If the
of the statute is
plain,
ordinarily stop
inquiry.' Statutory
we
lan-
guage
given
ordinary,
accepted
common,
its
meaning, except
specially-defined
technical
or
phrases
given
special
words or
are
their technical or
meaning."
definitional
State ex rel. Kalal v. Circuit
Cnty.,
¶58,
45,
Court
Dane
2004 WI
271 Wis. 2d
for
(citations omitted). Additionally,
633,
IV. ANALYSIS governs 23. Wisconsin Stat. ch. 230 "State Em- ployment government Relations", is, state em- (State- ployment e.g., See, § relations. Wis. Stat. 230.01 policy). Subchapter ment of III of ch. see Wis. Stat. "Employee §§ 230.80-.89, is titled Protection." We have referred to this statute as "the whistleblower law" provisions encourage because "it includes intended to employees types to disclose certain of information and protect employees might from retaliation that result from such Hutson, disclosures." Wis. 2d 1 & "[n]o appointing n.l. Under Wis. 230.83, au- thority, agent appointing authority supervisor of an or may initiate or administer, or threaten to initiate or any retaliatory against administer, action an em- 230.83(1). ployee." " 230.80(8) [retal- 24. Wisconsin Stat. defines iatory action" as: disciplinary
[A] action taken any because of of the following:
(a) employee The lawfully disclosed information under s. 230.85(1). 230.81 or filed a complaint under s.
(b) The employee testify testified or assisted or will any assist proceeding action or relating to the lawful disclosure of information under s. 230.81 employee. another
(c) appointing authority, agent appoint- of an ing authority supervisor *12 or employee believes the en- (a) (b). gaged any activity in par. described in 230.80(8) added). (emphases § Wis. Stat. 230.81(1) part: § 25. Wisconsin Stat. in states employee knowledge "An with the dis- information expressly prohibited by
closure of which is not state or that disclose law, regulation may rule or federal infor- 230.81(1) person." other any § mation added). un- However, protection "to obtain (emphases to any information 230.83, disclosing before der s. infor- "[d]isclose must first employee person" the employee's supervisor in either to writing" mation by Equal unit" selected or to a "governmental 230.81(l)(a)- the DWD. Wis. Stat. Division of Rights (b).4 as: is defined the statute "Information" which the em- gained employee
[IJnformation reasonably demonstrates: ployee believes (a) law, any state or federal rule or A violation of regulation.
(b)
authority in state
Mismanagement or abuse of
public
government,
a substantial waste of
or local
safety.
danger
public health and
funds or a
230.80(5).
and "dis-
The words "disclose"
Wis. Stat. §
in the statute.
closure" are not defined
Schigur
The DOJ
is not en-
argues
230.80-.89 for
titled to
under Wis.
protection
§§
(1)
did not
informa-
Schigur
three reasons:
"disclose
(2)
230.81;
did not
with
comply
tion" under §
the information
statutory
to disclose
requirement
disclos-
Myszewski,
to her
before
writing
supervisor,
individuals,
O'Donnell and
namely
it
to other
ing
(3)
230.81(l)(a);
Schigur's opinion
see
Sperry,
she disclosed demonstrated
the information
"reasonabl[e]."
law was
not
See
violation
230.80(5)(a).
requirement
subject
exceptions
to certain
not
This
230.81(1).
applicable here. See Wis. Stat. §
*13
28. Schigur disputes each of these
contentions.
addition,
In
argues
she
that even if she did not "dis-
close information" under
230.81,
Wis. Stat.
her com-
§
munication is still entitled to protection because the
DOJ believed that
she disclosed information
under
230.80(8)(c).
230.81. See Wis. Stat.
§
§
29. We conclude that an opinion alone,
as to
the lawfulness or appropriateness
of government
ac-
tivity is not "information"
as that
term is defined in
230.80(5).
We further conclude
§
that under
the specific
case,
facts of this
and assuming without
deciding that Schigur's e-mail contained "information"
regarding the proposed
detail,
security
communi-
cation of the information to Myszewski,
Sperry,
O'Donnell was not a "disclosure" under Wis. Stat.
230.81 because the information
§
was already known
to the
recipients
the e-mails. These conclusions
render
it unnecessary
to examine the DOJ's other
See,
arguments.
e.g.,
Subdiaz-Osorio,
State v.
2014 WI
143, 357
Wis. 2d
A. Liberal Construction of Wis. Stat. 230.80-.89 §§ 30. Before we begin our textual analysis of Wis. 230.80-.89, Stat. we must §§ address conten- Schigur's tion that we are to construe the statute liberally. Wisconsin 230.02, "Liberal construction of stat- utes," states that "[s]tatutes applicable to the office shall be construed liberally aid of the purposes 230.01." Wis. Stat. 230.02.5
declared in s. set forth following purposes our to the draws attention *14 230.01: Wis. Stat. § its employees to ensure policy It is the of state fair satisfying careers and treatment opportunities for It employee's value of each services. is based on the encourage to disclosure of informa- policy of this state ["Employee Protection"] Ill and tion under subch. by governmen- a any employee employed ensure that retaliatory from action for disclos- protected tal unit is ing under III. subch. information 230.01(2).6 from We take such directive Wis. Stat. § However, none seriously. pur- of legislature affect by Schigur today's statutory inquiry. cited poses lists Schigur 31. will examine the purposes We of First, in reverse is the this state policy "[i]t order. disclosure Ill under subch. encourage of information gov- any employee employed by and to ensure that action for retaliatory ernmental unit is from protected 5 employment relations. The "office"is the office of state 230.03(10w). we are Schigur Stat. does not discuss how Wis. § is to the of state "applicable to know when a statute office" However, Stat. employment relations. Wis. Stat. 230.02. Wis. § 230.04(1) charged "[t]he director is with states § 230.04(1). effective administration of' Wis. Stat. ch. § employment of of "director" is the director the office state (lOw). 230.03(9e), We therefore will relations. Wis. § deciding are assume that Wis. Stat. 230.80-.89 §§ without rela applicable employment "[statutes to the office" of state tions. policies, 230.01 contains other Wisconsin Stat. state gender "correct[ing] pay inequities on or race such as based "takfing] system" affirmative action the state civil service and of' provisions with other Wis. Stat. ch. which not in conflict 230.01(2). any 230. Wis. does not claim that Stat. analysis our we address purposes the other affect and do not them.
disclosing under subch. III." Wis. Stat. information 230.01(2) added). (emphases policy This contains the very language interpret we must in this case. We liberally cannot construe the statute in aid of disclo- protection retaliatory sure of information and from action for disclosure of information until we know what the terms "disclosure of information" and "retal- iatory give words, action" mean. In other we must first specific ordinary, these their "common, terms accepted meaning[s]" "special or their definitional meaning[s]" provided. Kalal, if definitions are Only Wis. 2d when the content these words is identified can the rest the statute be interpreted liberally in aid of disclosure of information protection retaliatory from action. *15 only
¶
today
32.
issue we
to
examine
which
policy might apply
necessitating
this
without
circular
reasoning
question
is the
of whether the DOJ believed
Schigur lawfully disclosed information under Wis.
requires
§
interpret
Stat. 230.81. That issue
us to
Wis.
230.80(8)(c).
provision
§
Stat.
However, "a
can be con-
'liberally'
opposed
only
'strictly'
strued
as
to
when
ambiguity
there
construe,"
is some
to
v.
Salazar
Ra-
Navajo Chapter,
mah
_,
567
2181,
U.S.
132 S. Ct.
(2012) (Roberts,
dissenting),
J.,
we will
as
230.80(8)(c)
ambiguous.
§
demonstrate,
is not
policy
¶
"[i]t
is
Second,
of
state
to
employees opportunities
satisfying
ensure its
for
ca-
reers and fair treatment
of
based on
value
each
230.01(2).
employee's
§
Stat.
are
services." Wis.
We
at a
policy, amorphous
loss
context,
as to how this
in this
is
supposed
statutory interpretation
to alter our
in this
provided
any
case.
has not
with
us
additional
usually
undeveloped
"[W]e
guidance.
address
do not
arguments."
n.13,
Gracia,
2013 WI
v.
State
omitted).
(citation
2d
ployee believes demonstrates: (b) any law, or regulation, tion of or federal rule state Mismanagement authority in local or abuse of state or public government, waste of funds or a substantial danger safety. health and public *16 230.80(5). argues Schigur not "dis- 37. The DOJ that did § 230.81.7 under Wis. Stat. close information" opinion Schigur's argument response an that 7 court of Schigur argued before the circuit court and the argument appeals below that the DOJ had forfeited this 712 alone, as to the lawfulness or appropriateness of cer- tain government activity is "information" under Wis. 230.80(5). According to this reasoning, when Schigur notified Myszewski, Sperry, O'Donnell of her concerns about the lawfulness or appropriateness of the security detail that Myszewski had proposed, she was protected from retaliatory action for that communication. 38. We agree with the conclusion of the court of 230.81(1)
appeals that Wis. Stat. "does not cover employee statements that voice merely opinions offer DWD, criticism." DOJ v. 196, Wis. 2d 27¶ (citation omitted). and internal quotation marks We think the of the language statute clearly mandates this interpretation. The statute's definition of "information" it-
self contains the word "information." The statute thus extends protection only the disclosure of a certain (1) type information: information gained by the (2) employee; the employee reasonably believes demonstrates one of the enumerated inappropriate activities. Schigur's opinion regarding the security because the DOJ did not raise argument until it filed its motion for reconsideration of the ALJ's non-final decision regarding liability. the DOJ's It is Schigur unclear whether argument renews this before this court. We have stated in an analogous context "[w]hen an question issue involves a law fact, rather than of question when the of law has been parties briefed both and when question of law is of public sufficient decision, interest to merit a may this court exercise its discretion to address" an issue not raised until appeal. Apex Gee, Corp. Elec. v. 217 Wis. 2d (1998) court). N.W.2d 23 (party failed to raise issue circuit All prerequisites three are met in regard this case with to the argument DOJ's did not "disclose information." Therefore, assuming without deciding that the DOJ forfeited argument, this we will argument. address the DOJ's *17 appropriateness the sec- or fulfills
detail's lawfulness not the first. factors, ond of these but Schigur's argument comport does not with opinion as If an definition of information. the statute's government appropriateness of to the lawfulness or gained by [an] activity "information itself constituted employee employee," the statute the would then under reasonably opinion that have to believe itself government inappropriate But conduct. demonstrated person's certain conduct one ultimate conclusion that inappropriate not, alone, does demon is unlawful or inappropriate government unlawful or conduct. strate illegal example, "I that believe it is For statement speech" government free does not for the to censor government has and of demonstrate that itself speech; alleged in the free there are no facts censored government that has conclusion engaged demonstrate that censorship. This is in conduct that constitutes why to the in this context instead refers "information" underlying opinion rather than to an details of conduct appropriateness that alone, to the lawfulness or as employee's opinion "reasonable] An be conduct. —her 230.80(5) regarding lief," Wis. Stat. that conduct's — inappropriateness necessary unlawfulness or is for protection conduct, cover of that statute's disclosure the conduct is the "information" that is but itself opinion that the conduct unlawful disclosed, not Regents inappropriate. v. or Kinzel Bd. Cf. of Univ. Sys., unpublished slip op., ¶ 19 2012AP1586, Wis. No. 2013) (Wis. (examining App. Ct. Mar. Wis. provides protection from on 230.90, which retaliation speech employee's her the basis of an exercise of free rights, explaining cover statute "does not statements employee merely opinions voice (citation omitted)).8 offer criticism" *18 an alone, 41. We conclude that opinion as to the lawfulness or of appropriateness government activity is not term "information" as that is defined in Wis. 230.80(5).9 Stat. §
C. Other Whether Portions of Schigur's E-mails to the
Relating Proposed Detail are Security "Disclosure of [s]" Information under
Wis. Stat. 230.81 § 42. While e-mail Schigur's contained details the detail regarding proposed security at the Republi- can Convention, National she does not contend that
8 Schigur attempts to draw a distinction between her opinion opinion given by plaintiff the the in Kinzel v. Regents University System, Board the Wisconsin No. of of (Wis. 2012AP1586, unpublished op. 28, slip App. Ct. Mar. 2013). Schigur claims in opinion merely the Kinzel was a personal "statement of disapproval," not a belief that a law would be violated or that state resources would be misused. may so, us, That pertains be but as it to the it issue before is a distinction without difference. 9 Society, claims that v. State Kmetz Historical 304 (W.D. 2004), F. Supp. 2d part 1108 Wis. rev'd in on reconsid 03-C-107-C, eration Vogt, sub nom. Kmetz v. No. 2004 WL (W.D. 2004), "compels ruling" Wis. Feb. in her favor on We agree this issue. do not with this The contention. court in not an opinion Kmetz did conclude that alone as to the appropriateness government activity lawfulness or certain constituted analyzing, "information" under statute it was (renumbered 230.90; Wis. Stat. 895.65 Wis. Stat. see § 60). Wis. Act court that case was instead meaning concerned with the word "disclosure." See Kmetz, Supp. 304 F. 2d at 1141. The held Kmetz court protect 895.65] employees opinions "[§ does not that voice their and distinguish Schigur again attempts offer criticism." Id. at 1115. opinion opinions given by plaintiff her from the Kmetz, but the not distinctions do affect our conclusion. attorney Schigur's "information." these facts constitute argument Schigur's multiple times at oral clarified Schigur's opinion alone, as to it view that was activity government appropriateness of lawfulness "information" under constituted 230.80(5). exchange following oc- instance, For attorney: Schigur's Ziegler and curred Justice between try clarify Can I some- Ziegler: Justice with isn't the travel se- thing? ... The "information" saying "information" her curity detail. You're doing opinion that so is unlawful. legal Schigur's attorney: Exactly. I think Ziegler: There's a difference.
Justice considering to be the people were the "information" versus, security, you're saying the "infor- *19 with travel being legal opinion is her about that conduct mation" unlawful. attorney:
Schigur's Yeah. Or "information" is way in this that the use of state resources her belief unlawful, constituted a violation of OSER. was response questioning ¶ And in to a line of 43. argument, by posed at Justice Gableman oral [Schigur] Schigur's attorney "[W]hat declared, dis- security not the existence of detail. closed was Schigur What she disclosed was its unlawfulness." argues her "For the of to the same effect in brief: Court it) (and Appeals to the Circuit Court before declare expression protected... that of belief is not an wrong." deciding, assuming, that 44. Even without
f Schigur's portions "informa- other of e-mail constitute 230.80(5), § tion" under Stat. we nonetheless Wis. Schigur's this that of infor- conclude communication mation is not protected under 230.80-.89 because §§ the communication was not a "disclosure" under Wis. 230.81. § 45. After staff attending
¶ led meeting Myszewski, Schigur e-mailed Myszewski, Sperry, and O'Donnell. But as Schigur made clear before the circuit court, "the decision to utilize State to agents provide security detail to the Attorney General was known to whom Schigur those in Myszewski [e-mailed]." par- person ticular is the who had informed of the in proposed security detail the first place. 46. Wisconsin Stat.
¶ 230.80-.89 "em- protects §§ of ployee disclosure[s]" information. Wis. Stat. 230.81; 230.80(8); see held, 230.83. We have context, another information, "disclose" "the must have been recipient previously of the unaware information at the time the communication." v. State Polashek, 2002 WI 2d 527, Wis. We N.W.2d 330. arrived at our definition the word "disclose" in Polashek examining after several diction- "disclose," definitions of ary as well as the interpreta- id., tions of word by multiple federal courts. See 20-22. We in that stated case "a lack of knowl- on part edge is inherent recipient Id., disclosure." paramount "What is of is that importance legislature]
[the be able a back legislate against *20 rules, of clear ground so that it interpretive may know the effect of the it language Finley v. adopts." United States, 490 (1989), U.S. superseded by statute Serv., Inc., as stated in Exxon Mobil v. Corp. Allapattah (2005). 125 U.S. 557 — 58 Therefore we would a reason require convincing interpret indeed to "dis any differently close" in this context. seriously pursue Perhaps Schigur not does portions argument of her e-mail consti- other
an the because under statute disclosed "information" tute adopt argument require to this a court would the lead that would to word "disclose" definition of the truly "infor- discussed, to disclose results. As absurd employee § 230.81, an must under Wis. Stat. mation" employee gained which the "information disclose reasonably employee enu- demonstrates" believes the govern- inappropriate types or of unlawful merated 230.80(5). activity. § definition of ment only employee that the need makes clear "information" underlying conduct. The the details of the disclose employee her reasonable belief that need not disclose inappropri- unlawful the information demonstrates employee government activity; instead, need ate only If court to conclude that that belief. this were hold require not lack under 230.81 does a of a "disclosure" recipient, knowledge part then an em- on the merely repeated supervisor's ployee a statement who believing supervisor, inwardly while back described was unlawful or the conduct the statement thereby pro- inappropriate, entitled to would become (assuming 230.83 that the tection under Wis. employee complied statutory proce- with otherwise dures). "whistleblowing" pushes concept This tad too far. specific that, under the facts of 49. We conclude assuming deciding case,
this without regarding Schigur's e-mail contained "information" security proposed of the detail, communication Sperry, Myszewski, O'Donnell was information under Wis. Stat. 230.81 because not "disclosure" already recipients known to the the information was *21 Consequently, portions the e-mails. those of the e-mail protected § are not under Wis. Stat. 230.83. Schigur Lawfully
D. Whether DOJ Believed § Disclosed Information Under Wis. Stat. 230.81 type retaliatory prohib- 50. Another action disciplin- § under ited Wis. Stat. 230.83 occurs "a when ary [is] [t]he appointing action taken because . . . au- thority, agent appointing authority supervisor anof or employee any engaged activity believes the in de- (a) (b)." 230.80(8)(c) par. § in scribed (emphasis or added). The activities referenced in Wis. 230.80(8)(a) (b) "(a) employee are: The lawfully disclosed information under 230.81 s. or filed "(b) complaint 230.85(1)"; employee under s. testify any testified or assisted will or assist in proceeding relating action or to the lawful disclosure of employee." information under s. 230.81 another Schigur argues engaged that the DOJ in retaliatory against action her it because believed she disclosed information under Wis. Stat. 230.81. The argues response Schigur DOJ forfeited the "by failing timely claim assert it before the admin- agency," istrative and that we cannot review the claim presents question it because of fact. argue Schigur
¶ 52. did not before the ALJ engaged retaliatory the DOJ action under Wis. Stat. 230.80(8)(c). day However, the ALJ on stated the first hearing liability of the on the DOJ's that: Ms. filed a complaint with the Wisconsin Equal Rights alleging Division.. . the [DOJ] Law, violated the Wisconsin Whistle Blower Section Statutes, by taking 230.80—230.89 the Wisconsin retaliatory lawfully action she because disclosed —or had disclosed information that she [DOJ] believed *22 Wis. Stats. under 230.81 Section Schigur that similarly decision stated The ALJ's final that a of the evidence proven by preponderance had by Stat. 230.80-.89 DOJ had violated Wis. the §§ her "because she retaliatory action taking against had disclosed, believed that she [DOJ] or the lawfully Stat. information" under Wis. disclosed, lawfully 230.81. that argument that her Schigur contends disclosed information was the DOJ she believed it of the DOJ's arguments to certain response for reconsidera- for first time its motion raised did her ALJ. The ALJ not reconsider tion before the decision, arguments the DOJ's new concluding Schigur says on she appeal." "best addressed were 230.80(8)(c) claim at the first raised her Wis. Stat. § the circuit court. She before possible opportunity: at the court of argument appeals, again reasserted in her of that she presented and the issue was one two review this court. petition for before of this case procedural 54. The circumstances stated, 7, As note supra "[w]hen somewhat unique. are fact, law rather than of an issue involves a question law both has been briefed question when is of sufficient question and when the law parties may decision, to merit a this court interest public discretion to address" an issue not raised exercise its Gee, until 217 2d Elec. v. Wis. appeal. Apex Corp. (1998). Both parties 23 have briefed N.W.2d raises shown, issue.10 As will be the issue Schigur argu not to address the merits of the DOJ chose brief, raised briefing we ordered on issues ment its but rather legal than factual under the circumstances of this case. we Finally, granted review of the issue and find it of sufficient public interest to merit a decision. Therefore, assuming forfeited Schigur issue, question we do not decide today, we exercise our discretion to review the issue. In believed the DOJ arguing information,
disclosed Schigur states, "clearly the DOJ believed that Schigur's disclosures were un- protected der the statute." In other words, Schigur reads Wis. 230.80(8)(c) as defining retaliatory actions to include instances where a makes a supervisor mistake *23 of law as to whether an employee's communication ais "disclosure of information." to this According argu- ment, even if Schigur did not "disclose information" as defined in statute, the she is still if the protected DOJ believed she "disclosed information" as defined the 230.80(8)(c). statute. Schigur misinterprets The most § reasonable interpretation of the is it provision that is aimed at situations where a supervisor retaliates on the basis of a mistake of fact, such as when a supervi- sor is told that an employee in conduct that engaged could constitute disclosure of information, but the employee had not in fact conduct. in that Put engaged 230.80(8)(c) differently, would applicable, be for ex- § believed that an if a ample, supervisor had employee sent e-mail disclosures and retaliated the against on employee basis, that but the employee had not in fact sent any such e-mails at all. petition
in the for review. parties To rule that the had not "briefed the simply issue" because the DOJ declined to brief it given when opportunity give the would be to the DOJ control of whether or not this court reviews a forfeited issue. essentially Schigur that us to hold asks 56. by protected Wis. Stat. although not she is by protected was she DOJ believed §§ 230.80-.89, the protected. The therefore she is §§ 230.80-.89, and employer illogical: not retali- would argument an is employer employee mis- against an "because" ate pro- employee takenly receive would that believed 230.80(8). against retaliation. tection against might employer an em- retaliate mistakenly Instead, an employer that ployee believed because engaged em- employee in conduct had the ployee engaged in. not in fact had dispute case in this there is no Because 57. Sperry, Myszewski, e-mailed meeting attending led the staff after O'Donnell11 dispute Myszewski, about there is no and because 230.80(8)(c) is not Stat. e-mails, Wis. of the content applicable here. Schigur's argument that We conclude information" that she "disclosed believed
the DOJ 230.80(8)(c) misinterpretation of Wis. rests on therefore fails.
V. CONCLUSION (1) opinion alone, toas that: an We conclude government appropriateness ac- lawfulness or tivity term is defined as that not "information" *24 (2) 230.80(5); specific facts of § under the Wis. Stat. deciding assuming without case, and this regarding the Schigur's "information" e-mail contained security proposed detail, the communication complied with the whether We do not decide 230.81(1) when she Stat. requirements § of Wis. procedural simultaneously. O'Donnell Myszewski, Sperry, and e-mailed Myszewski, Sperry, Cindy information to Jed O'Donnell was not a "disclosure" under Wis. Stat. § already 230.81 because the information was known to (3) recipients Schigur's argu- of the e-mails; and ment that the DOJ believed that she "disclosed infor- 230.80(8)(c) misinterpretation § mation" rests on a Accordingly, and therefore fails. we affirm the decision appeals. of the court of
By appeals the Court.—The decision of the court of is affirmed.
¶ 60. DAVID PROSSER, T. J., and REBECCA G. participate. BRADLEY,J., did not (dissenting). 61. ANN WALSH BRADLEY,J. 1 ¶ Legislature recognized 62. The Wisconsin important maintaining role of whistleblowers in ac- government. legislative purpose countable of the expressly policy statute is declared: "It is the of this encourage state to disclosure of information . . . and to any employee employed by governmental ensure that protected retaliatory unit disclosing from action for 230.01(2). information .. ." Employees encouraged ¶ 63. are to disclose infor- including any regulation mation, a violation of law or any mismanagement pub- or substantial waste of 230.80(5). lic funds. Wis. Stat. In this, aid of legislature has directed that the statutes "shall be liberally purposes construed in aid of the declared ..." Wis. 230.02. separately majority I write because the
opinion legislative purpose undermines the of Wiscon- majority sin's whistleblower First, statute. creates application a heretofore unknown rule that bars the explicit legislative directive of liberal construction. *25 language into new the statute Second, it writes protections thereby limiting available to whistle- legislative policy its on Third, it turns the blowers. head, creating an absurd result. Contrary majority, I that to conclude 65. pursuant Schigur lawfully disclosed information
Joell I court of 230.81. would reverse the Depart- uphold appeals the determination and Equal Rights Development, Divi- of Workforce ment Accordingly, respectfully I dissent. sion.
I ("DOJ") Department ¶ 66. of Justice selected Schigur Public be its Director of the Bureau of Joell Integrity. to her demoted after she sent emails She was Myszewski, expressing supervisor, con- her Michael Attorney regarding Van Hollen's use of cern General paid security upcoming Repub- taxpayer at the detail lican National Convention. "was concerned wrote she Attorney
providing state resources to the General activity may political duty participates in a while he off regulations state law." Attached to violate OSER Schigur's from the Office of State email was bulletin ("OSER") regarding prohibited Employee Relations Schigur explained political that she was activities. sending hopes "in that this will be email decision scrutiny possible of our further evaluated to avoid Attorney agency special agents." General, our our Schigur explained in a second email agents participating regarding "the concern is not activity; political rather can state resources be used representing political not at a event he is the AG where Party. Republican issues DOJ, rather Parallel came up the Jensen/Chvala investigation." Ulti- *26 mately, no security detail was sent to the Republican National Convention. 69. Prior to
¶ sending above emails to Mysze- wski, Schigur received quarterly job performance evaluations that were uniformly positive. be- Shortly fore Schigur emails, sent the Myszewski completed her 21-month probationary performance evaluation. He wrote: "Joell continues to do an outstanding job of leading Public Integrity Bureau and the Internet Crimes Against Children Program. Joell is a nationally recognized leader the area of children protecting from Internet predators. Joell has successfully mas- tered all of the objectives and standards for a bureau director. I recommend that Joell be removed from probation and receive permanent status as a director." 70. Yet, shortly after Schigur sent the emails to Myszewski, she received her 24-month probationary performance evaluation that was negative and mark- edly different from her prior uniformly positive evalu- result, ations. As a Schigur was removed from her Bureau Director position and demoted. 71. In its findings fact, the Department
Workforce Development, Equal Rights Division, found that "Schigur's disclosure in her 21 and April 23, 2008 emails to Myszewski and O'Donnel was a factor DOJ's decision that she failed to pass probation as a Bureau Director on May 2008."1 The Department determined the DOJ violated Wis. Stat. 230.80-89 by "taking action retaliatory against [Schigur] because she lawfully disclosed, or the Re-
1 Cindy O'Donnell, Administrator of the DOJ's Division of Services, Management as well Sperry, as Jed the head of the DOJ's Investigation's unit, Division of Criminal tactical also copies received of the emails. lawfully spondent had disclosed, she believed that information 230.81." under sec. Department's majority reverses the specific It concludes "under
determination. deciding assuming case, without of this facts regarding Schigur's 'information' e-mail contained security proposed detail, the communication of the Myszewski, Cindy Sperry, information to Jed was 'disclosure' under Wis. Stat. O'Donnell § not a already known because the information was 230.81 op., recipients Majority . ." the e-mails . to the reaching majority conclusion, its declines In liberally con- the directive that statute be follow purpose effect its and instead writes into the strued to *27 requirement. a "new" statute
II obligation ¶ is, course, "It a solemn of the 73. judiciary faithfully give by to to effect the laws enacted legislature rel. Ct. the ..." State ex Kalal v. Cir. for Cty., ¶ 44, 271 Wis. 2d 681 Dane WI judicial give 110. Kalal instructs that we must N.W.2d legisla- policy by to the choices enacted the deference ¶ Id., See 44. ture." only eye majority
¶ The a not 74. turns blind recognized rules the above instructions but also statutory interpretation. embracing prec- Instead of majority edent, it, the silencio sub overrules while creating contrary, unknown, its own and heretofore statutory interpretation. rule of express ¶ Kalal, The mandate of which 75. the majority provides: plain- overrules, sub "a silencio meaning interpretation textually cannot contravene statutory contextually purpose." ¶ Id., manifest 49. explained purpose "perfectly Kalal relevant to a plain-meaning interpretation unambiguous of an stat- long ute" as it is as ascertainable from the text of the ¶ Id,., statute itself and not extrinsic sources. majority ¶ 76. But the will have none of this. It dutifully purpose forth sets that is ascertainable by legislature from the text as declared in Wis. 230.01(2): policy § Stat. encourage "It is the of this state to
disclosure information . . . and to ensure any employee employed governmental that protected unit is retaliatory disclosing
from action for infor- majority Id., mation . . ." 30. The likewise acknowl- edges legislature expressed that the in the text of Wis. liberally 230.02 it should be con- applicable strued: "Statutes to the office shall be liberally purposes construed aid of declared in Majority op., (citing 230.01." 230.02). majority Nevertheless, contends that it apply legislature's explicit cannot erally directive to lib- Why? construe statute. majority provision 78. that a claims can be liberally only ambiguity
construed when there is some "[w]e to construe.2 It also asserts that cannot construe liberally the statute in aid of disclosure of information protection retaliatory from action for disclosure of *28 2 majority applies The statutory this new rule of interpre 230.80(8)(c), tation to prohibits which § retaliation "supervisor when a employee engaged any believes the in (a) (b)." activity par. in described or The activities referenced in 230.80(8)(a) Wis. employee Stat. whether "[t]he include law fully disclosed information s. Accordingly, under 230.81..." majority's statutory interpretation the of Wis. Stat. 230.80(8)(c) interpretation be separated cannot from its Wis. 230.81.
727 what the terms 'disclosure information until we know Id., mean." 'retaliatory action' of information' 31. ¶ to "is often used A liberal construction 79.
¶
broader cov-
which produces
an
signify
interpretation
statutory
more
con-
application
or
inclusive
erage
ordinarily
is
What is called
liberal construction
cepts.
in
things
to more
or
apply
one
makes a statute
which
than would be the case under
strict
more situations
R.W.S.,
re
862, 871-72,
In
162 Wis. 2d
construction."
(1991)
Sutherland Statu-
16
Singer,
471
(citing
N.W.2d
1984)).
(4th
Construction,
ed.
tory
sec. 58.02
it
The
cannot
majority's
reasoning
80.
until
it first defines the
liberally
construe the statute
in the
is backwards.
"Liberal construc-
terms
statute
the words a
any
giving
tion of
statute
consists
the
accomplish
which renders it effectual
meaning
it
fulfill the intent which
discloses."
plainly
purpose
Bd.,
rel
v. Sch. Dist.
State ex Mueller
257, 260,
208 Wis.
(1932).
N.W.
the statutorily
81.
Instead of applying
required
construction,
majority
liberal
defines
terms
narrowly
and "information"
so that Schigur's
"disclose"
do not fall within the statute.
It then reasons
claims
liberally
need
construe the statute
because
that we
not
do not fall within the statute.
claims
Schigur's
The
is to
of liberal construction
inter-
point
way
legislative
in a
furthers
pret
statute
case is
who act
goal,
protect employees
which
this
Yet,
has done the
majority
as whistleblowers.
terms of the
in a
opposite
defining
here
statute
way that denies
for whistleblowers.
protection
contention that a statute
majority's
ambiguous
be
unless it is
liberally
cannot
construed
*29
a heretofore unknown rule of statutory interpretation.3
It sub silencio
the widely
overrules
rule
accepted
of
statutory
set forth in
interpretation
Kalal —that a
plain-meaning interpretation
cannot contravene a tex-
manifest
tually
statutory
271
purpose.
633,
Wis. 2d
84. Kalal's well-recognized
rule has been relied
years
for
upon
by judges,
and
In
attorneys
litigants.4
fact,
a
recently
as
as
few
ago,
again
months
we
embraced that established rule of statutory interpre-
tation in State Williams,
36,
v.
context,
meaning
interpretation
unambiguous
statute, so
of an
long
they
itself.
from the statute
are ascertainable
as
interpretation
Importantly,
plain-meaning
cannot
a
textually
contextually manifest
or
statu-
contravene
tory
(quotations
(Ziegler,
dissenting)
purpose.")
J.
Corp.,
omitted);
Credit
v. Nuvell
Brunton
citations
("A
135,
2d
rule of go beyond consequences well this whistleblower Employment example, Fair statute. For Wisconsin's liberally legislative it be law directive that contains purposes the of statute. Wis. construed to advance 111.31(3). § Likewise, Wisconsin's Consumer Stat. Wis. contains the same directive. Transactions law 421.102(1). rights legal § Will the of Wisconsin's similarly limited under workers and consumers be statutory majority's interpretation? new rule of The laws that contain 86. numerous Wisconsin range legislative directives across broadest similar spectrum e.g., See, statutes. Wis. Stat. our 16.001(2) 766.001(1) (Marital Property); § § Wis. Stat. Administration); (Department § Wis. Stat. 32.71 (Time-Share (Eminent 707.57(4) Domain); § Wis. Stat. (Health Ownership); § and Educa- Wis. Stat. 231.24 (Uni- 401.305(1) Authority); tional Facilities Wis. Stat. (2) (Inter- Code); form Commercial Wis. Stat. 66.0301 645.01(3) governmental Cooperation); (Insurers Liquidation). Rehabilitation and analysis juggernaut majority's of the statutory interpretation: a rests its rule of on new provision liberally only can be construed when there is ambiguity Majority op., ¶ some construe. As (a) majority's above, discussed new rule: bars application statutory of the directive of liberal con- (b) legislative purpose; struction effectuate the sub part statutory silencio Kalal, overrules a seminal (c) interpretation negative case; and has broad conse- quences. Simply put, majority's rule new of statu- tory interpretation should not stand.
Ill majority's ¶ 88. The insistence that a "disclo- language sure" must contain "new" information writes *31 dramatically into the statute which limits whistle- protections. According majority, blower to the in order recipient to "disclose" "the information, must have previously been unaware of information at the (citing ¶ of Id., time the communication." 46 State v. Polashek, WI 74, 23, 2002 253 2d 527, Wis. 330). Schigur's N.W.2d It maintains that emails were "not a 'disclosure' under Wis. Stat. 230.81 because already recipients the information was known to the of Accordingly, majority Id., the e-mails." 49. con- cludes that any has no recourse under the for law regard- retaliation that from resulted her emails ing Attorney security General's detail at the Re- publican National Convention. plain language
¶ 89. The of Wis. Stat. requirement §§ 230.80-89 contains no the dis- previously closed information be It unknown. neither any contains the words "new" or nor "secret" other phrase interpreted syn- word or that could be as a 230.81(l)(a) onym. Wis. Stat. states: employee An knowledge with of information the dis- by of is expressly prohibited closure which not state law, regulation may disclose or or rule federal However, to obtain any person. other information 230.83, disclosing that before under s. protection employee shall. . . any . .. the person information employee's writing to the information disclose the supervisor. (b) 230.80(5)(a) "information" define
as: information the em- gained means
'Information' reasonably dem- believes ployee employee which onstrates:
(a) law, rule any or federal or A violation of state regulation.
(b) authority in Mismanagement or abuse of waste government, local substantial or state danger to health and public funds public of safety. legislature presumed is "It
cognizant
language
it
to include or omit when
of what
Incorporation
Portion
Town
In re
enacts laws."
of
App
Sheboygan,
Wis.
9, 2d
2001 WI
requirement
Reading an
unwritten
637 N.W.2d
the whistleblower
secret information into
for new or
protected
dramatically
scope narrows the
statutes
*32
legislative
As
intent.
disclosures in contravention
duty
explained, "[o]ur
previously
to
this court has
uphold
legislative
we
the
intent ensures that
fulfill
substituting judicial policy
separation
powers by
not
legislature."
ex rel.
the
of the
State
views for
views
Hensley
¶ 7, 245
2d
Endicott,
105,
2001 WI
Wis.
v.
(quoting
rel.
v.
State ex
Cramer
607,
732 91. The on majority ¶ relies State v. Polashek for its conclusion that "disclosure" means "new informa- tion." Polashek is a slender reed upon which to rest such a conclusion. the Although Polashek court deter- 48.981(7) mined that "the term 'disclose' in requires not have recipient of the knowledge informa- tion communicated," its determination is not control- 253 ling. 527, Wis. 2d It3. is construing ¶ penal statute, Wis. Stat. 48.98l(7)(f), which provides criminal penalty for the unauthorized disclosure of confidential information to relating reports of sus- pected child id., abuse See neglect. 92. Penal statutes are strictly See, construed. Christensen, State v.
e.g., 110 2d 538, 547, Wis. (1983). N.W.2d 382 "This canon of strict construction is grounded on two public policies. first favors notice as to what conduct is criminal. The second recognizes 'since the power to declare what conduct is subject sanctions penal legislative, rather judicial, than it would risk judicial of the usurpation legislative func- tion for a court to enforce a penalty where the legisla- " ture had clearly not and unequivocally it.' prescribed (citations Id., omitted). Wis. 2d 546-457 48.981(7) 93. Given that Wis. Stat. is a penal statute, the canon of strict construction required Polachek "disclosure" interpret narrowly so c^ourt the definition of criminal conduct under the stat- ute was not Polachek, In expanded by judiciary. disclosure of information was an element of the crime. 253 Wis. 2d 23. By narrowly defining "disclo- sure of information" to recipients who were unaware of information, the Polachek court properly limited, rather than criminal expanded, conduct under statute. *33 purpose Stat. The and effect of Wis. 94. 48.981(7) opposite of
§§ is the 230.80-89 statute. act is remedial whistleblower because accepted "[u]nder penal statutes, In contrast jurisdictions, remedial of other law of Wisconsin and liberally 'suppress the construed to should be statutes statute) (the remedy and advance the which mischief " Hyland, City Hall Madison v. intended to afford.' (1976). In Co., 364, 373, 2d 73 Wis. N.W.2d & statutory interpretation de- case, the canons of this liberally that "disclosure" and "information" be mand protections for are so that whistleblowers construed by employers suppressed. is and retaliation advanced 230.80(5)(a) (b) "in- Wis. define as: formation" gained by the em-
'Information' means information employee reasonably which dem- ployee believes onstrates:
(a) any law, A violation of state or federal rule or regulation.
(b) authority or Mismanagement abuse of government, state or local substantial waste public danger public funds or a health safety. majority reaches conclusions re- two why
garding Schigur's emails are not information opinion to the First, alone, under the statute. "an as government activity appropriateness lawfulness not 'information' as that term is defined in Wis. Stat. 230.80(5)." Majority op., 5, 29, Second, 41 & 59. specific case, "that under the facts of this and assum- deciding Schigur's ing contained without e-mail regarding proposed security detail, 'information' *34 the communication. . . was not a 'disclosure'. . . be- already recipi- cause the information was known to the ¶ ents of the Id., e-mails." 29. I address each in turn. ¶ majority's 97. I address first the conclusion opinion appro- "that alone, an as to the lawfulness or priateness government activity of is not 'information' 230.80(5). as that term is defined in Wis. Id., Relying ¶ Regents 29. on Kinzel v. Bd. the Univ. of of Sys., unpublished appeals Wisconsin an court of deci- majority sion, the asserts that Wis. Stat. 230.90 "does employee merely opin- not cover statements that voice (citing Id., ions or offer criticism." Kinzel, No. f (Wis. unpublished slip op., App. ¶ 2012AP1586, Ct. 2013). Mar. 28,
¶ plaintiff Kinzel, 98. In the claimed to have authority, disclosed information about an abuse of protected pursuant which to Wis. Stat. §230.80(5X2). Kinzel, ¶ No. 2012AP1586, 20. The appeals court of determined that Kinzel did not dis- authority, close information about an abuse of but "merely gives opinion his and criticizes." Id. Kinzel did specific regarding "not set forth facts the events asso- suspension." ¶ ciated Id., with the 21. Kinzel did "not present any supporting opinion information his people these Id., are blameless." 22. major- In furtherance of its discussion, the
ity sample type opinion offers a of the that was inadequate addressed Kinzel and deemed to consti- majority example, tute "information." The offers: "For illegal gov- T statement believe that it is for the speech.'" Majority op., ernment to censor free 40. If genre opinion that were the that was offered Schigur, agree majority I would with the that without more, it is not information. But here more, there was much more. merely generic not voice did "I it is for the DOJ believe that saying illegal
opinion for taxpayer money private the law and expend violate Director Bureau for As the of the purposes." political underlying facts Integrity, specifics she included Public concerns she advanced: a state was to use Attorney going General he security Repub- detail while attended paid lican National Convention. about use of state
She raised a concern facts that be "off given resources he would rather DOJ, rep- not but duty," representing *35 a resenting political party. that of the state provided copy regulation
She be violated. thought may she (that) in the cited to issues came up She "parallel investigation." Jensen/Chvala be- facts demonstrate a "reasonable ¶ there of a may lief' for her concern that be a violation that or and a "reasonable belief' that regulation law of or "a substantial may "mismanagement" there be of funds." This is the definition of public very waste information exactly under the statute and it is what required. the statute rewriting by 102. Even if the of the statute
¶ inserting the word "new" into it were to be majority Until condoned, here would meet that test. facts her her sent emails supervisor expressing concern, he was that she believed reasonably unaware might violating committing the DOJ or that be law Yet, cannot allow majority an abuse funds. concern information interpreted to be as new Schigur's it would even the restrictive satisfy because most definition of "disclose." 103. The majority advances next even
assuming the emails provided information, it was not a "disclosure .. . because the information was already known to the recipients the e-mails." Major- ity op., ¶ 104. The majority goes so far as to argue that
"[t]he need not her employee disclose reasonable belief the information demonstrates unlawful or inap- propriate government activity; instead, the employee Id., need only hold that belief." (emphasis original). This assertion finds no support the plain language the statute. 105. What an about who attorney is called
upon provide purely legal opinion about whether facts revealed another constitute employee illegal- ity misuse of state funds? The attorney would be compelled to disclose her legal opinion, but would not be protected under the whistleblower act because the would not opinion be "information." The of an firing attorney because she give does not the legal opinion that her supervisor wants should violate the statute. However, under the majority's analysis, attorney could be fired without for providing recourse an ethi- cal, but unpopular, legal opinion. *36 106. The has taken majority
¶ a notice statutory requirement from Wisconsin's whistleblower law and turned it into a sword. Under double-edged the majori- ty's decision, a government employee who tries prevent wrongdoing risks losing whistleblower protec- tion even if she with the If complies law. an employee does not provide her supervisor with notice of an alleged wrongdoing, she has no protection under the However, law. to the if according majority, the super- visor knows already about the the wrongdoing, protection the law under no still has
whistleblower required though provided notice. she even IV interpreted Statutory language be should 107. "reasonably, results." or unreasonable absurd to avoid statutory majority's The 46. Kalal, 271 Wis. 2d leads interpretation and "information" of "disclosure" In some in- result. unreasonable to an absurd protect interpretation majority's would stances For ex- wrongdoer, the whistleblower. rather than reported employee theft ample, evidence if an what knowing supervisor he was actu- without to her supervisor corrupt ally fire the could The the thief? protection a employee as have no and she would already information was because whistleblower legislative purpose of the result turns known. This encourag- discouraging, than rather head act on its ing, reporting. 230.81(l)(a), an Pursuant to Wis. knowledge
employee disclose information shall with supervisor writing to her before the information majority any person. disclosing has other it to requirement simple turned it into a notice taken trap unwary. "Employees not be discour- should for the pursuing aged rem- internal route of from the normal allega- good public going their faith with edies before Dep't Valley Sewerage v. U.S. Comm'rs Passaic tions. 1993). (3rd Labor, 474, Cir. 992 F.2d appropriate, both in it most "Indeed, employees efficiency . . . that and economics terms of notify management "Em- ..." Id. of their observations employee system ployers which benefit from employer reports suspected first; the to the violations *37 should employee not, any event, be penalized for bestowing that benefit on the employer." Sullivan v. Co., Massachusetts Mut. Ins. 802 716, F.Supp. 725 Life (D. 1992). Conn. Under the majority's decision, an employee penalized for reporting violation if the supervisor already knew about the violation. 110. The of consequences this decision may be
far-reaching. Not will only whistleblowers suffer re- taliation without recourse, but all of Wisconsin's citi- zens protection lose against government corruption. Absent legal protections, it will be rare employee who will her risk livelihood to act as a whistleblower. "Without who are employees willing to risk adverse employment consequences as a result of whistleblow- activities, ing the public would remain unaware of large-scale and potentially dangerous abuses." Dolan (Mich. Airlines, 1997). v. Cont'l 563 23, N.W.2d 26 V In its findings fact, the Department concluded that "Schigur's disclosure in her April 2008 emails to Myszewski and O'Donnel was a factor in DOJ's decision that she failed to pass proba- tion as a Bureau Director on May 21, 2008." We will an uphold agency's of fact if findings they are sup- ported by See, credible and substantial evidence. e.g., Brown v. State Families, Children Dep't WI 11, 341 Wis. 2d App 449, 819 N.W.2d 827. No one has here argued this finding fact is not supported by credible and substantial evidence. We must therefore resolve this case with the understand- ing this fact is as the exactly found. Department In sum, for the above, reasons stated I conclude that Schigur lawfully disclosed information pursuant to Wis. Stat. Therefore, 230.81. I would *38 the decision and uphold court of appeals reverse the Equal Development, of Workforce Department DOJ vio- Division, concluded which Rights it Joell when terminated 230.80-89 lated Wis. Stat. §§ I dissent. respectfully Accordingly, probation. Schigur's Justice to state I am authorized this joins opinion. S. ABRAHAMSON SHIRLEY