Feb. 5, 2015 – The Wisconsin’s Department of Justice (DOJ) did not violate a state whistleblower law by demoting an employee who voiced her concern that DOJ agents would be used, at a cost to taxpayers, to protect Attorney General J.B. Van Hollen while he attended the Republican National Convention in 2008, a state appeals court has ruled.
Wis. Stat. section 230.83 prohibits retaliation against employees for lawfully disclosing “information,” so long as the employee is not being paid to provide it. “Information” means “information gained by the employee which the employee reasonably believes demonstrates” law violations, mismanagement or abuse of authority, or waste of funds.
In Wisconsin Department of Justice v. Wisconsin Department of Workforce Development, 2013AP1488 (Feb. 5, 2015), a three-judge panel for the District IV Court of Appeals concluded that DOJ did not violate the law when it demoted Joell Schigur after she sent emails that raised concern about Van Hollen’s security detail.
In 2006, Schigur was promoted to “public integrity director” in the DOJ’s Division of Criminal Investigation, subject to a two-year probationary period.
For almost two years, Schigur received positive performance reviews. Three months before the probation period ended, Schigur’s supervisor said she was doing an “outstanding job” and recommended that the probation period end three months early.
Despite the recommendation, the probation period did not end. And a month before the probationary period was scheduled to end, Schigur sent an email to her supervisor, Mike Myszewski. The email voiced concern that the Division of Criminal Investigation was sending agents to provide 24-hour security detail for then-Attorney General Van Hollen while he attended the Republican National Convention in St. Paul, Minn.
Schigur’s concern was that state resources would be used to secure Van Hollen while he participated in an off-duty political activity. She cited a bulletin from the Office of State Employee Relations, which clarified permissible political activities for employees.
Myszewski thanked Schigur for noting the issue. He said he would inform higher ups but said he didn’t think it was an issue, since certain groups had threatened to disrupt the convention with violence. Schigur repeated the concern that Van Hollen was not representing DOJ at the event and public money would be used to protect him.
Her next performance review indicated that Schigur was not meeting the standard for the job. It was then determined that she did not successfully complete the probationary period. She was demoted to her previous job as “special agent in-charge” of the unit.
Schigur filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development, alleging DOJ’s action was retaliatory and violated section 230.83. An administrative law judge ultimately ruled that DOJ retaliated against Schigur in violation of section 230.83. 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 the term is used in the state’s whistleblower statute. On appeal, the three-judge appeals court panel affirmed the circuit court’s decision.
First, the panel declined Schigur’s forfeiture argument. In hearings before the administrative law judge, DOJ never raised the argument that Schigur’s emails were merely “opinions” or “concerns” and not “information” that is protected.
“[A]ssuming without deciding that DOJ forfeited its ‘information’ argument, we choose to exercise our discretion and address the topic,” wrote Judge Gary Sherman.
The panel analyzed prior cases to hold that “opinions” do not qualify as “information” under section 230.83, and Schigur’s emails expressed the opinion that using DOJ agents to protect Van Hollen while he attended the convention could violate the law.
The panel also noted that “disclosures” make secret information known, and the security detail plan was not a secret. “Schigur does not argue that she provided information to anyone who was not already aware of such information,” Judge Sherman wrote.
“Accordingly, we conclude that Schigur’s April 2008 emails do not satisfy the requirements for according Schigur protection from retaliatory action,” Sherman wrote.