State Dep't of Justice v. State Dep't of Workforce Dev.

• Decision Date: 30 December 2015
• Docket Number: No. 2013AP1488.,2013AP1488.
• Parties: STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Petitioner–Respondent, v. STATE OF WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Respondent, Joell Schigur, Respondent–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

365 Wis.2d 694

875 N.W.2d 545

STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Petitioner–Respondent,

v. STATE OF WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Respondent,Joell Schigur, Respondent–Appellant–Petitioner.

No. 2013AP1488.

Supreme Court of Wisconsin.

Argued Oct. 6, 2015.

Decided Dec. 30, 2015.

For the respondent-appellant-petitioner, there were briefs by Peter J. Fox and Fox & Fox, S.C., Monona, and oral argument by Peter J. Fox.

For the petitioner-respondent, the caused was argued by Winn S. Collins, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of a published decision of the court of appeals, DOJ v. DWD, 2015 WI App 22, 361 Wis.2d 196, 861 N.W.2d 789, which affirmed the decision of the Dane County circuit court,¹ which reversed the decision of the Equal Rights Division of the Department of Workforce Development ("DWD"). The Equal Rights Division of the DWD concluded that Joell Schigur ("Schigur") had proven by a preponderance of the evidence that the Department of Justice ("DOJ") violated Wis. Stat. §§ 230.80 –.89 (2011–12),² the subchapter of Wis. Stat. ch. 230 designated " Employee Protection," by taking retaliatory action against her because she lawfully disclosed, or the DOJ believed that she lawfully disclosed, information under § 230.81.

¶ 2 On April 15, 2008, Schigur attended a staff meeting for Bureau Directors of the DOJ's Division of Criminal Investigation ("DCI") at which her superior, Mike Myszewski ("Myszewski"), explained that the DCI would provide Wisconsin's then-Attorney General J.B. Van Hollen with 24–hour security at the 2008 Republican National Convention in Minnesota. A few days later, Schigur sent an e-mail to Myszewski and two other individuals employed by the DOJ in which she stated her concern that use of state resources at the event might violate state law and Office of State Employment Relations ("OSER") regulations. One month later, Schigur was removed from her position as DCI Public Integrity Director and returned to her previous position as Special Agent In–Charge.

¶ 3 This case involves a narrow question of statutory interpretation: we must determine whether Schigur's e-mail communications to Myszewski are entitled to protection under Wis. Stat. §§ 230.80 –.89, given that "only certain disclosures made a particular way and regarding a subject matter covered in the statute will qualify for protection." Hutson v. Wis. Pers. Comm'n, 2003 WI 97, ¶ 37, 263 Wis.2d 612, 665 N.W.2d 212. Simply stated, we examine whether Schigur's opinion alone, as to the lawfulness or appropriateness of government activity is "information" such that it is entitled to protection under §§ 230.80–.89, whether other portions of Schigur's e-mails relating to the proposed security detail constitute "disclosure[s]" of information under Wis. Stat. § 230.81, and whether Schigur's disclosure is protected because the DOJ believed that Schigur had "disclosed information" under the statute.

¶ 4 Schigur makes two specific arguments on review. First, she argues that disclosure of a "belief"—namely her opinion regarding the lawfulness or appropriateness of government activity—is disclosure of "information" under Wis. Stat. §§ 230.80 –.89, and that the DOJ therefore may not discipline her for sending e-mail communications that disclosed such a belief. Second, Schigur argues that the DOJ believed that Schigur engaged in activity protected under §§ 230.80–.89, and that Schigur is entitled to protection from discipline on that basis as well. In response, the DOJ argues, among other things, that expressing a belief about known information is not "disclosing information" under the statute, and that Schigur forfeited her second argument by failing to raise it in the administrative proceeding below.

¶ 5 We conclude that: (1) an 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) ; (2) under the specific facts of this case, and assuming without deciding that Schigur's e-mail contained "information" regarding the proposed security detail, the communication of the information to Myszewski, Jed Sperry, and Cindy O'Donnell was not a "disclosure" under Wis. Stat. § 230.81 because the information was already known to the recipients of the e-mails; and (3) Schigur's argument that the DOJ believed that she "disclosed information" rests on a misinterpretation of § 230.80(8)(c) and therefore fails. Accordingly, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 6 On May 28, 2006, DCI Administrator Jim Warren ("Warren") promoted Schigur from her position as Special Agent In–Charge within DCI to the position of Director of DCI's Bureau of Public Integrity. Schigur was subject to a two-year probationary period and received probationary performance evaluations every three months. From September 2006 to November 2007, Joell received six positive probationary performance evaluations from Warren.

¶ 7 On January 3, 2008, Myszewski became DCI's Acting Administrator and Schigur's supervisor. On February 22, 2008, Myszewski completed Schigur's seventh probationary performance evaluation. The evaluation was again positive, and recommended that Schigur "be removed from probation and receive permanent status as a director."

¶ 8 On April 15, 2008, Schigur attended a staff meeting for DCI Bureau Directors. At the meeting, Myszewski informed the attendees that then-Wisconsin Attorney General J.B. Van Hollen would be attending the Republican National Convention in Minnesota. Myszewski explained that DCI would provide the Attorney General with 24–hour security at the event, and that the head of DCI's tactical unit, Jed Sperry ("Sperry"), would plan the security detail.

¶ 9 On April 21, 2008, Schigur sent an e-mail to Myszewski, Sperry, and Cindy O'Donnell ("O'Donnell"), the Administrator of the DOJ's Division of Management Services ("DMS"), which stated in part:

In our April 15th staff meeting, a discussion was held regarding providing the Attorney General with a 24 hour security detail of special agents while he attends the Republican National [Convention] in Minnesota. SAC Jed Sperry was selected as the individual responsible for coordinating this effort. The Office of State Employee Relations in the bulletin numbered OSER–0053–MRS (attached) clarified permissible political activities for state employees. According to Section 6(h), a state employee may participate as a delegate, alternate, or proxy to a political convention provided he or she is off duty and not on state property.

I am concerned that providing state resources to the Attorney General while he participates in a political activity off duty may violate OSER regulations and state law. I am expressing this concern in hopes that this decision will be further evaluated to avoid possible scrutiny of our Attorney General, our agency and our special agents.

Schigur attached to the e-mail OSER bulletin OSER–0053–MRS.

¶ 10 On April 23, 2008, Myszewski e-mailed Schigur. He wrote in part:

I have read both your [e-mail] and the attached OSER bulletin with great interest. Thank you for calling my attention to your concerns about the potential of improper political activity by our agent(s) who will provide security for the Attorney General at the [Republican National Convention] in September. I will forward your concerns up the chain of command so that they can be evaluated.

However, I do not think that an on duty DCI agent who is protecting the Attorney General at a political event, at which certain groups have threatened to violently disrupt, constitutes political activity on the part of an agent.

¶ 11 The same day, Schigur responded with another e-mail message, which read in part:

To clarify, the concern is not regarding agents participating in political activity; rather can state resources be used by the [Attorney General] at a political event where he is not representing DOJ, rather the Republican Party. Parallel issues [came up] in the Jensen/Chvala investigation.

Thanks for looking into this further.

¶ 12 On May 21, 2008, Myszewski and O'Donnell met with Schigur and presented her with her final probationary performance evaluation. The evaluation stated that, during the time since her previous evaluation, Schigur had "been persistently unwilling to carry out administration policies, argumentative, disrespectful, suspicious of management, and insubordinate" as well as "openly critical and defiant of management's policies and decision making."³

¶ 13 Effective May 22, 2008, the DOJ removed Schigur from her position as DCI Public Integrity Director and returned her to her previous position as Special Agent In–Charge.

II. PROCEDURAL BACKGROUND

¶ 14 On July 11, 2008, Schigur filed a complaint with the Equal Rights Division of the DWD. The complaint alleged that the DOJ had unlawfully retaliated against her by terminating her probation and demoting her to her previous position for e-mailing Myszewski about Schigur's concerns regarding the proposed security detail at the Republican National Convention. On September 26, 2008, the Equal Rights Division of the DWD issued an "Initial Determination" that there was probable cause to believe that the DOJ violated Wis. Stat. §§ 230.80 –.89 by "[t]aking any retaliatory action because the employee lawfully disclosed, or the respondent believed the employee had disclosed, information under sec. 230.81, Stats." The case was certified for an administrative hearing on the merits of Schigur's complaint.

¶ 15 From September 28 to September 30, 2009, a hearing on the DOJ's liability was held before Administrative Law Judge Deborah Little Cohn ("ALJ"). The ALJ stated on the first day of the hearing that:

Ms. Schigur filed a complaint with the Wisconsin Equal Rights Division ... alleging that the [DOJ] violated the Wisconsin Whistle Blower Law, Section 230.80 –230.89 of the Wisconsin

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