State Dep't of Justice v. State Dep't of Workforce Dev., 2013AP1488.

• Decision Date: 05 February 2015
• Docket Number: No. 2013AP1488.,2013AP1488.
• Citation: 361 Wis.2d 196,861 N.W.2d 789
• Parties: STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Petitioner–Respondent, v. STATE OF WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Respondent, Joell Schigur, Respondent–Appellant.
• Court: Wisconsin Court of Appeals

361 Wis.2d 196

861 N.W.2d 789

STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Petitioner–Respondent,

v.STATE OF WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Respondent

Joell Schigur, Respondent–Appellant.^†

No. 2013AP1488.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 21, 2014.

Opinion Filed Feb. 5, 2015.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Peter J. Fox of Fox & Fox, S.C., Monona.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Steven C. Kilpatrick, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BLANCHARD, P.J., LUNDSTEN and SHERMAN, JJ.

Opinion

SHERMAN, J.

¶ 1 Joell Schigur appeals a circuit court order reversing a decision by the Equal Rights Division (ERD) of the Department of Workforce Development (DWD) that the Department of Justice (DOJ) violated her rights under Wis. Stat. § 230.83,¹ one of Wisconsin's whistleblowing protection statutes, when DOJ terminated Schigur's probation as a Bureau Director for DOJ and returned Schigur to her former position within DOJ. DOJ argues that Schigur did not disclose “information” within the meaning of the statutory scheme at issue here and, therefore, any action taken by DOJ with regard to Schigur's probation was not in violation of § 230.83. For the reasons discussed below, we affirm.

BACKGROUND

¶ 2 The following facts are undisputed. In May 2006, Schigur, a “special agent in-charge” within DOJ's Division of Criminal Investigation, was promoted to the position of Public Integrity Director. Schigur's promotion was subject to a two-year probationary period, during which the employee is evaluated by his or her supervisor to determine if the employee is “effectively able to carry out the assigned duties and responsibilities on a continuing basis.” See Wis. Admin. Code § ER–MRS 13.015 (June 2005). In September 2006, November 2006, February 2007, June 2007, August 2007, November 2007 and February 2008, Schigur received positive performance reviews for her work as the Public Integrity Director. James Warren, the then division administrator for the Division of Criminal Investigation and, therefore, Schigur's supervisor, completed all but the February 2008 review, which was completed by Warren's successor, Mike Myszewski. In Schigur's February 2008 review, Myszewski commented that Schigur “continues to do an outstanding job” and he “recommend[ed] that [she] be removed from probation and receive permanent status as a director.” Myszewski also recommended in a memorandum to DOJ's director of human resource services that Schigur's probation be ended early. Myszewski stated in his memo that Schigur had “completed 21 months of a 24–month probation,” that Schigur had “met the requirements [for] being a successful bureau director,” and that “keeping her on probation for three more months [was] not necessary.” Despite Myszewski's recommendation, Schigur's probation was not ended.

¶ 3 In April 2008, Schigur was made aware that Wisconsin's Attorney General, J.B. Van Hollen, would be attending the 2008 National Republican Convention in St. Paul, Minnesota, and that the Division of Criminal Investigation planned to send agents with the Attorney General to provide twenty-four hour security for him. On April 21, Schigur sent an email to her supervisor, Myszewski, in which she expressed concern about the Division of Criminal Investigation providing security for the Attorney General at the Convention. Schigur's email stated in relevant part:

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 referenced Office of State Employee Relations bulletin OSER–0053–MRS subsection 6(h), which she stated “clarified permissible political activities for state employees.”

¶ 4 Myszewski responded:

I have read both your email 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].... 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 [Division of Criminal Investigation] 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.

¶ 5 Schigur in turn responded: “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....”

¶ 6 In May 2008, another performance evaluation was completed on Schigur. In this evaluation, it was recommended that Schigur's probation be terminated. The evaluation stated that Schigur did not meet the standard for directing and supervising the Unit in accordance with Department and Division policies and procedures. On May 21, Schigur was informed that she did not complete her probationary period and she was returned to her former position as a special agent in-charge.

¶ 7 In July 2008, Schigur filed a complaint with ERD, alleging that the termination of her probation was in retaliation for her April 2008 emails concerning the planned security detail for the Attorney General while he attended the Republican National Convention and, therefore, that the termination of her probation was in violation of Wis. Stat. § 230.83. See Wis. Stat. § 230.85(1) (pertaining to filing complaints with ERD alleging a violation of § 230.83 ). ERD determined that probable cause existed to believe retaliatory action occurred and certified the matter for a hearing before an ERD Administrative Law Judge (ALJ).

¶ 8 Following a hearing on Schigur's complaint, the ALJ issued a “non-final decision,” wherein the ALJ concluded that Schigur disclosed “information” as that term is used to define the word “retaliat[ion]” in Wis. Stat. § 230.83, that Schigur's disclosure of that information was a factor in DOJ's decision to terminate Schigur's probation and reappoint her to her former position, and, therefore, that DOJ violated § 230.83. In July 2011, DOJ filed a “motion for reconsideration” of the ALJ's April decision. Relevant to the present appeal, DOJ argued for the first time that Schigur had not disclosed “information” as that word is used in the statutory scheme. In a letter to the ALJ dated July 6, 2011, Schigur's attorney challenged DOJ's right to seek reconsideration of the ALJ's April 2011 decision, arguing there is no authority, statutory or otherwise, for a party to seek reconsideration of a non-final decision by an Equal Rights Division ALJ.² In an August 2011 email, the ALJ informally ruled that DOJ's reconsideration should be denied. The ALJ formalized her ruling in September 2011. The ALJ determined that she had authority to reconsider a non-final decision, but she denied DOJ's motion, stating the issues raised in the motion “are best addressed on appeal after [the ALJ] issu[ed] the [f]inal ... [o]rder.”

¶ 9 A remedy hearing was subsequently held in October 2011, after which a second “non-final decision” was issued, wherein Schigur's remedy was delineated. In April 2012, ERD notified the parties that “[a] decision finding that discrimination has occurred will be issued,” but that the decision, a copy of which was attached, was not yet final for purposes of appeal because the issue of attorney's fees and costs had not yet been resolved. The parties subsequently reached an agreement on attorney's fees and costs and thereafter, ERD issued a final decision, wherein ERD determined that DOJ violated Wis. Stat. § 230.83(b) when DOJ terminated Schigur's probation, and specified Schigur's damages.

¶ 10 DOJ petitioned the circuit court for review of the ALJ's decision.³ The circuit court reversed, concluding that ERD erred. Contrary to ERD's decision, the circuit court concluded that Schigur had not disclosed “information” in the emails at issue and, therefore, that Schigur was not entitled to protection from retaliation under Wis. Stat. § 230.83. Schigur appeals.

DISCUSSION

¶ 11 Schigur appeals the circuit court order reversing the determination by ERD that DOJ retaliated against Schigur's rights under Wis. Stat. § 230.83 when DOJ terminated Schigur's probation. Schigur contends that the circuit court erred in determining that she did not disclose “information” as that term is used to define the term “retaliatory action” in § 230.83. Schigur argues first that DOJ forfeited the right to challenge whether her disclosure contained “information” and because that issue was forfeited, the circuit court should not have reached that issue on review of ERD's decision. Schigur also argues that, even if the issue of whether her disclosure contained “information” was not forfeited by DOJ, or is to be addressed regardless of forfeiture, the circuit court erred in determining that she did not disclose “information” in her April 2008 emails.

¶ 12 Before we address the merits of Schigur's arguments, we first address the threshold question of our standard of review in this case.

A. Standard of Review

¶ 13 When the decision of an administrative agency is at issue on appeal, we review the agency's decision and not the circuit court's decision. See Kozich v. Employe Trust Funds Bd.,

203 Wis.2d 363, 368–69, 553 N.W.2d 830 (Ct.App.1996). An agency's factual findings will be upheld so long as those findings are supported by substantial evidence. Hutson v. Wisconsin Pers. Comm'n, 2003 WI 97, ¶ 29, 263 Wis.2d 612, 665 N.W.2d 212. When the interpretation of a statute is at issue, as it is in this case...