State v. State of Wisconsin Department of Workforce Development
State v. State of Wisconsin Department of Workforce Development
Opinion of the Court
¶ 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,
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
¶ 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
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 . . . ."
¶ 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 "retaliation]" 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,
¶ 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.
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
¶ 14. Schigur argues that ERD's decision should be afforded due weight deference because ERD "is charged with enforcing the [Act] under Wis. Stat. § 230.85 and has experience doing so." DOJ, on the other hand, argues that the decision should be afforded no deference because ERD's interpretation of the Act was one of first impression and because ERD's interpretation "ignore [d] the plain meaning of the statutes."
¶ 15. As explained in greater detail below, the questions before us on appeal are: (1) whether Schigur's April 2008 emails contained "information" as that term is used to define the term "retaliatory action" in Wis. Stat. § 230.83; and (2) whether DOJ has forfeited the right to argue that the emails did not contain the right kind of information. Neither of these issues was reached by the AL J
B. Forfeiture
¶ 16. Schigur contends that any argument by DOJ that she did not disclose "information" within the pertinent statutory scheme was forfeited by DOJ because DOJ did not timely raise the issue before the ALJ. Schigur points out that DOJ did not raise the issue of whether she disclosed "information" until after the ALJ issued the "non-final" decision on liability, and that the ALJ did not have authority to reconsider.
¶ 17. DOJ argues that it timely raised its "information" argument because the ALJ still had jurisdiction over the matter when the issue was raised in DOJ's motion for reconsideration and, thus, the ALJ still had the authority to reconsider her decision. We do not reach the question of whether the ALJ had
¶ 18. "It is settled law that to preserve an issue for judicial review, a party must raise it before the administrative agency." Bunker v. LIRC, 2002 WI App 216, ¶ 15, 257 Wis. 2d 255, 650 N.W.2d 864. Because our review of an administrative agency's decision contemplates review of the record developed before the agency, a party's failure to properly raise an issue before the administrative agency generally forfeits the right to raise that issue before a reviewing court. Id. The forfeiture rule is one of judicial administration, however, and a reviewing court has inherent authority to consider issues that were not properly preserved. Id.; Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 17, 273 Wis. 2d 76, 681 N.W.2d 190.
¶ 19. The supreme court has stated that "[w]hen [a forfeited] issue involves a question of law rather than of fact, when the question of law has been briefed by both parties and when the question of law is of sufficient public interest to merit a decision," it is appropriate for an appellate court to exercise its discretion and address an otherwise forfeited issue. Apex Elees. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998).
¶ 20. Assuming DOJ forfeited its "information" argument, Schigur asserts that we should not exercise our discretion to consider DOJ's argument that Schigur did not disclose "information" because that argument "is not exclusively a legal argument." We understand Schigur to be arguing that the determination of whether her emails contained "information" entails the consideration of whether she and/or DOJ
¶ 21. As will be more fully explained below, we are able to resolve this appeal on a purely legal basis. In addition, both parties have fully briefed the issue of whether Schigur disclosed "information." Accordingly, assuming without deciding that DOJ forfeited its "information" argument, we choose to exercise our discretion and address the topic.
C. Disclosure of "Information"
¶ 22. Wisconsin Stat. § 230.83, one of Wisconsin's whistleblowing statutes, provides protection for state employees from retaliation for the disclosure of certain information. See Hutson, 263 Wis. 2d 612, ¶ 37; Wis. Stat. § 230.01(2). The supreme court has explained that the whistleblowing statutes provide "specific parameters for protection," and although they are to be liberally construed, "only certain disclosures made a particular way and regarding [specified] subject matter[s] . . . will qualify for protection." Hutson, 263 Wis. 2d 612, ¶ 37.
¶ 23. More specifically, Wis. Stat. § 230.83(1) prohibits "retaliatory action." Looking to the definition of "[Retaliatory action" in § 230.80(8)(a), the term is defined to include taking disciplinary action against an employee who "lawfully disclose[s] information." "Information," in turn, is defined in § 230.80(5), which provides in relevant part: " 'Information' means information gained by the employee which the employee reasonably believes demonstrates ... [a] violation of any state or federal law, rule or regulation. . . [or] Mismanagement or abuse of authority in state or
¶ 24. DOJ argues that Schigur did not disclose "information," within the meaning of Wis. Stat. § 230.80(5), in her April 2008 emails because the April emails contained only Schigur's "concern," or opinion, that the proposed security detail for the Attorney General was unlawful. Relying on an unpublished opinion from this court and federal district court opinion, DOJ asserts that opinions of an employee do not qualify as "information" under Wis. Stat. § 230.83(1). See Kinzel v. Board of Regents, No. 2012AP1586, unpublished slip op. (WI App March 28, 2013);
¶ 25. In Kinzel, we addressed whether the content of an employee's email "lawfully disclos[ed] information" under Wis. Stat. § 230.90, another one of Wisconsin's whistleblowing protection statutes, and we concluded that it did not. Kinzel, No. 2012AP1586, unpublished slip op. ¶ 1. Under § 230.90, a state employer is prohibited from retaliating against a state employee if the employee "lawfully disclos [es] information or because the employer or employer's agent believes the employee so exercised his or her rights." Id., | 18 (quoting §230.90(2)). "[information" in § 230.90(l)(d) is defined, as it is in Wis. Stat. § 230.80(5), as "information gained by the employee which the employee reasonably believes demon
¶ 26. Similar to Wis. Stat. §§ 230.90 and 230.83, Wis. Stat. § 895.65(2) prohibits a state employer from retaliating against an employee who "lawfully discloses] information." The court in Kmetz did not address whether the statements at issue in that case qualified as "information." Instead the court focused on whether the employee's statements constituted disclosures. See Kmetz, 304 F. Supp. 2d at 1141. Looking to the dictionary definition of the term "disclosure," which was not defined by the statute, the Kmetz court stated that "[a] disclosure is 'the action of making new secret information known." Id. (quoting The New Oxford American Dictionary 486 (2001)). The court concluded that the statements made by the employee in that case did not constitute a disclosure, and thus were
¶ 27. Although Kinzel and Kmetz concerned different whistleblower statutes, we conclude that the reasoning in those cases is persuasive. Accordingly, we conclude that Wis. Stat. § 230.81(1) "does not cover employee statements that merely voice opinions or offer criticism." See Kinzel, unpublished slip op. ¶ 19.
¶ 28. As stated above, Wis. Stat. § 230.80(5) protects employees who lawfully disclose "information gained by the employee which the employee reasonably believes demonstrates ... [a] violation of any state or federal law, rule or regulation . . . [or] Mismanagement or abuse of authority in state or local government, a substantial waste of public funds." Schigur argues that the content of her April 2008 emails is protected because they contained information "that she reasonably believe [d] demonstrate [d] a violation of law or government mismanagement." However, as we explain next, Schigur did not disclose unknown "information," but instead merely gave her opinion that a proposed security detail would possibly violate a law or regulation.
¶ 29. The emails at issue here were directed to Schigur's supervisor, Myszewski. It is undisputed that Myszewski was aware, prior to Schigur's emails, of the proposal to provide the Attorney General with security detail when the Attorney General attended the political event in Minneapolis. Schigur does not argue that she provided information to anyone who was not already aware of such information. The only thing new
¶ 30. In sum, Schigur's statements in the emails did not disclose "information," but rather expressed her opinion that providing security to the Attorney General might be a violation of law. Accordingly, we conclude that Schigur's April 2008 emails do not satisfy the requirements for according Schigur protection from retaliatory action under Wis. Stat. § 230.83.
CONCLUSION
¶ 31. For the reasons discussed above, we affirm.
By the Court. — Order affirmed.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
Schigur's attorney requested permission to submit a brief in response to DOJ's motion in the event the ALJ considered the motion. However, there is no indication in the record before us that Schigur did so.
Wisconsin Stat, § 230.87 authorizes judicial review of findings and orders of ERD.
As we explained above in ¶ 8, the parties had not raised the issue of whether Schigur's April 2008 emails constituted the disclosure of "information" prior to the issuance of the
Schigur asserts that "[t]he ALJ properly refused to consider [DOJ's] [m]otion for [Reconsideration." Schigur misconstrues the ALJ's decision. The ALJ rejected Schigur's argument below that the ALJ did not have authority to consider DOJ's motion, stating: "I do believe, contrary to [Schigur's] position, that I have authority to reconsider my Decision on Liability at this point, given that I issued a Non-final Decision in this matter."
Unpublished opinions issued on or after July 1, 2009, that are authored by a member of a three-judge panel or by a single judge under Wis. Stat. § 752.31(2), may be cited for persuasive value. See Wis. Stat. Rule 809.23(3)(b).
Wisconsin Stat. § 895.65 was renumbered as Wis. Stat. § 230.90 in 2006. See 2005 Wis. Act 155, § 60.
Because we conclude that the relevant statements in Schigur's April 2008 emails were expressions of opinion and, therefore, not "information," we need not, and do not, reach other arguments raised by DOJ, including DOJ's argument that Schigur's statements are not protected because she did not first make those statements to her supervisor, as required by Wis. Stat. § 230.81(l)(a).
Reference
- Full Case Name
- State of Wisconsin Department of Justice, Petitioner-Respondent v. State of Wisconsin Department of Workforce Development, Joell Schigur
- Cited By
- 5 cases
- Status
- Published