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Appeals court rules against former DOJ agent (UPDATE)

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — A former Wisconsin Department of Justice agent fired after he brought a whistleblower complaint against his boss did not notify the proper people when he made his allegation, a state appeals court ruled Tuesday.

The appeals court overturned a Douglas County Circuit Court ruling in favor of Dan Bethards. He alleged that he was improperly fired in 2013 because he accused his boss in the Superior field office of illegally selling guns without a federal license.

DOJ officials fired Bethards in October 2013 for insubordination, saying that the allegations he brought against his boss, claims of favoritism within the agency and a conspiracy were “baseless, dishonest, and in violation of numerous DOJ rules and policies.”

Bethards filed a series of complaints with state labor officials alleging the DOJ retaliated against him in violation of the state whistleblower protection law. The law allows state employees who report alleged rule or law violations, waste or fraud to be protected from retaliation.

An administrative law judge within the state Department of Workforce Development said Bethards was not entitled to whistleblower protection and dismissed his complaints in December 2014. The judge found that Bethards improperly notified DOJ’s human resources director rather than his supervisor, as the state whistleblower law requires.

Bethards sued and in 2015 a Douglas County circuit judge ruled that the human resources director qualified as a supervisor. The circuit court reinstated Bethards’ whistleblower complaints.

But the appeals court on Tuesday, in overturning the lower court’s ruling in favor of Bethards, said it’s reasonable to determine that the human resources director was not his supervisor.

Bethards’ attorney, Lukas Saunders, did not immediately respond to email and phone messages seeking comment. Johnny Koremenos, a spokesman for the DOJ, said only that the department was pleased with the ruling.

The dispute began in December 2012, when Bethards sent an email to David Matthews, the DOJ’s criminal investigations administrator, and Mary Casey, the agency’s human resources director. He alleged that Jay Smith, the special agent in charge of the Superior field office at the time, was building and selling weapons to law enforcement officials without a federal firearms license.

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives investigated Smith in 2013 but no charges were ever filed. An agency spokesman said at the time that privately selling individual weapons without a license typically doesn’t rise to a federal violation unless the seller is engaging in regular, consistent sales for profit. Buyers in such cases don’t face any liability.

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