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BENCH BLOG: Appeals decision raises more questions than it answers

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at jeandimotto@gmail.com.

The Court of Appeals has decided that expressing opinions is not whistleblowing. But what constitutes opinion and what constitutes whistleblowing?

The Feb. 5 ruling in Wis. Dept. of Justice v. Wis. Dept. of Workforce Development raises more questions than it answers.

The case concerns the employment status of Joell Schigur. Schigur was employed by the state Department of Justice. In May 2006 she was promoted to public integrity director, which required a two-year probationary period.

She received consistently positive quarterly reviews, with the penultimate review commenting on her “outstanding” work and recommending that her probation terminate early because she had “met the requirements for being a successful bureau director.” For unknown reasons, human resources did not follow through on the recommendation.

The emails

One month before the end of her full probation Schigur sent two emails to her supervisor.

She had become aware that then-Attorney General J.B. Van Hollen would be attending the Republican National Convention in St. Paul, Minn., and that the DOJ’s Division of Criminal Investigation was planning to send agents with Van Hollen to provide him with 24-hour security.

Schigur expressed her “concern 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.”

She attached a bulletin about the implicated OSER regulation which “clarified permissible political activities for state employees.”

Her supervisor responded that he “read her email and the attached OSER bulletin with great interest. Thank you for calling my attention to your concerns about the potential improper political activity by our agents. … I will forward your concerns up the chain of command so that they can be evaluated.”

He continued: “However, I do not think that an on-duty 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.”

Schigur replied: “To clarify, the concern is not regarding the 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.”

The aftermath

In May 2008 Schigur received her last performance evaluation on probation. It stated that her probation should be terminated and that she did not meet the standard for directing and supervising the unit in accord with policies and procedures.

She was then demoted.

Two months later Schigur filed a complaint with the Department of Workforce Development’s Equal Rights Division. She alleged that the termination of her probation was retaliation for her two emails and therefore the DOJ violated one of Wisconsin’s whistleblower statutes, sec. 230.83.

The ERD found probable cause that retaliatory action was taken and certified the matter for a hearing before an administrative law judge.

Administrative review

Following the hearing the ALJ issued a “non-final decision.” She concluded that Schigur disclosed “information,” as that word is used in the whistleblowing statutory scheme to define the term “retaliatory action,” and that the disclosure was a factor in her demotion.

Therefore, she said, the DOJ had violated the statute.

The DOJ then filed a motion for reconsideration, arguing for the first time that Schigur had not disclosed “information.” Schigur objected that there was no authority upon which a party can seek reconsideration of an ALJ’s non-final decision.

When she formalized her decision, the ALJ denied the DOJ’s motion, stating that the issues raised in the motion “are best addressed on appeal.”

A remedy hearing was then held, and a final decision issued in April 2012. The DOJ petitioned for judicial review.

Circuit court review

Dane County Circuit Judge Juan Colas presided over the judicial review, issuing his decision on briefs in May 2013.

He concluded that the ERD had erred as a matter of law, determining that Schigur had not disclosed “information” in the emails and was therefore not entitled to protection from retaliation under sec. 230.83.

Schigur appealed.

Appellate review

District 4 Court of Appeals Judge Gary Sherman wrote the court’s opinion. The court reviewed the matter de novo.

Schigur argued that the DOJ forfeited its argument that she did not disclose “information” because it did not timely raise the issue before the ALJ. The DOJ responded that since it raised the issue when the ALJ still had jurisdiction over the issue, it was timely asserted.

The court sidestepped the issue. It exercised its discretion to address the issue by assuming, without deciding, that there was a forfeiture.

The court noted that sec. 230.83(1) protects state employees from retaliation for disclosing “information gained by an employee which the employee reasonably believes demonstrates … violation of any state or federal law, rule or regulation … [or] mismanagement or abuse of authority in state or local government.”

DOJ argued that Schigur’s emails did not disclose information but rather contained only “concern” or opinion. Schigur argued that her emails contained information that she reasonably believed demonstrated a violation of law or government mismanagement.

The court looked to a 2013 unpublished slip opinion that involved an employee criticizing supervisors by opining that the suspension of two volunteers was “done without good reason.” The ruling in that case was that another of the whistleblowing statutes does not cover employee statements that “merely voice opinions or offer criticism.”

Despite the differences in the factual underpinnings of the two cases, the court adopted this rule in Schigur’s case.

It also found persuasive a federal district court opinion where the court relied on the dictionary definition of “disclosure:” the action of making new secret information known. That court determined that the employee did not make a disclosure but instead gave “opinions and views” about information that was already known.

The Court of Appeals concluded that “the only thing new in the emails was Schigur’s statement of concern.” This constituted opinion that fell outside the protection of the whistleblowing statutes.

Commentary

The court overlooked the fact that the nature of Schigur’s emails (an alert) was distinctly different from the opinion (criticism) expressed in the unpublished case.

And while the supervisor knew of Van Hollen’s attendance at the political convention and the planned security detail, nothing suggests he knew this could constitute a violation of regulations.

The emails here were diplomatically worded. The court equated diplomatically worded missives with opinion.

This is ironic in an era of rampant incivility, especially in offices such as this one where the internal politics were brutal and even tactfully worded emails resulted in demotion.

The decision implies that an employee’s use of phrases such as “I think,” “I believe,” “In my opinion” and “This could be deemed a violation” leaves the employee without retaliatory protection. Even phrasing such as “This constitutes a violation” may be viewed as merely the expression of the employee’s opinion on the matter.

Despite the Supreme Court mandate that the whistleblowing statutes be construed liberally, this case appears to narrow whistleblower protection.

Because of the importance of the issue and the factual distinctions at play, the Supreme Court may weigh in on the matter by accepting what I expect will be a forthcoming petition for review. A closer look at factual and legal dissimilitudes seems warranted.


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