2015 WI 114

SUPREME COURT
CASE NO.:
COMPLETE TITLE:

OF

WISCONSIN

2013AP1488
State of Wisconsin Department of Justice,
Petitioner-Respondent,
v.
State of Wisconsin Department of Workforce
Development,
Respondent,
Joell Schigur,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 361 Wis. 2d 196, 861 N.W.2d 789)
(Ct. App. 2015 – Published)
PDC No. 2015 WI App 22

OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

December 30, 2015
October 5, 2015

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

Circuit
Dane
Juan B. Colas

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
(Opinion Filed)
PROSSER, R.G. BRADLEY, J.J., did not
participate.

ATTORNEYS:

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.

 2015 WI 114
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.

No.

2013AP1488

(L.C. No.

2012CV2125)

STATE OF WISCONSIN

:

IN SUPREME COURT

State of Wisconsin Department of Justice,
Petitioner-Respondent,

FILED

v.
State of Wisconsin Department of Workforce
Development,

DEC 30, 2015
Diane M. Fremgen
Clerk of Supreme Court

Respondent,
Joell Schigur,
Respondent-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals.

¶1

ANNETTE KINGSLAND ZIEGLER, J.

Affirmed.

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

Workforce Development ("DWD").

1

Division

of

the

Department

of

The Equal Rights Division of the

The Honorable Juan B. Colas presided.

 No.

2013AP1488

DWD concluded that Joell Schigur ("Schigur") had proven by a
preponderance of the evidence that the Department of Justice
("DOJ")

violated

subchapter

of

Wis.
Wis.

Stat.
Stat.

(2011-12),2

§§ 230.80-.89
ch.

230

designated

the

"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
for

On April 15, 2008, Schigur attended a staff meeting

Bureau

Directors

Investigation

("DCI")

of
at

the
which

DOJ's
her

Division

superior,

of

Criminal

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

interpretation:
communications

case
we
to

involves
must

a

narrow

determine

Myszewski

are

question

whether

entitled

to

of

statutory

Schigur's
protection

e-mail
under

Wis. Stat. §§ 230.80-.89, given that "only certain disclosures
2

All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

2

 No.

2013AP1488

made a particular way and regarding a subject matter covered in
the statute will qualify for protection."
Comm'n,

2003

WI

97,

¶37,

263

Hutson v. Wis. Pers.

Wis. 2d 612,

665

N.W.2d 212.

Simply stated, we examine whether Schigur's opinion alone, as to
the

lawfulness

"information"

or

appropriateness

such

that

§§ 230.80-.89,

whether

relating

the

to

it

is

other

of

government

entitled
portions

proposed

to
of

activity

protection
Schigur's

security

detail

is

under

e-mails

constitute

"disclosure[s]" of information under Wis. Stat. § 230.81, and
whether

Schigur's

believed

that

disclosure

Schigur

had

is

protected

"disclosed

because

information"

the

DOJ

under

the

statute.
¶4
First,
opinion

Schigur
she

makes

argues

that

regarding

the

two

specific

disclosure

of

lawfulness

arguments

on

review.

a

"belief"——namely

her

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.

3

 No.

¶5

2013AP1488

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

"disclosed

argument

information"

that

rests

the
on

§ 230.80(8)(c) and therefore fails.

DOJ
a

believed

that

she

misinterpretation

of

Accordingly, we affirm the

decision of the court of appeals.
I.
¶6

On

May

28,

FACTUAL BACKGROUND
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

probationary

Integrity.
period

Schigur
and

received

evaluations every three months.
2007,

Joell

received

was

six

subject

to

probationary

a

two-year

performance

From September 2006 to November

positive

probationary

performance

evaluations from Warren.
¶7

On

January

3,

2008,

Myszewski

Administrator and Schigur's supervisor.

became

DCI's

Acting

On February 22, 2008,

Myszewski completed Schigur's seventh probationary performance
evaluation.

The evaluation was again positive, and recommended

4

 No.

2013AP1488

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.
the

attendees

that

At the meeting, Myszewski informed

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

Myszewski,

April

21,

2008,

Schigur

Sperry,

and

Cindy

O'Donnell

Administrator

of

the

DOJ's

Division

of

sent

an

e-mail

("O'Donnell"),
Management

the

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.
5

to

 No.

2013AP1488

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
Schigur

On

May

and

21,

2008,

presented

performance evaluation.
time

since

persistently

her

her

with

and
her

O'Donnell
final

met

with

probationary

The evaluation stated that, during the

previous

unwilling

argumentative,

Myszewski

to

evaluation,
carry

disrespectful,

out

administration

suspicious

6

Schigur

of

had

"been

policies,

management,

and

 No.

insubordinate"

as

well

as

"openly

critical

and

2013AP1488

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.
¶14

PROCEDURAL BACKGROUND

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

e-mailing

Myszewski

her

about

to

her

Schigur's

previous
concerns

position

for

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

disclosed, information under sec. 230.81, Stats."
certified

for

an

administrative

hearing

on

had

The case was

the

merits

of

Schigur's complaint.

3

In the evaluation, Myszewski provides purported examples
of this behavior. However, the issues involving the quality of
Schigur's performance at the DOJ are not before this court. As
will be explained, the Administrative Law Judge below concluded
that Schigur's (putative) disclosure of information to Myszewski
in her April 2008 e-mails was "a factor" in the DOJ's decision
to terminate Schigur's probation and reinstate Schigur as
Special Agent In-Charge.

7

 No.

¶15

2013AP1488

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 Statutes, by taking
retaliatory action because she lawfully disclosed——or
the [DOJ] believed that she had disclosed information
under Section 230.81 Wis. Stats.
On April 29, 2011, the Equal Rights Division of the DWD issued a
"Non-Final Decision and Memorandum Opinion" finding that Schigur
had proven by a preponderance of the evidence that the DOJ had
violated Wis. Stat. §§ 230.80-.89 by taking retaliatory action
against

her

believed

"because

that

she

had

July

7,

she

lawfully

lawfully

disclosed,

disclosed,

or

the

[DOJ]

information"

under

§ 230.81.
¶16

On

2011,

the

DOJ

filed

a

reconsideration of the ALJ's non-final decision.

motion

for

In its motion,

the DOJ argued for the first time that, among other things,
Schigur

had

not

"disclose[d]"

"information"

under

Wis.

Stat.

§§ 230.81(1)(a) and 230.80(5)(a), respectively.

In response,

Schigur

to

submitted

reconsideration
Division ALJ.
motion.

The

of

that

the

DOJ

a

written

had

no

decision

right
of

an

ask

Equal

for

Rights

On September 19, 2011, the ALJ denied the DOJ's
ALJ

stated

that

she

believed

she

possessed

authority to reconsider her non-final decision, but that the
issues raised by the DOJ were "best addressed on appeal."
8

 No.

2013AP1488

¶17

On October 4, 2011, a remedy hearing was held before

the ALJ.

On April 4, 2012, the Equal Rights Division of the DWD

issued

second

a

"Non-Final

Decision

and

Memorandum

Opinion"

ordering the DOJ to take certain actions to remedy its violation
of Wis. Stat. §§ 230.80-.89.
¶18
DWD

On April 30, 2012, the Equal Rights Division of the

issued

a

"Final

Decision

and

Memorandum

Opinion."

The

decision again found that Schigur had proven by a preponderance
of the evidence that the DOJ had violated Wis. Stat. §§ 230.80.89

by

taking

retaliatory

action

against

her

"because

she

lawfully disclosed, or the [DOJ] believed that she had lawfully
disclosed, information" under § 230.81.
that

"Schigur

disclosed

'information'

The decision concluded
as

defined

under

Wis.

Stat. sec. 230.80(5) in her April 21 and 23, 2008 [e-mails] to
her supervisor," and that Schigur had proven by a preponderance
of the evidence that the "DOJ decided that she failed to pass
probation as a Bureau Director and reinstated her to her former
position

as

a

Special

Agent

In-Charge

because

information under Wis. Stat. sec. 230.81."

she

disclosed

The decision again

ordered the DOJ to take certain actions to remedy its violation.
¶19

On May 29, 2012, the DOJ filed a petition for judicial

review of the April 30, 2012 decision in Dane County circuit
court.

On May 21, 2013, the circuit court issued a decision and

order reversing the decision of the Equal Rights Division of the
DWD.

The

court

found

that

Schigur

had

not

disclosed

"information" as that term is defined in Wis. Stat. § 230.80(5),
and that Schigur's communications were therefore not entitled to
9

 No.

protection under §§ 230.80-.89.

2013AP1488

On July 2, 2013, Schigur filed

a notice of appeal.
¶20

On February 5, 2015, the court of appeals affirmed the

circuit court's decision.

DOJ v. DWD, 2015 WI App 22, ¶31, 361

Wis. 2d 196, 861 N.W.2d 789.

The court of appeals concluded

that "Schigur's statements in the [e-mails] did not disclose
'information,' but rather expressed her opinion that providing
security to the Attorney General might be a violation of law."
Id., ¶30.

On March 4, 2015, Schigur filed a petition for review

in this court.

On June 12, 2015, we granted the petition.
III.

¶21

STANDARD OF REVIEW

"In an administrative appeal, the scope of our review

is identical to that of the circuit court and is set forth in
Wis. Stat. § 227.57."

Andersen v. DNR, 2011 WI 19, ¶24, 332

Wis. 2d 41, 796 N.W.2d 1 (citation omitted).
interpret Wis. Stat. §§ 230.80-.89.

In this case we

"The interpretation of a

statute and its application to undisputed facts is a question of
law that we review de novo."

Id., ¶26 (citation omitted).

In

appropriate cases we accord a level of deference to an agency's
interpretation and application of a statute.
¶¶26-29.

See, e.g., id.,

However, the ALJ below did not examine any of the

statutory questions we answer today.

Therefore, there is no

decision to which we might defer.
¶22

"[S]tatutory interpretation 'begins with the language

of the statute.

If the meaning of the statute is plain, we

ordinarily stop the inquiry.'

Statutory language is given its

common, ordinary, and accepted meaning, except that technical or
10

 No.

2013AP1488

specially-defined words or phrases are given their technical or
special definitional meaning."

State ex rel. Kalal v. Circuit

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110

(citations

omitted).

Additionally,

we

interpret

statutory language "reasonably, to avoid absurd or unreasonable
results."

Id., ¶46.
IV.

¶23

Wisconsin

Relations",
See,

e.g.,

Subchapter

that

is,

Wis.
III

Stat.

of

ch.

ch.

state

Stat.

ANALYSIS

"the

whistleblower

governs

government

§ 230.01

230,

see

titled "Employee Protection."
as

230

law"

Wis.

"State

Employment

employment

relations.

(Statement
Stat.

of

policy).

§§ 230.80-.89, is

We have referred to this statute
because

"it

includes

provisions

intended to encourage employees to disclose certain types of
information and protect employees from retaliation that might
result from such disclosures."
n.1.

Hutson, 263 Wis. 2d 612, ¶1 &

Under Wis. Stat. § 230.83, "[n]o appointing authority,

agent of an appointing authority or supervisor may initiate or
administer,

or

threaten

to

initiate

or

administer,

any

retaliatory action against an employee." Wis. Stat. § 230.83(1).
¶24

Wisconsin

Stat.

§ 230.80(8)

defines

"[r]etaliatory

action" as:
[A] disciplinary action taken because of any of the
following:
(a) The employee
under s. 230.81 or
230.85(1).

lawfully disclosed information
filed a complaint under s.

11

 No.

2013AP1488

(b) The employee testified or assisted or will
testify or assist in any action or proceeding relating
to
the
lawful
disclosure
of
information
under
s. 230.81 by another employee.
(c) The
appointing
authority,
agent
of
an
appointing
authority
or
supervisor
believes
the
employee engaged in any activity described in par. (a)
or (b).
Wis. Stat. § 230.80(8) (emphases added).
¶25

Wisconsin

Stat.

§ 230.81(1)

states

in

part:

"An

employee with knowledge of information the disclosure of which
is not expressly prohibited by state or federal law, rule or
regulation may disclose that information to any other person."
Wis. Stat. § 230.81(1) (emphases added).

However, "to obtain

protection under s. 230.83, before disclosing that information
to

any

person"

the

employee

must

first

"[d]isclose

the

information in writing" either to the employee's supervisor or
to a "governmental unit" selected by the Equal Rights Division
of the DWD.
¶26

Wis. Stat. § 230.81(1)(a)-(b).4

"Information" is defined in the statute as:

[I]nformation gained by the employee
employee reasonably believes demonstrates:
(a) A violation
rule or regulation.

of

any

state

or

which

the

federal

law,

(b) Mismanagement or abuse of authority in state
or local government, a substantial waste of public
funds or a danger to public health and safety.

4

This requirement is subject to certain
applicable here. See Wis. Stat. § 230.81(1).

12

exceptions

not

 No.

2013AP1488

Wis. Stat. § 230.80(5). The words "disclose" and "disclosure"
are not defined in the statute.
¶27

The

DOJ

argues

that

Schigur

is

not

entitled

to

protection under Wis. Stat. §§ 230.80-.89 for three reasons: (1)
Schigur

did

not

"disclose

Schigur

did

not

comply

disclose

the

Myszewski,
O'Donnell
opinion

information"

with

information

before
and

that

the

in

disclosing

Sperry,

see

the

statutory

writing

it

to

Schigur

she

addition,

she

information"

argues

under

each

that

Wis.

even

Stat.

requirement

to

and

supervisor,

(3)

namely

Schigur's

demonstrated

a

See § 230.80(5)(a).

these

if

(2)

her

disclosed

of

§ 230.81;

individuals,

§ 230.81(1)(a);

information

disputes

to

other

violation of law was not "reasonabl[e]."
¶28

under

she

§ 230.81,

contentions.
did

her

not

In

"disclose

communication

is

still entitled to protection because the DOJ believed that she
disclosed

information

under

§ 230.81.

See

Wis.

Stat.

§ 230.80(8)(c).
¶29
lawfulness

We
or

conclude

that

appropriateness

an
of

opinion

alone,

government

as

activity

to

the

is

not

"information" as that term is defined in Wis. Stat. § 230.80(5).
We further conclude that under the specific facts of this case,
and assuming without deciding that Schigur's e-mail contained
"information"

regarding

communication

of

O'Donnell

was

not

the

proposed

the

information

a

"disclosure"

to

security

detail,

the

Myszewski,

Sperry,

and

under

Wis.

Stat.

§ 230.81

because the information was already known to the recipients of
the e-mails.

These conclusions render it unnecessary to examine
13

 No.

the DOJ's other arguments.

2013AP1488

See, e.g., State v. Subdiaz-Osorio,

2014 WI 87, ¶143, 357 Wis. 2d 41, 849 N.W.2d 748 (Ziegler, J.,
concurring) ("[W]e are generally obliged to decide our cases on
the

'narrowest

Finally,
believed

we

possible

conclude

that

misinterpretation

that

she
of

grounds.'"
Schigur's

"disclosed
Wis.

Stat.

(citations
argument

information"

omitted)).

that

the

rests

§ 230.80(8)(c)

and

on

DOJ
a

therefore

fails.
A.
¶30

Liberal Construction of Wis. Stat. §§ 230.80-.89
Before we begin our textual analysis of Wis. Stat.

§§ 230.80-.89, we must address Schigur's contention that we are
to construe the statute liberally.
"Liberal

construction

of

Wisconsin Stat. § 230.02,

statutes,"

states

that

"[s]tatutes

applicable to the office shall be construed liberally in aid of
the

purposes

declared

in

s.

230.01."

Wis.

Stat.

§ 230.02.5

Schigur draws our attention to the following purposes set forth
in Wis. Stat. § 230.01:
It is the policy of the state to ensure its employees
opportunities
for
satisfying
careers
and
fair
5

The "office" is the office of state employment relations.
Wis. Stat. § 230.03(10w).
Schigur does not discuss how we are
to know when a statute is "applicable to the office" of state
employment relations. Wis. Stat. § 230.02. However, Wis. Stat.
§ 230.04(1) states that "[t]he director is charged with the
effective administration of" Wis. Stat. ch. 230.
§ 230.04(1).
The "director" is the director of the office of state employment
relations. Wis. Stat. § 230.03(9e), (10w).
We therefore will
assume without deciding that Wis. Stat. §§ 230.80-.89 are
"[s]tatutes applicable to the office" of state employment
relations.

14

 No.

2013AP1488

treatment based on the value of each employee's
services. It is the policy of this state to encourage
disclosure of information under subch. III ["Employee
Protection"] and to ensure that any employee employed
by a governmental unit is protected from retaliatory
action for disclosing information under subch. III.
Wis. Stat. § 230.01(2).6
legislature seriously.

We take such a directive from the
However, none of the purposes cited by

Schigur affect today's statutory inquiry.
¶31
order.

We will examine the purposes Schigur lists in reverse
First, "[i]t is the policy of this state to encourage

disclosure of information under subch. III and to ensure that
any employee employed by a governmental unit is protected from
retaliatory action for disclosing information under subch. III."
Wis. Stat. § 230.01(2) (emphases added).

This policy contains

the very language we must interpret in this case.
construe

the

information
disclosure

statute
and

of

liberally

protection

information

in

from
until

aid

of

disclosure

retaliatory
we

know

We cannot

what

action
the

for
terms

"disclosure of information" and "retaliatory action" mean.
other

words,

we

must

first

give

these

specific

terms

of

In

their

"common, ordinary, and accepted meaning[s]" or their "special
definitional meaning[s]" if definitions are provided.

6

Kalal,

Wisconsin Stat. § 230.01 contains other state policies,
such as "correct[ing] pay inequities based on gender or race in
the state civil service system" and "tak[ing] affirmative action
which is not in conflict with other provisions of" Wis. Stat.
ch. 230.
Wis. Stat. § 230.01(2).
Schigur does not claim that
any of the other purposes affect our analysis and we do not
address them.

15

 No.

271 Wis. 2d 633, ¶45.

2013AP1488

Only when the content of these words is

identified can the rest of the statute be interpreted liberally
in

aid

of

disclosure

of

information

and

protection

from

retaliatory action.
¶32
might

The only issue we examine today to which this policy

apply

without

necessitating

circular

reasoning

is

the

question of whether the DOJ believed Schigur lawfully disclosed
information under Wis. Stat. § 230.81.

That issue requires us

to interpret Wis. Stat. § 230.80(8)(c).

However, "a provision

can be construed 'liberally' as opposed to 'strictly' only when
there is some ambiguity to construe,"

Salazar v. Ramah Navajo

Chapter, 567 U.S. ___, 132 S. Ct. 2181, 2199 (2012) (Roberts,
J., dissenting), and as we will demonstrate, § 230.80(8)(c) is
not ambiguous.
¶33

Second, "[i]t is the policy of the state to ensure its

employees

opportunities

and

fair

treatment based on the value of each employee's services."

Wis.

Stat. § 230.01(2).

for

satisfying

careers

We are at a loss as to how this policy,

amorphous in this context, is supposed to alter our statutory
interpretation in this case.

Schigur has not provided us with

any

"[W]e

additional

guidance.

undeveloped arguments."

do

not

usually

address

State v. Gracia, 2013 WI 15, ¶28 n.13,

345 Wis. 2d 488, 826 N.W.2d 87 (citation omitted).
¶34

In

sum,

there

may

be

cases

where

the

"liberal

construction" provision affects our analysis of a statute, but
this

is

not

one

of

them.

We

arguments.
16

proceed

to

address

Schigur's

 No.

B.
¶35

2013AP1488

Whether Schigur Lawfully Disclosed "Information"
Under Wis. Stat. § 230.81

Under Wis. Stat. § 230.83(1), "retaliatory action[s]"

are prohibited.
disciplinary

One type of retaliatory action occurs when "a

action

[is]

taken

because . . . [an]

lawfully disclosed information under s. 230.81."

employee

Wis. Stat.

§ 230.80(8)(a).
¶36

Under

knowledge

of

Wis.

Stat.

information

§ 230.81(1),
the

"[a]n

disclosure

of

employee
which

is

with
not

expressly prohibited by state or federal law, rule or regulation
may disclose that information to any other person."
§ 230.81(1)

(emphases

added).

As

stated,

Wis. Stat.

"information"

is

defined in the statute as
[I]nformation gained by the employee which the
employee reasonably believes demonstrates: (a) A
violation of any state or federal law, rule or
regulation.
(b) Mismanagement or abuse of authority
in state or local government, a substantial waste of
public funds or a danger to public health and safety.
Wis. Stat. § 230.80(5).
¶37

The

DOJ

argues

that

Schigur

information" under Wis. Stat. § 230.81.7
7

did

not

"disclose

Schigur's argument in

Schigur argued before the circuit court and the court of
appeals below that the DOJ had forfeited this argument because
the DOJ did not raise the argument until it filed its motion for
reconsideration of the ALJ's non-final decision regarding the
DOJ's liability.
It is unclear whether Schigur renews this
argument before this court.
We have stated in an analogous
context that "[w]hen an 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, this court may exercise its
discretion to address" an issue not raised until appeal.
Apex
(continued)
17

 No.

response

is

that

an

opinion

alone,

as

to

the

2013AP1488

lawfulness

or

appropriateness of certain government activity is "information"
under Wis. Stat. § 230.80(5).

According to this reasoning, when

Schigur

Sperry,

notified

Myszewski,

and

O'Donnell

of

her

concerns about the lawfulness or appropriateness of the security
detail

that

Myszewski

had

proposed,

she

was

protected

from

retaliatory action for that communication.
¶38

We agree with the conclusion of the court of appeals

that Wis. Stat. § 230.81(1) "does not cover employee statements
that merely voice opinions or offer criticism."
Wis. 2d 196,
omitted).

¶27

(citation

and

internal

DOJ v. DWD, 361
quotation

marks

We think the language of the statute clearly mandates

this interpretation.
¶39

The

contains

the

protection

statute's
word

only

to

definition

"information."
the

of
The

disclosure

of

"information"
statute
a

thus

certain

itself
extends
type

of

information: (1) information gained by the employee; (2) that
the

employee

enumerated

reasonably

inappropriate

believes

demonstrates

activities.

one

Schigur's

of

the

opinion

regarding the security detail's lawfulness or appropriateness
fulfills the second of these factors, but not the first.

Elec. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998)
(party failed to raise issue in circuit court).
All three
prerequisites are met in this case with regard to the DOJ's
argument
that
Schigur
did
not
"disclose
information."
Therefore, assuming without deciding that the DOJ forfeited this
argument, we will address the DOJ's argument.

18

 No.

¶40

Schigur's argument does not comport with the statute's

definition of information.
or

2013AP1488

appropriateness

of

If an opinion as to the lawfulness

government

activity

itself

constituted

"information gained by [an] employee," then under the statute
the employee would have to reasonably believe that the opinion
itself demonstrated inappropriate government conduct.

But one

person's ultimate conclusion that certain conduct is unlawful or
inappropriate

does

not,

alone,

inappropriate government conduct.

demonstrate

unlawful

or

For example, the statement "I

believe that it is illegal for the government to censor free
speech"

does

not

in

and

of

itself

demonstrate

that

the

government has censored free speech; there are no facts alleged
in

the

engaged

conclusion
in

conduct

that
that

demonstrate
constitutes

that

the

government

censorship.

This

is

has
why

"information" in this context instead refers to the details of
underlying conduct rather than to an opinion alone, as to the
lawfulness or appropriateness of that conduct.

An employee's

opinion——her "reasonabl[e] belie[f]," Wis. Stat. § 230.80(5)——
regarding that conduct's unlawfulness or inappropriateness is
necessary for the statute's protection to cover disclosure of
that conduct, but the conduct itself is the "information" that
is disclosed, not the opinion that the conduct is unlawful or
inappropriate.

Cf. Kinzel v. Bd. of Regents of Univ. of Wis.

Sys., No. 2012AP1586, unpublished slip op., ¶19 (Wis. Ct. App.
Mar. 28, 2013) (examining Wis. Stat. § 230.90, which provides
protection

from

retaliation

on

the

basis

of

an

employee's

exercise of her free speech rights, and explaining that that
19

 No.

2013AP1488

statute "does not cover employee statements that merely voice
opinions or offer criticism" (citation omitted)).8
¶41

We

lawfulness

or

conclude

that

appropriateness

an
of

opinion

alone,

government

as

activity

to
is

the
not

"information" as that term is defined in Wis. Stat. § 230.80(5).9
C. Whether Other Portions of Schigur's E-mails Relating to the
Proposed Security Detail are "Disclosure[s]" of Information
under Wis. Stat. § 230.81
¶42

While Schigur's e-mail contained details regarding the

proposed security detail at the Republican National Convention,
she does not contend that these facts constitute "information."
8

Schigur attempts to draw a distinction between her opinion
and the opinion given by the plaintiff in Kinzel v. Board of
Regents of the University of Wisconsin System, No. 2012AP1586,
unpublished slip op. (Wis. Ct. App. Mar. 28, 2013). Schigur
claims the opinion in Kinzel was merely a "statement of personal
disapproval," not a belief that a law would be violated or that
state resources would be misused.
That may be so, but as it
pertains to the issue before us, it is a distinction without a
difference.
9

Schigur claims that Kmetz v. State Historical Society, 304
F. Supp. 2d 1108
(W.D.
Wis.
2004),
rev'd
in
part
on
reconsideration sub nom. Kmetz v. Vogt, No. 03-C-107-C, 2004 WL
298102 (W.D. Wis. Feb. 11, 2004), "compels a ruling" in her
favor on this issue. We do not agree with this contention. The
court in Kmetz did not conclude that an opinion alone as to the
lawfulness or appropriateness of certain government activity
constituted "information" under the statute it was analyzing,
Wis. Stat. § 895.65 (renumbered Wis. Stat. § 230.90; see 2005
Wis. Act 155, § 60). The court in that case was instead
concerned with the meaning of the word "disclosure." See Kmetz,
304 F. Supp. 2d at 1141. The Kmetz court held that "[§ 895.65]
does not protect employees that voice their opinions and offer
criticism." Id. at 1115. Schigur again attempts to distinguish
her opinion from the opinions given by the plaintiff in Kmetz,
but the distinctions do not affect our conclusion.

20

 Schigur's

attorney

clarified

multiple

times

at

No.

2013AP1488

oral

argument

Schigur's view that it was Schigur's opinion alone, as to the
lawfulness

or

constituted
instance,

appropriateness

"information"
the

following

of

under

government

Wis.

exchange

Stat.

occurred

activity

that

§ 230.80(5).
between

For

Justice

Ziegler and Schigur's attorney:
Justice
Ziegler: Can
I
try
to
clarify
something? . . . The "information" isn't the travel
with security detail. You're saying the "information"
is her legal opinion that doing so is unlawful.
Schigur's attorney:

Exactly.

Justice Ziegler: There's a difference.
I think
people were considering the "information" to be the
travel with security, versus, you're saying the
"information" is her legal opinion about that conduct
being unlawful.
Schigur's attorney: Yeah.
Or the "information"
is her belief that the use of state resources in this
way was unlawful, constituted a violation of OSER.
¶43

And in response to a line of questioning posed by

Justice Gableman at oral argument, Schigur's attorney declared,
"[W]hat

[Schigur]

security

detail.

disclosed
What

she

was

not

disclosed

the
was

existence
its

of

the

unlawfulness."

Schigur argues to the same effect in her brief: "For the Court
of Appeals (and the Circuit Court before it) to declare that an
expression of belief is not protected . . . is wrong."
¶44

Even assuming, without deciding, that other portions

of Schigur's e-mail constitute "information" under Wis. Stat.
§ 230.80(5),
communication

we
of

nonetheless
this

conclude

information
21

is

not

that

Schigur's

protected

under

 No.

2013AP1488

§§ 230.80-.89 because the communication was not a "disclosure"
under Wis. Stat. § 230.81.
¶45
Schigur

After attending the staff meeting led by Myszewski,
e-mailed

Myszewski,

Sperry,

and

O'Donnell.

But

as

Schigur made clear before the circuit court, "the decision to
utilize

State

agents

to

provide

a

security

detail

to

the

Attorney General was known to those whom Schigur [e-mailed]."
Myszewski in particular is the person who had informed Schigur
of the proposed security detail in the first place.
¶46

Wisconsin

disclosure[s]"

Stat.

of

information.

§ 230.80(8); § 230.83.
to

"disclose"

previously

§§ 230.80-.89

communication."

of
State

"the

the

word

"disclose"

v.

dictionary

in

§ 230.81;

see

Polashek,

2002

the
WI

have

time
74,

been

of

the

¶23,

253

We arrived at our definition of

Polashek
of

at

must

after

"disclose,"

examining
as

well

several
as

the

interpretations of that word by multiple federal courts.

See

id., ¶20-22.

definitions

recipient

information

Wis. 2d 527, 646 N.W.2d 330.
the

Stat.

"employee

We have held, in another context, that

information,

unaware

Wis.

protects

We stated in that case that "a lack of knowledge

on the part of the recipient is inherent in a disclosure."

Id.,

¶21.
¶47

"What

is

of

paramount

importance

is

that

[the

legislature] be able to legislate against a background of clear
interpretive

rules,

language it adopts."

so

that

it

may

know

the

effect

of

the

Finley v. United States, 490 U.S. 545, 556

(1989), superseded by statute as stated in Exxon Mobil Corp. v.
22

 No.

2013AP1488

Allapattah Serv., Inc., 125 U.S. 546, 557-58 (2005).

Therefore

we

interpret

would

require

a

convincing

reason

indeed

to

"disclose" any differently in this context.
¶48
that

Perhaps Schigur does not seriously pursue an argument

other

portions

"information"

under

of

the

her

e-mail

statute

constitute

because

the

disclosed

argument

would

require this court to adopt a definition of the word "disclose"
that

would

lead

to

truly

absurd

results.

As

discussed,

to

disclose "information" under Wis. Stat. § 230.81, an employee
must

disclose

"information

gained

by

the

employee

which

the

employee reasonably believes demonstrates" enumerated types of
unlawful

or

§ 230.80(5).

inappropriate

government

activity.

Wis.

Stat.

The definition of "information" makes clear that

the employee need only disclose the details of the underlying
conduct.

The employee need not disclose her reasonable belief

that

information

the

demonstrates

unlawful

or

inappropriate

government activity; instead, the employee need only hold that
belief.

If this court were to conclude that a "disclosure"

under § 230.81 does not require a lack of knowledge on the part
of

the

recipient,

then

an

employee

who

merely

repeated

a

supervisor's statement back to the supervisor, while inwardly
believing that the conduct the statement described was unlawful
or inappropriate, would thereby become entitled to protection
under Wis. Stat. § 230.83 (assuming that the employee otherwise
complied with statutory procedures).
"whistleblowing" a tad too far.

23

This pushes the concept of

 No.

¶49
case,

2013AP1488

We conclude that, under the specific facts of this

and

assuming

without

deciding

that

Schigur's

e-mail

contained "information" regarding the proposed security detail,
the communication of the information to Myszewski, Sperry, and
O'Donnell

was

not

a

"disclosure"

under

Wis.

Stat.

§ 230.81

because the information was already known to the recipients of
the e-mails.

Consequently, those portions of the e-mail are not

protected under Wis. Stat. § 230.83.
D. Whether the DOJ Believed Schigur Lawfully
Disclosed Information Under Wis. Stat. § 230.81
¶50
Wis.

Another type of retaliatory action prohibited under

Stat.

taken

§ 230.83

occurs

because . . . [t]he

when

"a

disciplinary

appointing

authority,

action
agent

[is]

of

an

appointing authority or supervisor believes the employee engaged
in any activity described in par. (a) or (b)."
§ 230.80(8)(c) (emphasis added).
Wis.

Stat.

lawfully

§ 230.80(8)(a)

disclosed

Wis. Stat.

The activities referenced in

and

(b)

information

are:

"(a)

s.

230.81

under

The

employee

or

filed

a

complaint under s. 230.85(1)"; and "(b) The employee testified
or

assisted

proceeding

or

will

relating

testify

to

the

or

assist

lawful

in

disclosure

any

action

or

of

information

in

retaliatory

under s. 230.81 by another employee."
¶51

Schigur

argues

that

the

DOJ

engaged

action against her because it believed she disclosed information
under Wis. Stat. § 230.81.

The DOJ argues in response that

Schigur forfeited the claim "by failing to timely assert it

24

 No.

2013AP1488

before the administrative agency," and that we cannot review the
claim because it presents a question of fact.
¶52

Schigur did not argue before the ALJ that the DOJ

engaged in retaliatory action under Wis. Stat. § 230.80(8)(c).
However, the ALJ stated on the first day of the hearing on the
DOJ's liability that:
Ms. Schigur filed a complaint with the Wisconsin Equal
Rights Division . . . alleging that the [DOJ] violated
the Wisconsin Whistle Blower Law, Section 230.80230.89
of
the
Wisconsin
Statutes,
by
taking
retaliatory action because she lawfully disclosed——or
the [DOJ] believed that she had disclosed information
under Section 230.81 Wis. Stats.
The

ALJ's

proven

by

final
a

decision

similarly

preponderance

of

the

stated

that

evidence

that

Schigur
the

DOJ

had
had

violated Wis. Stat. §§ 230.80-.89 by taking retaliatory action
against
believed

her
that

"because
she

she

had

lawfully

lawfully

disclosed,

disclosed,

or

the

[DOJ]

information"

under

Wis. Stat. § 230.81.
¶53

Schigur

contends

that

her

argument

that

the

DOJ

believed she disclosed information was a response to certain of
the DOJ's arguments that it raised for the first time in its
motion for reconsideration before the ALJ.

The ALJ did not

reconsider her decision, concluding that the DOJ's new arguments
were "best addressed on appeal."
Wis.

Stat.

opportunity:

§ 230.80(8)(c)
before

the

Schigur says she raised her

claim

circuit

at

court.

the
She

first

possible

reasserted

the

argument again at the court of appeals, and the issue was one of

25

 No.

2013AP1488

two that she presented in her petition for review before this
court.
¶54

The procedural circumstances of this case are somewhat

unique.

As stated, supra note 7, "[w]hen an 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, this court
may exercise its discretion to address" an issue not raised
until appeal.

Apex Elec. Corp. v. Gee, 217 Wis. 2d 378, 384,

577 N.W.2d 23 (1998).

Both parties have briefed the issue.10

As

will be shown, the issue Schigur raises is legal rather than
factual

under

the

circumstances

of

this

case.

Finally,

we

granted review of the issue and find it of sufficient public
interest
forfeited

to

merit

the

a

issue,

decision.
a

Therefore,

question

we

do

not

assuming
decide

Schigur

today,

we

exercise our discretion to review the issue.
¶55

In

arguing

that

the

information,

Schigur

states,

DOJ

believed

"clearly

the

Schigur
DOJ

disclosed

believed

Schigur's disclosures were protected under the statute."

that
In

other words, Schigur reads Wis. Stat. § 230.80(8)(c) as defining
retaliatory

actions

to

include

10

instances

where

a

supervisor

The DOJ chose not to address the merits of the argument
in its brief, but we ordered briefing on the issues raised in
the petition for review.
To rule that the parties had not
"briefed the issue" simply because the DOJ declined to brief it
when given the opportunity would be to give the DOJ control of
whether or not this court reviews a forfeited issue.

26

 No.

2013AP1488

makes a mistake of law as to whether an employee's communication
is a "disclosure of information."

According to this argument,

even if Schigur did not "disclose information" as defined in the
statute,

she

"disclosed

is

information"

misinterprets
interpretation
situations

still

protected
as

defined

if

the

DOJ

in

the

statute.

§ 230.80(8)(c).
of

where

the
a

The

provision

supervisor

is

believed

most

that

retaliates

it

on

she

Schigur
reasonable

is

the

aimed

basis

of

at
a

mistake of fact, such as when a supervisor is told that an
employee engaged in conduct that could constitute disclosure of
information, but the employee had not in fact engaged in that
conduct.

Put differently, § 230.80(8)(c) would be applicable,

for example, if a supervisor believed that an employee had sent
e-mail disclosures and retaliated against the employee on that
basis, but the employee had not in fact sent any such e-mails at
all.
¶56

Schigur essentially asks us to hold that although she

is not protected by Wis. Stat. §§ 230.80-.89, the DOJ believed
she

was

protected

protected.

by

§§ 230.80-.89,

The argument is illogical:

and

she

is

therefore

an employer would not

retaliate against an employee "because" the employer mistakenly
believed

that

retaliation.
might

the
Wis.

retaliate

employee
Stat.

against

would

receive

§ 230.80(8).
an

employee

protection

Instead,
because

an
the

against
employer
employer

mistakenly believed that the employee had engaged in conduct
that the employee had not in fact engaged in.

27

 No.

¶57

2013AP1488

Because there is no dispute in this case that Schigur

e-mailed Myszewski, Sperry, and O'Donnell11 after attending the
staff meeting led by Myszewski, and because there is no dispute
about the content of the e-mails, Wis. Stat. § 230.80(8)(c) is
not applicable here.
¶58

We

believed

conclude

that

she

misinterpretation

of

that

Schigur's

"disclosed
Wis.

Stat.

argument

information"
§ 230.80(8)(c)

that

the

rests
and

on

DOJ
a

therefore

fails.
V.
¶59

CONCLUSION

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

"disclosed

argument

information"

that

rests

the
on

§ 230.80(8)(c) and therefore fails.

DOJ
a

believed

that

she

misinterpretation

of

Accordingly, we affirm the

decision of the court of appeals.

11

We do not decide whether Schigur complied with the
procedural requirements of Wis. Stat. § 230.81(1) when she emailed Myszewski, Sperry, and O'Donnell simultaneously.

28

 No.

By

the

Court.—The

decision

of

the

court

of

2013AP1488

appeals

is

affirmed.
¶60

DAVID T. PROSSER, J., and REBECCA G. BRADLEY, J., did

not participate.

29

 No. 2013AP1488.awb

¶61

ANN WALSH BRADLEY, J.

¶62

The

Wisconsin

(dissenting).

Legislature

recognized

the

important

role of whistleblowers in maintaining accountable government.
The legislative purpose of the statute is expressly declared:
"It

is

the

policy

of

this

state

to

encourage

disclosure

of

information... and to ensure that any employee employed by a
governmental

unit

is

protected

disclosing information..."
¶63
including

Employees
a

are

from

action

of

any

law

to

disclose

or

information,

regulation

mismanagement or substantial waste of public funds.
§ 230.80(5).

In

aid

for

Wis. Stat. § 230.01(2).
encouraged

violation

retaliatory

of

this,

the

legislature

and

any

Wis. Stat.

has

directed

that the statutes "shall be construed liberally in aid of the
purposes declared..."
¶64

I

write

Wis. Stat. § 230.02.
separately

because

the

majority

opinion

undermines the legislative purpose of Wisconsin's whistleblower
statute.

First, the majority creates a heretofore unknown rule

that bars the application of the explicit legislative directive
of liberal construction.
the

statute

thereby

whistleblowers.

Second, it writes new language into

limiting

the

protections

available

to

Third, it turns the legislative policy on its

head, creating an absurd result.
¶65

Contrary

to

the

majority,

I

conclude

that

Joell

Schigur lawfully disclosed information pursuant to Wis. Stat.
§ 230.81.

I would reverse the court of appeals and uphold the

1

 No. 2013AP1488.awb

determination

of the Department of Workforce Development, Equal

Rights Division.

Accordingly, I respectfully dissent.
I

¶66

The

Department

of

Justice

("DOJ")

selected

Joell

Schigur to be its Director of the Bureau of Public Integrity.
She was demoted after she sent emails to her supervisor, Michael
Myszewski, expressing her concern regarding Attorney General Van
Hollen's use of a taxpayer paid security detail at the upcoming
Republican National Convention.
¶67

Schigur wrote that she "was 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."

Attached to Schigur's email was a bulletin from the

Office of State Employee Relations ("OSER") regarding prohibited
political activities.

Schigur explained that she was sending

the email "in hopes that this decision will be further evaluated
to avoid possible scrutiny of our Attorney General, our agency
and our special agents."
¶68
is

not

Schigur explained in a second email that "the concern
regarding

agents

participating

in

political

activity;

rather can state resources be used by the AG at a political
event where he is not representing DOJ, rather the Republican
Party.

Parallel

investigation."

issues

came

up

in

the

Jensen/Chvala

Ultimately, no security detail was sent to the

Republican National Convention.
¶69

Prior

to

sending

the

above

emails

to

Myszewski,

Schigur received quarterly job performance evaluations that were
2

 No. 2013AP1488.awb

uniformly positive.

Shortly before Schigur sent the emails,

Myszewski

her

completed

evaluation.

He wrote:

21-month

probationary

performance

"Joell continues to do an outstanding

job of leading the Public Integrity Bureau and the Internet
Crimes

Against

recognized

Children

leader

Internet predators.

in

Program.

the

area

of

Joell

is

protecting

a

children

Joell

be

from

Joell has successfully mastered all of the

objectives and standards for a bureau director.
that

nationally

removed

from

probation

and

I recommend

receive

permanent

status as a director."
¶70

Yet,

shortly

after

Schigur

sent

the

emails

to

Myszewski, she received her 24-month probationary performance
evaluation that was negative and markedly different from her
prior uniformly positive evaluations.

As a result, Schigur was

removed from her Bureau Director position and demoted.
¶71

In its findings of fact, the Department of Workforce

Development,

Equal

Rights

Division,

found

that

"Schigur's

disclosure in her April 21 and 23, 2008 emails to Myszewski and
O'Donnel was a factor in DOJ's decision that she failed to pass
probation

as

a

Bureau

Director

on

May

21,

2008."1

The

Department determined that the DOJ violated Wis. Stat. § 230.8089 by "taking retaliatory action against [Schigur] because she
lawfully

disclosed,

or

the

Respondent

believed

that

she

had

lawfully disclosed, information under sec. 230.81."
1

Cindy O'Donnell, Administrator of the DOJ's Division of
Management Services, as well as Jed Sperry, the head of the
DOJ's Division of Criminal Investigation's tactical unit, also
received copies of the emails.
3

 No. 2013AP1488.awb

¶72

The majority reverses the Department's determination.

It concludes that "under the specific facts of this case, and
assuming

without

'information'

deciding

regarding

that

the

Schigur's

proposed

e-mail

security

contained

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..."

Majority op., ¶5.

In reaching its conclusion,

the majority declines to follow the directive that the statute
be liberally construed to effect its purpose and instead writes
into the statute a "new" requirement.
II
¶73

"It

is,

of

course,

a

solemn

obligation

of

the

judiciary to faithfully give effect to the laws enacted by the
legislature..."
2004

WI

58,

State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

¶44,

271

Wis.

2d

633,

681

N.W.2d

110.

Kalal

instructs that we must give judicial deference to the policy
choices enacted by the legislature."
¶74

See Id., ¶44.

The majority turns a blind eye not only to the above

instructions

but

interpretation.

also

to

recognized

rules

of

statutory

Instead of embracing precedent, the majority

sub silencio overrules it, while creating its own contrary, and
heretofore unknown, rule of statutory interpretation.
¶75
silencio

The express mandate of Kalal, which the majority sub
overrules,

provides:

"a

plain-meaning

interpretation

cannot contravene a textually or contextually manifest statutory
purpose."

Id., ¶49.

Kalal explained that purpose is "perfectly
4

 No. 2013AP1488.awb

relevant

to

a

plain-meaning

interpretation

of

an

unambiguous

statute" as long as it is ascertainable from the text of the
statute itself and not extrinsic sources.
¶76

Id., ¶48.

But the majority will have none of this.

It dutifully

sets forth the purpose that is ascertainable from the text as
declared by the legislature in Wis. Stat. § 230.01(2): "It is
the

policy

of

this

state

to

encourage

disclosure

of

information... and to ensure that any employee employed by a
governmental

unit

is

protected

disclosing information..."

from

retaliatory

Id., ¶30.

action

for

The majority likewise

acknowledges that the legislature expressed in the text of Wis.
Stat. § 230.02 that it should be liberally construed:

"Statutes

applicable to the office shall be construed liberally in aid of
the purposes declared in § 230.01."

Majority op., ¶30 (citing

Wis. Stat. § 230.02).
¶77

Nevertheless,

the

majority

contends

that

it

cannot

apply the legislature's explicit directive to liberally construe
the statute.
¶78

Why?

The majority claims that a provision can be construed

liberally only when there is some ambiguity to construe.2

It

also asserts that "[w]e cannot construe the statute liberally in
2

The
majority
applies
this
new
rule
of
statutory
interpretation to Wis. Stat. § 230.80(8)(c), which prohibits
retaliation when a "supervisor believes the employee engaged in
any activity described in par. (a) or (b)."
The activities
referenced in Wis. Stat. § 230.80(8)(a) include whether "[t]he
employee lawfully disclosed information under s. 230.81…"
Accordingly, the majority's statutory interpretation of Wis.
Stat. § 230.80(8)(c) cannot be separated from its interpretation
of Wis. Stat. § 230.81.
5

 No. 2013AP1488.awb

aid of disclosure of information and protection from retaliatory
action for disclosure of information until we know what the
terms

'disclosure

mean."

Id., ¶31.

¶79

of

information'

and

'retaliatory

action'

A liberal construction "is often used to signify an

interpretation which produces broader coverage or more inclusive
application of statutory concepts.

What is called a liberal

construction is ordinarily one which makes a statute apply to
more things or in more situations than would be the case under a
strict construction."
471

N.W.2d

16

In re R.W.S., 162 Wis. 2d 862, 871-72,

(1991)

(citing

Singer,

Sutherland

Statutory

Construction, sec. 58.02 (4th ed. 1984)).
¶80

The majority's reasoning that it cannot construe the

statute

liberally

statute

is

consists

until

it

first

backwards.

"Liberal

giving

words

in

the

defines

the

construction
a

meaning

terms
of

which

any

in

the

statute

renders

it

effectual to accomplish the purpose or fulfill the intent which
it plainly discloses."

State ex rel Mueller v. Sch. Dist. Bd.,

208 Wis. 257, 260, 242 N.W. 574 (1932).
¶81

Instead of applying the statutorily required liberal

construction,

the

"information"

narrowly

within the statute.
the

statute

majority
so

defines
that

the

Schigur's

terms

"disclose"

claims

do

not

and
fall

It then reasons that we need not construe

liberally

because

Schigur's

claims

do

not

fall

within the statute.
¶82

The point of liberal construction is to interpret the

statute in a way that furthers the legislative goal, which in
6

 No. 2013AP1488.awb

this case is to protect employees who act as whistleblowers.
Yet, the majority has done the opposite here by defining the
terms

of

the

statute

in

a

way

that

denies

protection

for

whistleblowers.
¶83

The

construed
unknown

majority's

liberally

rule

of

contention

unless

statutory

it

is

that

a

ambiguous

interpretation.3

statute

cannot

is

a

It

sub

be

heretofore
silencio

overrules the widely accepted rule of statutory interpretation
set forth in Kalal——that a plain-meaning interpretation cannot
contravene a textually manifest statutory purpose.

271 Wis. 2d

633, ¶49.
¶84

Kalal's well-recognized rule has been relied upon for

years by judges, attorneys and litigants.4

In fact, as recently

3

The majority cites to Justice Roberts's dissent in Salazar
v. Ramah Navajo Chapter, where he stated without citation that
"a provision can be construed 'liberally' as opposed to
'strictly' only when there is some ambiguity to construe." 132
S. Ct. 2181, 2199 (2012). Salazar is not controlling because it
concerns the interpretation of a government contract provision.
132 S. Ct. at 2199.
While both the Indian Self-Determination
and Education Assistance Act ("ISDA") and government contracts
under the act are to be liberally construed, Justice Robert's
dissent concerns the interpretation of a government contract,
not the statutory language of the ISDA.
Id.
As in Wisconsin,
it is well established in U.S. Supreme Court jurisprudence that
a remedial statute is entitled to liberal construction in order
to effectuate legislative intent.
See, e.g., Clifford F.
MacEvoy Co. v. U.S. ex rel. Clavin Tompinks Co., 322 U.S. 102
(1944) ("The [act] is highly remedial in nature. It is entitled
to a liberal construction and application in order to properly
effectuate the Congressional intent…").
4

See, e.g., Linveille v. City of Janesville, 184 Wis. 2d
705, 715-18, 516 N.W.2d 427 (1994) (In Wisconsin, a statute may
be liberally construed even if it is not ambiguous).
7

 No. 2013AP1488.awb

as a few months ago, we again embraced that established rule of
statutory interpretation in State v. Williams, 2014 WI 64, ¶36,
355 Wis. 2d 581, 852 N.W.2d 467 ("In addition to the statutory
history

and

structure,

the

contextually

manifest

purposes

of

[the statute] are relevant to our plain meaning analysis."). See
also State v. Dinkins, 2012 WI 24, ¶101, 339 Wis. 2d 78, 810
N.W.2d 787 ("scope, context, and purpose are perfectly relevant
to a plain-meaning interpretation of an unambiguous statute, so
long

as

they

are

ascertainable

from

the

statute

itself.

Importantly, a plain-meaning interpretation cannot contravene a
textually

or

(Ziegler,

J.

contextually
dissenting)

manifest

(quotations

statutory
and

purpose.")

citations

omitted);

Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶17, 325 Wis. 2d
135,

785

N.W.2d

contravene

a

302

("A

textually

plain-meaning
or

interpretation

contextually

manifest

cannot

statutory

purpose.") (citation omitted).
¶85
statutory

Unfortunately,
interpretation

the

majority's

will

have

newly

minted

far-reaching

that go well beyond this whistleblower statute.

rule

of

consequences
For example,

Wisconsin's Fair Employment law contains a legislative directive
that it be liberally construed to advance the purposes of the
statute.

Wis.

Stat.

§ 111.31(3).

Likewise,

Wisconsin's

Consumer Transactions law contains the same directive.
Stat.

§ 421.102(1).

Will

the

legal

rights

of

Wis.

Wisconsin's

workers and consumers be similarly limited under the majority's
new rule of statutory interpretation?

8

 No. 2013AP1488.awb

¶86

The

numerous

Wisconsin

laws

that

contain

similar

legislative directives range across the broadest spectrum of our
statutes.

See,

Property);

Wis.

e.g.,

Wis.

Stat.

Stat.

§ 766.001(1)

§ 16.001(2)

(Marital

(Department

of

Administration); Wis. Stat. § 32.71 (Eminent Domain); Wis. Stat.
§ 707.57(4) (Time-Share Ownership); Wis. Stat. § 231.24 (Health
and Educational Facilities Authority); Wis. Stat. § 401.305(1)
(Uniform

Commercial

(Intergovernmental

Code);

Wis.

Cooperation);

Stat.
Wis.

§ 66.0301

Stat.

(2)

§ 645.01(3)

(Insurers Rehabilitation and Liquidation).
¶87
new

rule

construed

The juggernaut of the majority's analysis rests on its
of

statutory

liberally

construe.

interpretation:

only

Majority

when

op.,

there

¶32.

a

provision

is

As

some

discussed

can

be

ambiguity

to

above,

the

majority's new rule: (a) bars the application of the statutory
directive of liberal construction to effectuate the legislative
purpose; (b) sub silencio overrules part of Kalal, a seminal
statutory

interpretation

consequences.

case;

and

(c)

has

broad

negative

Simply put, the majority's new rule of statutory

interpretation should not stand.
III
¶88

The

majority's

insistence

that

a

"disclosure"

must

contain "new" information writes language into the statute which
dramatically limits whistleblower protections.
majority,

in

order

to

"disclose"

information,

According to the
"the

recipient

must have been previously unaware of the information at the time
of the communication."

Id., ¶46 (citing State v. Polashek, 2002
9

 No. 2013AP1488.awb

WI 74, ¶23, 253 Wis. 2d 527, 646 N.W.2d 330).

It maintains that

Schigur's emails were "not a 'disclosure' under Wis. Stat. §
230.81

because

recipients

of

the
the

information
e-mails."

was
Id.,

already
¶49.

known

to

the

Accordingly,

the

majority concludes that Schigur has no recourse under the law
for any retaliation that resulted from her emails regarding the
Attorney General's security detail at the Republican National
Convention.
¶89
no

The plain language of Wis. Stat. §§ 230.80-89 contains

requirement

unknown.

that

the

disclosed

information

be

previously

It neither contains the words "new" or "secret" nor

any other word or phrase that could be interpreted as a synonym.
Wis. Stat. § 230.81(1)(a) states:
An
employee
with
knowledge
of
information
the
disclosure of which is not expressly prohibited by
state or federal law, rule or regulation may disclose
that information to any other person.
However, to
obtain protection under s. 230.83, before disclosing
that information to any person… the employee shall...
disclose the information in writing to the employee's
supervisor.
Wis. Stat. § 230.80(5)(a) and (b) define "information" as:
'Information' means information gained by the employee
which the employee reasonably believes demonstrates:
(a) A violation of any state or federal law, rule
or regulation.
(b) Mismanagement or abuse of authority in state
or local government, a substantial waste of
public funds or a danger to public health and
safety.
¶90

"It is presumed that the legislature is cognizant of

what language to include or omit when it enacts laws."
10

In re

 No. 2013AP1488.awb

Incorporation of Portion of Town of Sheboygan, 2001 WI App 279,
¶9, 248 Wis. 2d 904, 637 N.W.2d 770.

Reading an unwritten

requirement for new or secret information into the whistleblower
statutes dramatically narrows the scope of protected disclosures
in

contravention

of

legislative

intent.

As

this

court

has

previously explained, "[o]ur duty to fulfill legislative intent
ensures

that

substituting

we

uphold

judicial

legislature."

the

policy

separation

of

powers

by

not

views

the

views

of

the

for

State ex rel. Hensley v. Endicott, 2001 WI 105,

¶7, 245 Wis. 2d 607, 629 N.W.2d 686 (quoting State ex rel.
Cramer v. Schwartz, 2000 WI 86, ¶17, 236 Wis. 2d 473, 613 N.W.2d
591).
¶91 The

majority

relies

on

State

v.

Polashek

conclusion that "disclosure" means "new information."
is

a

slender

reed

upon

which

to

rest

such

a

for

its

Polashek

conclusion.

Although the Polashek court determined that "the term 'disclose'
in § 48.981(7) requires that the recipient not have knowledge of
the

information

controlling.

communicated,"

its

253 Wis. 2d 527, ¶3.

determination

is

not

It is construing a penal

statute, Wis. Stat. § 48.981(7)(f), which provides a criminal
penalty

for

information
neglect.
¶92
State

v.

(1983).

the

unauthorized

relating

to

reports

disclosure
of

suspected

of

confidential

child

abuse

or

See id., ¶1.
Penal

statutes

Christensen,

are

110

strictly

Wis.

2d

construed.

538,

547,

329

See,

e.g.,

N.W.2d

382

"This canon of strict construction is grounded on two

public policies.

The first favors notice as to what conduct is
11

 No. 2013AP1488.awb

criminal.
declare

The
what

legislative,

second
conduct

rather

recognizes

that

'since

subject

to

penal

judicial,

it

would

is

than

the

power

sanctions
risk

to
is

judicial

usurpation of the legislative function for a court to enforce a
penalty where the legislature had not clearly and unequivocally
prescribed

it.'"

Id.,

110

Wis.

2d

538,

546-457

(citations

omitted).
¶93

Given that Wis. Stat. § 48.981(7) is a penal statute,

the canon of strict construction required the Polachek court to
interpret
criminal

"disclosure"
conduct

judiciary.

under

narrowly
the

so

that

statute

was

the
not

definition

expanded

by

of
the

In Polachek, the disclosure of information was an

element of the crime.

253 Wis. 2d 527,

defining

information"

"disclosure

of

to

¶23.

By narrowly

recipients

who

were

unaware of the information, the Polachek court properly limited,
rather than expanded, criminal conduct under the statute.
¶94

The purpose and effect of Wis. Stat. §§ 230.80-89 is

the opposite of Wis. Stat. § 48.981(7) because the whistleblower
act

is

a

"[u]nder

remedial
the

statute.

accepted

law

In
of

contrast

to

Wisconsin

penal
and

statutes,
of

other

jurisdictions, remedial statutes should be liberally construed
to

'suppress the mischief and advance the remedy which

statute) intended to afford.'"

City of Madison v. Hyland, Hall

& Co., 73 Wis. 2d 364, 373, 243 N.W.2d 422 (1976).
case,

the

canons

of

(the

statutory

interpretation

In this

demand

that

"disclosure" and "information" be liberally construed so that

12

 No. 2013AP1488.awb

protections for whistleblowers are advanced and retaliation by
employers is suppressed.
¶95

Wis. Stat. § 230.80(5)(a) and (b) define "information"

as:
'Information' means information gained by the employee
which the employee reasonably believes demonstrates:
(a) A violation of any state or federal law, rule
or regulation.
(b) Mismanagement or abuse of authority in state
or local government, a substantial waste of
public funds or a danger to public health and
safety.
¶96

The

majority

reaches

two

conclusions

regarding

Schigur's emails are not information under the statute.

why

First,

"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)."
Second,

"that

assuming

under

without

'information'

the

specific

facts

that

Schigur's

deciding

regarding

communication...

Majority op., ¶5, 29, 41 & 59.

was

the
not

proposed
a

of

this
e-mail

security

'disclosure'...

case,

and

contained

detail,

the

because

the

information was already known to the recipients of the e-mails."
Id., ¶29.
¶97
opinion

I address each in turn.
I

address

alone,

as

first
to

the

the

majority's

lawfulness

or

conclusion

"that

an

appropriateness

of

government activity is not 'information' as that term is defined
in Wis. Stat. § 230.80(5).

Id., ¶29.

Relying on Kinzel v. Bd.

of Regents of the Univ. of Wisconsin Sys., an unpublished court
of appeals decision, the majority asserts that Wis. Stat. §
13

 No. 2013AP1488.awb

230.90 "does not cover employee statements that merely voice
opinions or offer criticism."

Id., ¶40

(citing

Kinzel, No.

2012AP1586, unpublished slip op., ¶19 (Wis. Ct. App. Mar. 28,
2013).
¶98

In

information

Kinzel,
about

the

an

plaintiff

abuse

of

claimed

authority,

pursuant to Wis. Stat. § 230.80(5)(2).
¶20.

The

court

of

appeals

to

have

which

is

disclosed
protected

Kinzel, No. 2012AP1586,

determined

that

Kinzel

did

not

disclose information about an abuse of authority, but "merely
gives his opinion and criticizes."

Id.

Kinzel did "not set

forth specific facts regarding the events associated with the
suspension."

Id., ¶21.

Kinzel did "not present any information

supporting his opinion that these people are blameless."

Id.,

¶22.
¶99

In furtherance of its discussion, the majority offers

a sample of the type of opinion that was addressed in Kinzel and
deemed

inadequate

offers:

"For

to

example,

constitute
the

"information."

statement

'I

believe

The

that

illegal for the government to censor free speech.'"
op., ¶40.

majority
it

is

Majority

If that were the genre of opinion that was offered by

Schigur, I would agree with the majority that without more, it
is not information.

But here there was more, much more.

¶100 Schigur did not merely voice a generic opinion saying
"I believe that it is illegal for the DOJ to violate the law and
expend taxpayer money for private political purposes."
Director

of

the

Bureau

for

Public

Integrity,

she

As the
included

specifics facts underlying the concerns that she advanced:
14

 No. 2013AP1488.awb

●

The Attorney General was going to use a state paid
security

detail

while

he

attended

the

Republican

National Convention.
●

She raised a concern about the use of state resources
given

the

facts

representing

that

the

he

DOJ,

would

but

be

"off

rather

duty,"

representing

not
a

political party.
●

She provided a copy of the state regulation that she
thought may be violated.

●

She cited to "parallel issues (that) came up in the
Jensen/Chvala investigation."

¶101 The facts demonstrate a "reasonable belief" for her
concern that there may be a violation of a law or regulation and
a "reasonable belief" that that there may be "mismanagement" of
or "a substantial waste of public funds."

This is the very

definition of information under the statute and it is exactly
what the statute required.
¶102 Even if the rewriting of the statute by the majority
inserting the word "new" into it were to be condoned, the facts
here would meet that test.
emails

expressing

her

Until Schigur sent her supervisor

concern,

he

was

unaware

that

she

reasonably believed that the DOJ might be violating the law or
committing an abuse of funds.

Yet, the majority cannot allow

Schigur's concern to be interpreted as new information because
it

would

satisfy

even

the

most

"disclose."

15

restrictive

definition

of

 No. 2013AP1488.awb

¶103 The majority advances next that even assuming that the
emails provided information, it was not a "disclosure... because
the information was already known to the recipients of the emails."

Majority op., ¶29.

¶104 The
employee

need

information

majority
not

goes

so

disclose

demonstrates

far

her

as

to

argue

reasonable

unlawful

or

that

belief

inappropriate

"[t]he

that

the

government

activity; instead, the employee need only hold that belief."
Id., ¶48 (emphasis in the original).

This assertion finds no

support in the plain language of the statute.
¶105

What about an attorney who is called upon to provide

a purely legal opinion about whether facts revealed by another
employee constitute illegality or misuse of state funds?

The

attorney would be compelled to disclose her legal opinion, but
would not be protected under the whistleblower act because the
opinion would not be "information."

The firing of an attorney

because she does not give the legal opinion that her supervisor
wants should violate the statute.
analysis,

the

attorney

could

However, under the majority's

be

fired

without

recourse

for

providing an ethical, but unpopular, legal opinion.
¶106 The majority has taken a statutory notice requirement
from Wisconsin's whistleblower law and turned it into a doubleedged

sword.

employee

who

Under
tries

the

majority's

to

prevent

decision,

wrongdoing

a

government

risks

losing

whistleblower protection even if she complies with the law.

If

an employee does not provide her supervisor with notice of an
alleged

wrongdoing,

she

has

no
16

protection

under

the

law.

 No. 2013AP1488.awb

However, according to the majority, if the supervisor already
knows

about

the

wrongdoing,

the

whistleblower

still

has

no

protection under the law even though she provided the required
notice.
IV
¶107 Statutory language should be interpreted "reasonably,
to avoid absurd or unreasonable results."

Kalal, 271 Wis. 2d

633,

interpretation

¶46.

The

majority's

statutory

"information"

leads

"disclosure"

and

unreasonable

result.

interpretation

would

whistleblower.

For

In

some

protect
example,

the

to

an

instances

the

wrongdoer,

what

if

an

absurd

of
and

majority's

rather
employee

than

the

reported

evidence of theft to her supervisor without knowing that he was
actually

the

thief?

The

corrupt

supervisor

could

fire

the

employee and she would have no protection as a whistleblower
because the information was already known.

This result turns

the legislative purpose of the act on its head by discouraging,
rather than encouraging, reporting.
¶108 Pursuant

to

Wis.

Stat.

§ 230.81(1)(a),

an

employee

with knowledge of information shall disclose the information in
writing to her supervisor before disclosing it to any other
person. The majority has taken a simple notice requirement and
turned it into a trap for the unwary.

"Employees should not be

discouraged from the normal route of pursuing internal remedies
before going public with their good faith allegations.

Passaic

Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474,
478 (3rd Cir. 1993).
17

 No. 2013AP1488.awb

¶109 "Indeed,

it

is

most

appropriate,

both

in

terms

of

efficiency and economics... that employees notify management of
their observations..."

Id.

"Employers benefit from a system in

which the employee reports suspected violations to the employer
first; the employee should not, in any event, be penalized for
bestowing

that

benefit

on

the

employer."

Sullivan

v.

Massachusetts Mut. Life Ins. Co., 802 F.Supp. 716, 725 (D. Conn.
1992).

Under the majority's decision, an employee is penalized

for reporting a violation if the supervisor already knew about
the violation.
¶110

The

reaching.
without

Not

only

recourse,

protection

consequences

against

will

but

of

this

decision

whistleblowers

all

of

government

may

suffer

Wisconsin's

be

far-

retaliation

citizens

lose

Absent

legal

corruption.

protections, it will be the rare employee who will risk her
livelihood to act as a whistleblower.

"Without employees who

are willing to risk adverse employment consequences as a result
of whistleblowing activities, the public would remain unaware of
large-scale and potentially dangerous abuses."

Dolan v. Cont'l

Airlines, 563 N.W.2d 23, 26 (Mich. 1997).
V
¶111

In its findings of fact, the Department concluded

that "Schigur's disclosure in her April 21 and 23, 2008 emails
to Myszewski and O'Donnel was a factor in DOJ's decision that
she failed to pass probation as a Bureau Director on May 21,
2008."

We will uphold an agency's findings of fact if they are

supported

by

credible

and

substantial
18

evidence.

See,

e.g.,

 No. 2013AP1488.awb

Brown v. State Dep't of Children and Families, 2012 WI App 61,
¶11, 341 Wis. 2d 449, 819 N.W.2d 827.
that

this

finding

of

substantial evidence.

fact

is

not

No one has argued here

supported

by

credible

and

We must therefore resolve this case with

the understanding that this fact is exactly as the Department
found.
¶112 In sum, for the reasons stated above, I conclude that
Schigur lawfully disclosed information pursuant to Wis. Stat.
§ 230.81.

Therefore, I would reverse the court of appeals and

uphold the decision of the Department of Workforce Development,
Equal Rights Division, which
Wis.

Stat.

probation.
¶113 I

§§

230.80-89

concluded that the DOJ violated

when

it

terminated

Joell

Schigur's

Accordingly, I respectfully dissent.
am

authorized

to

state

ABRAHAMSON joins this opinion.

19

that

Justice

SHIRLEY

S.

 No. 2013AP1488.awb