Dissenting Supreme Court justice called 2015 decision ‘absurd,’ saying it removes protections for employees who disclose information their supervisors already know
By Bobby Ehrlich
Wisconsin Center for Investigative Journalism
Joell Schigur was a rising star in the law enforcement world, a prominent figure in combating internet crimes against children.
In May 2006, her supervisor, Jim Warren, promoted her to a director position within the Wisconsin Department of Justice.
Schigur was subject to a two-year probationary period, in which she received performance reviews every three months. She received six reviews. All were positive.
After she had been on the job for 21 months, in February 2008, Mike Myszewski, her new boss, said she was doing an “outstanding job.”
“Joell is a nationally recognized leader in the area of protecting children from internet predators,” Myszewski wrote. “I recommend that Joell be removed from probation and receive permanent status as a director.”
But three months after that glowing review, and just a month after she raised questions about possible misuse of state resources at a political event, Schigur was demoted from her job as the director of the Division of Criminal Investigation’s Bureau of Public Integrity.
Schigur filed a complaint, seeking legal protection under Wisconsin’s whistleblower law.
After a nearly eight-year legal battle, the Wisconsin Supreme Court ruled 3-2 against the DOJ employee. The court decided that Schigur’s warning against sending a security detail to the 2008 Republican National Convention was not a disclosure of information because her supervisors already knew about it.
Critics say the decision could discourage future whistleblowers, who are the No. 1 source of information when it comes to exposing fraud.
“Not only will whistleblowers suffer retaliation without recourse, but all of Wisconsin’s citizens lose protection against government corruption,” Justice Ann Walsh Bradley predicted in her dissenting opinion. “Absent legal protections, it will be the rare employee who will risk her livelihood to act as a whistleblower.”
Wisconsin is among 42 states that offer some protection from retaliation for public employees who report potential wrongdoing at work, according to a list provided by Stephen Kohn, executive director of the National Whistleblower Center, a legal advocacy association for whistleblowers.
A Wisconsin Center for Investigative Journalism review of 161 whistleblower complaints filed between 2003 and 2016 under both Republican and Democratic administrations found that whistleblowers in Wisconsin rarely win when they allege retaliation. The Department of Workforce Development’s Equal Rights Division found discrimination in just two cases, the review found.
In 42 cases, whistleblowers agreed to settlements in which the state generally denied fault. Eleven cases were decided in circuit or appellate courts. Whistleblowers were unsuccessful in all of them, the Center found.
In each case — including Schigur’s — courts either found no illegal retaliation or ruled that the whistleblowers failed to follow specific guidelines or provide information that qualified them for whistleblower protection.
Patrick Burns, associate director of Taxpayers Against Fraud, said it is not unusual for whistleblowers in government bureaucracies to lose out when reporting problems.
“Agencies tend to paper over waste, fraud and abuse for the simple reason that these things implicate management problems that may result in lost funding, diminished public support and turmoil at the top of an agency or department,” said Burns, whose group works to protect and advance the cause of whistleblowers.
Planned GOP trip sparks concern
In April 2008, Schigur became concerned about plans to send a DCI security detail for then-Wisconsin Attorney General J.B. Van Hollen to the Republican National Convention. The convention was taking place in Minnesota in September, prompting worries from Schigur about utilizing state funds for an out-of-state political event.
Schigur, who declined to be interviewed for this story, emailed her immediate supervisor, Myszewski, as well as Jed Sperry, the head of DCI’s tactical unit, and Cindy O’Donnell, the administrator of the DOJ’s Division of Management Services.
“I am concerned that providing state resources to the Attorney General while he participates in a political activity off duty may violate (employment) regulations and state law,” Schigur wrote in the email. “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.”
One month later, the DOJ demoted Schigur. Ultimately, no security detail was sent to the convention.
After her demotion, Schigur contacted attorney Peter J. Fox because she believed she had been retaliated against.
In July 2008, Schigur filed a complaint with the Equal Rights Division of the Department of Workforce Development. It determined that there was “probable cause” that the DOJ had violated Wisconsin’s whistleblower law.
The case was then heard by Administrative Law Judge Deborah Little Cohn, who found that the DOJ had illegally retaliated against Schigur.
The state took the case to Dane County Circuit Court, which reversed the original decision. Schigur appealed the ruling, but the Wisconsin Court of Appeals upheld the Circuit Court decision.
Both rulings found that Schigur did not “disclose” information — a necessity for gaining protection under the whistleblower law — because she merely gave her opinion about the legality of the security detail. Schigur then petitioned the Wisconsin Supreme Court for a review, which the high court accepted.
On Dec. 30, 2015, the high court filed its opinion, finally bringing the Schigur case to a close. The majority opinion upheld the lower courts’ decisions.
Whistleblower law ‘undermined’
The state’s whistleblower statute gives protection to employees who disclose information the employee “reasonably believes” demonstrates a violation of state or federal law, rule or regulation; mismanagement or abuse of authority in government; a “substantial” waste of public funds; or a danger to public health and safety.
Justice Annette Ziegler argued that Schigur’s opinion regarding the legality of the security detail was not disclosing “information” as the statute requires.
“One person’s ultimate conclusion that certain conduct is unlawful or inappropriate does not, alone, demonstrate unlawful or inappropriate government conduct,” Ziegler wrote. “ ‘Information’ in this context instead refers to the details of underlying conduct rather than to an opinion alone.”
Furthermore, Ziegler wrote, Schigur did not actually disclose any information, because her supervisors already knew about the security detail.
“Myszewski in particular is the person who had informed Schigur of the proposed security detail in the first place,” Ziegler wrote. “To ‘disclose’ information, ‘the recipient must have been previously unaware of the information at the time of the communication.’ ”
Walsh Bradley was sharp in her rebuke.
“The majority opinion undermines the legislative purpose of Wisconsin’s whistleblower statute,” she wrote. “It writes new language into the statute thereby limiting the protections available to whistleblowers. It turns the legislative policy on its head, creating an absurd result.”
Walsh Bradley argued that Schigur’s “opinion” of the legality of the security detail was more than just an opinion because, in her original email, she cited a state regulation that may have been violated, as well as provided an example of a former case with a similar situation.
“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 there may be ‘mismanagement’ of or ‘a substantial waste of public funds,’ ” Walsh Bradley wrote. “This is the very definition of information under the statute and it is exactly what the statute required.”
The justice used this example to make her point: An employee’s supervisor commits theft, and the employee finds evidence of the theft. Under this ruling, Walsh Bradley wrote, a subsequent disclosure to the supervisor would not actually qualify as whistleblowing because the supervisor was the one doing the stealing and already knew the information.
Thus, the employee would not receive legal protection and could be retaliated against without any penalty to the supervisor — the one actually committing an illegal act.
“As this decision stands, that is exactly what would happen under these circumstances,” Fox agreed. “So, it’s a bit of an extreme example, but it’s very realistic. The way this opinion has been written is that protections for employees who disclose something that their supervisors already know about is not protected.”
Employees less likely to come forward?
Fox, who has worked with whistleblowers for 16 years, said the ruling may have detrimental ramifications.
“From a big picture, it does not make sense that a person who attempts to prevent a wrongdoing from happening, and does so in a way that mirrors the whistleblower statute, does not receive protection against retaliation for doing so,” Fox said.
In October, an administrative law judge rejected a whistleblower complaint by former Department of Corrections Secretary Ed Wall. Wall was demoted and then fired in 2016 after he said he notified his supervisors that he believed the state was violating the law by refusing to reinstate him to his position as DCI administrator in the Department of Justice.
Attorney General Brad Schimel said Wall was fired for attempting to evade the Public Records Law — an allegation Wall denies.
A DWD equal rights officer found there was probable cause to believe that Wall had been the victim of illegal retaliation. In the state’s motion to dismiss the case, both sides argued about whether the Schigur decision affected Wall’s case. But in the end, Wall lost on other grounds, including that as the secretary of DOC, Wall was not covered by whistleblower law.
“That (Schigur) case is just a terrible, terrible decision. It’s going to affect every whistleblower going forward,” said Wall, who now works for a cybersecurity firm in New Hampshire.
Wall said that during his tenure as DCI administrator from 2010 to 2012, he saw how aggressively the agency went after Schigur. “I remember thinking to myself, ‘Boy I hope I never get into a legal fight with these guys.’ ”
Fox believes future whistleblowers will face an uphill battle in trying to get legal protection — even if they expose legitimate problems.
“I can’t imagine a case hitting all four corners of a statute (more) than (the Schigur case). It nails every bit of it,” Fox said. “If this doesn’t gain the protection, then I don’t know what will.”
He added, “I’ve handled some calls from people about potential whistleblower cases, and I don’t foresee anyone being very successful under these circumstances anymore.”
Reporters Cara Lombardo and Dee J. Hall contributed to this story, which was produced as part of an investigative reporting class in the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction of Hall. The nonprofit Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.
Defining Wisconsin’s whistleblower law
According to Patrick Burns, associate director of Taxpayers Against Fraud, the origin of the term “whistleblowers” stems back to when unarmed British bobbies, or police officers, “would ‘blow the whistle’ when they saw a theft in order to alert the store owner and the people in the street to help catch the thief.”
Whistleblowing traditionally has been seen as a public-private effort to expose wrongdoing, said Burns, whose group works to protect and advance the cause of whistleblowers.
Wisconsin’s law prohibits retaliation against state employees who disclose “information about violation of any state or federal law, rule or regulation, mismanagement or abuse of authority in state or local government, substantial waste of public funds or a danger to public health or safety,” according to the state Department of Workforce Development’s website.
These employees “may disclose information to any other person,” the agency says. But unless that person is an attorney, union representative or a member of the Legislature, the law requires the employee to first report the information in writing to the employer’s supervisor or “an appropriate governmental unit designated by the Equal Rights Division.”
That requirement can be critical. Former Department of Justice special agent Dan Bethards lost his whistleblower case because he informed the head of human resources at DOJ at the same time — rather than after — he notified his superiors of his allegations. He was later fired.
Burns said he believes requiring such disclosure can undermine whistleblower protections.
“My own definition of a ‘whistleblower’ is someone who goes outside the company or agency chain of command in order to alert press, public and politicians about a wrongdoing,” he said.
“Of course, companies want their employees to ‘self-disclose,’ by first blowing the whistle internally. But when they do that, the company typically moves to humiliate, isolate and terminate.”
— Dee J. Hall