                                                                      2015 WI 114

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2013AP1488
COMPLETE TITLE:         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:          December 30, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 6, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Juan B. Colas

JUSTICES:
   CONCURRED:
   DISSENTED:           A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
                        (Opinion Filed)
  NOT PARTICIPATING:    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.
2
                                                                         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,

      v.                                                               FILED
State of Wisconsin Department of Workforce                        DEC 30, 2015
Development,
                                                                     Diane M. Fremgen
              Respondent,                                         Clerk of Supreme Court


Joell Schigur,

              Respondent-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                  Affirmed.


      ¶1      ANNETTE KINGSLAND ZIEGLER, J.            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   Division    of    the     Department        of

Workforce Development ("DWD").            The Equal Rights Division of the


      1
          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        Wis.     Stat.       §§ 230.80-.89       (2011-12),2     the

subchapter     of     Wis.        Stat.     ch.       230    designated      "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   On April 15, 2008, Schigur attended a staff meeting

for   Bureau    Directors         of      the    DOJ's      Division    of     Criminal

Investigation       ("DCI")    at      which    her    superior,     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     case     involves       a   narrow      question   of    statutory

interpretation:       we    must       determine       whether     Schigur's     e-mail

communications      to     Myszewski      are    entitled     to   protection     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."                              Hutson v. Wis. Pers.

Comm'n,     2003      WI     97,    ¶37,       263    Wis. 2d 612,            665     N.W.2d 212.

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

the   lawfulness       or     appropriateness              of     government         activity       is

"information"         such    that       it    is     entitled         to    protection          under

§§ 230.80-.89,         whether       other          portions          of    Schigur's       e-mails

relating         to    the         proposed           security             detail         constitute

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

whether     Schigur's         disclosure         is        protected         because       the     DOJ

believed     that     Schigur        had      "disclosed          information"            under    the

statute.

      ¶4     Schigur         makes       two     specific          arguments          on    review.

First,     she    argues      that    disclosure            of    a    "belief"——namely            her

opinion      regarding         the       lawfulness              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.      2013AP1488



      ¶5      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        argument       that     the       DOJ   believed     that    she

"disclosed          information"        rests        on      a     misinterpretation         of

§ 230.80(8)(c) and therefore fails.                       Accordingly, we affirm the

decision of the court of appeals.

                                 I.     FACTUAL BACKGROUND

      ¶6      On      May   28,       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        Integrity.          Schigur       was     subject     to    a     two-year
probationary          period      and     received          probationary        performance

evaluations every three months.                     From September 2006 to November

2007,       Joell     received     six     positive          probationary       performance

evaluations from Warren.

      ¶7      On     January     3,     2008,       Myszewski      became      DCI's    Acting

Administrator and Schigur's supervisor.                           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.             At the meeting, Myszewski informed

the   attendees    that   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     April   21,    2008,       Schigur      sent   an       e-mail    to

Myszewski,      Sperry,   and    Cindy       O'Donnell     ("O'Donnell"),          the

Administrator      of   the   DOJ's    Division      of    Management       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
                                                                        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   On    May   21,   2008,    Myszewski       and    O'Donnell       met   with

Schigur      and    presented         her     with     her     final     probationary

performance evaluation.           The evaluation stated that, during the

time    since      her     previous         evaluation,       Schigur         had    "been

persistently       unwilling     to    carry     out   administration          policies,

argumentative,       disrespectful,          suspicious       of   management,        and




                                             6
                                                                No.    2013AP1488



insubordinate"     as   well    as    "openly    critical     and    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.   PROCEDURAL BACKGROUND

     ¶14    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     her     to   her   previous     position       for

e-mailing    Myszewski     about     Schigur's     concerns    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       had

disclosed, information under sec. 230.81, Stats."                   The case was
certified    for   an     administrative      hearing   on    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.     2013AP1488



    ¶15     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     "because       she   lawfully          disclosed,       or       the     [DOJ]

believed    that     she    had    lawfully        disclosed,      information"             under

§ 230.81.

    ¶16     On      July    7,     2011,     the      DOJ     filed       a     motion        for

reconsideration of the ALJ's non-final decision.                           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     submitted       that    the      DOJ    had     no     right       to     ask     for

reconsideration        of    a     written       decision     of     an       Equal        Rights

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

motion.       The    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      a    second       "Non-Final       Decision   and    Memorandum     Opinion"

ordering the DOJ to take certain actions to remedy its violation

of Wis. Stat. §§ 230.80-.89.

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

DWD    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.                     The decision concluded

that    "Schigur           disclosed    'information'       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    she    disclosed
information under Wis. Stat. sec. 230.81."                        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.   2013AP1488



protection under §§ 230.80-.89.         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.    STANDARD OF REVIEW

    ¶21     "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).          In this case we

interpret Wis. Stat. §§ 230.80-.89.          "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.          See, e.g., id.,

¶¶26-29.     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.    ANALYSIS

       ¶23   Wisconsin       Stat.     ch.    230     governs        "State    Employment

Relations",      that      is,    state     government       employment        relations.

See,    e.g.,     Wis.       Stat.     § 230.01           (Statement      of     policy).

Subchapter      III   of    ch.   230,      see    Wis.    Stat.      §§ 230.80-.89, is

titled "Employee Protection."                We have referred to this statute

as   "the    whistleblower         law"     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."                    Hutson, 263 Wis. 2d 612, ¶1 &

n.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           lawfully disclosed information
       under s. 230.81 or               filed a complaint under s.
       230.85(1).



                                             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.   Wis. Stat. § 230.81(1)(a)-(b).4

     ¶26   "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.




     4
       This requirement is subject to certain                  exceptions      not
applicable here. See Wis. Stat. § 230.81(1).


                                      12
                                                                                   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       information"               under       § 230.81;      (2)

Schigur     did     not    comply     with        the       statutory            requirement      to

disclose     the     information           in        writing          to     her        supervisor,

Myszewski,    before       disclosing       it       to     other      individuals,          namely

O'Donnell    and     Sperry,       see    § 230.81(1)(a);                  and    (3)     Schigur's

opinion     that     the    information           she       disclosed            demonstrated      a

violation of law was not "reasonabl[e]."                         See § 230.80(5)(a).

    ¶28     Schigur        disputes      each         of       these       contentions.           In

addition,     she    argues      that       even       if       she      did      not     "disclose

information"       under    Wis.    Stat.        § 230.81,          her      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      We      conclude       that        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).

We further conclude that 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,          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.        These conclusions render it unnecessary to examine
                                             13
                                                                    No.    2013AP1488



the DOJ's other arguments.             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    possible       grounds.'"        (citations       omitted)).

Finally,       we   conclude    that       Schigur's   argument    that    the     DOJ

believed       that    she     "disclosed         information"     rests      on    a

misinterpretation       of     Wis.    Stat.     § 230.80(8)(c)    and     therefore

fails.

          A.   Liberal Construction of Wis. Stat. §§ 230.80-.89

      ¶30      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.                  Wisconsin Stat. § 230.02,

"Liberal       construction     of    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               We take such a directive from the

legislature seriously.           However, none of the purposes cited by

Schigur affect today's statutory inquiry.

    ¶31     We will examine the purposes Schigur lists in reverse

order.     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.                              We cannot

construe     the     statute     liberally       in    aid       of     disclosure      of

information        and     protection      from       retaliatory            action     for

disclosure     of        information     until    we      know        what     the    terms

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

other    words,     we    must   first   give     these    specific          terms    their

"common, ordinary, and accepted meaning[s]" or their "special

definitional meaning[s]" if definitions are provided.                                Kalal,


    6
       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.    2013AP1488



271 Wis. 2d 633, ¶45.             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   The only issue we examine today to which this policy

might    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       for       satisfying          careers     and    fair

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

Stat. § 230.01(2).              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     additional        guidance.            "[W]e    do     not    usually     address

undeveloped arguments."             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   proceed    to    address    Schigur's
arguments.
                                               16
                                                                    No.     2013AP1488




          B.      Whether Schigur Lawfully Disclosed "Information"
                            Under Wis. Stat. § 230.81
    ¶35     Under Wis. Stat. § 230.83(1), "retaliatory action[s]"

are prohibited.        One type of retaliatory action occurs when "a

disciplinary        action    [is]     taken     because . . . [an]         employee

lawfully disclosed information under s. 230.81."                          Wis. Stat.

§ 230.80(8)(a).

    ¶36     Under     Wis.     Stat.    § 230.81(1),      "[a]n    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).        As   stated,    "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     did    not     "disclose
information" under Wis. Stat. § 230.81.7                  Schigur's argument in

    7
       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.    2013AP1488



response    is    that    an    opinion   alone,     as    to    the    lawfulness       or

appropriateness of certain government activity is "information"

under Wis. Stat. § 230.80(5).             According to this reasoning, when

Schigur     notified      Myszewski,       Sperry,     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."                        DOJ v. DWD, 361

Wis. 2d 196,       ¶27     (citation       and     internal           quotation        marks

omitted).    We think the language of the statute clearly mandates

this interpretation.

      ¶39   The     statute's         definition     of     "information"          itself

contains    the    word       "information."        The    statute       thus     extends

protection       only    to     the    disclosure     of     a    certain       type      of

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

the   employee      reasonably         believes     demonstrates          one     of    the
enumerated        inappropriate         activities.              Schigur's        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.      2013AP1488



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

definition of information.               If an opinion as to the lawfulness

or   appropriateness       of    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,       demonstrate      unlawful       or

inappropriate government conduct.                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    conclusion     that    demonstrate         that    the   government      has

engaged     in   conduct    that       constitutes     censorship.      This    is   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     conclude   that    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).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
                                                                        No.   2013AP1488



Schigur's    attorney     clarified      multiple        times    at   oral    argument

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

lawfulness     or    appropriateness          of    government         activity      that

constituted    "information"          under    Wis.      Stat.     § 230.80(5).       For

instance,     the    following        exchange      occurred       between     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]     disclosed      was       not     the    existence    of    the
security    detail.      What   she    disclosed         was     its   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),        we     nonetheless             conclude        that       Schigur's
communication       of   this    information          is    not    protected        under


                                         21
                                                                              No.     2013AP1488



§§ 230.80-.89 because the communication was not a "disclosure"

under Wis. Stat. § 230.81.

       ¶45     After attending the staff meeting led by Myszewski,

Schigur      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      Stat.           §§ 230.80-.89           protects       "employee

disclosure[s]"         of     information.              Wis.     Stat.       § 230.81;        see

§ 230.80(8); § 230.83.              We have held, in another context, that

to     "disclose"      information,             "the     recipient         must     have     been

previously      unaware      of     the        information       at    the    time     of     the

communication."             State       v.     Polashek,       2002    WI    74,     ¶23,     253

Wis. 2d 527, 646 N.W.2d 330.                     We arrived at our definition of

the     word    "disclose"          in        Polashek       after     examining       several

dictionary       definitions             of     "disclose,"           as     well     as      the
interpretations of that word by multiple federal courts.                                      See

id., ¶20-22.         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,      so     that       it     may   know     the    effect    of     the

language it adopts."            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     would    require       a    convincing          reason    indeed        to    interpret

"disclose" any differently in this context.

       ¶48     Perhaps Schigur does not seriously pursue an argument

that     other       portions       of        her    e-mail      constitute           disclosed

"information"         under       the    statute       because      the    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    inappropriate            government      activity.             Wis.   Stat.

§ 230.80(5).         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    the     information        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).                     This pushes the concept of

"whistleblowing" a tad too far.


                                                23
                                                                               No.       2013AP1488



       ¶49   We conclude that, 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, 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   Another type of retaliatory action prohibited under

Wis.    Stat.     § 230.83       occurs      when       "a    disciplinary          action     [is]

taken    because . . . [t]he             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)(c) (emphasis added).                        The activities referenced in

Wis.     Stat.    § 230.80(8)(a)             and     (b)      are:     "(a)     The      employee

lawfully     disclosed       information             under     s.    230.81         or   filed    a

complaint under s. 230.85(1)"; and "(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."

       ¶51   Schigur       argues       that    the      DOJ    engaged       in     retaliatory

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 230.80-
       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.
The    ALJ's     final       decision      similarly       stated     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

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."                        Schigur says she raised her

Wis.     Stat.        § 230.80(8)(c)            claim      at   the      first       possible

opportunity:          before    the    circuit       court.        She   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    to    merit    a    decision.           Therefore,        assuming     Schigur

forfeited   the     issue,      a   question      we    do    not    decide      today,   we

exercise our discretion to review the issue.

    ¶55     In    arguing      that   the     DOJ      believed      Schigur      disclosed

information,       Schigur      states,     "clearly         the    DOJ    believed    that
Schigur's disclosures were protected under the statute."                                  In

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

retaliatory      actions       to   include      instances         where   a     supervisor


    10
       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    is    still      protected       if     the     DOJ       believed      she

"disclosed     information"         as    defined      in    the    statute.           Schigur

misinterprets          § 230.80(8)(c).                      The         most         reasonable

interpretation       of       the   provision         is     that       it     is    aimed     at

situations     where      a   supervisor        retaliates         on    the     basis    of    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       by    §§ 230.80-.89,           and     she       is    therefore

protected.      The argument is illogical:                    an employer would not

retaliate against an employee "because" the employer mistakenly

believed      that   the      employee        would   receive       protection         against

retaliation.         Wis.     Stat.      § 230.80(8).             Instead,      an    employer

might     retaliate       against        an    employee       because          the    employer

mistakenly believed that the employee had engaged in conduct

that the employee had not in fact engaged in.


                                               27
                                                                          No.     2013AP1488



      ¶57    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     conclude    that     Schigur's            argument    that    the    DOJ

believed      that     she      "disclosed          information"          rests     on     a

misinterpretation        of    Wis.    Stat.       § 230.80(8)(c)         and    therefore

fails.

                                  V.    CONCLUSION

      ¶59    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     argument      that       the       DOJ   believed     that    she

"disclosed        information"        rests        on     a     misinterpretation         of

§ 230.80(8)(c) and therefore fails.                     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 e-
mailed Myszewski, Sperry, and O'Donnell simultaneously.


                                          28
                                                            No.     2013AP1488




    By    the   Court.—The   decision   of   the   court   of     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.               (dissenting).

      ¶62    The     Wisconsin      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       from       retaliatory        action      for

disclosing information..."               Wis. Stat. § 230.01(2).

      ¶63    Employees       are        encouraged      to        disclose     information,

including     a     violation       of     any    law        or    regulation       and    any

mismanagement or substantial waste of public funds.                                Wis. Stat.

§ 230.80(5).         In     aid    of    this,    the       legislature       has    directed

that the statues "shall be construed liberally in aid of the

purposed declared..."             Wis. Stat. § 230.02.

      ¶64     I     write     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.                 Second, it writes new language into

the   statute       thereby       limiting       the    protections           available      to

whistleblowers.           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    Schigur explained in a second email that "the concern

is   not    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     issues      came        up      in    the     Jensen/Chvala

investigation."        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          completed       her     21-month     probationary            performance

evaluation.          He wrote:        "Joell continues to do an outstanding

job of leading the Public Integrity Bureau and the Internet

Crimes       Against       Children       Program.       Joell       is     a    nationally

recognized         leader     in    the    area    of   protecting         children       from

Internet predators.            Joell has successfully mastered all of the

objectives and standards for a bureau director.                                 I recommend

that       Joell    be    removed    from     probation       and    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. § 230.80-

89 by "raking 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       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..."          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..."        State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004   WI    58,   ¶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."                   See Id., ¶44.
       ¶74   The majority turns a blind eye not only to the above

instructions       but     also     to     recognized           rules    of    statutory

interpretation.          Instead of embracing precedent, the majority

sub silencio overrules it, while creating its own contrary, and

heretofore unknown, rule of statutory interpretation.

       ¶75   The express mandate of Kalal, which the majority sub

silencio     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.                  Id., ¶48.

      ¶76     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     from    retaliatory       action   for

disclosing information..."               Id., ¶30.         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.       Why?
      ¶78     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       of     information'           and   'retaliatory          action'

mean."    Id., ¶31.

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

471     N.W.2d    16   (1991)          (citing      Singer,     Sutherland          Statutory

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

      ¶80    The majority's reasoning that it cannot construe the

statute     liberally     until         it   first       defines    the     terms     in    the

statute     is    backwards.           "Liberal         construction      of   any    statute

consists     in    giving        the    words       a    meaning     which      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   majority           defines      the   terms     "disclose"        and

"information"       narrowly       so    that      Schigur's       claims      do    not   fall

within the statute.          It then reasons that we need not construe

the   statute      liberally       because         Schigur's     claims        do   not    fall

within the statute.

      ¶82    The point of liberal construction is to interpret the
statue 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   majority's   contention             that    a   statute        cannot    be

construed    liberally     unless       it       is    ambiguous       is   a    heretofore

unknown   rule     of   statutory   interpretation.3                   It   sub    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     contextually          manifest           statutory       purpose.")

(Ziegler,      J.       dissenting)      (quotations          and    citations       omitted);

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

135,    785   N.W.2d        302    ("A     plain-meaning           interpretation       cannot

contravene         a     textually       or     contextually          manifest       statutory

purpose.") (citation omitted).

       ¶85    Unfortunately,          the     majority's          newly    minted     rule   of

statutory      interpretation            will       have    far-reaching         consequences
that go well beyond this whistleblower statute.                                  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.                                   Wis.

Stat.    § 421.102(1).              Will      the    legal        rights    of    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,    e.g.,       Wis.    Stat.         § 766.001(1)          (Marital

Property);         Wis.        Stat.      § 16.001(2)                 (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         Code);        Wis.        Stat.        § 66.0301          (2)

(Intergovernmental            Cooperation);           Wis.          Stat.      § 645.01(3)

(Insurers Rehabilitation and Liquidation).

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

new   rule    of    statutory        interpretation:          a      provision      can    be

construed     liberally       only     when    there       is       some     ambiguity     to

construe.          Majority     op.,    ¶32.          As     discussed         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         case;     and     (c)        has      broad    negative
consequences.       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.                          According to the

majority,    in    order   to    "disclose"         information,           "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    the    information      was     already     known    to   the

recipients     of     the    e-mails."        Id.,    ¶49.    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    The plain language of Wis. Stat. §§ 230.80-89 contains

no   requirement      that    the   disclosed        information    be   previously

unknown.      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."                        In re

                                         10
                                                                                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    we     uphold       the     separation        of        powers       by     not

substituting           judicial       policy       views       for    the           views    of     the

legislature."           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         for     its

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

is    a    slender       reed      upon     which       to   rest     such          a   conclusion.

Although the Polashek court determined that "the term 'disclose'

in § 48.981(7) requires that the recipient not have knowledge of

the       information         communicated,"             its     determination               is     not
controlling.            253 Wis. 2d 527, ¶3.                   It is construing a penal

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

penalty         for     the        unauthorized         disclosure             of       confidential

information           relating      to    reports       of   suspected          child       abuse    or

neglect.        See id., ¶1.

          ¶92   Penal    statutes         are     strictly      construed.               See,     e.g.,

State      v.    Christensen,         110    Wis.      2d    538,    547,       329      N.W.2d     382

(1983).         "This cannon of strict construction is grounded on two
public policies.              The first favors notice as to what conduct is

                                                  11
                                                                             No. 2013AP1488.awb


criminal.           The    second       recognizes        that     'since     the     power     to

declare          what     conduct       is     subject       to     penal     sanctions          is

legislative,            rather    than        judicial,      it     would     risk    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 cannon of strict construction required the Polachek court to

interpret         "disclosure"          narrowly       so    that     the     definition         of

criminal         conduct    under       the    statute       was    not   expanded        by    the

judiciary.          In Polachek, the disclosure of information was an

element of the crime.                    253 Wis. 2d 527,             ¶23.        By narrowly

defining         "disclosure       of    information"         to    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    remedial       statute.        In    contrast      to     penal    statutes,

"[u]nder          the     accepted       law      of        Wisconsin       and      of     other

jurisdictions, remedial statutes should be liberally construed

to    'suppress the mischief and advance the remedy which (the

statute) intended to afford.'"                    City of Madison v. Hyland, Hall

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

case,      the     cannons        of    statutory       interpretation            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      why

Schigur's emails are not information under the statute.                          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)."                    Majority op., ¶5, 29, 41 & 59.

Second,     "that    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...        was      not       a        'disclosure'...      because       the

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

Id., ¶29.     I address each in turn.

      ¶97    I   address     first     the      majority's      conclusion     "that    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).             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    Kinzel,     the    plaintiff      claimed    to   have     disclosed

information        about   an   abuse     of      authority,    which    is    protected

pursuant to Wis. Stat. § 230.80(5)(2).                   Kinzel, No. 2012AP1586,

¶20.      The      court   of   appeals      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       to   constitute         "information."        The    majority

offers:      "For    example,     the    statement      'I     believe    that    it   is
illegal for the government to censor free speech.'"                             Majority

op., ¶40.       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."                           As the

Director      of    the    Bureau      for   Public     Integrity,       she    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      that      he    would      be   "off    duty,"   not

             representing        the      DOJ,    but       rather       representing     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 statue required.

     ¶102 Even if the rewriting of the statue by the majority
inserting the word "new" into it were to be condoned, the facts

here would meet that test.                Until Schigur sent her supervisor

emails   expressing        her    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        restrictive        definition     of

"disclose."



                                           15
                                                                         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 e-

mails."    Majority op., ¶29.

    ¶104 The       majority    goes    so        far    as    to   argue       that    "[t]he

employee    need    not   disclose         her    reasonable        belief       that     the

information    demonstrates        unlawful        or    inappropriate          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.                 However, under the majority's
analysis,    the   attorney        could    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 double-

edged   sword.       Under    the     majority's             decision,     a    government

employee     who    tries     to      prevent           wrongdoing        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     protection        under       the    law.

                                           16
                                                                    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,    ¶46.       The        majority's        statutory        interpretation         of

"disclosure"     and     "information"           leads      to     an     absurd       and

unreasonable     result.          In      some      instances       the     majority's

interpretation     would      protect     the    wrongdoer,       rather       than    the

whistleblower.         For     example,      what    if   an     employee       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   consequences         of      this    decision    may    be    far-

reaching.         Not   only    will        whistleblowers        suffer    retaliation

without     recourse,      but       all      of       Wisconsin's    citizens         lose

protection     against         government           corruption.           Absent       legal

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           evidence.     See,       e.g.,

                                             18
                                                                    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.                     No one has argued here

that   this     finding   of   fact    is    not      supported    by   credible   and

substantial evidence.          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                 concluded that the DOJ violated

Wis.   Stat.     §§   230.80-89       when       it   terminated   Joell   Schigur's

probation.      Accordingly, I respectfully dissent.

       ¶113 I    am   authorized      to     state     that   Justice    SHIRLEY   S.

ABRAHAMSON joins this opinion.




                                            19
    No. 2013AP1488.awb




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