Wisconsin Supreme Court Decision Substantially Limits Whistleblower Protection Under Wisconsin State Law

Whistleblower protections for public sector employees may be significantly reduced as a consequence of the Wisconsin Supreme Court decision in State of Wisconsin Department of Justice v. State of Wisconsin Department of Workforce Development and Joell  Schigur, 2013 AP 1488 (2015) on December 30, 2015. The court narrowed the protections of the whistleblower statute in some circumstances, and could adversely affect other employee-friendly statutes because the court did not liberally construe the statute.

A Brief Overview of Whistleblower Protections in Wisconsin 

Chapter 230 of the Wisconsin Statutes provides protection for employees of state governmental units (excluding those working for the office of the Governor, the courts or the legislature) to disclose information that they reasonably believe indicates a violation of a state or federal law or regulation, mismanagement or abuse of authority, a substantial waste of public funds, or a danger to public health or safety. Retaliation by the employer against the whistleblower is prohibited. Remedies for an employee against whom their employer retaliated include reinstatement to their job, transfer to another position, expungement of erroneous disciplinary action, and attorney’s fees.

Demoted Employee Seeks Whistleblower Defense 

In 2008, Joell Schigur (Ms. Schigur), then the Department of Corrections (DCI) Public Integrity Director, attended a staff meeting at which it was announced that DCI would provide 24-hour security for then Attorney General J. B. Van Hollen at the 2008 Republican National Convention. A few days later, Ms. Schigur sent an email to her supervisor, and two other DOC colleagues, in which she expressed her concern about using state funds at a political event, and her opinion that doing so might violate state law and Office of Employment Relations regulations.

Before sending the email, Ms. Schigur had nearly completed her probationary period as the Public Integrity Director, with all positive evaluations. Shortly after she sent the email, she received an unfavorable evaluation, and was demoted to her previous position. Ms. Schigur filed a complaint with the Equal Rights Division (ERD), alleging the DOC retaliated against her for her email by demoting her. The ERD agreed, but a circuit court judge overturned the ERD decision, and an appellate court and the Wisconsin Supreme Court agreed with the circuit court judge.

WI Supreme Court Majority Interprets Whistleblower Law Conservatively 

Wisconsin Supreme Court Justice Annette Ziegler announced the decision of the majority, focusing on their conclusion that Ms. Schigur was not protected by the whistleblower statute because the “information” she disclosed was Ms. Schigur’s opinion, and was not protected as a disclosure under the whistleblower statute because the information was already known to the recipients of the email. Justice Ann Walsh Bradley wrote a strong dissent, objecting to the majority’s failure to give the whistleblower statute a liberal construction, challenging the majority addition of a new requirement for disclosure of information that is “unknown” to the recipient, and issuing a caution about the potential negative impact on the construction of other statutes protecting employee rights.

Proceed Carefully Before Blowing the Whistle

Justice Ziegler significantly narrowed the scope of Section 230.80(5) by injecting a requirement not found in the plain language of the statute. Public employees who consider engaging in whistleblowing should carefully consider their options with an attorney before doing so in light of the retaliation suffered by Ms. Schigur and the absence of recourse under the whistleblower statute. Chapter 230 provides alternative ways for employees to disclose information that may be useful to discuss with an attorney in order to avoid putting the employee’s employment in jeopardy, but still providing the information to a person or entity that can take appropriate action.

If you have questions about whistleblowing in the workplace, please contact one of the employment lawyers in the Milwaukee or Madison offices of Hawks Quindel.

 

Katherine Charlton

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