Last week’s state Supreme Court decision on a Department of Justice whistleblower case is likely to strip many protections for those who report corruption or misconduct in state government.
And the court’s decision is so far-reaching that it condones in some cases the firing of state employees who do the right thing despite facing opposition from their superiors.
“Absent legal protections, it will be the rare employee who will risk her livelihood to act as a whistleblower,” wrote Justice Ann Walsh Bradley in her dissent.
The 3-2 Supreme Court decision found that the whistleblower law for state employees didn’t apply to and therefore wouldn’t protect a high-ranking DOJ official who’d voiced concerns about the legality of then-Attorney General J.B. Van Hollen’s planned use of state-paid security for his appearance at the 2008 Republican National Convention.
As the Shepherd reported in May 2015, the DOJ official, Joell Schigur, was near the end of a two-year probationary period leading the Public Integrity Bureau and the Internet Crimes Against Children Program when she emailed her superiors about her concerns about having state taxpayers pick up the tab for protecting Van Hollen at a political event.
The consequences of speaking up were swift.
After years of garnering positive performance reviews, a month after her email Schigur received a negative evaluation that stated that since her previous evaluation she had “been persistently unwilling to carry out administration policies, argumentative, disrespectful, suspicious of management, and insubordinate,” as well as being “openly critical and defiant of management’s policies and decision making,” according to court documents.
The next day, Schigur was removed from her position and went back to her previous post as special agent in charge.
Van Hollen ultimately did not use DOJ agents when he was in Minneapolis and Schigur has since left state employment.
Schigur filed a complaint with the Department of Workforce Development’s Equal Rights Division alleging her demotion was retaliation. The administrative law judge agreed with her.
The DOJ appealed to the circuit court and won by arguing that the state’s whistleblower statute only protects state employees who disclose “information,” not merely “concerns” or opinions, as Schigur allegedly did. A Dane County judge sided with the DOJ and the appeals court affirmed that decision in February 2015. The Supreme Court sided with the DOJ’s argument last week.
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“We are pleased with the Supreme Court’s decision in agreeing with DOJ that an employee’s communication of her belief that providing security detail to then-AG Van Hollen was not ‘disclosing information’ for purposes of Wisconsin’s whistleblower statute,” Attorney General Brad Schimel said in a statement released to the Shepherd.
Supreme Court Decision ‘Protects the Wrongdoer’
The three-person majority of justices finding against Schigur—Michael Gableman, Patience Roggensack and Annette Ziegler—found that the state’s whistleblower statute only applies to those who disclose previously unknown information about potential misconduct in state government. The trio took a very limited view of the statute, finding that Schigur only offered her “opinion” about the legality of Van Hollen’s plans, and didn’t disclose new information about potential corruption because her superiors already knew about Van Hollen’s trip to the convention.
Not surprisingly, justices Shirley Abrahamson and Ann Walsh Bradley disagreed and argued that the majority’s opinion could actually protect the wrongdoer, not the whistleblower. (Justices Rebecca Bradley and David Prosser recused themselves from the case.)
Justice Ann Walsh Bradley wrote the dissent, saying that the state Legislature passed the whistleblower law because “employees are encouraged to disclose information, including a violation of any law or regulation and any mismanagement or substantial waste of public funds.”
But the majority’s decision “undermines the legislative purpose of Wisconsin’s whistleblower statute,” Bradley wrote.
The majority took such a narrow reading of the state’s whistleblower law that it now “denies protection for whistleblowers,” Bradley wrote. She said there’s nothing in the law that says that the disclosed information must be new, although the majority’s decision now requires it.
Peter J. Fox, Schigur’s attorney, told the Shepherd he hoped that the court’s ruling would not have a chilling effect on potential whistleblowers who want to speak up.
“But it will limit the protections that such whistleblowers will have if they do,” Fox emailed. “In particular, those like Joell who try to prevent something from occurring, based on a belief that that something would be unlawful, will not be protected by the Wisconsin Whistleblower Act.”
Shockingly, Bradley wrote that the court’s decision in some instances would protect the corrupt wrongdoer instead of the whistleblower.
“For example, what if an employee reported evidence of theft to her supervisor without knowing that he was actually the thief?” Bradley wrote. “The corrupt supervisor could fire the employee and she would have no protection as a whistleblower because the information was already known.”
Bradley argued that the majority actually gives its blessing to the firing of state employees who do the right thing, even when it isn’t popular with their bosses. She gave as an example an attorney who gives a legal opinion about facts revealed by another employee. The attorney would offer an original opinion but no new “information” under the court’s interpretation of the whistleblower law.
“Under the majority’s analysis, the attorney could be fired without recourse for providing an ethical, but unpopular, legal opinion.”
Schigur’s attorney Fox said the state lost a trusted professional when it retaliated against her.
“It’s a very disappointing outcome for Joell, of course, because it essentially endorses the hardship she endured,” Fox emailed. “She was the best and brightest at DCI [Division of Criminal Investigations] and the state’s finest advocate for protecting children against Internet predators. When she questioned the legality of the planned security detail, her career was derailed and the state’s ICAC (Internet Crimes Against Children) unit lost its way. A different outcome would not have changed any of that, but it would have gone a long way to validate the efforts she made to do the right thing.”
