State of Wisconsin Department of Justice v. State of Wisconsin Department of Workforce Development

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.

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 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."

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 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
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 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.

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 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.

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 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.
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 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.

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 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

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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

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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

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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

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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. §

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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:

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● 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."

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¶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.

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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).

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¶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.,

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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.

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