¶ 31. (dissenting). George Orwell observed that "[i]n a time of universal deceit, telling the truth is a revolutionary act."1 In a similar vein, William O. Douglas recognized in his Pentagon Papers concurring opinion that there is a natural tendency to want to keep secret things that people have a right to know: "The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information." New York Times Co. v. United States, 403 U.S. 713, 723-724 (1971) (Douglas, J., concurring). Although this case does not, of course, concern the First Amendment (at least as framed for us), it affects a similar important policy — the suppression of information embarrassing to health-care facilities and providers.
¶ 32. The legislature has declared that no person employed by a "health care facility or health care provider" may be disciplined for reporting that:
• "the health care facility or health care provider has violated any state law or rule or federal law or regulation"; or
• "there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety."
Wis. Stat. § 146.997(2)(a)l., 2. & (3). The "dominant purpose" of § 146.997 is thus to prevent health-care
*20facilities and providers from using retaliation or the threat of retaliation in order to keep hidden their dirty linen.
¶ 33. Hiding health-care dirty linen is widespread. See Barry Meier, Doctors Who Don't Speak Out, N.Y. Times, Feb. 15, 2013, at SR5 (" 'The standard in the medical community is not to report[.]'") (quoting, according to the article, "Dr. Robert Hauser, a cardiologist who, along with a colleague, warned other doctors in 2005 about a defective heart implant").2 A recent Report by the Department of Health and Human Services Inspector General, Daniel R. Levinson, Esq., put the problem starkly:
We requested that hospitals provide any internal incident reports involved with the hospitalization, including submissions to the hospital incidence-reporting systems, adverse drug reaction reports, complaints, peer reviews, and morbidity and mortality reviews, for the 278 sample Medicare beneficiary hospitalizations. However, hospitals did not provide, and apparently did not have, any reports for 112 of the 120 events (93 percent) found in the case study. Further, hospitals had no incident reports for two of the three events that resulted in death to the patients or two of the four events that resulted in serious disability.
Daniel R. Levinson, Adverse Events In Hospitals: Methods For Identifying Events 15 (Department of Health and Human Services, March, 2010) (parenthetical in original).3
*21¶ 34. The Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-11152, established the National Practitioner Data Bank to receive reports on matters affecting public-health services. See 42 U.S.C. §§ 11131-11134; 42 U.S.C. § 1396-2; 45 C.F.R. Part 60. A 2009 study concluded that reports to the Data Bank were woefully inadequate. Alan Levine, Sidney Wolfe, M.D., Hospitals Drop the Ball on Physician Oversight, Public Citizen (May 27, 2009).4 The study quoted an assessment by, among others, Ira Williams, who, as described in a review of his book First Do No Harm: The Cure for Medical Malpractice, was "a retired oral and maxillofacial surgeon and dental anesthesiologist with over 40 years of medical profession experience" who "served as chairman of the dental department and as a member of the dental staff executive committee at Methodist Hospital in Madison, Wisconsin," and who "also spent five years as a clinical instructor in the ear, nose, and throat, and plastic surgery departments at the University of Wisconsin Medical School and Hospital." Evelyn Yea Tyng Tang, Review, First Do No Harm: The Cure for Medical Malpractice, Vol. II, No. 1 Suffolk Journal of Health & Biomedical Law 143, 143 (2006).5 As quoted by the Levine-Wolfe study, Dr. Williams explained the health-care wall of silence:
"Instead of shining a searchlight on the performance of their own members, hospital peer review committees prefer to stay in the shadows. They are willing to identify past problems and may recommend a slow, orderly change in standards of care, but they will not *22make substantial changes. Most important, their first priority is to preserve the rights and privileges of doctors. Their work is dictated by the desires of the medical staff and is rarely influenced by the needs of patients. Members of a peer review committee, it must be noted, are not evil or sinister people. Nor are they megalomaniacs. They are individuals who have been burned by circumstances and have learned to become robots who see no evil, hear no evil, speak no evil, in order to survive."
Hospitals Drop the Ball on Physician Oversight 22 (emphasis added). Indeed, the Levine-Wolfe study reports that from September 1, 1990 through December 31, 2007, 55.2% of registered Wisconsin hospitals never reported adverse health-care events to the National Practitioner Data Bank. Id., at 38. Nationwide, 48.9% of hospitals never reported. Ibid. And the problem is endemic. See James Dao, A Pattern of Problems at Hospital for Veterans, N.Y. Times, March 19, 2013, at A12 (Whistleblowers reveal significant problems at Department of Veterans Affairs medical center.)6 See also Ingrid Christiaans-Dingelhoff, Marleen Smits, Laura Zwaan, Sanne Lubberding, Gerrit van der Wal, Cordula Wagner, To what extent are adverse events found in patient records reported by patients and healthcare professionals via complaints, claims and incident reports? 11 BMC Health Services Research 49 (2011) ("In order to detect the same adverse events as identified by patient record review, one cannot rely on the existing reporting systems within hospitals.").7 Com*23pare Sue Evans, Barriers to reporting: addressing concern from the trenches (Centre of Research Excellence in Patient Safety, Monash University, Medicine, Nursing, and Health Sciences) (PowerPoint presentation with references).8
¶ 35. The consequences can be tragic when the public cannot see the dirty linen because potential whistleblowers are deterred by fears of possible retaliation. As representatives of thirty-three public interest organizations wrote to Congress in July of 2009 in support of tough whistleblower protection: "Protecting whistleblowers in the medical industry has more life and death consequences than in any other industry. It is not realistic to expect that doctors, nurses and other providers will defend medical consumers when needed, however, if they cannot defend themselves against retaliation."9
¶ 36. Critically, the predominant purpose of Wis. Stat. § 146.997 is thus not to advance the personal interests of health-care whistleblowers, but, rather, to protect the people of Wisconsin, who depend on healthcare facilities and providers for their well-being and, indeed, their very lives. The public-policy command of § 146.997 is therefore akin to the well-established principle that even an at-will employee, who enjoys no tenure, may not be fired because he or she reveals a matter of overriding public concern. See Brockmeyer v. *24Dun & Bradstreet, 113 Wis. 2d 561, 572-574, 335 N.W.2d 834, 840-841 (1983).
¶ 37. Wisconsin Stat. § 146.997 commands that health-care whistleblowers shall not be gagged by the fear of retaliation. The agency, the circuit court, and the Majority ignore this command by holding that the protections the legislature crafted in § 146.997 apply only if the person working for the health-care provider or facility is paid money or other "tangible benefit" for that work. Majority, ¶¶ 28 & 30.1 respectfully disagree that the legislature could have so intended.
¶ 38. First, although the Record here is silent as to how many interns work for health-care providers or facilities in either Wisconsin or the country without being paid money or some other "tangible benefit," unpaid internships are a recognized part of contemporary employment. Thus, the estimate in late 2011 was that: "More than 1 million Americans a year work as interns. About half of them are unpaid."10 For example, even the United States Equal Employment Opportunity Commission advertised last year for unpaid interns: "Unpaid internships are available during the Fall and Spring semesters or during the Summer. The office asks that the Fall and Spring Interns commit to work at least 20 hours per week and Summer Interns commit to a full-time schedule for a total of 8-10 weeks during the Summer."11
*25¶ 39. Second, requiring paid work (either in money or some other "tangible benefit") as a prerequisite to the employment protections afforded the public by Wis. Stat. § 146.997 ignores that payment is not a sine qua non condition of the "employment" relationship. Restatement (Third) of Agency, § 7.07 notes:
(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.
(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
(3) For purposes of this section,
(a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and
(b) the fact that work is performed gratuitously does not relieve a principal of liability.
(Emphases added.) The latter point is emphasized by comment f to § 7.07: "The fact that an agent performs work gratuitously does not relieve a principal of vicarious liability when the principal controls or has the right to control the manner and means of the agent's performance of work." (Emphasis added.) Wisconsin law is similar. See Heims v. Hanke, 5 Wis. 2d 465, 468, 93 N.W.2d 455, 458 (1958) "("One volunteering service without any agreement for or expectation of reward may be a servant of the one accepting such services."), *26overruled on other grounds, Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 290-291, 187 N.W.2d 349, 353-354 (1971).
¶ 40. No one disputes that the Medical College "control [ed] or ha[d] the right to control the manner and means" of the work Masri did for it. Further, no one disputes that although the Medical College did not pay Masri dollars or some other "tangible benefit," she nevertheless, received significant intangible benefits as a result of her work for it: education, experience, and opportunities for professional development. Hyland v. Wonder, 972 F.2d 1129, 1132 (9th Cir. 1992), recognized, in the First-Amendment retaliation area, that the non-dollar benefits accruing to an unpaid volunteer may not be taken away because the unpaid volunteer blew the whistle on governmental malfeasance: "Retaliatory actions with less momentous consequences, such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech." Id. at 1135. The rule should not be different under Wis. Stat. § 146.997, which forbids retaliation against health-care whistle-blowers.
¶ 41. Significantly, as already noted, Wis. Stat. § 146.997 is designed to protect patients (the scheme is thus not, as in the administrative decisions upon which the agency relied, solely to protect workers — see Majority, ¶ 28). Thus, it makes little difference that the Medical College did not pay Masri tangible compensation so that she may not have been the College's "employee ... in the strict sense," see Heims, 5 Wis. 2d at 468, 93 N.W.2d at 458, because as someone working in the facility under the facility's directions and control, and as someone privy to information encompassed by § 146.997's non-retaliation provisions, the Medical Col*27lege was barred from retaliating against her for having done what § 146.997 encourages.
¶ 42. The Majority relies on the deference it says we owe the agency. We must, however, obey the manifest purpose of the legislative enactment: "As always, a court should avoid adopting an interpretation that is contrary to a 'textually or contextually manifest statutory purpose.1 '[W]e will liberally construe remedial statutes to suppress the mischief and advance the remedy that the legislature intended to afford.'" MBS-Certified Public Accountants, LLC v. Wisconsin Bell, Inc., 2012 WI 15, ¶ 43, 338 Wis. 2d 647, 666, 809 N.W.2d 857, 866 (quoted sources omitted). This rule also governs whether we must obey an agency's determination by giving it some degree of deference.
¶ 43. The Majority gives the agency's interpretation "due weight." But we do not accede to an agency's interpretation of a statute under the "due weight" standard if that interpretation defeats the legislative purpose, as it does here. See M.M. Schranz Roofing, Inc. v. First Choice Temporary, 2012 WI App 9, ¶ 7, 338 Wis. 2d 420, 427, 809 N.W.2d 880, 883 (Ct. App. 2011) ("In affording 'due weight' deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available.") (emphasis added) (one set of quotation marks and quoted source omitted). Further, even under "great weight" deference, we also do not bow to the agency's view when that frustrates what the legislature wanted to accomplish. See deBoer Transportation Inc. v. Swenson, 2011 WI 64, ¶ 33, 335 Wis. 2d 599, 618, 804 N.W.2d 658, 667 ("Under great weight deference, the agency's interpretation and application of a statute must be reasonable. .. . An agency's *28interpretation 'is unreasonable and may be reversed by a reviewing court... if it is clearly contrary to the legislative intent, history, or purpose of the statute.'") (quoted sources omitted) (emphasis added). See also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.").
¶ 44. The legislature enacted Wis. Stat. § 146.997 to protect patients by immunizing health-care whistle-blowers from retaliation. That those ensconced behind what the legislature recognized as the often all-too high wall of health-care silence may see whistleblowing as, to use Orwell's word, "revolutionary," or even treasonous, underscores why the statute is needed, whether the health-care workers who have knowledge of the things encompassed by § 146.997(a) receive tangible compensation or do not receive tangible compensation. Sadly, the agency's crabbed reading of the statute exiles health-care interns beyond the pale of the statute's protection even though they may have critical information to safeguard patients. This undercuts and thwarts § 146.997's manifest legislative purpose. Accordingly, I respectfully dissent from the Majority's decision to affirm.
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