(dissenting). The majority cites the correct standard for our analysis of this appeal but then fails to apply it. Under Winkelman v. Beloit Memorial Hospital, 168 Wis. 2d 12, 15-16, 483 N.W.2d 211, 212 (1992), "[w]here a fundamental and well-defined public policy is evidenced by an administrative rule, a discharge for an employee's refusal to violate that public policy is actionable." If the discharged employee , "identiffies] a fundamental and well-defined public policy" as a matter of law, the employee then "must prove that the discharge violated that policy." Id. at 24, 483 N.W.2d at 216. Whether the employee proves such a violation is a factual question for the jury. Id. at 25, 483 N.W.2d at 216.
Thus, the issue on appeal in this case reduces to whether the administrative rule that Reilly was ordered to violate presented "a fundamental and well-defined public policy." If not, summary judgment was appropriate. If so, summary judgment was not appropriate and a jury must determine whether Reilly's discharge violated the fundamental and well-defined public policy.
Did a fundamental and well-defined public policy prohibit Reilly from supervising both the secure and non-secure units of the juvenile detention center? The answer is inescapable. Section 48.22(2)(a), STATS. (1987-88), provided, in part:
The department of corrections shall promulgate rules establishing minimum requirements for the approval of the operation of secure detention facilities and the juvenile portion of county jails. The plans and, rules shall be designed to protect the *542health, safety and welfare of the children in these facilities.
(Emphasis added.) Pursuant to that statutory mandate, the department of corrections promulgated rules including Wis. Adm. Code § HSS 346.08(5)(b)(3), which provided that "[n]o staff member responsible for supervision of juveniles in a secure detention living unit may during the same time period have responsibility for the supervision of juveniles in a non-secure unit."
Thus, as the majority concedes, when Reilly was ordered to supervise the juveniles in both secure and non-secure detention, she was ordered to break the law. Further, she was ordered to violate the specific rule that set a "minimum requirement[]" that the department had determined to be essential "to protect the health, safety and welfare of the children" in the detention facility. See § 48.22(2)(a), Stats. Remarkably, however, the majority concludes that while the "[s]afety of children in these facilities is, of course, 'a fundamental and well-defined public policy,'" "the mechanism by which the rule enforces that policy" is not. Majority op. at 538-539. Neither law nor logic supports any such distinction.
One need go no further than the mandatory words of the statute and administrative rule to appreciate that the prohibition of staff supervising both secure and non-secure detention was a "fundamental and well-defined policy." In this case, however, for anyone who might have had the slightest lingering doubt, there was more. As the majority concedes, Waukesha County asked the State of Wisconsin to waive the rule. Majority op. at 537. The State of Wisconsin said no; the staffing rule was mandatory, "well-defined," and mini*543mally-required for lawful operation of a juvenile detention center.1
Reilly identified a fundamental and well-defined public policy, established by statute and administrative rule, and further confirmed by the State of Wisconsin's refusal to deviate from the policy in its specific application to the Waukesha juvenile detention center. Thus, under Winkelman, it remained for a jury to determine whether Reilly's discharge violated the policy. Accordingly, I respectfully dissent.
It is curious that the majority repeatedly refers to the fact that, subsequent to the incident in this case, the rule was repealed. Majority op. at 531 n.1 and 539. In the first place, a 1992 revision of the rules has no bearing on the law as it existed in 1989. In the second place, as the majority points out, the revised rule mandates "at least one security staff member on duty at all times in each living area where juveniles are present." Thus, had she followed the order to supervise two living units alone, Reilly would have acted in violation of what later became the new rule.