552.1 Generally

The Complainant Public Integrity Director of the Department of Justice did not "disclose" information, as that term is defined in Wis. Stat. § 230.81(1), when she sent an email to her supervisor stating that she was concerned that the Division of Criminal Investigation's planned provision of security for the Attorney General at the 2008 National Republican Convention in Minneapolis might violate OSER regulations and state law. Wis. Stat. § 230.81(1) does not cover employee statements that merely voice opinions or offer criticism. In this case, the Complainant's supervisor was aware of the proposal to provide the Attorney General with security detail when he attended a political event in Minneapolis. Thus, the Complainant did not disclose unknown "information," but instead, merely gave her opinion that a proposed security detail would possibly violate a law or regulation. DOJ v. DWD, 2015 WI App 22, 861 N.W.2d 789.

The Complainant did not disclose "information" when he asserted to supervisors that two volunteers had been suspended without good reason because his communication merely expressed an opinion that disciplinary action taken against other employees was an "abuse of authority." Kinzel v. UW Bd. of Regents, (No. 2012AP1586, unpublished slip op., Ct. of App., 3/28/13).

The Complainant's note to her supervisor that she would "be seeking further review of the timesheet matter that was discussed at the 12/10/2007 meeting with the proper authorities," did not disclose wrongdoing by the Complainant's supervisor, and thus did not qualify as information for purposes of protection under the relevant statues. Hewko v. DWD, Equal Rights Division, 2012 WI App 1264.

The policy behind Wisconsin’s Whistleblower Law is to protect employees from retaliation and to encourage disclosure of certain information. However, the statutes provide specific parameters for protection. Although these protective statutes are to be liberally construed, only certain disclosures made a particular way and regarding a subject matter covered in the statute will qualify for protection. In order to gain protection under the Whistleblower Law, an employee must meet the requirements laid out in the relevant statutory provisions. “Retaliatory action” is defined in sec. 230.80(8), Stats., and includes disciplinary action taken because “[t]he employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85(1).” Before an employee is entitled to protection, the employee must make a disclosure of information in writing. “Information” is defined in the statute. Under sec. 230.80(5)(a), Stats., an employee is protected for disclosures of information that relate to one of four issues: mismanagement, abuse of authority in state or local government, substantial waste of public funds, or danger to public health and safety. The only claim made in this case is mismanagement. The Complainant wrote a memo which raised several topics, including a “supervisory style that is arbitrary and capricious,” and a lack of guidelines. These actions lack any specific description of mismanagement. They do not even provide enough information to determine if they might reflect a simple disagreement over management techniques. The other topic in the Complainant’s memo was an allegation of an excessive workload. Sec. 230.85(5), Stats., defines “information” to include information gained by the employee which the employee reasonably believes demonstrates mismanagement. Mismanagement is more precisely defined in sec. 230.80(7), Stats. as “a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function.” A “pattern of incompetent management actions” under sec. 230.80(7), Stats., requires more than a claim of a single act of incompetent management. Because the Complainant’s memo in this case claimed only a single act of alleged mismanagement, the memo is not a disclosure of information protected under the Whistleblower Law. Hutson v. Wis. Pers. Comm'n, 2003 WI 97, 263 Wis. 2d 616, 665 N.W.2d 212.

The Complainant verbally made safety concerns known to his supervisor. None of the disclosures listed in his complaint were in writing. The safety concerns that the Complainant raised orally do not satisfy the requirements of sec. 230.81(1)(a), Stats., and they do not satisfy any of the alternative categories of protected activities described in secs. 230.81(1), (2), or (3), Stats. The Complainant also had a claim of retaliation for occupational safety and health reporting activities under sec. 101.055, Stats. He argued that disclosures under that law are not required to be made in writing. However, in order to state a claim under the Whistleblower Law, the Complainant must have engaged in a protected activity under the Whistleblower Law. Because the Complainant did not make a lawful disclosure, his whistleblower claim was dismissed. Young v. DOT (Wis. Pers. Comm'n, 05/17/01).

The Whistleblower Law is designed to protect an employee who discloses information that the public has an interest in having disclosed. The statute protects disclosures of “information,” as defined in sec. 230.80(5), Stats. Some of the terms within that definition are defined elsewhere in sec. 230.80, Stats. (e.g., “abuse of authority,” ”mismanagement,” and “substantial waste of public funds.”). The Complainant’s e-mail message in this case did not describe “information” as required by the statute, and the e-mail did not qualify as a disclosure because it was not directed to the Complainant’s supervisor. The Complainant’s position was in the Division of Management Services. The individual to whom he sent the e-mail was a supervisor in the Division of Law Enforcement Services. That individual provided the funding for the Complainant’s project, but he was not the Complainant’s supervisor. Jenkins v. DOJ (Wis. Pers. Comm'n, 10/04/00).

The Complainant worked in the Division of Management Services in the Department of Justice. The Complainant sent an e-mail message to the administrator of another division within the Department of Justice. This e-mail did not qualify as a disclosure because it was not directed to the Complainant’s supervisor. The Complainant contended that the individual to whom he sent the e-mail was an agent of the Attorney General, so that a disclosure to him was a disclosure to the Attorney General, who heads the Department of Justice. The Complainant contended that since the Attorney General is in the supervisory chain above the Complainant, his disclosure to the administrator in another division constituted a disclosure to the Attorney General’s agent, and thus falls within sec. 230.80(1)(a), Stats. If the Complainant’s theory were adopted, the result would be contrary to the clear intent of the Whistleblower Law, which specifies certain routes for obtaining protection under the law. Jenkins v. DOJ (Wis. Pers. Comm'n, 10/04/00).

The Whistleblower Law requires that an employee disclose the subject information to his or her supervisor. The Personnel Commission has interpreted this to include any supervisor in the employee’s chain of command. This must be done prior to disclosing that information to any other person in order to obtain protection as a whistleblower. Several of the claimed disclosures in this case did not entitle the Complainant to protection as a whistleblower. Those included disclosures which were not authored by the Complainant; disclosures which were not made to supervisors in the Complainant’s chain of command; and disclosures which (although copied to supervisors in Complainant’s chain of command) were not provided to them prior to their disclosure to other persons and, as a result, do not satisfy the requirements of sec. 230.81, Stats. Ochrymowycz v. UW-Eau Claire (Wis. Pers. Comm'n, 06/07/00).

The Respondent’s motion to dismiss the complaint for failure to state a claim was granted where the only protected activity identified by the Complainant was a conversation with a representative of the Respondent’s human resources department. That activity did not fall within the scope of any portion of sec. 230.81, Stats. Kowing v. UW Hosp. & Clinics Bd. (Wis. Pers. Comm'n, 11/05/99).

The filing of a whistleblower complaint with the Personnel Commission is a protected disclosure pursuant to sec. 230.80(8)(a), Stats. Stanley v. DOC (Wis. Pers. Comm'n, 08/25/99).

Some of the Complainant’s union grievances did not constitute protected disclosures where the grievances indicated that another staff worker was harassing the Complainant but did not allege that the Respondent failed to correct the situation. Nor did the grievances request management to remedy the perceived harassment. However, the Complainant filed another grievance which specifically raised the perceived harassment by another staff person and which contained a request for management to remedy the situation. Another grievance concerned the lack of union representation at certain meetings. These grievances have the potential of being considered as disclosures of information under sec. 230.80(5), Stats. Therefore, the Respondent’s motion to dismiss the complaint for failure to state a claim upon which relief could be granted was denied. Stanley v. DOC (Wis. Pers. Comm'n, 08/25/99).

The Complainant’s memo reciting discrepancies of “almost 1%” and “almost 2%” between certain affirmative action report figures and certain veteran report figures were not major differences, and his memo did not satisfy the requirements of a disclosure of “information.” Sheskey v. DER (Wis. Pers. Comm'n, 08/26/98).

Even though the Complainant did not submit copies of the written disclosures that served as the basis for his complaints of retaliation, he described the disclosures in a manner that was sufficiently specific to withstand the Respondent’s motion to dismiss for failure to specify the “information” he had disclosed. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Qualifying disclosures under the Whistleblower Law need not be made to a first-line supervisor in order to qualify as a disclosure to a supervisor within the meaning of sec. 230.81(1)(a), Stats. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

When a faculty member is the “employee” making a whistleblower disclosure, it is reasonable to interpret “supervisor” to include the campus chancellor, the college dean and the department chair of the department containing the employee’s position. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The filing of a complaint under the Wisconsin Fair Employment Act is not a protected activity under the Whistleblower Law that entitles a Complainant to protection under sec. 230.80(8)(a), Stats. Oriedo v. DPI (Wis. Pers. Comm'n, 08/12/98).

A written disclosure that faulted the conduct of an inmate rather than an employee was insufficient to meet the definition of “information.” Bentz v. DOC (Wis. Pers. Comm'n, 03/11/98).

A written report made at the request of the employer and made to individuals designated by the employer to handle the matter met the whistleblower disclosure requirements, even though it was not made to the Complainant’s immediate supervisor. Bentz v. DOC (Wis. Pers. Comm'n, 03/11/98).

A union grievance filed by the Complainant qualified as a protected whistleblower disclosure to her collective bargaining representative within the meaning of sec. 230.81(3), Stats. Williams v. UW-Madison (Wis. Pers. Comm'n, 09/17/96); aff’d sub nom. Williams v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 11/19/97).

A disclosure need not be made to a first-line supervisor, but may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employee’s supervisory chain of command in order to qualify as a disclosure to a supervisor within the meaning of sec. 230.81(1)(a), Stats. However, merely because an individual processed grievances originating in the UW-Hospital did not qualify him as a supervisor of the Complainant (who worked for the hospital), and as a result, the Complainant did not make a protected disclosure. Williams v. UW-Madison (Wis. Pers. Comm'n, 09/17/96); aff’d sub nom. Williams v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 11/19/97).

Under sec. 230.80(5), Stats., the “information” disclosed must have a specific, substantive content in order to be eligible for protection. A note scheduling a meeting cannot somehow utilize its connection with the meeting to become a protected disclosure under the law. Elmer v. DATCP (Wis. Pers. Comm'n, 11/14/96).

Where the Complainant filed a written disclosure with an employee of the Respondent’s affirmative action office and contended that it was with the Complainant’s understanding that the employee would provide a copy of the writing to someone in Complainant’s supervisory chain of command, the Respondent’s motion to dismiss was denied. Kortman v. UW-Madison (Wis. Pers. Comm'n, 11/17/95).

In ruling on a motion for failure to state a claim, the Complainant’s memo, which referred to the absence of a maintenance agreement for the equipment in two offices, could be said to satisfy the requirements for a written disclosure of “mismanagement.” Duran v. DOC (Wis. Pers. Comm'n, 10/04/94).

The Complainant’s testimony in federal court was not a disclosure protected by the Whistleblower Law because it did not fit within any of the communications enumerated in sec. 230.81, Stats. Rentmeester v. Wis. Lottery (Wis. Pers. Comm'n, 05/27/94).

The Complainant made a protected disclosure to her legislator when she sent him a copy of a letter she sent to her employer concerning her request for reassignment to her previous route as an accommodation for her handicap. While the letter did not explicitly allege a violation of state laws, considered in the context of other communications with the Legislature and using a liberal construction of the statute, the communication met the requirement of “information gained by the employee which the employee reasonably believes demonstrates a violation of any state. . . law.” Rentmeester v. Wis. Lottery (Wis. Pers. Comm'n, 05/27/94).

The Complainant’s consultations with her attorney concerning her request for accommodation constituted a covered disclosure pursuant to secs. 230.80(5)(a) and 230.81(1)(3), Stats. Rentmeester v. Wis. Lottery (Wis. Pers. Comm'n, 05/27/94).

A filing of a WFEA complaint is not a protected activity under the Whistleblower Law that entitles a Complainant to protection under sec. 230.80(8)(a), Stats. The court system and, by necessary implication, the system of administrative law, are excluded from the category of “law enforcement agency” in sec. 230.81(2), Stats. Butzlaff v. DHSS (Wis. Pers. Comm'n, 11/19/92).

The Whistleblower Law covers disclosures to legislators and the Legislature, and thus includes a disclosure to a private sector auditor providing services for the Legislature. Pierce and Sheldon v. Wis. Lottery & DER (Wis. Pers. Comm'n, 10/16/92).

A newspaper advertisement seeking information from other persons regarding the actions of the Complainant’s employer is not a protected disclosure. Morkin v. UW-Madison (Wis. Pers. Comm'n, 11/23/88); aff’d sub nom. Morkin v. Wis. Pers. Comm' (Dane Co. Cir. Ct., 09/27/89).

A disclosure made to three individuals, all of whom were in the supervisory chain above the Complainant, constituted a protected disclosure even though it was not made to the Complainant’s first-line supervisor. Morkin v. UW-Madison (Wis. Pers. Comm'n, 11/23/88); aff’d sub nom. Morkin v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 09/27/89).

It would be contrary to the policy behind the protections of the Whistleblower Law for information exchanged in informal discussions to render subsequent formal written disclosures unprotected. Morkin v. UW-Madison (Wis. Pers. Comm'n, 11/23/88); aff’d sub nom. Morkin v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 09/27/89).

The Complainant’s whistleblower claim was dismissed where her attorney made no allegation that she made any disclosure other than a verbal disclosure. However, the Complainant was still entitled to protection from retaliation for having filed her complaint. Iwanski v. DHSS (Wis. Pers. Comm'n, 06/21/89).

The statute does not require that a disclosure made under the Whistleblower Law and made in the form of a grievance, indicate on its face that it is a whistleblower disclosure. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

A grievance did not constitute a disclosure of alleged “mismanagement” where the grievance related only to one action by the superintendent of the correctional institution, rather than to a “pattern” of conduct. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

A letter written by the Complainant’s attorney and serving to inform the Respondent that the Complainant contended that she had engaged in a protected activity under the Whistleblower Law by making a disclosure to the attorney need not itself meet the requirements of a lawful disclosure. Canter-Kihlstrom v. UW-Madison (Wis. Pers. Comm'n, 06/08/88).