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AN ACT

RELATING TO PUBLIC EMPLOYMENT; ENACTING THE WHISTLEBLOWER

PROTECTION ACT; PROHIBITING PUBLIC EMPLOYER RETALIATORY

ACTION AGAINST PUBLIC EMPLOYEES IN CERTAIN CIRCUMSTANCES;

PROVIDING FOR GRIEVANCE PROCEDURES; PRESCRIBING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the

"Whistleblower Protection Act".

Section 2. PURPOSE.--It is the purpose of the

Whistleblower Protection Act to encourage public employees to

notify the appropriate persons of illegal acts of public

concern. This reporting is encouraged in order to protect

the public and employees and to assist public bodies charged

with ensuring adequate safety and health standards.

Section 3. DEFINITIONS.--As used in the Whistleblower

Protection Act:

A. "blacklist" means to inform others that a

public employee acted in a manner that is protected by the

Whistleblower Protection Act with the intention of hindering

the public employee's ability to obtain employment;

B. "commission" means the human rights commission;

C. "director" means the director of the division;

D. "division" means the human rights division of

the labor department;

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E. "improper act" means a practice, procedure,

action or failure to act on the part of a public employer

that is of public concern and violates a state or federal

law, federal regulation or state administrative rule;

F. "public employee" means a person who works for

or contracts with a public employer;

G. "public employer" means:

(1) any department, agency, office,

institution, board, commission, committee, branch or district

of state government, including appeals, district, magistrate

and metropolitan courts, district attorneys and charitable

institutions for which appropriations are made by the

legislature;

(2) any political subdivision of the state,

created under either general or special act, that receives or

expends public money from whatever source derived, including

counties, county institutions, boards, bureaus or

commissions; municipalities; regional authorities; entities

created through joint powers agreements; drainage,

conservancy, irrigation or other special districts; and

school districts;

(3) any entity or instrumentality of the

state specifically provided for by law, including the New

Mexico finance authority and the New Mexico mortgage finance

authority; and

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(4) every office or officer of any entity

listed in Paragraphs (1) through (3) of this subsection;

H. "retaliatory action" means blacklisting or the

discharge, suspension, demotion, disciplining or any

discriminatory or adverse employment action against a public

employee in the terms and conditions of public employment;

and

I. "secretary" means the secretary of labor.

Section 4. PUBLIC EMPLOYER RETALIATORY ACTION

PROHIBITED.--A public employer shall not take any retaliatory

action against a public employee because the public employee:

A. discloses or threatens to disclose an activity,

policy or practice of the public employer that constitutes an

improper act or that the public employee believes in good

faith constitutes an improper act;

B. provides information to, or testifies before, a

public body as part of an investigation, hearing or inquiry

into an improper act; or

C. objects to or refuses to participate in an

activity, policy or practice that constitutes an improper

act.

Section 5. BLACKLISTING PROHIBITED.--A public employer

shall not blacklist a current or former public employee.

Section 6. GRIEVANCE PROCEDURE--PENALTY FOR DIVULGING

INFORMATION.--

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A. A public employee claiming to be subject to a

retaliatory action prohibited by the Whistleblower Protection

Act may file with the division a written complaint that

states the name and address of the public employer alleged to

have engaged in the retaliatory action, all information

relating to the retaliatory action and any other information

that may be required by the commission. All complaints shall

be filed with the division within one hundred eighty days

after the alleged retaliatory action was committed.

B. The director shall advise the public employer

that a complaint has been filed against the public employer

and shall furnish the public employer with a copy of the

complaint. The director shall promptly investigate the

alleged retaliatory action. If the director determines that

the complaint lacks probable cause, the director shall

dismiss the complaint and notify the public employee and

public employer of the dismissal. The complaint shall be

dismissed subject to appeal as in the case of other orders of

the commission.

C. If the director determines that probable cause

exists for the complaint, the director shall attempt to

achieve a satisfactory adjustment of the complaint through

persuasion and conciliation.

D. The director and staff shall neither disclose

what has transpired during the attempted conciliation nor

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divulge information obtained during any hearing before the

commission or a commissioner prior to final action relating

to the complaint. An officer or employee of the labor

department who makes public in any manner whatsoever any

information in violation of this subsection is guilty of a

misdemeanor and upon conviction shall be fined not more than

one thousand dollars ($1,000) or imprisoned up to one year.

E. A public employee who has filed a complaint

with the division may request and shall receive an order of

nondetermination from the director one hundred eighty days

after the division's receipt of the complaint. The order of

nondetermination may be appealed pursuant to the provisions

of Section 39-3-1.1 NMSA 1978.

F. If conciliation fails or if, in the opinion of

the director, informal conference cannot result in

conciliation and the public employee has not requested a

waiver of right to hearing pursuant to the provisions of

Subsection I of this section, the commission shall issue a

written complaint in its own name against the public

employer. The complaint shall set forth the alleged

retaliatory action, the secretary's rule or the section of

the Whistleblower Protection Act alleged to have been

violated and the relief requested. The complaint shall

require the public employer to answer the allegations of the

complaint at a hearing before the commission or hearing

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officer and shall specify the date, time and place of the

hearing. The hearing date shall not be more than fifteen or

less than ten days after service of the complaint. The

hearing shall be held in the county where the public employer

is located or the alleged retaliatory action occurred.

G. Within one year of the filing of a complaint by

an aggrieved public employee, the commission or the director

shall:

(1) dismiss the complaint for lack of

probable cause;

(2) achieve satisfactory adjustment of the

complaint as evidenced by order of the commission; or

(3) file a formal complaint on behalf of the

commission.

H. Upon the commission's petition, the district

court of the county where the public employer is located or

the alleged retaliatory action occurred may grant injunctive

relief pending hearing by the commission or pending judicial

review of an order of the commission so as to preserve the

status quo or to ensure that the commission's order as issued

will be effective. The commission shall not be required to

post a bond.

I. The public employee may seek a trial de novo in

the district court in lieu of a hearing before the

commission; provided that the public employee requests from

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the director, in writing, a waiver of the public employee's

right to hearing within sixty days of service of written

notice of a probable cause determination by the director.

The director shall approve the waiver request and shall serve

notice of the waiver upon the public employee and public

employer. The public employee may request a trial de novo

pursuant to Section 39-3-1 NMSA 1978 within thirty days from

the date of service of the waiver. Issuance of the notice

shall be deemed a final order of the commission.

J. If a public employee prevails in an action or

proceeding brought pursuant to this section, the court may

award compensatory damages, punitive damages and reasonable

attorney fees.

K. If the public employee does not prevail in an

action or proceeding brought pursuant to this section and the

court finds that the complaint is frivolous and wholly

without merit, the court shall award the public employer

reasonable attorney fees.

Section 7. HEARING PROCEDURES.--

A. The public employer may file a written answer

to the complaint, appear at the hearing, give testimony and

be represented by counsel and may obtain from the commission

subpoenas for any person or for the production of any

evidence pertinent to the proceeding. The public employee

shall be present at the hearing and may be represented by

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counsel. Each party shall have the right to amend the

party's complaint or answer.

B. A panel of three members of the commission

designated by the chair shall sit, and a decision agreed upon

by two members of the panel shall be the decision of the

commission. However, a commissioner who has filed or been a

party to a complaint shall not sit on the panel hearing that

complaint. Hearings also may be conducted by a hearing

officer employed by the division or, if the hearing officer

is unavailable, one member of the commission may be

designated by the chair to act as a hearing officer. A

hearing officer shall have the same powers and duties as the

commission.

C. The public employee or the public employee's

representative shall present to the commission or the hearing

officer the case supporting the complaint. Evidence

concerning prior attempts at conciliation shall not be

received. The director shall not participate in the hearing,

except as a witness.

D. The commission and the hearing officer shall

not be bound by the formal rules of evidence governing courts

of law or equity but shall permit reasonable direct

examination and cross-examination and the submission of

briefs. Testimony at the hearing shall be taken under oath

and recorded by tape or otherwise. Upon the request of any

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party, testimony shall be transcribed; provided that all

costs of transcribing shall be paid by the party so

requesting. Each commissioner and the hearing officer may

administer oaths.

E. Upon the conclusion of a hearing conducted by a

hearing officer, the hearing officer shall prepare a written

report setting forth proposed findings of fact and

conclusions of law and recommending the action to be taken by

the commission. The hearing officer shall submit the report

to a review panel consisting of no more than three members of

the commission designated by the chair. A commissioner shall

not sit on the panel reviewing the hearing officer's report

issued in connection with a complaint filed by or against

that commissioner. A decision by a majority of the members

of the review panel shall be the decision of the commission.

If the commission finds from the evidence presented at any

hearing held pursuant to this section that the public

employer has engaged in a retaliatory action, it shall make

written findings of fact, conclusions of law and its decision

based upon the findings of fact and conclusions of law. The

commission may adopt, modify or reject the proposed findings

of fact and conclusions of law and the action recommended by

the hearing officer. Within five days after any order is

rendered by the commission following a hearing, the

commission shall serve upon the public employee and public

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employer, and their attorneys, if any, a written copy of the

order by certified mail to the addresses of record. The

public employee and public employer shall be deemed to have

been notified on the tenth day following the mailing. As

part of its order, the commission may require the public

employer to pay actual damages to the public employee and to

pay reasonable attorney fees, if the public employee was

represented by private counsel, and to take such affirmative

action as the commission considers necessary, including a

requirement for reports of the manner of compliance.

F. If the commission finds from the evidence that

the public employer has not engaged in a retaliatory action,

it shall make written findings of fact and serve the public

employee and public employer with a copy of the findings of

fact and with an order dismissing the complaint.

Section 8. ENFORCEMENT.--If a public employer does not

comply with an order of the commission, the secretary may

request the attorney general or district attorney to secure

enforcement of the commission's order by a district court.

The proceeding shall be initiated by the filing of a petition

in the district court of the county where the public employer

is located or the alleged retaliatory action occurred. A

copy of the petition shall be served on the public employer

personally or by certified mail, return receipt requested.

The court may make and enter upon the proceedings an order to

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decree enforcement of the order of the commission.

Section 9. APPEAL.--A party may appeal the final

decision of the commission pursuant to the provisions of

Section 39-3-1.1 NMSA 1978.

Section 10. POSTING OF LAW AND INFORMATION.--Every

public employer shall keep posted in a conspicuous place on

the public employer's premises notices prepared by the

division that set forth excerpts of the Whistleblower

Protection Act and other relevant information as determined by

the secretary.