SENATE BILL 299

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Jacob R. Candelaria

AN ACT

RELATING TO WHISTLEBLOWER PROTECTION; CHANGING DEFINITIONS IN THE WHISTLEBLOWER PROTECTION ACT; CHANGING TO WHOM PUBLIC EMPLOYEES MAY REPORT UNLAWFUL OR IMPROPER ACTS; CHANGING REMEDIES AND AFFIRMATIVE DEFENSES; REQUIRING EXHAUSTION OF ADMINISTRATIVE REMEDIES BEFORE WHISTLEBLOWER PROTECTION ACT REMEDIES ARE AVAILABLE.

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

     SECTION 1. Section 10-16C-1 NMSA 1978 (being Laws 2010, Chapter 12, Section 1) is amended to read:

     "10-16C-1. SHORT TITLE.--[This act] Chapter 10, Article 16C NMSA 1978 may be cited as the "Whistleblower Protection Act"."

     SECTION 2. Section 10-16C-2 NMSA 1978 (being Laws 2010, Chapter 12, Section 2) is amended to read:

     "10-16C-2. DEFINITIONS.--As used in the Whistleblower Protection Act:

          A. "good faith" means that [a] an objectively reasonable basis exists in fact as evidenced by the facts available to the public employee;

          B. "public employee" means a person who works for [or contracts with] a public employer;

          C. "public employer" means:

                (1) any department, agency, office, institution, board, commission, committee, branch or district of state government;

                (2) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived;

                (3) any entity or instrumentality of the state specifically provided for by law; and

                (4) every office or officer of any entity listed in Paragraphs (1) through (3) of this subsection;

          D. "retaliatory action" means taking any discriminatory or adverse employment action against a public employee that results in a tangible or significant change in the public employee's terms and conditions of public employment; and

          E. "unlawful or improper act" means a practice, procedure, action or failure to act on the part of a public employer that:

                (1) violates a federal law, a federal regulation, a state law, a state administrative rule or a law of any political subdivision of the state;

                [(2) constitutes malfeasance in public office;] or

                [(3)] (2) constitutes gross mismanagement, a gross waste of funds [an abuse of authority] or a substantial and specific danger to the public."

     SECTION 3. Section 10-16C-3 NMSA 1978 (being Laws 2010, Chapter 12, Section 3) is amended to read:

     "10-16C-3. PUBLIC EMPLOYER RETALIATORY ACTION PROHIBITED.--A public employer shall not take any retaliatory action against a public employee because the public employee:

          A. communicates to [the public employer or a third party] an individual or entity in a position to further the public interest information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;

          B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or

          C. objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act."

     SECTION 4. Section 10-16C-4 NMSA 1978 (being Laws 2010, Chapter 12, Section 4) is amended to read:

     "10-16C-4. RIGHT TO CIVIL ACTION FOR DAMAGES--AFFIRMATIVE DEFENSES--REMEDY NOT EXCLUSIVE.--

          A. A public employer that violates the provisions of the Whistleblower Protection Act shall be liable to the public employee for actual damages, [reinstatement with the same seniority status that the employee would have had but for the violation] two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. A public employer that violates the provisions of the Whistleblower Protection Act may also be ordered to reinstate a classified non-supervisory employee with the same seniority status that the employee would have had but for the violation. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee. An employee may bring an action pursuant to this section in any court of competent jurisdiction.

          B. It shall be an affirmative defense to a civil action brought pursuant to this section that the action taken by a public employer against a public employee was due to the employee's misconduct, the employee's poor job performance, a reduction in [work force] workforce or other legitimate business purpose unrelated to conduct prohibited pursuant to the Whistleblower Protection Act and that retaliatory action was not [a] the motivating factor.

          C. The remedies provided for in the Whistleblower Protection Act are not exclusive and shall be in addition to any other remedies provided for in any other law or available under common law.

          D. Nothing in the Whistleblower Protection Act precludes civil actions or criminal sanctions for libel, slander or other civil or criminal claims against a person who files a false claim under that act."

     SECTION 5. Section 10-16C-6 NMSA 1978 (being Laws 2010, Chapter 12, Section 6) is amended to read:

     "10-16C-6. LIMITATION ON ACTIONS.--

          A. A civil action pursuant to the Whistleblower Protection Act shall be forever barred unless the action is filed within two years from the date on which the retaliatory action occurred.

          B. The remedies provided for in the Whistleblower Protection Act shall not be available unless the public employee has first exhausted all available grievance and other administrative remedies as provided in Section 28-1-10 NMSA 1978."

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