Proposed Bill Curtails N.M.'s Whistleblower Protections

A bill was recently introduced in the New Mexico House of Representatives that could have devastating effects on the protections afforded to whistleblowers. House Bill 532 was introduced on February 19, 2015, by Larry A. Larrañaga, a senior Republican member of the New Mexico House of Representatives serving since 1995.

If passed, HB 532 would amend New Mexico’s current whistleblower protection laws by adding new requirements employees have to meet before they can bring an action against their employer, and by modifying various definitions in a way that ultimately limits the scope of protection offered to whistleblowers.

Under current law, employees are protected from retaliation when disclosing information that they believe “in good faith constitutes an unlawful or improper act.” Good faith means that a “reasonable basis exists in fact as evidenced by the facts available to the public employee.” But the proposed legislation removes “good faith” as a premise to report unlawful or unethical acts, meaning that an employee must provide more than a “reasonable basis” evidenced by fact before blowing the whistle on an unlawful or improper act.

Along with removing the good faith clause the bill also redefines what a “public employee” is, narrowing the definition by removing anyone who “contracts with” a public employer, and including only an individual who “works for a public employer.” As a result contractors would no longer be afforded whistleblower protection under this law.

The bill also more narrowly defines “retaliatory action” by an employer as any action that specifically “results in the suspension, demotion or dismissal of the public employee,” as opposed to the formerly broad definition of “discriminatory or adverse employment action against a public employee in the terms and conditions of public employment.” Thus, an employee would not be offered protection against all discriminatory or adverse action, but instead only if the action resulted in suspension, demotion, or dismissal.

Along with the aforementioned changes, the bill also removes malfeasance in public office, gross management, and abuse of authority from its definition of “unlawful or unethical acts”; amends the type of communication that constitutes whistleblowing and only protects communication with the media as opposed to any other third party; repeals the requirement for every public employer to clearly and noticeably post the provisions of the Whistleblower Protection Act (WPA) on the employer’s premises; and stipulates that employees must “exhaust all available grievance and other administrative remedies” before filing an action under the WPA.

The reduction of whistleblower protection that would result from the passage of this bill could prove detrimental to responsible and accountable government. By narrowing the scope of protection to cover only those who directly work “for a public employer,” the legislation excludes large numbers of contractors, who may in the future hesitate to disclose an employer’s unlawful activities because of the reduced protections. The proposed narrow definition of “retaliatory action” may also chill the speech of potential whistleblowers who fear the possibility of adverse action that does not necessarily result in suspension, demotion, or dismissal. Also, by narrowing the definition of what constitutes “unlawful or unethical act[s],” the proposed legislation could result in increased malfeasance in public office, waste funds, and abuse authority.

The proposed hurdles for employees and concessions for public employers would make it all the more difficult to expose government corruption and increase government transparency, and would undoubtedly make whistleblowers more reluctant to do so.