Editor’s note: The following letter was emailed on Feb. 8 to N.M. state Sen. Jacob Candelaria by John P. LaVelle, professor of law and Regents’ lecturer at the University of New Mexico School of Law. Professor LaVelle has authorized NMPolitics.net to publish the letter, to which he says the senator has not responded, as an open letter. The views expressed are those of Professor LaVelle and not the University of New Mexico.
Dear Senator Candelaria:
I hope this email finds you well.
I have several concerns about Senate Bill 299, sponsored and recently introduced by you in the New Mexico Legislature. As you know, the bill would amend New Mexico’s Whistleblower Protection Act.
First, the redlined version you have introduced (attached), which purports to show all the proposed additions and deletions, in fact fails to show that Section 5 (“Posting of Law and Information”) and Section 7 (“Applicability”) of the existing Act have been omitted. (For your convenience I am also attaching a copy of the existing Act, with Section 5 and Section 7 circled in green.)
If your bill proposed to omit these provisions of the existing Act, it is essential that legislators and the public be provided notice of those proposed omissions in the redlined version. If omitting these provisions was the intention of your bill, would you please rectify the problem and email me the corrected redlined version?
I would hope, however, that Section 5 of the current Act is not slated for omission in your proposed bill. Section 5 currently provides: “Every public employer shall keep posted in a conspicuous place on the public employer’s premises notices prepared by the employer that set forth the provisions of the Whistleblower Protection Act.”
This requirement is crucial for ensuring that employees are aware of the protections afforded by the Act, whose intent is to facilitate employees’ reporting of wrongdoing by public employers, for the benefit of the people of New Mexico. Accordingly, I respectfully request that, if your initial intent was to omit this provision, and if you decline to withdraw the bill completely (see below), you instead leave this essential provision of the original Act intact.
More generally, I am concerned that the amendments you have proposed in Senate Bill 299 will substantially weaken the Whistleblower Protection Act, and thus will undermine the Act’s efficacy in protecting the people of New Mexico from wrongdoing by public employers.
Most disturbingly, Senate Bill 299 restricts the availability of remedies that currently exist under the Act by adding the following provision (Section 5B of the bill): “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.”
What is alarming about this proposed additional language is that Section 28-1-10 sets out an administrative grievance procedure for filing complaints with the Human Rights Commission regarding only one category of wrongdoing, i.e, “unlawful discriminatory practice[s].” See http://law.justia.com/codes/new-mexico/2016/chapter-28/article-1/section-28-1-10/.
The existing Whistleblower Protection Act, on the other hand, defines “unlawful or improper act” broadly, thereby shielding a “whistleblower” employee from retaliation when the employee reports any “practice, procedure, action or failure to act on the part of 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) constitutes gross mismanagement, a waste of funds, an abuse of authority or a substantial and specific danger to the public.” NMSA 1978, § 10-16C-2.
In short, it appears that Senate Bill 299 would, in effect, limit remedies available under the Whistleblower Protection Act to remedies for claims of discrimination by public employers. This would effectively strip the existing Act of its usefulness in helping to protect the people of New Mexico against many kinds of public corruption and other forms of wrongdoing.
Although some of the minor changes proposed in Senate Bill 299 may be relatively benign, the proposed substantive changes that I’ve described in this email, along with other of your proposed changes as well, would undermine the efficacy of the existing Whistleblower Protection Act. Accordingly, I am compelled to respectfully request that you withdraw the bill from further consideration during the current New Mexico Legislative session.
Thank you for receiving my concerns, Senator Candelaria. I look forward to further correspondence with you.
Because Senate Bill 299, if passed, may have a collateral impact detrimental to open government in New Mexico, I am cc’ing Mr. Peter St. Cyr, director of the New Mexico Foundation for Open Government, on this email to alert NMFOG to my concerns.
John P. LaVelle
Albuquerque, New Mexico