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NM court narrows whistleblower law

SANTA FE – The New Mexico Supreme Court has issued a ruling in a case involving former Secretary of State Mary Herrera that narrows the grounds for whistleblowers to bring legal action by shielding officeholders from personal liability.

The justices have overturned an earlier appellate court ruling that the Whistleblower Protection Act allowed state officials to be sued as individuals.

The decision means the whistleblower law can only be used to file lawsuits against government agencies, commissions, boards, other branches of government or officials who are operating in their official capacities.

“We find no reason to interpret the statute as implicitly authorizing personal-capacity officer suits,” Justice Judith Nakamura wrote, in the opinion issued last week. “Such an interpretation is unnecessary to effectuate the WPA’s remedy; the Legislature made it plain that a plaintiff may seek recovery directly from the state.”

The court’s interpretation of the 2010 law also makes clear that if a state officer responsible for the retaliatory action dies or leaves office before a whistleblower claim is made, the plaintiff can seek relief from the state entity for which the officer worked as long as legal action is taken within two years from the alleged retaliation.

Miles Conway with the American Federation of State County Municipal Employees Council 18 told the Santa Fe New Mexican that the opinion will affect other whistleblower cases around the state.

“Because of this ruling, perhaps the state will be more vigilant watchdogging the behavior of its managers,” Conway said. “But that same manager knows it’s highly unlikely they will be held accountable as an individual.”

The whistleblower act was adopted by New Mexico lawmakers in the wake of a series of pay-to-play and other government ethics scandals.

The law was meant to encourage workers to report illegal practices without fear of reprisal by their employers.

One of the main provisions of the law prohibits public employers from taking retaliatory action against an employee if that worker communicates information about conduct that he or she believes in good faith to be unlawful or improper.