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Whistleblower act revision sparks furor

SANTA FE – A proposal to revamp New Mexico’s whistleblower protection law came under fire Thursday from a state ethics group, which said it would gut the current law and give government agencies greater ability to retaliate against workers who report public corruption or wrongdoing.

But the bill’s sponsor, Sen. Jacob Candelaria, D-Albuquerque, disputed the claim, saying the legislation would actually improve the Whistleblower Protection Act.

One thing that’s not in dispute is that the measure, Senate Bill 299, proposes sweeping changes to the state’s whistleblower law.

Contractors would no longer be able to file claims, and only non-administrative employees would be eligible to get their jobs back – or a job with the same seniority status. The current law requires that successful whistleblowers be reinstated at the same seniority level.

In addition, the bill would require whistleblowers to prove they suffered “tangible or significant change” in their employment status to meet the definition of “retaliation.”

The legislation would not change the allowable damages that can be awarded under the current whistleblower law, which include double back pay.

“This bill is specifically designed to strengthen and streamline the law, and at the same time ensure taxpayer money is not being used to pay out frivolous claims,” Candelaria said in an interview Thursday.

He also described the current law as broader than federal statute, saying, “Right now, the law could actually compensate someone whose feelings are hurt.”

However, the New Mexico Ethics Watch, a nonpartisan group founded last year, said that if the whistleblower protection law is narrowed, employees could find it tougher to speak out about government corruption.

“At a time when the people of New Mexico are crying out for ethics reform, this bill represents a leap backwards,” said Douglas Carver, the ethics group’s executive director.

The group urged Candelaria to withdraw the legislation from consideration, but Candelaria told the Journal he does not intend to do so.

New Mexico’s whistleblower protection act was enacted in 2010, and is designed to protect public employees who disclose illegal or improper actions from losing their jobs, or facing other types of retaliation.

The law also protects employees who provide court testimony and who refuse to comply with unlawful demands. It allows employees to file lawsuits if they are retaliated against.

The law applies to state, county and municipal governments, among other government bodies.

The New Mexico Association of Counties, which is one of several groups pushing the legislation, has argued the current law is so broad that government entities frequently settle claims in order to avoid litigation.

Steve Kopleman, the NMAC’s executive director, said Thursday that roughly 300 whistleblower claims have been filed against New Mexico school districts, counties, cities and state government agencies since 2011.

“As a practical matter, it’s been used to protect poorly performing employees, including supervisors,” Kopelman said in an interview.

He also said one whistleblower claim was recently settled in Los Alamos for about $2 million.

Bill sponsor Candelaria, who said he had not been contacted by the ethics group, argued that whistleblower protections would remain intact for legitimate complaints.

However, the ethics group opposing the measure said it could have a chilling effect.

“This bill will result in greater freedom for employers to intimidate and retaliate against those who speak out on matters of public concern,” said Phil Davis, the board secretary for New Mexico Ethics Watch.

Other changes in the proposed legislation include:

• Removing malfeasance by a public official as grounds for a complaint.

• Requiring that whistleblower complaints be communicated to someone in a position to address the issue.

• Increasing the standard for a waste of funds to a “gross waste” – no exact dollar amount is specified.

Senate Bill 299 has been assigned to two Senate committees but had not been scheduled for a hearing as of Thursday.

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