The bill pending in the New Mexico Legislature that proposes to modify the Whistleblower Protection Act would weaken that law in all the ways flagged by critics. However, two other threatened changes are not as readily apparent.
First, Senate Bill 299 silently omits the provision that requires employers to “keep posted in a conspicuous place on the public employer’s premises notices prepared by the employer that set forth” the act’s provisions.
This omission is alarming. Posting workplace notices is critical to inform employees that state law protects them from retaliation when they “blow the whistle” on corruption. If passed, SB 299 would remove this “Posting of Law and Information” requirement without having notified legislators or the public that striking out that section was even part of the proposal.
Worse yet, SB 299 would substantially diminish existing protections by producing a statute that shields public employees from retaliation when they report only one type of wrongdoing: discrimination.
This gutting would be accomplished indirectly, by requiring anyone wishing to sue under the act because of an employer’s retaliation to first exhaust administrative remedies through the grievance procedures of the human rights division of the labor department, initiating a lengthy bureaucratic process that is available only for allegations of “unlawful discriminatory practice[s].”
While courts later would have to struggle with this problem – the amended law’s apparent provision of rights without remedies – the immediate consequence of the bill’s passage would be to expose public employees to retaliation by their employers and discourage them from reporting many kinds of illegal activity and corrupt practices, such as misuse of public funds and resources.
In an era of mounting concerns about corruption, violations of ethics, and abuse of power within the federal government, New Mexicans can be proud of our strong state laws that ensure “government in the sunshine” and provide a safe harbor for public servants willing to “blow the whistle” on wrongdoing. Unfortunately, passage of SB 299 would be, in the words of the director of New Mexico Ethics Watch, a giant “leap backward” for the people and laws of the state.
The viewpoint expressed is that of the author and not the University of New Mexico.