Let’s get right to it. The New Mexico Whistleblower Act prohibits public employers from retaliation against governmental employees for ——. The prohibitions on employer retaliation are set forth at NMSA § 10-16C-3.
NMSA § 10-16C-3
The New Mexico Whistleblower Act reads as folllows:
“A public employer shall not take any retaliatory action against a public employee because the public employee:
“A. communicates to the public employer or a third party information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act;
B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or
C. objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act.”
Perhaps the best way to explain the Whistleblower Act is to set forth the rights of public employees. Public employees have the right to:
- Communicate illegal or improper governmental actions to the governmental entity or to a third party,
- Provide information or testify during investigations of illegal or improper conduct within the governmental entity, and
- Refuse to participate in illegal or improper behavior.
Each of these communications of wrongdoing is referred to as a disclosure. These disclosures are protected. Public employees exercising the rights to make disclosures of wrongful conduct set forth above must not be retaliated against by the governmental entity with which they are employed.
CLAIMS FOR WHISTLEBLOWER RETALIATION
The New Mexico courts have set forth pretty clearly what must be shown to establish a whistleblower claim in New Mexico. This is what is called the prima facie case. This essentially means that these things must be pled in the lawsuit to avoid dismissal of the lawsuit by the court. The prima facie case for a whistleblower claim seems fairly straightforward:
- The employee made a protected disclosure,
- The employee suffered adverse employment consequences, and
- The adverse employment consequences were in retaliation for the protected disclosure.
PUBLIC EMPLOYEE’S GOOD FAITH
In order to gain protection from the Whistleblower Act, the public employee must believe in good faith that the action that is reported is illegal or improper. The disclosure is protected even if it turns out that the reported conduct was not illegal or improper so long as the employee believed in good faith that it was.
There is no protection for disclosures made without a good faith basis to believe the conduct was illegal or unlawful. Employees that make bad faith disclosures of conduct that is neither illegal nor improper may and are reprimanded in various forms including adverse employment actions such as demotion, reassignment and even termination.
PUBLIC EMPLOYER’S GOOD FAITH
As with most legal rights, despite the seeming simplicity of the rights and claims set forth in the Whistleblower Act, the devil is in details. In fact, the balance seems to be in favor of the employer in that the employer need not show that “the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”
It takes little imagination to see how an employer could conjure up reasons that would suggest good faith in the adverse employment action. Close cases will typically be found in favor of the employer. In other words, the tie goes to the employer in whistleblower lawsuits.
On the other hand, there are plenty of cases that are not close at all where the employee made a protected disclosure and suffered adverse consequences that clearly stemmed from those disclosures. And there is an awful lot of pretty atrocious governmental behavior, at least in the area where Collins & Collins, P.C. does much of its work, the New Mexico prisons and jails. The governmental behavior in New Mexico prisons and jails is in many instances so shocking and illegal that reporting of this behavior followed by an adverse employment decision would almost certainly lead to legitimate whistleblower legal claims.
SEEK LEGAL GUIDANCE
Whistleblower activity is rife with risks. Whistleblower activity should not be lightly undertaken. The risks should be considered. Those risks include loss of employment. Due to the risks, it would be wise to seek legal counsel prior to engaging in whistleblower activity.
Collins & Collins, P.C. can be reached at (505) 242-5958 or online by using the form on this page.