SENATE BILL 1043
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Sue Wilson Beffort
AN ACT
RELATING TO PUBLIC EMPLOYMENT; ENACTING THE WHISTLEBLOWER PROTECTION ACT; PROHIBITING PUBLIC EMPLOYER RETALIATORY ACTION AGAINST PUBLIC EMPLOYEES IN CERTAIN CIRCUMSTANCES; PROVIDING FOR GRIEVANCE PROCEDURES; PRESCRIBING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the
"Whistleblower Protection Act".
Section 2. PURPOSE.--It is the purpose of the Whistleblower Protection Act to encourage public employees to notify the appropriate persons of illegal acts of public concern. This reporting is encouraged in order to protect the public and employees and to assist public bodies charged with ensuring adequate safety and health standards.
Section 3. DEFINITIONS.--As used in the Whistleblower Protection Act:
A. "blacklist" means to inform others that a public employee acted in a manner that is protected by the Whistleblower Protection Act with the intention of hindering the public employee's ability to obtain employment;
B. "commission" means the human rights commission;
C. "director" means the director of the division;
D. "division" means the human rights division of the labor department;
E. "improper act" means a practice, procedure, action or failure to act on the part of a public employer that is of public concern and violates a state or federal law, federal regulation or state administrative rule;
F. "public employee" means a person who works for or contracts with a public employer;
G. "public employer" means:
(1) any department, agency, office, institution, board, commission, committee, branch or district of state government, including appeals, district, magistrate and metropolitan courts, district attorneys and charitable institutions for which appropriations are made by the legislature;
(2) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived, including counties, county institutions, boards, bureaus or commissions; municipalities; regional authorities; entities created through joint powers agreements; drainage, conservancy, irrigation or other special districts; and school districts;
(3) any entity or instrumentality of the state specifically provided for by law, including the New Mexico finance authority, the New Mexico mortgage finance authority and the New Mexico lottery authority; and
(4) every office or officer of any entity listed in Paragraphs (1) through (3) of this subsection;
H. "retaliatory action" means blacklisting or the discharge, suspension, demotion, disciplining or any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment; and
I. "secretary" means the secretary of labor.
Section 4. PUBLIC EMPLOYER RETALIATORY ACTION PROHIBITED.--A public employer shall not take any retaliatory action against a public employee because the public employee:
A. discloses or threatens to disclose an activity, policy or practice of the public employer that constitutes an improper act or that the public employee believes in good faith constitutes an improper act;
B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an improper act; or
C. objects to or refuses to participate in an activity, policy or practice that constitutes an improper act. Section 5. BLACKLISTING PROHIBITED.--A public employer shall not blacklist a current or former public employee.
Section 6. GRIEVANCE PROCEDURE--PENALTY FOR DIVULGING INFORMATION.--
A. A public employee claiming to be subject to a retaliatory action prohibited by the Whistleblower Protection Act may file with the division a written complaint that states the name and address of the public employer alleged to have engaged in the retaliatory action, all information relating to the retaliatory action and any other information that may be required by the commission. All complaints shall be filed with the division within one hundred eighty days after the alleged retaliatory action was committed.
B. The director shall advise the public employer that a complaint has been filed against the public employer and shall furnish the public employer with a copy of the complaint. The director shall promptly investigate the alleged retaliatory action. If the director determines that the complaint lacks probable cause, the director shall dismiss the complaint and notify the public employee and public employer of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.
C. If the director determines that probable cause exists for the complaint, the director shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation.
D. The director and staff shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the labor department who makes public in any manner whatsoever any information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned up to one year.
E. A public employee who has filed a complaint with the division may request and shall receive an order of nondetermination from the director one hundred eighty days after the division's receipt of the complaint. The order of nondetermination may be appealed pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
F. If conciliation fails or if, in the opinion of the director, informal conference cannot result in conciliation and the public employee has not requested a waiver of right to hearing pursuant to the provisions of Subsection I of this section, the commission shall issue a written complaint in its own name against the public employer. The complaint shall set forth the alleged retaliatory action, the secretary's rule or the section of the Whistleblower Protection Act alleged to have been violated and the relief requested. The complaint shall require the public employer to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than fifteen or less than ten days after service of the complaint. The hearing shall be held in the county where the public employer is located or the alleged retaliatory action occurred.
G. Within one year of the filing of a complaint by an aggrieved public employee, the commission or the director shall:
(1) dismiss the complaint for lack of probable cause;
(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or
(3) file a formal complaint on behalf of the commission.
H. Upon the commission's petition, the district court of the county where the public employer is located or the alleged retaliatory action occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission's order as issued will be effective. The commission shall not be required to post a bond.
I. The public employee may seek a trial de novo in the district court in lieu of a hearing before the commission; provided that the public employee requests from the director, in writing, a waiver of the public employee's right to hearing within sixty days of service of written notice of a probable cause determination by the director. The director shall approve the waiver request and shall serve notice of the waiver upon the public employee and public employer. The public employee may request a trial de novo pursuant to Section 39-3-1 NMSA 1978 within thirty days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission.
J. If an public employee prevails in an action or proceeding brought pursuant to this section, the court may award actual damages, punitive damages and reasonable attorney fees.
K. If the public employee does not prevail in an action or proceeding brought pursuant to this section and the court finds that the complaint is frivolous, the court shall award the public employer reasonable attorney fees.
Section 7. HEARING PROCEDURES.--
A. The public employer may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The public employee shall be present at the hearing and may be represented by counsel. Each party shall have the right to amend the party's complaint or answer.
B. A panel of three members of the commission designated by the chair shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. However, a commissioner who has filed or been a party to a complaint shall not sit on the panel hearing that complaint. Hearings also may be conducted by a hearing officer employed by the division or, if the hearing officer is unavailable, one member of the commission may be designated by the chair to act as a hearing officer. A hearing officer shall have the same powers and duties as the commission.
C. The public employee or the public employee's representative shall present to the commission or the hearing officer the case supporting the complaint. Evidence concerning prior attempts at conciliation shall not be received. The director shall not participate in the hearing, except as a witness.
D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed; provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and the hearing officer may administer oaths.
E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the chair. A commissioner shall not sit on the panel reviewing the hearing officer's report issued in connection with a complaint filed by or against that commissioner. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the public employer has engaged in a retaliatory action, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon the public employee and public employer, and their attorneys, if any, a written copy of the order by certified mail to the addresses of record. The public employee and public employer shall be deemed to have been notified on the tenth day following the mailing. As part of its order, the commission may require the public employer to pay actual damages to the public employee and to pay reasonable attorney fees, if the public employee was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.
F. If the commission finds from the evidence that the public employer has not engaged in a retaliatory action, it shall make written findings of fact and serve the public employee and public employer with a copy of the findings of fact and with an order dismissing the complaint.
Section 8. ENFORCEMENT.--If a public employer does not comply with an order of the commission, the secretary may request the attorney general or district attorney to secure enforcement of the commission's order by a district court. The proceeding shall be initiated by the filing of a petition in the district court of the county where the public employer is located or the alleged retaliatory action occurred. A copy of the petition shall be served on the public employer personally or by certified mail, return receipt requested. The court may make and enter upon the proceedings an order to decree enforcement of the order of the commission.
Section 9. APPEAL.--A party may appeal the final decision of the commission pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
Section 10. POSTING OF LAW AND INFORMATION.--Every public employer shall keep posted in a conspicuous place on the public employer's premises notices prepared by the division that set forth excerpts of the Whistleblower Protection Act and other relevant information as determined by the secretary.
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