SENATE RULES COMMITTEE SUBSTITUTE FOR

SENATE BILL 437

48th legislature - STATE OF NEW MEXICO - second session, 2008

AN ACT

RELATING TO ETHICS; PROHIBITING PUBLIC EMPLOYER RETALIATORY ACTION AGAINST PUBLIC EMPLOYEES IN CERTAIN CIRCUMSTANCES; CREATING A RIGHT TO CIVIL ACTION FOR DAMAGES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. PUBLIC EMPLOYER RETALIATORY ACTION PROHIBITED.--

          A. A public employer shall not take any retaliatory action against a public employee because the public employee:

                (1) discloses or threatens to disclose an activity, policy or practice of the public employer that constitutes an unlawful or improper act or that the public employee believes in good faith constitutes an unlawful or improper act;

                (2) provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or

                (3) objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act or that the public employee believes in good faith constitutes an unlawful or improper act.

          B. A public employer that violates the provisions of this section shall be liable to the public employee for all relief necessary to make the employee whole, including actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee. An employee may bring an action pursuant to this section in any court of competent jurisdiction.

          C. It shall be an affirmative defense to a civil action brought pursuant to this section that the action taken by a public employer against a public employee was due to the employee's misconduct, poor job performance or a reduction in workforce for purposes unrelated to conduct prohibited pursuant to this section.

          D. The remedies provided for in this section are not exclusive and shall be in addition to any other remedies provided for in any other law or available under common law.

          E. Every public employer shall keep posted in a conspicuous place on the public employer's premises notices prepared by the employer that set forth the provisions of this section.

          F. Nothing in this section precludes civil actions or criminal sanctions for libel, slander or other civil or criminal claims against a person who files a false claim under this section.

          G. A civil action pursuant to this section shall be forever barred unless the action is filed within three years from the date on which the retaliatory action occurred.

          H. As used in this section:

                (1) "good faith" means that a reasonable basis exists in fact as evidenced by the facts available to the public employee;

                (2) "public employee" means a person who works for or contracts with a public employer;

                (3) "public employer" means:

                     (a) any department, agency, office, institution, board, commission, committee, branch or district of state government;

                     (b) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived;

                     (c) any entity or instrumentality of the state specifically provided for by law; and

                     (d) every office or officer of any entity listed in Subparagraphs (a) through (c) of this paragraph;

                (4) "retaliatory action" means the discharge, suspension, demotion or disciplining of or the threatening or taking any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment; and

                (5) "unlawful or improper act" means a practice, procedure, action or failure to act on the part of a public employer that:

                     (a) violates or is a suspected violation of a federal law, federal regulation, state law, state administrative rule or a law of any political subdivision of the state;

                     (b) constitutes malfeasance in public office; or

                     (c) is of public concern or results or would result in a specific and substantial danger to public health and safety. 

     Section 2. APPLICABILITY.--The provisions of this act apply only to civil actions for damages resulting from retaliatory action that occurred on or after July 1, 2005.

     Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2008.

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