2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 16C - Whistleblower Protection
Section 10-16C-3 - Public employer retaliatory action prohibited.

Universal Citation: NM Stat § 10-16C-3 (2018)
10-16C-3. Public employer retaliatory action prohibited.

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.

History: Laws 2010, ch. 12, § 3.

ANNOTATIONS

Effective dates. — Laws 2010, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 19, 2010, 90 days after the adjournment of the legislature.

Applicability.Laws 2010, ch. 12, § 7 provided that the provisions of the Whistleblower Protection Act apply only to civil actions for damages resulting from retaliatory action that occurred on or after July 1, 2008.

Dismissal of claim was proper where asserted claim was legally deficient. — Where doctor sued his employer, the board of regents of the university of New Mexico and the university of New Mexico health sciences center for violation of the New Mexico Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., on the ground that employer terminated doctor's employment in retaliation for a previously filed lawsuit, the district court did not err in dismissing doctor's case for failure to state a claim pursuant to 1-012(B)(6) NMRA, where plaintiff alleged only the act of retaliation, that is, the termination of his employment, but failed to allege that employer retaliated against him because he communicated about "an unlawful or improper act," as that term is defined in the WPA. Wills v. Board of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009.

Whistleblower protection laws are designed to benefit the public. — Where doctor sued his employer, the board of regents of the university of New Mexico and the university of New Mexico health sciences center, for violation of the New Mexico Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., on the ground that employer terminated doctor's employment in retaliation for a previously filed lawsuit in which doctor alleged that employer was abusing its authority by withholding doctor's contractually agreed-upon pay, the district court did not err in dismissing doctor's claim, because the WPA was designed to protect communications that benefit the public by exposing unlawful and improper actions by government employees, not communications regarding personal personnel grievances that primarily benefit the individual employee. Wills v. Board of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009.

Sufficient evidence supported the jury's verdict. — Where plaintiff brought a claim under the Whistleblower Protection Act (WPA), claiming that defendants were in violation of state law by failing to promptly and immediately investigate reports of child abuse and neglect referred to the Farmington police department (FPD) from the New Mexico children, youth and families department (CYFD), evidence presented at trial that plaintiff in good faith believed that defendants were in violation of 32A-4-3 NMSA 1978, in failing to immediately and promptly investigate CYFD referrals, that plaintiff engaged in protected activity by communicating to his superiors his belief that defendants were violating state law by failing its duty, that after plaintiff reported potential negligence on the part of the FPD, defendants removed plaintiff from the cyber crime task force (CCTF), made humiliating comments about him to his colleagues, issued him a substandard work vehicle, and required him to surrender his key to the forensic lab and cease investigating his caseload of crimes against children, and that plaintiff suffered depression, rage, and fear that he would be terminated before he reached eligibility for retirement that caused him to seek counseling, as well as the loss of detective and CCTF overtime pay, provided a substantial evidentiary basis to support the jury's decision that plaintiff established his WPA claim. Dart v. Westall, 2018-NMCA-061.

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