February 17, 2017

Sponsor seeking changes to whistleblower law says he’ll change bill

Recently-retired law enforcement officer Jeremy Romero said he’s taking it easy before he plans to run for sheriff of Guadalupe County, where he grew up. For Romero, nothing about the past few years has been easy, including his road to retirement and the decision to run for public office.

Unable to walk and bound to a wheelchair, Romero openly spoke about how his quest to hold  fellow public employees accountable for their actions landed him where he is today.

“For having integrity and doing the right thing, it cost me long term, [and] it cost me my legs,” Romero said.

As an officer with the New Mexico State Police, Romero reported a fellow officer to his superiors for improper behavior. Romero was fired from his job and spent almost a year looking for work with other law enforcement agencies around the state.

In a lawsuit against the Department of Public Safety, Romero claimed then department secretary Gorden Eden essentially blacklisted him in retaliation for alleging that a fellow state police officer had a prostitute with him in his car.

Romero found a job.

Then, while working for the Corrales Police Department and in pursuit of a suspect, Romero got in an accident that left him paralyzed.

DPS eventually agreed to settle out of court for $900,000. Romero wonders today whether he would still be able to walk if he hadn’t alerted his state police bosses.

Whistleblower lawsuits like Romero’s generally stem from similar circumstances, with conflicted employees asking if they should risk their careers to report improper behavior.

New Mexico state law is supposed to provide workers protection from retaliation if they decide to speak up about illegal or unethical actions that happen on the job. The law provides employees the avenue of filing a lawsuit in the event retaliation does occur.

A New Mexico state senator who aims to change the Whistleblower Protection Act said he isn’t against keeping the state accountable, but wants to keep frivolous lawsuits to a minimum. Sen. Jacob Candelaria, D-Albuquerque, initially filed a bill this legislative session that would omit contractors from whistleblower protection and also require whistleblowers to go through an administrative process before filing a lawsuit.

Over the past few weeks, Candelaria said he heard from a number of critics who told him his bill would make it harder for people to file whistleblower lawsuits. Candelaria told NM Political Report that he will introduce a substitute bill at his bill’s first committee hearing.

Candelaria said he plans to remove the provision that excludes contractors from filing a whistleblower lawsuit, partly, he said, to show that he values the law.

“To avoid the appearance that we’re trying to weaken this act we took that out,” Candelaria said.

But, Candelaria is planning to leave in a provision that would require whistleblowers to go through an administrative grievance process before they can go to court.

Some critics of the bill, including one of Candelaria’s former law professors, said the way the grievance portion of the bill is written would limit the whistleblower law to just state-defined discrimination. Right now the law includes illegal acts, actions that “constitutes malfeasance in public office” or “an abuse of authority.”

University of New Mexico law professor John LaVelle, speaking as an individual and not a representative of the school, said Candelaria’s bill directly references the state’s Human Rights Act, which deals exclusively with employment discrimination based on “race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition” and not retaliation for reporting illegal or unethical actions.

“It looks like the only kinds of violations that are now protected are unlawful discriminatory practices,” LaVelle said of Candelaria’s bill.

Candelaria told NM Political Report that adding another step before going to court will streamline the litigation process and save on court costs during fact finding. It won’t, he said, dilute the existing law.

“In the end, if our concern in this bill is protecting whistleblowers, exhausting administrative  remedies is a recognised process that saves aggrieved parties money, time, drama, expense and the stress of litigation,” Candelaria said.

The New Mexico Association of Counties supports Candelaria’s bill. The association and Candelaria both feel frivolous lawsuits often end up being settled out of court for large sums of money. Candelaria said he wants to make sure the state protects whistleblowers, but curbs baseless claims.

“Right now, the act is being used by some to chase a payday at the cost of New Mexico taxpayers and that’s not right either,” Candelaria said.

At least two lawyers who represent whistleblowers disagree with Candelaria’s assessment of the current state of the law.

Albuquerque lawyer Tom Grover represents two different former Albuquerque Police Department employees who filed claims against their superiors using the state’s whistleblower law. Grover said judges generally spot empty claims and quickly dismiss them.

“I couldn’t imagine bringing a complaint on words and allegations [alone],” Grover said.

Rachel Higgins, who represented Romero in his whistleblower lawsuit, agrees that the process of going through a whistleblower lawsuit is already strenuous.

“I don’t think it’s the right direction to make it more difficult,” Higgins said.

It’s difficult to gauge which past whistleblower cases would qualify under Candelaria’s proposed changes since there is currently no administrative grievance process requirement in place.

Candelaria said many cases would still qualify as long as whistleblowers go through any administrative process available.

He said that if passed, the bill would not discourage anyone from bringing a legitimate case forward.

Candelaria ultimately sees the extra step as a cost-saving measure for New Mexico.

“Our local government, the people who pay for public safety, roads, schools, they’re strapped,” Candelaria said. “[Local government officials] have to make a difficult decision of, do you incur the cost of litigation and run risk of a huge multi-million award in trial or do you just settle it out of court?”

Higgins said that a better cost-saving measure for the state would include more training for both employers and employees.

Higgins also said that directing more cases to the public body that deals with human rights violations will cost more money and add more bureaucracy.

“If I were a policymaker-level employee of the New Mexico Human Rights Commission I would have something to say about this,” Higgins said.

Candelaria said his changes will come in the form of a substitute bill, and so won’t be official until the bill goes before the Senate Public Affairs Committee.

Sen. Jerry Ortiz Y Pino, D-Albuquerque, who chairs that committee, told NM Political Report he wasn’t sure when the bill would be scheduled and acknowledged that Candelaria was still working on changes.

Update: After publication, Candelaria responded to a previous text message from NM Political Report, saying he is willing to make more changes to his bill’s grievance procedure provision.
“The exhaustion section regards a process, it does not limit whistleblower protections to only those who claim to have experienced unlawful discrimination,” Candelaria said. “I am open to adding language to clarify that issue in committee.”