New Mexico Court of Appeals Strengthens WPA Protections

Since 2010, public employees and contractors have enjoyed protection from unlawful retaliation if they report “unlawful or improper acts” (i.e., whistleblowing) occurring at their workplace. The New Mexico Whistleblower Protection Act prohibits a public employer from taking any retaliatory action against a public employee for communicating to their employer, or a third party, information about an action or failure to act that the public employee believes in good faith constitutes an “unlawful or improper act.”  

An “unlawful or improper act” under the New Mexico Whistleblower Protection Act means a practice, procedure, action, or failure to act on the part of a public employer that violates any state or federal laws and regulations, constitutes malfeasance in public office, constitutes gross mismanagement, a waste of funds, an abuse of authority or a substantial and specific danger to the public. Examples of “unlawful or improper acts” can include financial fraud, health and safety violations, environmental violations, government misconduct and corruption, or misuse of taxpayer dollars.  

It is important to note that the New Mexico Whistleblower Protection Act does not protect or apply to employment by the federal government, employees of a public contractor, private and corporate employees, non-profit employees, or employees of any tribal entity. The Whistleblower Protection Act protects employees who are employed by the State of New Mexico and its agencies, public school districts, and any political subdivision of the state (counties, cities, villages, towns).   

Until recently, the protections provided under the New Mexico Whistleblower Protection Act had been limited to only include whistleblowing that benefits the public. A 2015 decision from the New Mexico Court of Appeals, Wills v. Board of Regents of the University of New Mexico, held that the Whistleblower Protection Act does not protect communications about “personal grievances” and that whistleblowing must serve some larger public benefit.   

Four years after the Wills decision, the New Mexico Court of Appeals once again arguably limited the protections of the Whistleblower Protection Act. In Kakuska v. Roswell Independent School District, the Court of Appeals reasoned that “whistleblowing” under the Whistleblower Protection Act must fall outside the normal scope of the employee’s job duties. Under this reasoning, for example, an employee whose job requires her to track the financial expenditures of a government entity might not have been considered a “whistleblower” if she uncovered embezzlement. Under Kakuska, her lawsuit could have arguably been dismissed because her job, in part, required her to monitor her employer’s finances for any irregularities.  

In August, the New Mexico Court of Appeals slammed the door shut on these limitations created by Wills and Kakuska. In the recent decision, Lerma v. State of New Mexico, the Court stated in no uncertain terms that the Whistleblower Protection Act protects whistleblowing “made through the ordinary workplace channels or as part of an employee’s normal work duties.” In other words, any communication about an “unlawful or improper act” is whistleblowing regardless of the employee’s job duties or whether it was a personal grievance that did not benefit the public.  

The plaintiff, Manuel Lerma, was a corrections officer for the New Mexico Department of Corrections. In brief, Mr. Lerma reported that he had been physically attacked by two coworkers. Despite that communication lacking “an intent of serving the public interest,” Lerma held that the communication about the fight was protected by the Whistleblower Protection Act. The Court of Appeals expressly overturned Wills (Kakuska was an unpublished opinion). As of this post, it is unclear whether the New Mexico Supreme Court will review the decision on a second appeal. 

If you think you have been unlawfully retaliated against by your public employer, please contact us to discuss your legal rights and remedies. 

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