Sunday, March 8, 2015

Protecting the Whistleblower Protection Act

Republican State Rep. Larry Larranaga is trying to destroy one of New Mexico's best laws. The Whistleblower Protection Act protects public employees who speak up regarding crimes and malfeasance by other public officials.

The law protects individual rights, encourages honesty and efficiency in government, and saves us money by allowing public employees expose waste and misconduct. If you have a good-faith belief you've seen such conduct, you can speak up without fear of retaliation. I like that.

Larranaga doesn't.

First of all, he'd take out malfeasance altogether: you could still report an actual crime, but bosses committing non-criminal malfeasance (wasteful, unfair, or dishonest) could keep doing what they're doing.

His other changes would reduce the whistleblower's protection and even intimidate whistleblowers.
He'd limit protection to people who speak to their employer (right!) or the media. Your boss could fire or otherwise punish you for telling a state legislator, a good-government commission, or maybe even your minister.

He'd still let you sue if you got fired or demoted for reporting misconduct to newspapers, but would erase protection against other kinds of punishment. How do you like your new office in the windowless boiler room? You could report something the public should know and get transferred from your office in Santa Fe or Las Cruces to the one in Gallup or Lordsburg. (Your kids will love it there!)

Sorry, Larry, but suspension, demotion, and dismissal aren't the only vicious and effective ways a boss can punish an employee and intimidate others who might want to speak up.

The current law protects you if you reasonably believe, based on the facts available to you, that what you saw was misconduct. Now it wouldn't.

As mentioned, while you could still report crimes, Larry would strike out “malfeasance in public office” and “gross mismanagement, a waste of funds, an abuse of authority, or a substantial and specific danger to the public.”

So if I work in the municipal motor pool, and I see that all the sanitation trucks have a flap that flies out when you turn a corner, and could easily hit a pedestrian on the edge of the sidewalk, and my boss refuses to spend the money to repair that, he can fire me for reporting the problem – even if I potentially saved lives. Have you some reason to protect the bad actors among public employees, Larry?

Under Rep. Larranaga's proposal, you couldn't sue for retaliation if reporting the wrongdoing was part of your job duties. A cop vows “to protect and serve” us. If the Chief ordered fellow cops to do something that seemed efficient but actually created a danger, and one officer reported it, the City could argue as a defense that reporting was part of the whistleblower's job duties, because it helped “protect” us. So no special protection for the whistleblower. I think the city should lose that argument; but if I were a cop gambling that the law would protect me for reporting the problem, the new “part of job duties” language could give me serious pause for thought.

The law protects contract employees who report misconduct. It wouldn't if Larry has his way.
Another proposed change would impose an unfair potential financial burden on anyone suing. Others limit damages, by delaying the employee's possible lawsuit while providing that back pay before s/he files suit doesn't count.

Most legislators favor punishing the bad guys – and eliminating waste of public resources.
Whistleblowers help us learn about such situations. There are already plenty of protections against frivolous charges by supposed whistleblowers.

Why do you want to make life so easy for the bad guys, Larry?

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 8 March, 2015.]
[As it's happened, this bill apparently was too far out and poorly crafted that it got tabled, with little hope of seeing daylight again this session.  Good riddance.]
[But the issue could recur in the future.  I gather New Mexico counties were pushing it.  (I read that NMSU President Garry Carruthers spoke out for it, which won't go down as one of his finest moments.  He's smart and experienced, so I'm guessing he didn't realize how badly this bill was written.)  This bill went way too far.  I gather the county's concern was that bad employees on the point of being terminated could misuse it and are misusing it to try to turn a profit when on the way out for legitimate work-related reasons.  
If so, the counties have a legitimate concern -- although sometimes it's hard to tell whether the "on the point of firing" is caused by the whistleblowing or not.  For a future bill, they ought to consult some good lawyers -- perhaps including some who litigate whistleblower cases from the employee's side  --  and craft language that would help address the purported problem without destroying the law.  This year's effort was like the proverbial effort to kill a mosquito on your glass coffee-table with a sledgehammer.]

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