As used in the Whistleblower Protection Act: A. "good faith" means that a reasonable basis exists in fact as evidenced by the facts available to the public employee; B. "public employee" means a person who works for or contracts with a public employer; C. "public employer" means: (1) any department, agency, office, institution, board, commission, committee, branch or district of state government; (2) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived; (3) any entity or instrumentality of the state specifically provided for by law; and (4) every office or officer of any entity listed in Paragraphs (1) through (3) of this subsection; D. "retaliatory action" means taking any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment; and E. "unlawful or improper act" means a practice, procedure, action or failure to act on the part of a public employer that: (1) violates a federal law, a federal regulation, a state law, a state administrative rule or a law of any political subdivision of the state; (2) constitutes malfeasance in public office; or (3) constitutes gross mismanagement, a waste of funds, an abuse of authority or a substantial and specific danger to the public. History: Laws 2010, ch. 12, § 2. 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. Mid-level supervisors were not "public employers". — Where plaintiff, who was a transport officer of a detention center, reported information to the chief probation officer that a fellow transport officer's friend, who was on probation, was not being drug-tested by a probation officer and had used drugs in front of the colleague's child, appellees separately forwarded the information to officials at the detention center; plaintiff was subsequently fired; one appellee was a program manager for metropolitan court and supervised probation officers; the other appellee was programs division director of the background investigations division at metropolitan court and liaison between the court and the detention center; appellees were heads of offices within the judicial branch of government, with supervisory duties and the power to direct the work environment of employees they supervised; they worked under administrative direction, were not autonomous and independent in their duties and decision making, and were not free from the ultimate decision-making authority of their superiors; and their positions were not created by statute, as a matter of law, appellees were not "public employers" because they were not "officers" of the judicial branch. Janet v. Marshall , 2013-NMCA-037, 296 P.3d 1253, cert. granted, 2013-NMCERT-003. "Contract employees" enjoy the same protection against retaliatory action that at-will employees enjoy. — Where plaintiff sued defendant Northern New Mexico College (NNMC) pursuant to the New Mexico Whistleblower Protection Act (WPA), §§ 10-16C-1 to 10-16C-6, NMSA 1978 and where plaintiff offered evidence at trial that NNMC removed her from her position as director of NNMC's campus in El Rito, New Mexico, transferred her to another position, and then terminated her employment in retaliation for her communications to NNMC's administrators about NNMC's failure to approve expenditures necessary for the successful implementation of a plan to revitalize the El Rito campus, and where the jury concluded that NNMC violated the WPA and found by special verdict form that plaintiff had communicated to defendant about the occurrence of an improper act, that there was a reasonable basis in fact for the improper act, and that defendant retaliated against plaintiff because of a communication about that improper act, the trial court did not err in ordering backpay for retaliatory refusal to renew plaintiff's contract, because the WPA expressly authorizes an award when, as the jury found in this case, an employer retaliates by refusing to renew an employee's contract. Nothing in the WPA suggests that whether the employment relationship is contractual has any bearing on the statute's application, and the fact that contract employees are included in the WPA's definition of "public employee" suggests that the legislature intended for contract employees to enjoy the same protection against retaliatory action that at-will employees enjoy. Velasquez v. Regents of Northern N.M. Coll. , 2021-NMCA-007, cert. denied. Summary judgment improper where genuine issue of material fact as to retaliatory action remained. — Where plaintiff filed a complaint for damages under the New Mexico Whistleblowers Protection Act, §§ 10-16C-1 to 10-16C-6 NMSA 1978 (NMWPA), alleging that he had communicated to the New Mexico department of corrections (DOC) his good faith belief that unethical and illegal conduct was occurring, and that as a result of those communications, the DOC retaliated by not allowing him to receive overtime or other benefits, and where the DOC moved for summary judgment on the grounds that DOC did not take any adverse employment action against plaintiff, the district court erred in granting DOC's motion for summary judgment, because a genuine issue of material fact as to whether DOC took adverse employment action against plaintiff remained where plaintiff claimed that DOC changed his employment duties, restricted plaintiff's movement in the prison, and the reassignment reduced the amount of overtime income plaintiff earned. Lerma v. N.M. Dep't of Corrections , 2024-NMCA-011, cert. granted. Summary judgment improper where a reasonable jury could conclude that retaliation was a motivating factor. — Where plaintiff filed a complaint for damages under the New Mexico Whistleblowers Protection Act, §§ 10-16C-1 to 10-16C-6 NMSA 1978 (NMWPA), alleging that he had communicated to the New Mexico department of corrections (DOC) his good faith belief that unethical and illegal conduct was occurring, and that as a result of those communications, the DOC retaliated by not allowing him to receive overtime or other benefits, and where the DOC moved for summary judgment on the grounds that DOC did not act with a retaliatory motive and that DOC had a legitimate business purpose for acting as it did after receiving plaintiff's communications, the district court erred in granting DOC's motion for summary judgment, because a reasonable jury could conclude that DOC's reassignment of plaintiff and the restriction it placed on his movement were motivated, at least in part, by retaliation for the communications that plaintiff alleges were protected by the NMWPA. Lerma v. N.M. Dep't of Corrections , 2024-NMCA-011, cert. granted.
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