In response to criticism, state Sen. Jacob Candelaria has made changes to a bill that would impact whistleblowers in New Mexico.
The amendments don’t appear to be winning over his critics.
Candelaria is set to introduce a new version of Senate Bill 299 on Friday. The bill, which would make changes to the state’s Whistleblower Protection Act aimed at stopping frivolous lawsuits, is scheduled to be considered Friday afternoon by the Senate Public Affairs Committee.
As originally proposed, the legislation from Candelaria, D-Albuquerque, would have removed a provision in state law that lets contractors file whistleblower lawsuits against government agencies, leaving only employees to file lawsuits. Candelaria’s new, substitute bill would continue to let both contractors and employees file lawsuits.
He’s also dropped a number of other proposed changes that were criticized.
“I have taken out anything in the legislation that could even possibly be interpreted as making it more difficult for a whistleblower to make a claim,” Candelaria told NMPolitics.net.
But still in the bill is a controversial provision that would require those with a complaint to exhaust any “grievance and administrative remedies” before filing a whistleblower lawsuit.
Some local governments have complained that they’re facing frivolous lawsuits because of the whistleblower law. Requiring employees and contractors to exhaust administrative remedies before filing a lawsuit is positive, Candelaria said, “because it allows for the more speedy resolution of complaints and issues without both the state and the whistleblower having to incur the cost and stress and anxiety of litigation.”
Candelaria said the practice of exhausting administrative remedies before litigation exists in federal law. “I think we need to err on the side of a recognized process that quickly resolves these claims and protects people’s rights,” he said.
The watchdog organization New Mexico Ethics Watch, which came out swinging against the original version of Candelaria’s legislation, still isn’t convinced.
“The substitute is a lot better than the original bill, but it’s still problematic,” said Douglas Carver, the group’s executive director. “The last thing New Mexico needs to do is roll back any open government provisions.”
Carver said there may be a “perception that municipalities and counties are spending too much to settle these suits,” but he questioned the idea that “rolling back the rights of their employees” is the best way to address that issue.
The Society of Professional Journalists’ Rio Grande Chapter has also complained about the legislation, stating that provisions including the piece related to administrative remedies cause “alarm among journalists.”
“If anything, we’d like to see protections strengthened for those public employees and contractors who speak out about fraud, mismanagement and law-breaking within the agencies they serve,” the journalistic organization states.
(Disclosure: The author of this article is a member of the SPJ-Rio Grande Board of Directors).
Another critic of Candelaria’s legislation is John LaVelle, a professor at the University of New Mexico School of Law. He says he sent a letter to Candelaria (which NMPolitics.net published) complaining about the original version of the bill — and he remains concerned about Candelaria’s new version. LaVelle said the requirement that people exhaust administrative remedies before suing is “the most detrimental change” Candelaria has proposed to the whistleblower law.
LaVelle has been joined in his efforts to derail the bill by Shelley Walden of Albuquerque — who, before moving to New Mexico, worked for a decade for the Government Accountability Project, a nonpartisan watchdog organization that litigates federal whistleblower cases.
“My overall impression of your bill is that it is intended to weaken whistleblower protections in the state of New Mexico,” Walden wrote in a Feb. 22 letter to Candelaria, which was also sent to members of the Senate Public Affairs Committee. Walden was addressing an earlier version of the bill that includes provisions Candelaria has since removed from the legislation.
But Walden took issue in her letter with the requirement that potential whistleblowers first exhaust administrative remedies: “administrative grievance mechanisms can sometimes be hostile forums for whistleblowers,” she wrote. She expressed concern about institutionalizing delays and processes that aren’t favorable to whistleblowers.
Candelaria pointed his sharpest criticism at LaVelle. He says he never received LaVelle’s email and questioned whether LaVelle has any interest in a whistleblower lawsuit (LaVelle told NMPolitics.net he is not involved in any whistleblower litigation). LaVelle is Candelaria’s former law professor, and the senator said LaVelle could have called him or reached out to him through Facebook messenger.
Candelaria said he’s tried to be receptive to feedback but complained about the methods used by LaVelle and New Mexico Ethics Watch.
“I can’t do anything if people decide to do press releases and public op-eds instead of sitting down and talking about their issues,” he said.
LaVelle said he used the email address listed on Candelaria’s government website to contact him and doesn’t view Facebook as an appropriate means of communicating concerns, which he wanted to convey in writing.
He said his only interest is protecting whistleblowers.
“…it’s important to note that all the changes that are proposed in the substitute bill would weaken, not strengthen, the Whistleblower Protection Act from the vantage point of potential whistleblowers,” LaVelle said. “Therefore, passage of the substitute bill would be detrimental to the public’s interest in maintaining the present bulwark of policy against corruption in New Mexico.”