It could soon become harder for government workers to file Whistleblower Protection Act claims and easier for law enforcement agencies to keep the proceeds from the property they seize.
The Rio Arriba County Commission passed a resolution, Aug. 25, vowing to support the New Mexico Association of Counties’ legislative priorities for the upcoming 2017 legislative session, which is scheduled to start in January 2017.
In addition to revamping the state’s Whistleblowers Protection and Forfeiture Acts, the Association also plans to promote changes to the state’s E911 Act and rewrite the Capital Outlay guidelines.
An industry article written by an attorney from Albuquerque’s Modrall Sperling Law Firm analyzing the state’s Whistleblower Act, concluded that the law originally intended to protect public employees who expose illegal or questionable activity, is being misused.
“Since it was enacted, New Mexico WPA (Whistleblowers Protection Act) is proving to be a popular and attractive cause of action for disgruntled public employees,” Modrall Sperling lawyer Megan Muirhead wrote in an article titled, “New Mexico’s Whistleblowers Statute 101: A Crash Course.”
Amending the Act could make it more difficult for unhappy employees to misuse the law because those changes would include language that mandates the complainant provide some sort of evidence to support his or her claim. The amendment will also push to eliminate arbitrary claims by redefining what warrants Whistleblower protection.
“Support amendments to, among, other things, better define the definition of ‘good faith,’ by requiring some minimal threshold of evidence to file a claim, narrow the definition of ‘retaliatory action,’ limit ‘unlawful or improper act(s)’ to violations of state or federal law, and narrow the universe of individuals to whom a complaint may be communicated as a precondition to filing a claim,” the resolution that commissioners adopted, states.
Association General Counsel Grace Phillips said the law needs to be amended because the current iteration makes it easy for a public employee to bring a case, but very difficult for an employer to fight in court. She said amending the Act would put the law more in line with private sector employment protection and lessen the impact of its unintended consequences.
“There really isn’t a lot of structure compared to laws in the private sector,” she said. “It is dramatically broad and it is costing taxpayers a tremendous amount of money. We are talking about millions of dollars that have been awarded, or most often, settled.”
The resolution comes nearly seven months after the County’s insurance carrier settled one of two Whistleblower Protection Act lawsuits filed by two former Rio Arriba County Sheriff’s deputies, for $150,000. The other is still pending.
County Manager Tomas Campos has said on numerous occasions, that he believes those Whistleblower suits were a perfect example of the employees trying to “game the system,” which means the former deputies and their attorneys used their knowledge of the law to file an indefensible, bogus claim.
Confiscating property
Association officials want the state’s Forfeiture Act amended to increase county governments’ stake in the revenue raised through forfeitures. The way the system is set up now, the money goes into the state’s general fund.
However, it’s not all about the money for the Association. Officials want any amendment to the law to include language that will help law enforcement officials decide whether confiscating someone’s property is the right thing to do.
“Support amendments to the Forfeiture Act that remove unreasonable burdens placed on law enforcement agencies, allow law enforcement agencies to retain forfeited property under limited circumstances, clarify appropriate use of forfeiture, and ensure that due process rights of parties involved are honored,” the resolution states.
Although Rio Arriba County didn’t participate, there was a mechanism for county and municipal governments to receive revenue from forfeitures through the recently defunct practice commonly known as civil forfeitures. The policy, until state legislators outlawed it during the 2016 legislative session, allowed local governments to confiscate cars from those suspected of drunk driving.
Campos told commissioners they should take a proactive approach, in case the Association’s lobbying efforts are successful, and start deciding when the County should take cars from those who repeatedly drink and drive.
“I guess this is going to make it easier to do that,” he said. “We should look at that because it would be a way for us to fund police cars. I don’t know if the Commission would consider a third or fourth DWI before forfeiting the car. That is something we will discuss in the future.”
Amendment could rescue E911
For several years now, the question of whether a Joint Powers Agreement member is doing its fair share to fund the Rio Arriba/Española Regional Dispatch Center has led to, at times, acrimonious relationships between the members of the Agreement.
Change could be on the way, however. Association officials want the law to be changed to include the various forms of new communication in the surcharge that is collected to fund the region’s enhanced E911 system. The term enhanced E911 refers to the entire system, which includes the mapping, network switching equipment and databases needed to dispatch life-saving assistance.
Phillips said the changes her organization is seeking would tack the $.51 surcharge per month, per line, on both prepaid and voice over internet phone lines. Currently, the surcharge is collected from landlines, two-way radio customers and cell phone lines. The measure is necessary because as more consumers abandon landlines and replace them with internet telephone services, less money is collected to refresh the state’s E911 fund.
Rounding out the priorities is a measure that would give county commissions across the state a say in the Capital Outlay applications submitted by non-governmental organizations operating within a county’s boundaries.
“Support recommendations that allow local Board of County Commissioners to: accept, approve and review non-governmental entities’ capital outlay funds and their fiscal impacts to county’s finances prior to submission to the state legislature,” the resolution states, “Suspend acceptance of 2017 legislative session capital outlay funds for purchase of vehicles, information technology, and any capital outlay expenditure of less than $50,000; and authorize the collection of a 3 percent administrative fee.”
Campos told commissioners he supports the agenda, but believes it stops short of addressing one of the most pressing issues every county in the state faces — compensation for housing state inmates.
He contends the money that trickles into the counties for housing and feeding New Mexico Corrections Department prisoners while they are awaiting court dates, is an egregious disregard for the County’s bottom line.
“I am disappointed that it isn’t on here,” Campos said. “But, the Association is thinking on refiling the suit over the monies in the jail. They only appropriated $2.3 million for holding state prisoners.”