The New Mexico Tort Claims Act (TCA) was adopted both to limit the liability of the government, in order to protect the public treasury, and to provide for reasonable compensation to people who have been injured by wrongful acts of the government and its employees. One facet of the TCA neither decreases the government’s liability nor provides for the payment of compensation to those injured by the government’s wrongful acts. In fact, in this area, the TCA increases the government’s liability. The TCA provides that the government is obligated both to defend and indemnify employees who are subject to claims for compensatory and punitive damages, provided only that the claims arise out of the employees’ conduct in the “scope of the duties” tasked to the employees. Years ago, the New Mexico Court of Appeals held that conduct that is purely personal, indeed conduct that may be heinously felonious, conduct that does not in any way advance the interests of the government, can be within a public employee’s “scope of duties” if the authorized duties assigned to the employee put him or her in the position so that they could commit the crime. In such a case, the governmental entity has the statutory duty both to defend and to indemnify the employee. While punitive damages are not available against a government employee for a common law tort, they are available for a constitutional tort – and the TCA requires that the governmental entity indemnify the employee for both compensatory and punitive damages. Because requiring the government to pay for punitive damages assessed against a public employee for purely personal conduct that falls with the “scope of duties” serves no public purpose, this Article argues that using taxpayer money to pay such an award violates the anti-donation clause of the New Mexico Constitution.



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