Flores v. Herrera
| Decision Date | 18 August 2016 |
| Docket Number | NO. S–1–SC–35286,S–1–SC–35286 |
| Citation | 2016 NMSC 033,384 P.3d 1070 |
| Parties | James Flores and Manny Vildasol, Plaintiffs–Respondents, v. Mary Herrera, individually and as Secretary of State of the State of New Mexico, and Secretary of State's Office, Defendants–Petitioners. |
| Court | New Mexico Supreme Court |
Cuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, Hinkle Shanor, LLP, Ellen S. Casey, Jaclyn M. McLean, Loren S. Foy, Santa Fe, NM, for Petitioners.
Garcia Ives Nowara, LLC, Matthew L. Garcia, Albuquerque, NM, for Respondent James Flores.
Law Offices of Michael E. Mozes, P.C., Michael E. Mozes, Albuquerque, NM, for Respondent, Manny Vildasol.
NAKAMURA
, Justice.
{1} In this case, we are called upon for the first time to interpret the Whistleblower Protection Act (WPA), NMSA 1978, §§ 10–16C–1
to –6 (2010), to resolve a single issue: Does the WPA allow a state employee to assert a claim against a state officer in the officer's individual capacity? Mary Herrera, when acting as the Secretary of State, terminated the employment of two employees of the Secretary of State's office, James Flores and Manny Vildasol. In separate actions, Flores and Vildasol each asserted a WPA claim against Herrera in her individual capacity. Herrera is no longer the Secretary of State; nevertheless, Flores and Vildasol seek to proceed with their individual-capacity WPA claims against her. The Court of Appeals concluded that the WPA allowed them to do so. See
Flores v. Herrera , 2015–NMCA–072, ¶ 2, 352 P.3d 695, cert. granted , 2015–NMCERT–006, 367 P.3d 852 (2015). We disagree. The WPA does not permit a public employee to assert a claim against a state officer in his or her individual capacity. Accordingly, we reverse the decision of the Court of Appeals and remand Flores's and Vildasol's cases to their respective district courts for proceedings consistent with this opinion. Specifically, in Flores's case, we instruct the First Judicial District Court to dismiss Flores's individual-capacity claim against Herrera and, with respect to Flores's official-capacity claim against Herrera, to enter a substitution order as provided by Rule 1–025(D)(1) NMRA. In Vildasol's case, we instruct the First Judicial District Court to dismiss Vildasol's individual-capacity claim against Herrera and to proceed with Vildasol's claim against the Secretary of State's office.
{2} Herrera served as the Secretary of State from January 2007 until January 2011. On January 1, 2007, Herrera appointed Vildasol as an office administrator. During his tenure, Vildasol suspected that Secretary of State staff misused public funds and that Herrera violated election laws. Vildasol reported the suspected misconduct to the Federal Bureau of Investigation and the New Mexico Attorney General's Office. On September 4, 2010, Vildasol received a letter from Herrera terminating his employment.
{3} Flores began working as a public information officer for the Secretary of State when Herrera assumed office in 2007. On August 17, 2010, Herrera placed Flores on administrative leave for allegedly placing two individuals on Flores's press release distribution list. While on administrative leave, Flores was interviewed by FBI Special Agent Leroy Chavez, who was investigating Vildasol's allegations of Herrera's misconduct in office. On August 25, 2010, Flores's attorney prepared a letter addressed to Herrera. The letter advised Herrera that Flores had been identified as a necessary witness in the ongoing FBI investigation concerning Herrera's activity as the Secretary of State and that Flores had been interviewed by the FBI regarding Herrera's conduct. On September 4, 2010, Flores received a letter from Herrera that terminated his employment. Herrera lost the general election in November 2010 and left office at the end of that year.
{4} On December 22, 2010, Flores sued Herrera in her individual and official capacities, alleging a violation of Section 10–16C–3. Herrera filed an amended answer on January 6, 2012, and moved to dismiss Flores's WPA claim on February 6, 2012. In her motion to dismiss, Herrera stressed that the WPA prohibits a “public employer” from retaliating against a public employee. Herrera argued that because the WPA does not define “public employer” to include either governmental employees acting in their individual capacities or former elected officials, the district court lacked subject matter jurisdiction over Flores's WPA claim. The district court agreed and granted Herrera's motion to dismiss for lack of subject matter jurisdiction. The district court concluded that Flores cannot recover against Herrera “because she is no longer Secretary of State.” Flores timely noticed his appeal.
{5} On April 1, 2011, Vildasol filed a separate complaint against both the Secretary of State's office and Herrera in her individual capacity. In his complaint, Vildasol asserted a claim for violation of the WPA. Herrera moved to dismiss Vildasol's WPA claim, arguing that the statutory term “public employer” did not encompass Herrera, either as a former public employer or in her individual capacity. On December 9, 2013, the district court denied Herrera's motion to dismiss Vildasol's WPA claim and certified the matter for interlocutory appeal. Herrera timely filed an application for interlocutory appeal. The Court of Appeals granted that application and assigned the case to its general calendar.
{6} The Court of Appeals consolidated the appeals in Flores's and Vildasol's cases and addressed the issues presented in a single opinion. Flores , 2015–NMCA–072, ¶ 1, 352 P.3d 695
. The Court of Appeals concluded that Herrera's status as a former state officer did not immunize her from liability under the WPA and that Herrera “may be sued pursuant to the Act in her individual capacity.” Id. ¶ 2 (internal quotation marks omitted). The Court of Appeals affirmed the district court's denial of Herrera's motion to dismiss Vildasol's WPA claim and, after correctly noting that the issues presented do not implicate subject matter jurisdiction, reversed the district court's dismissal of Flores's WPA claim. Id. ¶¶ 2, 11–12.
{7} Herrera petitioned for a writ of certiorari. This Court granted Herrera's petition, exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution
and NMSA 1978, Section 34–5–14(B) (1972), to consider whether the WPA allows a public employee to assert a whistleblower-retaliation claim against a state officer in his or her individual capacity.
{8} This Court reviews issues of statutory interpretation de novo. Faber v. King , 2015–NMSC–015, ¶ 8, 348 P.3d 173
. We construe a statute “in light of its purpose and interpret it to mean what the Legislature intended it to mean, and to accomplish the ends sought to be accomplished by it.” Id. (internal quotation marks and citation omitted). “In discerning the Legislature's intent, we are aided by classic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.” Id. ¶ 9 (alteration omitted) (internal quotation marks and citation omitted). “We examine the overall structure of the statute and its function in the comprehensive legislative scheme.” Id.
{9} In 2010, the Legislature enacted the WPA, §§ 10–16C–1
to –6, “to encourage employees to report illegal practices without fear of reprisal by their employers.” Janet v. Marshall , 2013–NMCA–037, ¶ 21, 296 P.3d 1253 (internal quotation marks and citation omitted). The WPA promotes transparent government and the rule of law. Its provisions are simple: Section 10–16C–3 prohibits a public employer from taking retaliatory action against a public employee because the public employee communicates information about conduct that the public employee believes in good faith to be unlawful or improper, provides information to a public body as part of an inquiry into an unlawful or improper act, or “objects to or refuses to participate in an activity ... that constitutes an unlawful or improper act.” Section 10–16C–4(A), in turn, creates liability for a “public employer that violates the provisions of the [WPA] ... for actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation.” NMSA 1978, § 10–16C–4(A) (2010). In short, Section 10–16C–3 imposes duties on a “public employer,” and Section 10–16C–4(A) subjects a “public employer” to liability for breach of those duties. And the WPA broadly defines “public employer” to include any entity of state government and “every office or officer” of any governmental entity. See § 10–16C–2(C)(1)-(4).
{10} At its root, this case concerns whether the WPA creates a right of action that a state employee may assert against a current or former state officer in his or her individual capacity, as opposed to the officer's official capacity. In Kentucky v. Graham
, the United States Supreme Court expounded upon the difference between a suit against a government official in his or her individual or personal capacity and a suit against a government official in his or her official capacity:
Personal–capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official–capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a...
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