Janet v. Marshall

• Decision Date: 01 March 2013
• Docket Number: No. 31,090.,31,090.
• Citation: 296 P.3d 1253
• Parties: K. Roxyanne JANET, Plaintiff–Appellant, v. Art J. MARSHALL and Robert Padilla, Defendants–Appellees, and Board of County Commissioners for the County of Bernalillo, Heather Lough, Melaney Montoya, Ronald C. Torres, and Tommy Trujillo, Defendants.
• Court: Court of Appeals of New Mexico

296 P.3d 1253

K. Roxyanne JANET, Plaintiff–Appellant,

v. Art J. MARSHALL and Robert Padilla, Defendants–Appellees,andBoard of County Commissioners for the County of Bernalillo, Heather Lough, Melaney Montoya, Ronald C. Torres, and Tommy Trujillo, Defendants.

No. 31,090.

Court of Appeals of New Mexico.

Dec. 19, 2012.

Certiorari Granted, March 1, 2013, No. 34,006.

Bach & Garcia LLC, George Bach, Albuquerque, NM, for Appellant.

Brown Law Firm, Joel M. Young, Kevin M. Brown, Albuquerque, NM, for Appellees.

OPINION

CASTILLO, Chief Judge.

{1} This case presents us with a question of interpretation regarding the definition of “public employer” under the recently enacted Whistleblower Protection Act, NMSA 1978, §§ 10–16C–1 to –6 (2010) (WPA or the Act). Plaintiff Janet filed a complaint against the Board of County Commissioners of Bernalillo County and several individual defendants alleging unlawful retaliation in violation of the Act. Two of the defendants, Defendants Marshall and Padilla, were employees of the Metropolitan Court of Bernalillo County (Metropolitan Court) at the relevant time.

{2} In response to the suit, Defendants filed a motion for summary judgment. The district court granted the motion based on its decision that, as a matter of law, neither Appellee was a “public employer” as defined in the Act. We agree and affirm.

I. BACKGROUND

{3} For purposes of background, we provide a short summary of the case as it relates to Defendants. Our summary is based primarily on the information contained in Plaintiff's complaint and affidavit. In early 2009, Plaintiff was employed as a transport officer for the Bernalillo County Metropolitan Detention Center (MDC). During conversations with a fellow transport officer in January and March 2009, Plaintiff was told that her colleague's boyfriend was on probation but was not being drug-tested by his probation officer and had used drugs in front of the colleague's baby. Plaintiff first reported this information to Chief Probation Officer Jill Ingraham (Ingraham) in January 2009. Then, in March 2009, Plaintiff left a voicemail message for Ingraham about Plaintiff's continued concerns about the situation. Even though, as it turned out, the boyfriend was not on probation at the time of the report and therefore was not subject to drug-testing, Plaintiff's position is that she had a good faith basis for making her report.

{4} After receiving the voicemail, Ingraham contacted Appellee Marshall—a program manager for Metropolitan Court—and forwarded him the email. Appellee Marshall forwarded Plaintiff's voicemail to her supervisor, who then forwarded it to officials at MDC, Plaintiff's employer. Appellee Marshall was concerned about an appearance of impropriety and that Plaintiff may have been using her position to access confidential or privileged information. In addition, Appellee Padilla—the programs division director in charge of the Background Investigations Division at Metropolitan Court—contacted Plaintiff's supervisor about the voicemail. Appellee Padilla served as the Metropolitan Court's liaison between the court and the MDC.

{5} Plaintiff's supervisor told her that Marshall was angry because she had reported the probation officer and that Marshall wanted her fired. On March 5, the supervisor issued a memorandum of employee misconduct regarding Plaintiff and issued a letter of investigation into the voicemail left by Plaintiff. Less than a month later, Plaintiff was fired by a representative of the Bernalillo County Board of Commissioners. Plaintiff contends that her firing was based on the retaliatory actions of Defendants.

II. DISCUSSION

{6} As we explained, the district court granted summary judgment in favor of Defendants concluding that they did not qualify as “public employers” under the WPA. We observe that Plaintiff was an employee of Bernalillo County at the relevant times while Defendants were employees of the Metropolitan Court, an entity of the judicial branch of state government. The court did not address the question of the employment relationship between Plaintiff and Defendants. Nor do we. Our analysis is limited to the sole question of whether Defendants are public employers as contemplated by the WPA.

A. Standard of Review

{7} The issue before us was decided on a motion for summary judgment. “We are mindful that summary judgment is a drastic remedial tool which demands the exercise of caution in its application, and we review the record in the light most favorable to support a trial on the merits.” Woodhull v. Meinel, 2009–NMCA–015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998–NMSC–046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review these legal questions de novo.” Id.

{8} The question we consider is one of statutory interpretation. “The meaning of language used in a statute is a question of law that we review de novo.” Cooper v. Chevron U.S.A., Inc., 2002–NMSC–020, ¶ 16, 132 N.M. 382, 49 P.3d 61. We are not bound by the legal conclusions of the district court. See Primetime Hospitality, Inc. v. City of Albuquerque, 2009–NMSC–011, ¶ 10, 146 N.M. 1, 206 P.3d 112 (“We review these questions of law de novo, without deference to the district court's legal conclusions.”).

B. Definition of Public Employer

{9} When construing a statute, “our guiding principle is to determine and give effect to legislative intent.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm'n, 2007–NMSC–053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “Legislative intent is determined primarily from the language of the statute, and from the legislative purpose to be achieved[.]” State v. Andrews, 1997–NMCA–017, ¶ 5, 123 N.M. 95, 934 P.2d 289 (citation omitted). “In ascertaining the Legislature's intent, we are aided by classic canons of statutory construction. 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.” N.M. Indus. Energy Consumers, 2007–NMSC–053, ¶ 20, 142 N.M. 533, 168 P.3d 105. (citation omitted). We look at the plain meaning of the words “used in the context of the statutory text as a whole.” Quynh Truong v. Allstate Ins. Co., 2010–NMSC–009, ¶ 37, 147 N.M. 583, 227 P.3d 73.

{10} We begin with the language of the WPA. The Act prohibits a public employer from taking retaliatory action against a public employee and lists the protected conduct. See § 10–16C–3. A “public employee” is “a person who works for or contracts with a public employer[.]” Section 10–16C–2(B). The statute defines “public employer” as:

(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[.]

Section 10–16C–2(C).

{11} In its order on summary judgment, the district court wrestled with the definition of “public employer” and concluded that Defendants “do not fit within the definition of a public employer under the [WPA].” The court explained its decision as follows:

My ruling is that I don't believe that Marshall and Padilla fit within the definition of public employer—I'm trying to limit my ruling to the statute before me—and that while there are other definitions of public officer, public officer is different potentially from public employer, which is defined, and that to conclude that everyone who is hired is a public officer for purposes of the [WPA] is, to me, potentially too broad.

The language in Section 10–16C–2(C) includes entities as well as any officer of any of those entities. Defendants themselves are not entities. Their employer, Metropolitan Court, is part of the judicial branch of state government, and those working in Metropolitan Court are subject to statutes created by the Legislature. See generallyNMSA 1978, §§ 34–8A–1 to –15 (1979, as amended through 2010). “Personnel of the [M]etropolitan [C]ourt are subject to all laws and regulations applicable to state officers and agencies and state officers and employees, except where otherwise specifically provided by law.” Section 34–8A–8(B). The judicial branch is one of the entities enumerated in the WPA. Accordingly, the question before us is whether Defendants are officers of the judicial branch as contemplated by the WPA. The statute itself does not define “officer,” so we look to case law and other statutes for guidance.

{12} The term “officer” has been considered by our Supreme Court in a number of cases. See State ex rel. Gibson v. Fernandez, 40 N.M. 288, 290, 58 P.2d 1197, 1198 (1936) (deciding that quo warranto is not the proper proceeding to test the right to hold a position in the public service which is not a “public office, civil[,] or military” (internal quotation marks and citation omitted)); State v. Quinn, 35 N.M. 62, 67, 290 P. 786, 788 (1930) (interpreting the predecessor statute to NMSA 1978, Section 30–24–1 (1963), and concluding that the statute did not apply to the defendant because he was not an officer). In Pollack v. Montoya, 55 N.M. 390, 393–94, 234 P.2d 336, 338–39 (1951), our Supreme Court discussed a five-factor test to determine who qualifies as a public officer. However, in a more recent case, Lacy v. Silva, 84 N.M. 43, 499 P.2d 361 (Ct.App.1972), we observed that New Mexico courts have not expressly adopted the five-factor test mentioned in Pollack and concluded that only one factor need be considered: whether the officer posseses “a delegation of a portion of the sovereign power of...