Sedillo v. N.M. Dept. of Public Safety

• Citation: 2007 NMCA 002,149 P.3d 955
• Decision Date: 31 October 2006
• Docket Number: No. 25,914.,25,914.
• Parties: Jerome SEDILLO, Plaintiff-Appellant, v. State of NEW MEXICO, DEPARTMENT OF PUBLIC SAFETY, New Mexico State Police, John Denko, Jr., Cabinet Secretary, Carlos R. Maldonado, and New Mexico State Police Board, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 955

149 P.3d 955

2007 NMCA 002

Jerome SEDILLO, Plaintiff-Appellant, v. State of NEW MEXICO, DEPARTMENT OF PUBLIC SAFETY, New Mexico State Police, John Denko, Jr., Cabinet Secretary, Carlos R. Maldonado, and New Mexico State Police Board, Defendants-Appellees.

No. 25,914.

Court of Appeals of New Mexico.

October 31, 2006.

Certiorari Granted, No. 30,118, January 2, 2007.

Steven K. Sanders & Associates, L.L.C., Donald Sears, Jr., Steven K. Sanders, Albuquerque, NM, for Appellant.

Patricia A. Madrid, Attorney General, Jerome Marshak, Assistant Attorney General, NM Department of Public Safety, Albert R. Fugere, Deputy Chief Counsel, Santa Fe, NM, for Appellee.

OPINION

PICKARD, Judge.

{1} Jerome Sedillo (Plaintiff) appeals from the district court's orders granting summary judgment to the State of New Mexico Department of Public Safety, New Mexico State Police, Cabinet Secretary John Denko, Chief/Deputy Secretary Carlos Maldonado, and New Mexico State Police Board (Defendants). Plaintiff contends that (1) the district court erred in granting Defendants' motion for summary judgment denying Plaintiff a private right of action under the Peace Officer's Employer-Employee Relations Act (the POEERA) and (2) the district court erred in granting Defendants' motion for summary judgment upholding Defendants' decision to deny Plaintiff's reinstatement. We affirm the district court's orders.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Plaintiff filed a verified petition for writ of mandamus and complaint for declaratory judgment, injunctive relief, and damages for Defendants' violation of New Mexico statutes and Department of Public Safety rules and regulations. Specifically, Plaintiff complained that his statutory rights to a full and fair investigation of his application to be reinstated as a member of the Department of Public Safety of the New Mexico State Police (DPS) were violated under DPS rules and regulations and the POEERA. See NMSA 1978, § 29-14-1 to -11 (1991).

{3} Plaintiff was employed as a New Mexico State Police Officer from December 1992 until August 9, 2001, when he voluntarily resigned. In May 2000, several State Police Officers, including Plaintiff, were assigned to the Los Alamos area during the Cerro Grande fire. On May 22, 2000, several DPS officers engaged in an incident which allegedly involved racially discriminatory actions toward a fellow officer, Officer Dexter Brock (the Brock incident). Officer Brock filed a complaint against the State of New Mexico for racial discrimination, which was later settled. DPS opened an internal affairs investigation into the allegations of Officer Brock. Plaintiff was informed that an investigation into the Brock incident was being conducted. On December 28, 2000, Plaintiff was advised by then Chief of Police, Frank Taylor, that Plaintiff was implicated in the Brock incident. Plaintiff was alleged to have failed to follow rules, regulations, policies, or procedures and to have engaged in conduct unbecoming an officer with regard to Brock. Plaintiff denied the allegations; however, he was ordered to submit to a polygraph interrogation session on January 29, 2001. During the course of the polygraph interrogation, Plaintiff also denied involvement in the racially discriminatory actions against Officer Brock. At the conclusion of the examination, Plaintiff was informed that his denials were found to be deceptive under the test standards. Subsequently, Plaintiff was advised by a fellow officer that his employment with the State Police was going to be terminated. During the investigation, but before any disciplinary action could be imposed against him, Plaintiff accepted another position with the Department of Energy and resigned from the State Police effective August 9, 2001.

{4} In 2002, Plaintiff applied for reinstatement as an officer with the State Police. Plaintiff was advised by the former Chief of Police, Chief Taylor, that his application would not be considered pursuant to DPS Policy PRS:01:00 (the Policy). The Policy states that "[n]o applicant shall be considered for reinstatement who previously was terminated, resigned in lieu of termination proceedings, or resigned either while disciplinary proceedings were pending, in process, or prior to serving any discipline imposed." On January 15, 2003, Plaintiff again requested reinstatement by letters to Defendants Cabinet Secretary John Denko and Chief/Deputy Secretary Carlos Maldonado, who were part of a new police administration. By letter dated February 5, 2003, Chief Maldonado advised Plaintiff that his request for reinstatement was denied pursuant to the Policy.

{5} In response to Plaintiff's petition and complaint, Defendants filed two motions for summary judgment. Defendants' first motion was granted in part and denied in part. The district court's order granted the motion on the basis that (1) the Policy is valid and enforceable, having been enacted pursuant to the authority granted by NMSA 1978, § 29-2-4.1 (1979); (2) the Policy was not required to be filed under the State Rules Act, NMSA 1978, §§ 14-4-1 to -11 (1967, as amended through 1995), which requires State agencies to file and publish rules, regulations, and proclamations; and (3) the POEERA does not create a private right of action for money damages for Plaintiff against Defendants. The district court denied Defendants' motion for summary judgment on the basis that the Policy bars Defendants from considering Plaintiff's application for reinstatement as a State Police Officer, concluding that Plaintiff did not resign while disciplinary proceedings against him were pending or in process.

{6} Defendants' second motion for summary judgment argued that even if Plaintiff did not resign while disciplinary proceedings were pending or in process, the Policy contains another provision that supports DPS's decision to deny Plaintiff's request for reinstatement. Defendants argued that the Policy specifically requires that a prior State Police Officer seeking reinstatement "must have satisfactorily performed the duties of a New Mexico State Police officer prior to his initial separation from the force." Defendants presented DPS documents along with Chief Maldonado's affidavit indicating that Plaintiff did not satisfactorily perform his duties as a State Police Officer prior to his resignation from the force for several reasons including the Brock incident. The district court granted the Defendants' second motion for summary judgment, observing "that the determination of defendant State Police Chief Maldonado that Plaintiff did not [satisfactorily perform his duties] was not arbitrary or capricious." Plaintiff appeals the summary judgment orders.

DISCUSSION

1. Standard of Review

{7} "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. The issue on appeal is whether the [movant] was entitled to a [judgment] ... as a matter of law. We review these legal questions de novo." Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted). "The movant need only make a prima facie showing that he is entitled to summary judgment." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). "Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Id. at 334-35, 825 P.2d at 1244-45. "If the facts are not in dispute, and only their legal effects remain to be determined, summary judgment is proper." Id. at 335, 825 P.2d at 1245. The question of whether statutes create or imply a private right of action is a question of law, also reviewed de novo. See Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶¶ 9-11, 135 N.M. 397, 89 P.3d 69.

2. Private Right of Action Under the POEERA

{8} Plaintiff contends that the district court erred in granting Defendants' motion for summary judgment on his claims under the POEERA because the POEERA provides a private right of action. Plaintiff asserts that his POEERA rights were violated because the polygraph results and the attendant investigation regarding the Brock incident should not be used to deny him reinstatement. He asserts that an unauthorized individual intruded during the polygraph interrogation, he did not receive a copy of the interrogation record or the allegations, and the duration of the interrogation exceeded the statutory limit. Plaintiff requests damages for these violations.

{9} Defendants argue that the POEERA does not explicitly create a private right for police officers to sue DPS in district court. Defendants argue that rather than a private right of action, POEERA prescribes certain administrative rights and remedies for peace officers, particularly when they are under investigation by their employer, DPS. See § 29-14-2; see generally Archuleta v. Santa Fe Police Dep't, 2005-NMSC-006, 137 N.M 161, 108 P.3d 1019 (discussing the administrative procedures, which include the right to appeal to the district court from an administrative decision). Defendants further contend that the rights provided by the POEERA were available to Plaintiff while he was a State Police Officer under investigation, but that Plaintiff never exercised them. We agree with Defendants. We hold that Plaintiff's claim for a private right of action to sue for violation of the POEERA is without merit when we consider both the structure of the administrative rights and remedies set forth in the POEERA and the cases on which Plaintiff relies, all of which are materially distinguishable.

{10} The POEERA has a specific provision that deals with interrogations and polygraph examinations, and it provides officers other rights while they are involved in investigative and administrative matters, including the right to have an accurate copy of the transcript or tape of any...