Flores v. Herrera

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 09:25:29 2016.12.08

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-033

Filing Date: August 18, 2016

Docket No. S-1-SC-35286

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.

ORIGINAL PROCEEDING ON CERTIORARI
Sarah M. Singleton and Raymond Z. Ortiz, District Judges

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

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Law Offices of Michael E. Mozes, P.C.
Michael E. Mozes
Albuquerque, NM

for Respondent Manny Vildasol

OPINION

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 (No.
35,286, Jun. 19, 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.

I. BACKGROUND

{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

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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. 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.

II. ANALYSIS

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A. Standard of Review

{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.

B. The Whistleblower Protection Act

{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).

C. The WPA Does Not Permit a Public Employee to Assert a Claim Against a State
Officer in His or Her Individual Capacity

{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

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 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 suit against the entity.
It is not a suit against the official personally, for the real party in interest is
the entity. Thus, while an award of damages against an official in his
personal capacity can be executed only against the official’s personal assets,
a plaintiff seeking to recover on a damages judgment in an official-capacity
suit must look to the government entity itself. . . . Should the official die
pending final resolution of a personal-capacity action, the plaintiff would
have to pursue his action against the decedent’s estate. In an official-
capacity action . . . , death or replacement of the named official will result in
automatic substitution of the official’s successor in office.

473 U.S. 159, 165-66, 166 n.11 (1985) (internal quotation marks and citations omitted).
This distinction aptly frames the parties’ positions: Flores and Vildasol maintain that
Herrera is liable under the WPA even though she is no longer the Secretary of State and,
therefore, the WPA subjects Herrera to a personal-capacity action. Herrera argues that the
statute creates an official-capacity suit only.

{11} We hold that the WPA does not create a right of action against a current or former
state officer in his or her personal capacity. An abundance of reasons supports this
interpretation. First, the text of the WPA provides no indication that the Legislature intended
to create a personal-capacity officer suit. The New Mexico Legislature knows how to
expressly impose personal liability on a public employee. See, e.g., NMSA 1978, § 41-4-
4(E) (2001) (providing that a state entity has the right to recover from a public employee the
costs of litigation and damages where the public employee acted fraudulently or with actual
malice). And, generally, legislatures know how to expressly create personal-capacity officer
suits. The federal statute creating a civil action for the deprivation of federal rights, 42
U.S.C. § 1983 (2012), offers both a quintessential example of a statute creating a personal-
capacity officer suit and an illustrative counterpoint to the WPA. Section 1983 provides that
“[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be
subjected, any . . . person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured . . . .” 42 U.S.C. § 1983. In Hafer v. Melo, the United States Supreme Court
determined that “[a] government official in the role of personal-capacity defendant . . . fits
comfortably within the statutory term ‘person.’” 502 U.S. 21, 27 (1991). Accordingly, this
Court has expressly stated that “[g]overnment officials can be sued in their individual
capacities for damages under Section 1983 . . . .” Loya v. Gutierrez, 2015-NMSC-017, ¶ 45,
350 P.3d 1155.

{12} In contrast to 42 U.S.C. § 1983, when enacting the WPA, the Legislature provided
no textual indication of any intent to impose personal liability on a state officer. The

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Legislature did not create liability in a “person” who violates the provisions of the WPA.
Cf. 42 U.S.C. § 1983. Rather, Section 10-16C-4(A) creates liability for a “public employer”
who violates the WPA’s substantive provisions, and Section 10-16C-2(C)(4) defines a
“public employer” to include “every office or officer” of any entity of state government.
Those persons who occupy the offices of state government clearly do not act in their
individual capacities when they take actions affecting the employment of public employees.
When a state officer acts as a “public employer,” he or she acts in an official capacity. Thus,
without an express indication to the contrary, when the Legislature created liability in a
“public employer,” § 10-16C-4(A), it created a right of action that runs against a state officer
only in his or her official capacity.

{13} Second, the remedies that Section 10-16C-4(A) provides demonstrate that the WPA
creates an official-capacity suit against state officers. Section 10-16C-4(A) creates two
kinds of remedies—viz., monetary damages and the injunctive relief of reinstatement of a
public employee to his or her former position of employment. The reinstatement remedy
may only be effectuated by an officer acting in his or her official capacity and, therefore,
connotes that Section 10-16C-4(A) creates an action against state officers only in their
official capacities. See N.M. Pharm. Ass’n v. State, 1987-NMSC-054, ¶ 8, 106 N.M. 73, 738
P.2d 1318 (“In interpreting statutes, we should read the entire statute as a whole so that each
provision may be considered in relation to every other part.”). Other state appellate courts
have similarly interpreted the complement of remedies created by analogous whistleblower
statutes to indicate that those statutes do not create individual liability in state officers. E.g.,
Cabinet for Families & Children v. Cummings, 163 S.W.3d 425, 431 (Ky. 2005) (“The fact
that only the Commonwealth or one of its political subdivisions could grant much of the
relief afforded by the Act, i.e., ‘reinstatement of the employee, the payment of back wages,
full reinstatement of fringe benefits and seniority rights, exemplary or punitive damages, or
any combination thereof,’ . . . reinforces this Court’s conclusion that the Legislature did not
intend for policy makers and managers to be individually liable under the Act.” (citation
omitted)); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 669 (Tex. App. 2004)
(“[A]ppellant has no private right of action against any of the appellees in their individual
capacities.”).

{14} Third, to effectuate the remedial purpose of Section 10-16C-4(A), it is simply
unnecessary to interpret the WPA to allow personal-capacity officer suits. Statutory claims
that are available against governmental officials in their personal capacities offer avenues
of relief that circumvent state sovereign immunity. See, e.g., Reames v. Oklahoma ex rel.
Okla. Health Care Auth., 411 F.3d 1164, 1168 (10th Cir. 2005) (“The Eleventh Amendment
does not prevent plaintiffs from bringing suits against state officials . . . in their individual
and personal capacities.”). In the WPA, the Legislature did not choose to preserve New
Mexico’s sovereign immunity from suit while concomitantly allowing a form of relief for
public employees who suffer retaliatory action at the hands of state officers. To the contrary,
in enacting the WPA, the Legislature was manifestly clear that a public employee who
suffers a violation of his or her right against retaliatory action may recover directly from a
state entity. See §§ 10-16C-2(C)(1)-(4), 10-16C-4(A). The WPA expressly permits a public

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employee to seek against “any department, agency, office, institution, board, commission,
committee, branch or district of state government;” “any political subdivision of the state;”
“any entity or instrumentality of the state;” and “every office or officer of any entity” of state
government. See § 10-16C-2(C)(1)-(4). Where, as in the WPA, the Legislature consents to
suit by creating a claim that may be asserted against either state entities or the officers of
those entities, we find no reason to interpret the statute as implicitly authorizing personal-
capacity officer suits. Such an interpretation is unnecessary to effectuate the WPA’s
remedy; the Legislature made it plain that a plaintiff may seek recovery directly from the
State. Thus, should Flores and Vildasol ultimately prove that Herrera violated Section 10-
16C-3, they would recover their respective damages from the Secretary of State’s office.
Flores and Vildasol conceded this point at oral argument.

{15} Flores and Vildasol offer no convincing reason why we should interpret the WPA to
allow them to recover against Herrera’s personal assets. Vildasol suggests that because
Sections 10-16C-2(C)(1)-(4) and 10-16C-4(A) provide for suits against governmental
entities, the inclusion of “officer” in Section 10-16C-2(C)(4)’s definition of “public
employer” is surplusage if not interpreted to authorize a personal-capacity officer suit. We
are unpersuaded.

{16} Section 10-16C-2(C)(4)’s inclusion of the term “officer” has operative effect even
though it does not permit a personal-capacity officer suit. The WPA does not require a
plaintiff to name a state entity as a defendant. Hence, in cases where a plaintiff elects not
to name a state entity as a defendant, the statutory term “officer” in Section 10-16C-2(C)(4)
works to create vicarious liability in a state entity for retaliatory actions taken by officers of
that state entity. The inclusion of the statutory term “officer” in the definition of “public
employer” ensures that a state entity will be liable if an officer of that entity violates the
requirements of the WPA and that a state entity cannot avoid liability merely by arguing that
the retaliatory action taken by an officer is outside the scope of his or her employment. Cf.
Cummings, 163 S.W.3d at 431 (holding that a similar statutory provision in Kentucky’s
whistleblower-protection act was not surplusage because it “ensure[d] that the
Commonwealth . . . will be liable if . . . managers take actions later to be found a violation
of the Act, but also to ensure that the Commonwealth . . . cannot avoid liability by arguing
that a . . . manager acted outside the scope of his or her employment”). Therefore, this Court
is not required to read the WPA as allowing suits against state officers in their personal
capacities in order to ensure that the statutory term “officer” has operative effect.

{17} Vildasol also contends that if the WPA only allowed for official-capacity officer
suits, then a state officer’s departure from public employment would preclude a plaintiff’s
relief. We disagree. If a state officer who is named as a defendant in a WPA suit dies or
leaves office pending the final resolution of the plaintiff’s action, the defendant’s departure
from public office would merely result in an automatic substitution of his or her successor
in office, and the plaintiff’s suit would proceed against the current officer. See Rule 1-
025(D)(1). If the state officer responsible for the retaliatory action dies or leaves office
before the plaintiff commences suit on a WPA claim, then the plaintiff may seek relief from

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the state entity for which the officer served, so long as the action is brought within two years
of the retaliatory action. See § 10-16C-6. Accordingly, we disagree with Vildasol’s
contention that if the WPA did not allow personal-capacity officer suits, its purpose to
encourage governmental employees to report illegal or improper conduct would be
undermined. The remedies provided for by Section 10-16C-4(A) guarantee against a
prospective whistleblower’s fear of retaliation, and we need not read the WPA to allow a
plaintiff to recover against a state officer’s personal assets to ensure the availability of those
remedies.

{18} Moreover, to interpret the WPA to allow a plaintiff to seek recovery against a state
officer’s personal assets could entail undesirable consequences for the operation of state
government. Such an interpretation could subject state officers to burdensome and
distracting litigation, which, as the Tenth Circuit has noted in other contexts, “could lead to
undesirable ex ante effects . . . [including] a general disaffection with public service, rooted
in the calculation that its costs simply outweigh its benefits.” Pahls v. Thomas, 718 F.3d
1210, 1227 (10th Cir. 2013). Because statutes that impose individual liability on state
officers threaten detrimental effects for the operation of state government, when the
Legislature has elected to create such personal liability, it has done so explicitly. See § 41-4-
4(E). In enacting the WPA, the Legislature did not expressly authorize suits against state
officers in their personal capacities, and we find no reason to impute such an intention to the
statute.

III. CONCLUSION

{19} The WPA does not allow a plaintiff to sue a state officer in the officer’s personal
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. In Flores’s case, we instruct the 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). In Vildasol’s case,
we instruct the 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.

{20} IT IS SO ORDERED.

____________________________________
JUDITH K. NAKAMURA, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

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____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice

____________________________________
C. SHANNON BACON, Judge, sitting by designation

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