April 07, 2015 – James Flores v. Mary Herrera, individually, as as Secretary of State of the State of New Mexico, No.32,693 and Manny Vildasol v. State of New Mexico Secretary of State’s Office and Mary Herrerra, No. 33,413

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 7, 2015

NO. 32,698

JAMES FLORES,
Plaintiff-A ppellant,

V.

MARY HERRERA, individually and as
Secretary of State of the State of New Mexico,

Defendant- Appellee,
and
NO. 33,413
MANNY VILDASOL,
Plaintiff-A ppellee,
V.
STATE OF NEW MEXICO,
SECRETARY OF STATE’S OFFICE
and MARY HERRERA,

Defendants-A ppellants.

APPEALS FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge (No. 32,693)
Raymond Z. Ortiz, District Judge (No. 33,413)
Garcia Ives Nowara
Matthew L. Garcia
Albuquerque, NM
for Appellant Flores
Cuddy & McCarthy, LLP
M. Karen Kilgore
Evelyn A. Peyton
Santa Fe, NM
for Appellee (No. 32,693)
Law Offices of Michael E. Mozes, P.C.
Michael E. Mozes
Albuquerque, NM
for Appellee Vildasol
Hinkle Shanor LLP
Ellen S. Casey
Jaclyn M. McLean
Loren S. Foy
Santa Fe, NM
for Appellants (No. 33,413)

OPINION
SUTIN, Judge.
{1} 	We address two appeals that raise issues concerning the scope of the
Whistleblower Protection Act (the Act), NMSA 1978, §§ 10-16C-1 to -6 (2010).
During her term as Secretary of State, Defendant Mary Herrera terminated the
employment of James Flores and Manny Vildasol. Separately, Mr. Flores and Mr.
Vildasol sued Ms. Herrera claiming that, in relevant part, by terminating their
employment, Ms. Herrera violated the Act. The two cases were decided by different
district judges sitting in the First Judicial District. Ms. Herrera lost the general election
in November 2010 and left office at the end of 2010. Mr. Flores filed his lawsuit
December 22, 2010. Mr. Vildasol filed his lawsuit in April 2011, after Ms. Herrera
had left office. In Cause No. 32,693, Mr. Flores appeals the district court’s dismissal
of his lawsuit. Cause No. 33,413 is an interlocutory appeal in which Ms. Herrera
appeals the district court’s denial of her motion to dismiss Mr. Vildasol’s lawsuit
against her, individually.
{2} 	At issue is whether Ms. Herrera may be sued pursuant to the Act in her
“individual capacity.” We conclude that Ms. Herrera’s status as a former officer does
not exclude her from the purview of the Act. We further conclude that she may be
sued pursuant to the Act in her individual capacity. Accordingly, we affirm the district

1 The protected activity is set out in Section 10-16C-3 and consists of
communicating “to the public employer or a third party information about an action
or a failure to act that the public employee believes in good faith constitutes an
unlawful or improper act”; providing information to or testifying before “a public
body as part of an investigation, hearing[,] or inquiry into an unlawful or improper
act”; or objecting to or refusing “to participate in an activity, policy[,] or practice that
constitutes an unlawful or improper act.”
court’s order denying Ms. Herrera’s motion to dismiss Mr. Vildasol’s claim under the
Act, and we reverse the district court’s order dismissing Mr. Flores’s claim under the
Act.
BACKGROUND
{3} 	Section 10-16C-3 provides that “[a] public employer shall not take any
retaliatory action against a public employee because the public employee” engaged
in specified protected activity1. The Act defines a “public employee” as “a person who
works for or contracts with a public employer[.]” Section 10-16C-2(B). A “public
employer” includes “every office or officer” within “state government[.]” Section 10-
16C-2(C)(1), (4).
{4} 	A public employer that violates the Act
shall be liable to the public employee 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. In addition, an employer shall be required to pay the litigation
costs and reasonable attorney fees of the employee.
Section 10-16C-4(A).

{5} 	Ms. Herrera served as Secretary of State from January 2007 through December
2010. Mr. Flores worked as Ms. Herrera’s public information officer from January
2007, when Ms. Herrera took office, until September 2010, when Ms. Herrera
terminated his employment. Mr. Vildasol was appointed by Ms. Herrera to the
position of office administrator in January 2007. Ms. Herrera terminated Mr.
Vildasol’s employment in September 2010. The details underlying Mr. Flores’s and
Mr. Vildasol’s respective terminations are not relevant to this appeal, except to say
that each of them claimed that their employment was terminated in retaliation for
having, in good faith, reported to the FBI and, in Mr. Vildasol’s case, to other
authorities, what they perceived as criminal activity by Ms. Herrera and the Office of
the Secretary of State.
{6} 	Mr. Flores filed a complaint against Ms. Herrera “individually and as Secretary
of State” for having violated the Act. Mr. Vildasol filed a complaint against the
Secretary of State’s Office and Ms. Herrera claiming, in relevant part, that the
Secretary of State’s Office and Ms. Herrera had violated the Act.
{7} 	In each case, Ms. Herrera moved to dismiss the complaint for lack of subject
matter jurisdiction, claiming that she could not be sued in her individual capacity for
violating the Act, and also claiming that because she was no longer Secretary of State
she could not be sued in her official capacity. The district court in Mr. Flores’s case
granted Ms. Herrera’s motion to dismiss on the ground that it lacked subject matter

jurisdiction over the complaint because Ms. Herrera was no longer Secretary of State.
The court further reasoned that Mr. Flores could not recover against Ms. Herrera in
her individual capacity because “such recovery is inconsistent with the statute which
protects ‘public’ employees from the acts of their ‘public’ employers.” As to Mr.
Vildasol’s complaint, the district court denied Ms. Herrera’s motion to dismiss.
{8} 	On appeal, Mr. Flores argues that the district court erroneously differentiated
between Ms. Herrera’s individual and official capacities which, according to Mr.
Flores, in the context of the Act is a meaningless distinction. Additionally, he argues
that, contrary to the district court’s interpretation, the Act applies to former public
officials and that the district court’s narrow interpretation of the Act was inconsistent
with the liberal construction afforded to whistleblower statutes, generally.
{9} 	In her appeal from the court’s denial of her motion to dismiss Mr. Vildasol’s
lawsuit, Ms. Herrera argues that the Act does not permit claims against former
officers, generally, nor does it permit claims against them in their individual capacity.
Additionally, Ms. Herrera argues that because Mr. Vildasol does not now, nor did he
ever, qualify as a “public employee” who “works for or contracts with a public
employer[,]” he was ineligible to bring a lawsuit pursuant to the Act.
{10} 	We conclude that notwithstanding the fact that Ms. Herrera is a former officer,
the Act permits an individual-capacity lawsuit against her for allegedly violating the
Act while she was in office. We reject Ms. Herrera’s argument that Mr. Vildasol was

not a public employee. We reverse the district court’s dismissal of Mr. Flores’s
complaint, and we affirm the district court’s order denying Ms. Herrera’s motion to
dismiss Mr. Vildasol’s complaint.
DISCUSSION
Subject Matter Jurisdiction Is Not an Issue in These Appeals
{11} 	At the outset, before we discuss the arguments raised by the parties, we address
Ms. Herrera’s and, in Mr. Flores’s case, the district court’s invocation of subject
matter jurisdiction as a basis for dismissal of these matters. Pursuant to Rule 1-
012(B)(1) NMRA, a party may move to dismiss a complaint for a lack of subject
matter jurisdiction. “Subject matter jurisdiction” is the “power or authority to decide
the particular matter presented.” Sundance Mech. & Util. Corp. v. Atlas, 1990-NMSC-
031, ¶ 12, 109 N.M. 683, 789 P.2d 1250 (internal quotation marks and citation
omitted). The district court is vested with the power and authority to decide claims
arising under the Act. Section 10-16C-4(A) (“An employee may bring an action
pursuant to this section in any court of competent jurisdiction.”); see also N.M. Const.
art. VI, §§ 1, 13 (vesting the district court with the judicial power of the state and
stating that the district court has original jurisdiction over all matters not excepted
within the Constitution).
{12} 	Having reviewed Ms. Herrera’s motions to dismiss, we conclude that,
notwithstanding her use of the phrase “subject matter jurisdiction,” the issue raised in

the dismissal motions was actually whether, pursuant to Rule 1-012(B)(6), Mr. Flores
and Mr. Vildasol stated claims under the Act upon which relief could be granted.
Similarly, although the district court’s dismissal of Mr. Flores’s case was ostensibly
premised upon Rule 1-012(B)(1), the court’s reasoning clearly invoked Rule 1-
012(B)(6). A party’s failure to state a claim upon which relief can be granted has no
effect upon a court’s subject matter jurisdiction. See Sundance Mech. & Util. Corp.,
1990-NMSC-031, ¶ 15. In sum, we conclude that the use of the phrase “subject matter
jurisdiction” in the context of these cases was a misnomer, and Rule 1-012(B)(1) has
no bearing on the issues now before us.
Standard of Review
{13} 	“A motion to dismiss for failure to state a claim under Rule 1-012(B)(6) . . .
tests the legal sufficiency of the complaint[.]” Cordova v. Cline, 2013-NMCA-083,
¶ 18, 308 P.3d 975, cert. granted, 2013-NMCERT-007, 308 P.3d 134. Dismissal
under Rule 1-012(B)(6) “is proper only when the law does not support a claim under
the facts presented.” Vigil v. State Auditor’s Office, 2005-NMCA-096, ¶ 4, 138 N.M.
63, 116 P.3d 854. We review de novo the district court’s decision to grant or deny a
motion to dismiss, and in so doing, we accept all well-pleaded factual allegations as
true. Id.
{14} 	As well, issues of statutory construction present legal questions that we review
de novo. Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1. Finally, because

2 Section 10-16C-2(C)(1), (4) defines a “public employer” as “every . . .
officer” within “state government[.]”
the Act reflects a remedial purpose, we construe its provisions “liberally to facilitate
and accomplish its purposes and intent.” Lohman v. Daimler-Chrysler Corp., 2007-
NMCA-100, ¶ 31, 142 N.M. 437, 166 P.3d 1091 (internal quotation marks and
citation omitted); Janet v. Marshall, 2013-NMCA-037, ¶¶ 26, 32, 296 P.3d 1253 (Fry,
J., dissenting) (recognizing that the provisions of the Act are remedial), cert.
dismissed, 2013-NMCERT-005, 302 P.3d 1163.
Ms. Herrera Is an “Officer”
{15} 	Ms. Herrera argues that a “former officer” is not a “public employer” as that
phrase is defined in the Act. She supports this proposition by reasoning that the Act
uses the present tense version of the term “officer” in Section 10-16C-2(C)(4) 2
. In
addition, she argues that because she no longer possesses any “sovereign power,” she
does not qualify as “an officer.” Finally, Ms. Herrera contends that Section 10-16C-
4(A) establishes that the Legislature intended to exclude former officers from the
purview of the Act. That section provides that public employers that violate the Act
“shall be liable to the public employee for . . . reinstatement with the same seniority
status that the employee would have had but for the violation,” which, obviously, a
former officer would not be capable of doing.

{16} 	Building on the premise that the Act does not permit lawsuits against former
officers, Ms. Herrera argues that the Act only permits lawsuits against officers in their
“official capacity.” Relatedly, relying on the language of the Act, she contends that
the Act does not allow lawsuits to be brought against former officers in their
individual capacity.
{17} 	In Section 10-6C-6, the Legislature provided the single limitation on the time
within which lawsuits may be brought pursuant to the Act, that is, within two years
from the date of the alleged violation. Had the Legislature intended to further limit the
scope of the Act to officials who are presently in office, it could have done so
explicitly. Ms. Herrera’s attempt to infer an additional time limitation from the
Legislature’s use of the term “officer” to define a public employer is overly narrow
and technical and does not accord with our policy of construing remedial statutes
liberally. It is indisputable that Ms. Herrera’s alleged retaliatory action that prompted
these lawsuits occurred when she was an “officer” possessed of “a delegation of a
portion of the sovereign power of government, to be exercised for the benefit of the
public.” Janet, 2013-NMCA-037, ¶ 12 (internal quotation marks and citation omitted);
see NMSA 1978, § 1-2-1(A) (2011) (“The secretary of state is the chief election
officer of the state[.]”).
{18} 	Further, Ms. Herrera’s argument that the Legislature intended to limit the
window for filing a lawsuit under the Act because former officials lack the authority

to reinstate terminated employees is also overly narrow and technical. In making this
argument, Ms. Herrera overlooks the numerous other remedies that are available to
a successful plaintiff pursuant to the Act and that do not require official authority,
including the back pay and special damages remedies. See § 10-16C-4(A) (“A public
employer that violates the provisions of the . . . Act shall be liable to the public
employee for actual damages, . . . 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.”). Additionally, Ms. Herrera’s argument assumes that the only actionable
conduct under the Act is employment termination or demotion when, in fact, the Act
broadly prohibits “any retaliatory action” against whistleblowers. Section 10-16C-3.
{19} 	In sum, construing the Act broadly, we conclude that the Act does not limit
actions against officers to those who are presently in office at the time the action is
filed. The only limitation on the time for filing a lawsuit under the Act is found in
Section 10-6C-6, and we decline to add additional time limitations not provided for
in the Act.
The Act Permits Lawsuits Against Officers in Their Individual Capacity
{20} 	The distinction between “official” and “individual” capacity lawsuits was
explained by this Court in Ford v. New Mexico Department of Public Safety, 1994-
NMCA-154, ¶ 18, 119 N.M. 405, 891 P.2d 546. We explained that a lawsuit “against
a state official in her official capacity” is merely a way of suing “an entity of which

3 We note that it is an open question, raised tangentially by Mr. Flores’s brief
in chief whether Ms. Herrera’s defense of these lawsuits and any potential judgments,
costs, or fees will be covered by the Office of the Secretary of State or by an insurance
policy purchased through the public liability fund pursuant to the Tort Claims Act,
NMSA 1978 §§ 41-4-1 to -30 (1976, as amended through 2013). See, e.g., § 41-4-
3(F)(1); § 41-4-4(B)(2) (providing that, unless an insurance policy that is purchased
with the public liability fund provides a defense, a governmental entity must do so for
any elected official when liability is sought for a violation of New Mexico law
“alleged to have been committed by the [elected official] while acting within the scope
of [her] duty”); § 41-4-23(B)(2); § 41-4-4(G) (“The duty to defend . . . continue[s]
after employment with the governmental entity has been terminated if the occurrence
for which damages are sought happened while the [elected official] was acting within
an officer is an agent.” Id. (internal quotation marks and citation omitted). The
purpose of such a lawsuit is to remedy a wrongful deprivation caused by an “entity’s
policy or custom[.]” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal
quotation marks and citation omitted) (distinguishing personal-capacity and official-
capacity claims in federal civil rights actions). Thus, when an officer who is sued in
her official capacity leaves office, the official’s successor in office automatically
assumes her official role in the litigation. Rule 1-025(D)(1) NMRA; Ford, 1994-
NMCA-154, ¶ 18.
{21} 	On the other hand, when a state official is sued for her own misconduct in
office, “the defendant is the individual, not the office[,]” and when she leaves office,
her successor “is not substituted as the defendant in the litigation.” Ford, 1994-
NMCA-154, ¶ 19. Generally, “an award of damages against an official in [her]
personal capacity can be executed . . . against the official’s personal assets[.]” 3

the scope of duty while the [elected official] was in the employ of the governmental
entity.”). Because the district court’s orders in these cases did not decide this issue,
it is not properly before this Court on appeal, and we do not address it. We encourage
the parties and the district court on remand to consider the effect, if any, of the
seemingly relevant provisions of the Tort Claims Act upon Ms. Herrera’s financial
responsibility for the litigation of these cases.
Graham, 473 U.S. at 166. Because Mr. Flores’s and Mr. Vildasol’s claims against Ms.
Herrera are premised upon her alleged misconduct in office, namely, the act of
terminating their employment in retaliation for their whistleblowing activities, Ms.
Herrera was properly named individually as a defendant and sued in her personal
capacity in their lawsuits.
{22} 	Ms. Herrera argues that, had the Legislature intended to allow individual
capacity lawsuits, it would not have used the term “officer” to define a public
employer, but instead, it would have used the term “person” or “individual” as it did
in other legislation, including the New Mexico Human Rights Act and the New
Mexico Tort Claims Act. See NMSA 1978, § 28-1-2(B) (2007) (defining an
“employer” as that term is used in the Human Rights Act as “any person employing
four or more persons and any person acting for an employer”); § 41-4-3(F)(3), (9)
(using the terms “persons” and “individuals” in enumerating those to whom the
definition of “public employee” applies in the context of the Tort Claims Act). We do
not agree with Ms. Herrera’s reasoning.

{23} 	Had the Legislature intended in the Act to preclude “individual capacity”
lawsuits against officers, it could have done so by altogether omitting the term
“officer” from the definition of “public employer” in Section 10-16C-2(C)(4). This
would have permitted Plaintiffs to file lawsuits against the “office” while prohibiting
lawsuits against officers in their individual capacity for their alleged retaliatory
actions against whistleblowers. Cf. Ford, 1994-NMCA-154, ¶¶ 18-19 (indicating that
official-capacity lawsuits “should be treated as a suit against the [s]tate[,]” whereas
individual-capacity lawsuits implicate an individual’s misconduct in office (internal
quotation marks and citation omitted)). By expressly including every “officer” within
the definition of a “public employer,” however, the Legislature expressed its intention
to permit individual-capacity lawsuits against such officers. See Janet, 2013-NMCA-
037, ¶¶ 1, 11, 23 (recognizing that “[t]he language in Section 10-16C-2(C) includes
entities as well as any officer of any of those entities[,]” thus, the question whether the
defendants could be sued individually depended upon whether they were officers and
recognizing that the Act holds “officers” liable for violations). To interpret the Act as
prohibiting an individual-capacity lawsuit against an officer would be tantamount to
concluding that the term “officer” in Section 10-16C-2(C)(4) was superfluous. This
we will not do. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 24, 309 P.3d 1047 (stating
that an appellate court “must interpret a statute so as to avoid rendering the
Legislature’s language superfluous”).

Mr. Vildasol Was a Public Employee
{24} 	We turn now to Ms. Herrera’s argument that Mr. Vildasol “is not and was not
a ‘public employee’ who ‘work[ed] for or contract[ed] with’ former Secretary of State
Herrera within the meaning of the [Act].” As noted earlier, the Act provides that
“every office or officer of any” state government office constitutes a “public
employer[,]” and a “public employee” is “a person who works for . . . a public
employer[.]” Section 10-16C-2(B), (C)(1), (4). Further, the Act prohibits a “public
employer” from taking “any retaliatory action against a public employee” for the
enumerated whistleblowing actions listed in Section 10-16C-3.
{25} 	In an attempt to insert ambiguity into the Act, Ms. Herrera attempts to exploit
the fact that the Legislature did not define the phrase “works for” to support the
assertion that she cannot be named as a defendant in Mr. Vildasol’s lawsuit. To that
end, she argues that Mr. Vildasol was employed and paid by the State, not by her, and
the fact that she “may have acted as Mr. Vildasol’s supervisor at various points during
his employment at the [Secretary of State’s Office], does not change the reality that
Mr. Vildasol was, at all times, an employee of the State of New Mexico, and not of
Ms. Herrera’s.”
{26} 	As discussed earlier, there is no question that, as the Secretary of State, Ms.
Herrera was an “officer” within the meaning of the Act. Assuming, as we must, the
truth of the factual allegations in Mr. Vildasol’s complaint, Ms. Herrera appointed Mr.

Vildasol to his position as the office administrator for the Office of the Secretary of
State, she controlled his duties and the extent of his authority during his tenure in her
office, and she ultimately terminated his employment. In light of these facts, it would
strain common sense to conclude that Mr. Vildasol did not “work for” Ms. Herrera.
{27} 	In summary, we conclude that Ms. Herrera was subject to the provisions of the
Act notwithstanding the fact that she was no longer the Secretary of State shortly after
Mr. Flores’s complaint and prior to Mr. Vildasol’s complaint. And we conclude that
Ms. Herrera could be sued in her individual capacity for allegedly violating the Act
during her term as Secretary of State. Relating to Mr. Vildasol’s claim, we reject Ms.
Herrera’s argument that she was not Mr. Vildasol’s “public employer” or that he was
not her “public employee” for purposes of the Act.
{28} 	Accordingly, we conclude that (1) the district court properly denied Ms.
Herrera’s motion to dismiss Mr. Vildasol’s lawsuit under the Act, and (2) the district
court erred in dismissing Mr. Flores’s lawsuit under the Act.
CONCLUSION
{29} 	The district court’s order granting Ms. Herrera’s motion to dismiss Mr. Flores’s
case is reversed. The district court’s order denying Ms. Herrera’s motion to dismiss
Mr. Vildasol’s case is affirmed. The matters are remanded for further proceedings.
{30} 	IT IS SO ORDERED.

WE CONCUR:

JONATHANB. SUTIN, Judge

RODERICK T. KENNEDY, J udge

LINDA M. VANZI, Judge