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.
No. 31,090
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
December 19, 2012
2013-NMCA-037
Certiorari Granted, March 1, 2013, No. 34,006
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge
Bach &
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,
{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
{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. (citation omitted).
{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
- any department, agency, office, institution, board, commission, committee, branch or district of state government;
- any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived;
- any entity or instrumentality of the state specifically provided for by law; and
- every office or officer of any entity listed in Paragraphs (1) through (3) of this subsection[.]
{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
{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
{13} In Lacy, we considered whether the district director for the state Bureau of Revenue, who was appointed by and worked under the commissioner of the bureau, was a public officer. We noted that “although authority and responsibility had been delegated to” the district director, his decisions were subject to being “countermanded” by the Commissioner of the Bureau of Revenue. Lacy, 84 N.M. at 45. We held that the district director was not a public officer because “the district director [was] not free from control by the Commissioner, [was] not autonomous[,] and [was] not independent.” Id. By contrast, in Pollack our Supreme Court ruled that the chief of Division of Liquor Control for the state was a public officer, noting that the position was specifically created by statute. 55 N.M. at 395. The Court concluded that “when this office with powers and duties of state[-]wide scope has been created by law and an incumbent is lawfully appointed to and qualifies to fill the same, such person is a state officer.” Id.
{14} We look to the record to evaluate the positions held by Defendants. Together with their motion for summary judgment, Defendants filed affidavits about their jobs and employment duties together with documents containing their job descriptions, the organizational structure of the Metropolitan Court, and the organizational structure of the probation supervision division office. The information demonstrates that Marshall, as program manager for Metropolitan Court, supervised probation officers, and Padilla oversaw the Background Investigations Division and was the liaison between the court and the MDC. Both were heads of departments or offices within the judicial branch of state government, with supervisory duties and the power to direct the work environment of the employees they supervised. However, Defendants’ job descriptions stated that they were to work “[u]nder administrative direction[,]” holding positions that are at least one layer below that of any officer or officers for Metropolitan Court in Bernalillo County. They thus were not autonomous and independent in their duties and decision making and were not free from the ultimate decision-making authority of their superiors. In addition, their positions are not specifically created by statute. And there is no evidence that “supreme power or freedom from external control has been vested in” them. Lacy, 84 N.M. at 45. Accordingly, we conclude that Defendants are more like the district director in Lacy than the chief of Division of Liquor Control in Pollack.
{15} Plaintiff relies on another case, New Mexico Regulation & Licensing Department v. Lujan, 1999-NMCA-059, ¶ 12, 127 N.M. 233, 979 P.2d 744, for the proposition that the term “employer” incorporates within its meaning “the hiring and firing of . . . employees.” We agree that, according to the affidavits, Defendants hold supervisory positions that involve the hiring, firing, and evaluation of employees. Lujan, however, is not on point. In Lujan, we were interpreting the State Personnel Act, which defines “employer” more broadly than the WPA as “any authority having power to fill positions[] in an agency[.]”
{16} We next look to New Mexico statutes for guidance. Plaintiff points to companion statutes governing the conduct of public officers and employees—the Governmental Conduct Act (GCA),
{17} First, we observe that both the GCA and the FDA prescribe one course of conduct for all those who work for the state, from low-ranking employees to supervisors to heads of departments and agencies. See
{18} Second, neither the GCA nor the FDA includes a definition of “public officer” separate from that of “employee“; rather both statutes provide an umbrella definition of “public officer or employee,” lumping together all levels of personnel. The GCA defines a “public officer or employee” as “any elected or appointed official or employee of a state agency or local government agency who receives compensation in the form of salary or is eligible for per diem or mileage but excludes legislators[.]”
{19} In sum, the GCA and FDA have broader, more uniform application than does the WPA, and they offer definitions of “public officer” that are imprecise and structurally different in content. Thus, the WPA does not fit well with the companion statutes when it comes to interpreting the definition of “public employer” or “officer” under the Act.
{20} We conclude that Defendants are not officers as contemplated by the definition of “public employee” under the WPA. Our analysis is guided by the principle that the Legislature is fully aware of both statutory and common law when crafting statutes. See Attorney Gen. v. N.M. Pub. Regulation Comm‘n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453 (presuming that “the [L]egislature act[s] with full knowledge of relevant statutory and common law” (internal quotation marks and citation omitted)). “Courts normally assume that the Legislature is informed as to existing statutory and common law when it acts.” Galassi v. Galassi, 2009-NMCA-026, ¶ 15, 145 N.M. 630, 203 P.3d 161; see also Benavidez v. Sierra Blanca Motors, 1996-NMSC-045, 122 N.M. 209, 213, 922 P.2d 1205, 1209 (“We presume that the Legislature is well informed regarding existing statutory and common law and does not intend to enact a nullity.“); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 474, 853 P.2d 722, 725 (1993) (stating that “the [L]egislature is presumed to act with knowledge of relevant case law“); State v. Trujillo, 1999-NMCA-003, ¶ 12, 126 N.M. 603, 973 P.2d 855 (“We presume that the Legislature is aware of reported New Mexico court decisions when it enacts legislation.“).
{21} Plaintiff argues and we agree that whistleblower laws in general “are meant to encourage employees to report illegal practices without fear of reprisal by their employers.” Haley v. Retsinas, 138 F.3d 1245, 1250 (8th Cir. 1998) (“These statutes generally use
{22} Relieving Defendants of liability in this case still leaves Plaintiff with a cause of action, although not against Defendants individually. We conclude as a matter of law that Defendants are not “public employers” for purposes of the WPA and that the district court‘s grant of summary judgment was proper.
III. CONCLUSION
{23} We share the Dissent‘s concern that our Opinion absolves of liability supervisors who are not officers. However, the determination of who exactly is to be liable is made by the Legislature as set out in statute, and here the Legislature declined to extend liability to all employees but rather confined liability to an “office or officer.”
{24} For the foregoing reasons we affirm the district court‘s grant of summary judgment in favor of Appellees.
{25} IT IS SO ORDERED.
CELIA FOY CASTILLO, Chief
I CONCUR:
J. MILES HANISEE, Judge
CYNTHIA A. FRY, Judge, dissenting
FRY, Judge (dissenting).
{26} This case presents the first opportunity for any New Mexico appellate court to address the WPA, which was enacted in 2010. Because no appellate court has previously addressed this legislation, our first responsibility is to determine the Legislature‘s overarching purpose in enacting it. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994) (explaining that “it is part of the essence of judicial responsibility to search for and effectuate the legislative intent—the purpose or object—underlying the statute“). In my view, the Majority has overlooked this touchstone of statutory interpretation and engaged in an overly technical analysis of one portion of the WPA‘s definition section. In the process, the Majority does not mention the obviously remedial purpose of the WPA as a whole. I respectfully dissent because if we consider the WPA in light of its purpose, Defendants Marshall and Padilla are “public employers” potentially subject to liability for their allegedly retaliatory acts against Plaintiff.
{27} The WPA is a succinct statute whose purpose is apparent. It provides that “[a] public employer shall not take any retaliatory action against a public employee” for certain “whistleblower“-type conduct the employee engages in.
{28} It should be with this underlying purpose in mind that we consider the definition of “public employer” in order to determine whether Plaintiff appropriately asserted claims against Defendants Marshall and Padilla.
{29} In determining what individuals the Legislature intended to target through its use of the term “officer,” we should consider the circumstances likely to give rise to a claim under the WPA. The present case provides an example. Assuming Plaintiff can prove the allegations of her complaint, she reported what she believed in good faith to be misconduct by a probation officer. Defendants Marshall and Padilla complained to Plaintiff‘s immediate supervisor about Plaintiff‘s report of misconduct, and Marshall told the supervisor that he wanted Plaintiff to be terminated. As a result, the board of county commissioners ultimately terminated Plaintiff.
{30} These events, if proved, constitute retaliation prohibited by the WPA. Yet, under the Majority‘s analysis, Defendants Marshall and Padilla—the instigators of the retaliatory conduct—cannot be held liable. Under the Majority‘s analysis, the only individuals employed by the Metropolitan Court who could possibly be held liable for retaliatory conduct are those who have been delegated “a portion of the sovereign power of government.” Majority Opinion, ¶ 12 (quoting Lacy, 84 N.M. at 45, 499 P.2d at 363). In reality, given the fact that a mere handful of the people who work at Metropolitan Court have been delegated sovereign power, it is more likely that retaliatory conduct would come from someone farther down the chain of command. In such cases, the vindictive individuals who actually retaliate would be immune.
{31} This cannot be what the Legislature intended in enacting the WPA. Although the retaliatory entities can certainly be held liable, as noted by the Majority, holding entities liable does little to deter the individual vindictive conduct that gives rise to retaliatory termination. In addition, holding only the
{32} Thus, we should consider the term “officer” in the context of the protective and deterrent purposes underlying the WPA. See Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 31, 142 N.M. 437, 166 P.3d 1091 (explaining that remedial statutes should be interpreted liberally). The Majority chooses not to take this approach and instead relies on case law interpreting “state officer” as that term is used in a venue statute. See Lacy, 84 N.M. at 44, 499 P.2d at 362. This reliance on the venue statute for guidance seems inapposite because a survey of New Mexico statutes reveals several examples of contrary definitions that might be utilized to interpret “public employer” or “officer” in a vacuum rather than in the context of the WPA. For instance, the definition of “public officer” in the Public Records Recovery Act expressly includes mere employees.
{33} Obviously, the Public Records Recovery Act and the Metropolitan Redevelopment Code have nothing to do with the WPA, but neither does the venue statute upon which Lacy and the Majority rely. We should not limit our focus to the bare words “public employer” and “officer” such that we simply seek similar words in completely dissimilar contexts at the expense of legislative intent. See Bishop v. Evangilical Good Samaritan Soc., 2009-NMSC-036, ¶ 11, 146 N.M. 473, 212 P.3d 361 (stating that “[w]e must also consider the practical implications and the legislative purpose of the statute, and when the literal meaning of a statute would be absurd, unreasonable, or otherwise inappropriate in application, we go beyond the mere text of the statute“). Because I believe the Legislature intended to impose liability on individuals such as Defendants Marshall and Padilla if they are found to have engaged in retaliatory conduct, I respectfully dissent.
CYNTHIA A. FRY, Judge
Topic Index for JaNet v. Marshall, No. 31,090
APPEAL AND ERROR
Remand
Standard of Review
CIVIL PROCEDURE
Summary Judgment
EMPLOYMENT LAW
Termination of Employment
GOVERNMENT
Officers
Public Employees
MISCELLANEOUS STATUTES
Whistleblower Protection Act
STATUTES
Interpretation
Legislative Intent