¶ 1 In this defamation case, the superior court entered summary judgment in favor of the defendant based on the plaintiffs failure to comply with the notice of claim statute, Arizona Revised Statutes (A.R.S.) section 12-821.01. We hold that because § 12-821.01 applies to all actions brought against public employees related to acts within the scope of their employment, and the undisputed evidence established that this is such an action, the plaintiffs failure to comply with § 12-821.01 warranted summary judgment. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2013 and 2014, Joseph Villasenor worked as a consultant and lobbyist for a developer that faced public opposition related to its efforts to obtain a zoning change from the Flagstaff City Council and build a multifamily residential student housing project. Coral J. Evans, an elected member of the Council and the Vice Mayor, had conversations with Villasenor about the project and held a meeting that she, Villasenor, and a community organizer attended. A local newspaper later published an article about the meeting. In response to the article, Evans sent an e-mail to the newspaper asking it to publish a follow-up story to correct what she perceived as misinformed reporting. She included a forwarded copy of an e-mail she had received from the community organizer, and she described that e-mail as “a very fair accounting of what happened in [the] meeting.”
¶ 3 Villasenor brought a defamation action against Evans related to statements in her email and the e-mail she forwarded, Evans moved for summary judgment based on Vil-lasenor’s failure first to serve a notice of claim under A.R.S. § 12-821.01.
¶4 Villasenor does not dispute that he failed to serve a notice of claim under § 12-821.01. He also does not dispute that Evans was a Councilmember and the Vice Mayor, that his employer’s project had engendered public controversy, that the proposed zoning change was set for a Council vote, or that Evans had communicated with him about the project and arranged the meeting. He argues, however, that he was not required to comply with § 12-821.01 because Evans either was not a public employee or had acted outside the scope of her public employment.
¶ 5 In support of his first contention, Vil-lasenor argued that under A.R.S. § 12-820 and various sections of the Flagstaff City Code, Evans was a City “officer” rather than a City “employee.” In support of his second contention, Villasenor argued that Evans had presented insufficient evidence to show that she had acted within the scope of her public employment.
¶ 6 Evans replied and presented evidence that the City was paying for her defense and that no City policy prohibited her from using a personal electronic device or e-mail account to conduct City business.
¶ 7 The court concluded that Evans was a public employee under § 12-820 and that there existed no genuine issue of fact regarding whether she acted within the scope, course, or furtherance of her public employment. The court held:
The record is devoid of any facts which would support the bald assertion that [Evans] was acting in her individual capacity, [or on] behalf of a community organization, when she met with [Villasenor] and his client, or when she later forwarded the email. On the other hand, the record is replete with facts which support the conclusion that [Evans] was acting in furtherance of the public interest, and within the course and scope of her employment as the Vice-Mayor....
The court held that Evans’s organization of the meeting was “exactly the type of action a Vice-Mayor would normally engage in” for the purposes of “informing] the public about an issue of public importance” and “facili-tat[ing] the exchange of ideas and information between the public and the developer.” The court further held that Evans’s post-meeting e-mail, which she signed as “Vice Mayor,” served the purpose of “insuring] that the public received accurate information about the project.” The court characterized Evans’s position as executive director of a neighborhood association as “nothing more than a red-herring” in view of the absence of any evidence of a connection between that association and the proposed project, and the court ascribed no significance to her use of a personal electronic device and e-mail account. The court finally noted that “even if [Evans] had served her own personal interests in forwarding the email, the outcome would not change” under Dube v. Desai,
¶ 8 Villasenor timely appeals.
DISCUSSION
¶ 9 We review the grant of summary judgment de novo, taking the evidence and all reasonable inferences in the light most favorable to the nonmovant. Andrews v, Blake,
I. EVANS IS A PUBLIC EMPLOYEE.
¶ 10 Villasenor first contends that he was not required to comply with § 12-821.01 because Evans, as an elected official, is not a “public employee” under the definitions prescribed by § 12-820.
¶ 11 Section 12-821.01(A) provides that
[p]ersons who have claims against a ... public employee shall file claims with the person or persons authorized to accept service for the ... public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues.... Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
¶ 12 Under § 12-820(1), the term “employee” includes “an officer, director, employee or servant ... who is authorized to perform any act or service.” Under § 12-820(6), the term “public employee” means “an employee
¶ 13 We have consistently read the definition of “public employee” to refer to the definition of “employee.” See McCloud v. State,
¶ 14 We see no reason to interpret § 12-820’s use of multiple subsections as excluding claims against public officers from § 12-821.01’s reach. This interpretation is consistent with the purpose of § 12-821.01. See Backus v. State,
II. VILLASENOR FAILED TO CREATE A GENUINE DISPUTE OF MATERIAL FACT REGARDING WHETHER EVANS ACTED WITHIN THE SCOPE OF HER PUBLIC EMPLOYMENT.
¶15 Villasenor next contends that the court erred by entering summary judgment under § 12-821.01 because genuine issues of fact exist concerning whether Evans acted within the scope of her public employment. Consistent with its purposes, § 12-821.01 applies only to claims against public employees that arise from conduct within the scope of their public employment. McCloud,
¶ 16 The superior court correctly concluded that Evans met her burden to demonstrate that she acted within the scope of her public employment. And it correctly observed that Villasenor failed to produce evidence to create a genuine issue of fact on that question. The undisputed evidence established that Evans, a City Councilmember and Vice Mayor, organized a meeting relevant to a controversial public issue pending before the Council and that she thereafter took steps to correct what she perceived as public misinformation regarding the meeting. Evans sufficiently demonstrated that she was acting in the scope of her employment, and Villasenor failed to contest her evidence.
¶ 17 ‘When a motion for summary judgment is made and supported as provided in [ ] Rule [56], an opposing party may not rely merely on allegations or denials of its own
¶ 18 Based on the undisputed material facts, Villasenor was required as a matter of law to comply with § 12-821.01. Because he failed to do so, the superior court correctly entered summary judgment for Evans and dismissed the action.
CONCLUSION
¶ 19 We affirm for the reasons set forth above.
Notes
. Villasenor also argued in passing that the "factual issues in question include information which Mr. Villasenor should be entitled to have time to investigate pursuant to Rule 56(f).” But he never filed a motion and affidavit under Rule 56(f).
. Evans contends that Villasenor waived the § 12-820 argument by not asserting it in the superior court. But Villasenor’s response to the summary-judgment motion did cite § 12-820 (albeit without elaboration) and he plainly asserted that Evans is not a public employee. Further, Evans expressly recognized Villasenor’s position and she parsed § 12-820 in her reply. We find no waiver.