{ "id": 4191001, "name": "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", "name_abbreviation": "Janet v. Marshall", "decision_date": "2013-03-01", "docket_number": "No. 34,006; Docket No. 31,090", "first_page": "558", "last_page": "568", "citations": [ { "type": "official", "cite": "2013-NMCA-037" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "277 P.3d 490", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-046", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187533 ], "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0628-01" ] }, { "cite": "2010-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245031 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0512-01" ] }, { "cite": "855 S.W.2d 136", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11288596 ], "year": 1993, "pin_cites": [ { "page": "143", "parenthetical": "\"The Whistleblower Act seeks to protect the individual employee against the collective acts of the agency, the bureaucracy, the institution, the system that retaliates, and does not seek to protect the employee solely against the acts of an individual supervisor.\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/855/0136-01" ] }, { "cite": "362 F.3d 1", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9263106 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/f3d/362/0001-01" ] }, { "cite": "230 F. Supp. 2d 207", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9320223 ], "year": 2002, "pin_cites": [ { "page": "221", "parenthetical": "\"The [Massachusetts] Whistleblower statute permits only an 'employer' to be sued, not individual supervisors.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/230/0207-01" ] }, { "cite": "90 Cal. Rptr. 3d 872", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2009, "pin_cites": [ { "page": "880", "parenthetical": "concluding that a \"cause of action for wrongful termination, or a claim of retaliation, lies only against the employer, not against the supervisor through whom the employer commits the tort\"" } ], "opinion_index": 0 }, { "cite": "614 N.W.2d 196", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11192485 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nw2d/614/0196-01" ] }, { "cite": "588 N.W.2d 550", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11770419 ], "year": 1999, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nw2d/588/0550-01" ] }, { "cite": "Minn. Stat. Ann. \u00a7 181.931", "category": "laws:leg_statute", "reporter": "Minn. Stat. Ann.", "opinion_index": 0 }, { "cite": "384 F.3d 469", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9182630 ], "year": 2004, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/f3d/384/0469-01" ] }, { "cite": "555 F.3d 42", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5582806 ], "year": 2009, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/f3d/555/0042-01" ] }, { "cite": "630 F.3d 338", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6053265 ], "year": 2010, "pin_cites": [ { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/f3d/630/0338-01" ] }, { "cite": "603 F.3d 676", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4228448 ], "year": 2010, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/f3d/603/0676-01" ] }, { "cite": "1999-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827416 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0603-01" ] }, { "cite": "115 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725453 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "474", "parenthetical": "stating that \"the [Legislature is presumed to act with knowledge of relevant case law\"" }, { "page": "725", "parenthetical": "stating that \"the [Legislature is presumed to act with knowledge of relevant case law\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0471-01" ] }, { "cite": "122 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322263 ], "weight": 2, "pin_cites": [ { "page": "213" }, { "page": "1209" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0209-01" ] }, { "cite": "1996-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "2009-NMCA-026", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243301 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0630-01" ] }, { "cite": "2011-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250635 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0174-01" ] }, { "cite": "2003-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77128 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0172-01" ] }, { "cite": "1999-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257687 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0233-01" ] }, { "cite": "117 N.M. 651", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552804 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "654" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0651-01" ] }, { "cite": "84 N.M. 43", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763089 ], "weight": 11, "year": 1972, "pin_cites": [ { "page": "45" }, { "page": "363" }, { "page": "45" }, { "page": "363" }, { "page": "45" }, { "page": "363" }, { "page": "45" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0043-01" ] }, { "cite": "55 N.M. 390", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582903 ], "weight": 5, "year": 1951, "pin_cites": [ { "page": "393-94" }, { "page": "338-39" }, { "page": "395" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nm/55/0390-01" ] }, { "cite": "35 N.M. 62", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557978 ], "weight": 2, "year": 1930, "pin_cites": [ { "page": "67", "parenthetical": "interpreting the predecessor statute to NMSA 1978, Section 30-24-1 (1963), and concluding that the statute did not apply to the defendant because he was not an officer" }, { "page": "788", "parenthetical": "interpreting the predecessor statute to NMSA 1978, Section 30-24-1 (1963), and concluding that the statute did not apply to the defendant because he was not an officer" } ], "opinion_index": 0, "case_paths": [ "/nm/35/0062-01" ] }, { "cite": "40 N.M. 288", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841807 ], "weight": 2, "year": 1936, "pin_cites": [ { "page": "290", "parenthetical": "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)" }, { "page": "1198", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nm/40/0288-01" ] }, { "cite": "2010-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244953 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0583-01" ] }, { "cite": "1997-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142229 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0095-01" ] }, { "cite": "2007-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692262 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0533-01" ] }, { "cite": "2009-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243559 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0001-01" ] }, { "cite": "2002-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260754 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0382-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "2009-NMCA-015", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241957 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0533-01" ] }, { "cite": "2009-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244404 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 1, "case_paths": [ "/nm/146/0473-01" ] }, { "cite": "2007-NMCA-100", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692881 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 1, "case_paths": [ "/nm/142/0437-01" ] }, { "cite": "117 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552772 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "353", "parenthetical": "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\"" }, { "page": "1359", "parenthetical": "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\"" } ], "opinion_index": 1, "case_paths": [ "/nm/117/0346-01" ] }, { "cite": "84 N.M. 43", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763089 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "45" }, { "page": "363" }, { "page": "44" }, { "page": "362" } ], "opinion_index": 1, "case_paths": [ "/nm/84/0043-01" ] } ], "analysis": { "cardinality": 1346, "char_count": 30900, "ocr_confidence": 0.829, "pagerank": { "raw": 8.683564141455454e-08, "percentile": 0.49236364745589417 }, "sha256": "d51546439b6c48a77f88bd01105b93369294fa9bd3cfdaa5c2b7c915fb1b5e8b", "simhash": "1:d46ebc24dcdfe47c", "word_count": 4922 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CELIA FOY CASTILLO, Chief Judge", "J. MILES HANISEE, Judge", "CYNTHIA A. FRY, Judge, dissenting", "CYNTHIA A. FRY, Judge" ], "parties": [ "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." ], "opinions": [ { "text": "OPINION\nCASTILLO, Chief Judge.\n{1} This case presents us with a question of interpretation regarding the definition of \u201cpublic employer\u201d under the recently enacted Whistleblower Protection Act, NMSA 1978, \u00a7\u00a7 10-16C-1 to -6 (2010) (WPA or the Act). Plaintiff JaNet filed a complaint against the Board of County Commissioners of Bernalillo County and several individual defendants alleging unlawful retaliation in violation of the Act. Two of the defendants, Defendants Marshall and Padilla, were employees of the Metropolitan Court of Bernalillo County (Metropolitan Court) at the relevant time.\n{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 \u201cpublic employer\u201d as defined in the Act. We agree and affirm.\nI. BACKGROUND\n{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 Plaintiffs 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\u2019s boyfriend was on probation but was not being drug-tested by his probation officer and had used drugs in front of the colleague\u2019s baby. Plaintiff first reported this information to Chief Probation Officer Jill Ingraham (Ingraham) in January 2009. Then, in March 2009, Plaintiff left a voicemail message for Ingraham about Plaintiffs continued concerns about the situation. Even though, as it turned out, the boyfriend was not on probation at the time of the report and therefore was not subject to drug-testing, Plaintiffs position is that she had a good faith basis for making her report.\n{4} .After receiving the voicemail, Ingraham contacted Appellee Marshall \u2014 a program manager for Metropolitan Court \u2014 and forwarded him the email. Appellee Marshall forwarded Plaintiff\u2019s voicemail to her supervisor, who then forwarded it to officials at MDC, Plaintiff\u2019s 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 \u2014 the programs division director in charge of the Background Investigations Division at Metropolitan Court \u2014 contacted Plaintiff\u2019s supervisor about the voicemail. Appellee Padilla served as the Metropolitan Court\u2019s liaison between the court and the MDC.\n{5} Plaintiffs 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.\nII. DISCUSSION\n{6} As we explained, the district court granted summary judgment in favor of Defendants concluding that they did not qualify as \u201cpublic employers\u201d 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.\nA. Standard of Review\n{7} The issue before us was decided on a motion for summary judgment. \u201cWe 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.\u201d Woodhull v. Meinel, 2009-NMCA-015, \u00b6 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). \u201cSummary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. \u201cWe review these legal questions de novo.\u201d Id.\n{8} The question we consider is one of statutory interpretation. \u201cThe meaning of language used in a statute is a question of law that we review de novo.\u201d Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, \u00b6 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, \u00b6 10, 146 N.M. 1, 206 P.3d 112 (\u201cWe review these questions of law de novo, without deference to the district court\u2019s legal conclusions.\u201d).\nB. Definition of Public Employer\n{9} When construing a statute, \u201cour guiding principle is to determine and give effect to legislative intent.\u201d N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm\u2019n, 2007-NMSC-053, \u00b6 20, 142 N.M. 533, 168 P.3d 105. \u201cLegislative intent is determined primarily from the language ofthe statute, and from the legislative purpose to be achieved}.]\u201d State v. Andrews, 1997-NMCA-017, \u00b6 5, 123 N.M. 95, 934 P.2d 289 (citation omitted). \u201cIn ascertaining the Legislature\u2019s 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.\u201d N.M. Indus. Energy Consumers, 2007-NMSC-053, \u00b6 20. (citation omitted). We look at the plain meaning of the words \u201cused in the context of the statutory text as a whole.\u201d Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, \u00b6 37, 147 N.M. 583, 227 P.3d 73.\n{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 \u00a7 10-16C-3. A \u201cpublic employee\u201d is \u201ca person who works for or contracts with a public employer}.]\u201d Section 10-16C-2(B). The statute defines \u201cpublic employer\u201d as:\n(1) any department, agency, office, institution, board, commission, committee, branch or district of state government;\n(2) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived;\n(3) any entity or instrumentality of the state specifically provided for by law; and\n(4) every office or officer of any entity listed in Paragraphs (1) through (3) of this subsection}.]\nSection 10-16C-2(C).\n{11} In its order on summary judgment, the district court wrestled with the definition of \u201cpublic employer\u201d and concluded that Defendants \u201cdo not fit within the definition of a public employer under the [WPA].\u201d The court explained its decision as follows:\nMy ruling is that I don\u2019t believe that Marshall and Padilla fit within the definition of public employer \u2014 I\u2019m trying to limit my ruling to the statute before me \u2014 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.\nThe language in Section 10-16C-2(C) includes entities as well as any officer of any of those entities. Defendants themselves are not entities. Their employer, Metropolitan Court, is part of the judicial branch of state government, and those working in Metropolitan Court are subject to statutes created by the Legislature. See generally NMSA 1978, \u00a7\u00a7 34-8A-1 to -15 (1979, as amended through 2010). \u201cPersonnel of the [Metropolitan [C]ourt are subject to all laws and regulations applicable to state officers and agencies and state officers and employees, except where otherwise specifically provided by law.\u201d Section 34-8A-8(B). The judicial branch is one of the entities enumerated in the WPA. Accordingly, the question before us is whether Defendants are officers of the judicial branch as contemplated by the WPA. The statute itself does not define \u201cofficer,\u201d so we look to case law and other statutes for guidance.\n{12} The term \u201cofficer\u201d 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 \u201cpublic office, civil[,] or military\u201d (internal quotation marks and citation omitted)); State v. Quinn, 35 N.M. 62, 67, 290 P. 786, 788 (1930) (interpreting the predecessor statute to NMSA 1978, Section 30-24-1 (1963), and concluding that the statute did not apply to the defendant because he was not an officer). In Pollack v. Montoya, 55 N.M. 390, 393-94, 234 P.2d 336, 338-39 (1951), our Supreme Court discussed a five-factor test to determine who qualifies as a public officer. However, in a more recent case, Lacy v. Silva, 84 N.M. 43, 499 P.2d 361 (Ct. App. 1972), we observed that New Mexico courts have not expressly adopted the five-factor test mentioned in Pollack and concluded that only one factor need be considered: whether the officer posseses \u201ca delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public.\u201d Lacy, 84 N.M. at 45, 499 P.2d at 363; see 63C Am. Jur. 2d Public Officers and Employees \u00a7 9 (2012) (citing among the six characteristics of a public officer \u201cthe delegation to and exercise of some portion of governmental sovereign power, with supervisory and discretionary authority\u201d (footnotes omitted)). The definition of sovereignty includes the concepts of autonomy and independence. Lacy, 84 N.M. at 45, 499 P.2d at 363. \u201cThe question then is whether supreme power or freedom from external control has been vested in the [holder of the position].\u201d Id.; accord Walck v. City of Albuquerque, 117 N.M. 651, 654, 875 P.2d 407, 410 (Ct. App. 1994).\n{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 \u201calthough authority and responsibility had been delegated to\u201d the district director, his decisions were subject to being \u201ccountermanded\u201d by the Commissioner of the Bureau of Revenue. 84 N.M. at 45, 499 P.2d at 363. We held that the district director was not a public officer because \u201cthe district director [was] not free from control by the Commissioner, [was] not autonomous[,] and [was] not independent.\u201d 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, 234 P.2d at 339. The Court concluded that \u201cwhen 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.\u201d Id.\n{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\u2019 job descriptions stated that they were to work \u201c[u]nder administrative direction[,]\u201d 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 \u201csupreme power or freedom from external control has been vested in\u201d them. Lacy, 84 N.M. at 45, 499 P.2d at 363. Accordingly, we conclude that Defendants are more like the district director in Lacy than the chief of Division of Liquor Control in Pollack.\n{15} Plaintiff relies on another case, New Mexico Regulation & Licensing Department v. Lujan, 1999-NMCA-059, \u00b6 12, 127 N.M. 233, 979 P.2d 744, for the proposition that the term \u201cemployer\u201d incorporates within its meaning \u201cthe hiring and firing of . . . employees.\u201d 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 \u201cemployer\u201d more broadly than the WPA as \u201cany authority having power to fill positions}] in an agency}.]\u201d NMSA 1978, \u00a7 10-9-3(E) (1961). More distinctly, Lujan dealt solely with the question of whether the worker who had been dismissed should be considered an employee of the state Regulation and Licensing Department or of the state Real Estate Commission. 1999-NMCA-059, \u00b6 1. Unlike the case before us, Lujan faced the issue of which entity qualified as an \u201cemployer\u201d and does not help us resolve the issue of whether an individual within an entity qualifies as a \u201cpublic employer\u201d under the WPA.\n{16} We next look to New Mexico statutes for guidance. Plaintiff points to companion statutes governing the conduct of public officers and employees \u2014 the Governmental Conduct Act (GCA), NMSA 1978, \u00a7 \u00a7 10-16-1 to -18 (1967, as amended through 2011), and Financial Disclosures Act (FDA), NMSA 1978, \u00a7\u00a7 10-16A-1 to -8 (1993, as amended through 1997). She argues that in both of these statutes the term \u201cpublic officer\u201d is more broadly defined and invites us to read the WPA in concert with the language and intent of those statutes. See State v. Davis, 2003-NMSC-022, \u00b6 12, 134 N.M. 172, 74 P.3d 1064 (\u201cAll of the provisions of a statute, together with other statutes in pari materia, must be read together to ascertain legislative intent.\u201d). Although we acknowledge that the two companion statutes serve a purpose similar to that of the WPA, there are language distinctions that preclude our adoption of Plaintiff\u2019s argument.\n{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 \u00a7\u00a7 10-16-1 to -18; \u00a7\u00a7 10-16A-1 to -8. The GCA applies ethical rules across the board to any \u201clegislator orpublic officer or employee,\u201d Section 10-16-3(A), while the FDA regulates the required financial disclosures of \u201ccandidates and public officers and employees}.]\u201d Section 10-16A-3. By contrast, the WPA is divided into two parts: it protects certain actions of \u201cemployees\u201d and prohibits the activities of \u201cemployer[s]\u201d who retaliate against the employees. Section 10-16C-3. Thus, it differs in basic strategy from the GCA and the FDA.\n{18} Second, neither the GCA nor the FDA includes a definition of \u201cpublic officer\u201d separate from that of \u201cemployee\u201d; rather both statutes provide an umbrella definition of \u201cpublic officer or employee,\u201d lumping together all levels of personnel. The GCA defines a \u201cpublic officer or employee\u201d as \u201cany 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}.]\u201d Section 10-16-2(1). Similarly, the FDA defines \u201cpublic officer or employee\u201d as \u201cany person who has been elected to, appointed to},] or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage, but excludes legislators and judges.\u201d Section 10-16A-2(F). By combining the definitions of \u201cpublic officer\u201d and \u201cemployee\u201d into one definition, the GCA and FDA make no distinction between the two and do not directly address who is an officer. For instance, under the FDA, an officer could include anyone who has been \u201celected to, appointed to[,] or hired,\u201d or it could include only one who has been elected and appointed, with \u201chired\u201d applying only to employees. By contrast, the WPA has separate definitions for \u201cpublic employee\u201d and \u201cpublic employer,\u201d and the definitional term \u201cofficer\u201d undoubtedly applies only to employers, not employees. Section 10-16C-2(B), (C).\n{19} In sum, the GCA and FDA have broader, more uniform application than does the WPA, and they offer definitions of \u201cpublic officer\u201d 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 \u201cpublic employer\u201d or \u201cofficer\u201d under the Act.\n{20} We conclude that Defendants are not officers as contemplated by the definition of \u201cpublic employee\u201d under the WPA. Our analysis is guided by the principle that the Legislature is fully aware ofboth statutory and common law when crafting statutes. See Attorney Gen. v. N.M. Pub. Regulation Comm\u2019n, 2011-NMSC-034, \u00b6 10, 150 N.M. 174, 258 P.3d 453 (presuming that \u201cthe [Legislature act[s] with full knowledge of relevant statutory and common law\u201d (internal quotation marks and citation omitted)). \u201cCourts normally assume that the Legislature is informed as to existing statutory and common law when it acts.\u201d Galassi v. Galassi, 2009-NMCA-026, \u00b6 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 (\u201cWe presume that the Legislature is well informed regarding existing statutory and common law and does not intend to enact a nullity.\u201d); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 474, 853 P.2d 722, 725 (1993) (stating that \u201cthe [Legislature is presumed to act with knowledge of relevant case law\u201d); State v. Trujillo, 1999-NMCA-003, \u00b6 12, 126 N.M. 603, 973 P.2d 855 (\u201cWe presume that the Legislature is aware of reported New Mexico court decisions when it enacts legislation.\u201d).\n{21} Plaintiff argues and we agree that whistleblower laws in general \u201care meant to encourage employees to report illegal practices without fear of reprisal by their employers.\u201d Haley v. Retsinas, 138 F.3.d 1245, 1250 (8th Cir. 1998) (\u201cThese statutes generally use broad language and cover a variety of whistleblowing activities. Accordingly, when the meaning of the statute is unclear from its text, courts tend to construe it broadly, in favor of protecting the whistleblower.\u201d); see Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir. 2010); Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338, 342-43 (4th Cir. 2010); Day v. Staples, Inc., 555 F.3d 42, 52 (1st Cir. 2009); Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 481 (7th Cir. 2004). Plaintiff urges us to construe the Act broadly to effect its purpose and contends that a liberal reading of the statute would include mid-level supervisors as \u201cpublic employees].\u201d When interpreting both state and federal whistleblowing statutes, other jurisdictions are split over the question of whether mid-level supervisors who are agents of the employing entity are individually liable for retaliatory action taken against an employee. For example, in Oregon the term \u201c[pjublic employer\u201d includes \u201c[a]ny person authorized to act on behalf of the state, or any agency of or political subdivision in the state, with respect to control, management},] or supervision of any employee[.]\u201d Or. Rev. Stat. \u00a7 659A.200(3)(b) (2012). And Pennsylvania\u2019s whistleblower statute defines a public employer as \u201c[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.\u201d 43 Pa. Cons. Stat. Ann. \u00a7 1422 (1986). By contrast, Minnesota does not hold supervisors liable. Although the state defines an employer as \u201cany person having one or more employees in Minnesota and includes the state and any political subdivision of the state,\u201d Minn. Stat. Ann. \u00a7 181.931, subd. 3 (1987), the Minnesota Court of Appeals concluded that even though the statute included the term \u201cperson,\u201d \u201cthe Minnesota whistleblower act does not impose liability on individual supervisors.\u201d Obst v. Micro iron, Inc., 588 N.W.2d 550, 554 (Minn. Ct. App. 1999), aff\u2019d, 614 N.W.2d 196 (Minn. 2000). The Minnesota court, acknowledging most states\u2019 reliance on federal law in this area, also noted that a \u201cgrowing consensus exists among the [federal] courts of appeals that employees cannot be held individually liable\u201d under federal law. Id. at 553-54; see Lloyd v. Cnty. of Los Angeles, 90 Cal. Rptr. 3d 872, 880 (Ct. App. 2009) (concluding that a \u201ccause of action for wrongful termination, or a claim of retaliation, lies only against the employer, not against the supervisor through whom the employer commits the tort\u201d); Bennett v. City of Holyoke, 230 F. Supp. 2d 207, 221 (D. Mass. 2002) (\u201cThe [Massachusetts] Whistleblower statute permits only an \u2018employer\u2019 to be sued, not individual supervisors.\u201d), aff\u2019d, 362 F.3d 1 (1st Cir. 2004); Tex. Dep\u2019t of Human Servs. v. Green, 855 S.W.2d 136, 143 (Tex. App. 1993) (\u201cThe Whistleblower Act seeks to protect the individual employee against the collective acts of the agency, the bureaucracy, the institution, the system that retaliates, and does not seek to protect the employee solely against the acts of an individual supervisor.\u201d).\n{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 \u201cpublic employers\u201d for purposes of the WPA and that the district court\u2019s grant of summary judgment was proper.\nIII. CONCLUSION\n{23} We share the Dissent\u2019s 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 \u201coffice or officer.\u201d Section 10-16C-2(B)(4). We cannot extend the range of liability by reading into a statute language that is not there, especially when the statute makes sense as written. Reule Sun Corp. v. Valles, 2010-NMSC-004, \u00b6 15, 147 N.M. 512, 226 P.3d 611; Town & Country Food Stores, Inc. v. N.M. Regulation & Licensing Dep\u2019t, 2012-NMCA-046, \u00b6 9, 277 P.3d 490. Consequently, we leave it to the Legislature to revisit the statute\u2019s definitions and, if necessary, clarify its intent as to who should be subject to liability.\n{24} For the foregoing reasons we affirm the district court\u2019s grant of summary judgment in favor of Appellees.\n{25} IT IS SO ORDERED.\nCELIA FOY CASTILLO, Chief Judge\nI CONCUR:\nJ. MILES HANISEE, Judge\nCYNTHIA A. FRY, Judge, dissenting", "type": "majority", "author": "CASTILLO, Chief Judge." }, { "text": "FRY, Judge\n(dissenting).\n{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\u2019s overarching purpose in enacting it. See State ex rel. Hetman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994) (explaining that \u201cit is part of the essence of judicial responsibility to search for and effectuate the legislative intent \u2014 the purpose or object \u2014 underlying the statute\u201d). 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\u2019s 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 \u201cpublic employers\u201d potentially subject to liability for their allegedly retaliatory acts against Plaintiff.\n{27} The WPA is a succinct statute whose purpose is apparent. It provides that \u201c[a] public employer shall not take any retaliatory action against a public employee\u201d for certain \u201cwhistleblower\u201d-type conduct the employee engages in. Section 10-16C-3. It further provides that a public employer who violates the WPA shall be liable to the public employee for actual and special damages, reinstatement, double back pay with interest, costs and attorney fees. Section 10-16C-4(A). Given these provisions, it is clear that the Legislature intended to encourage and protect employees who report misconduct and to deter misconduct that might give rise to whistleblowing.\n{28} It should he with this underlying purpose in mind that we consider the definition of \u201cpublic employer\u201d in order to determine whether Plaintiff appropriately asserted claims against Defendants Marshall and Padilla. Section 10-16C-2(C) lists four definitions for the term \u201cpublic employer.\u201d The first three definitions exhaustively include every public entity that conceivably has employees. See \u00a7 10-16C-2(C)(1) - (3). It is the fourth category we are concerned with, which is the only definition that references an individual rather than an entity. It provides that a \u201cpublic employer\u201d includes \u201cevery office or officer of any entity\u201d listed in the previous sections. Section 10-16C-2(C)(4).\n{29} In determining what individuals the Legislature intended to target through its use of the term \u201cofficer,\u201d 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\u2019s immediate supervisor about Plaintiffs 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.\n{30} These events, if proved, constitute retaliation prohibited by the WPA. Yet, under the Majority\u2019s analysis, Defendants Marshall and Padilla \u2014 the instigators of the retaliatory conduct \u2014 cannot be held liable. Under the Majority\u2019s analysis, the only individuals employed by the Metropolitan Court who could possibly be held liable for retaliatory conduct are those who have been delegated \u201ca portion of the sovereign power of government.\u201d Majority Opinion, \u00b6 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.\n{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 entities liable certainly does not protect employees from such vindictive individuals and it would likely discourage employees from reporting government misconduct. Indeed, if a plaintiff proves WPA claims against an entity defendant and is reinstated, nothing would deter the individuals who initiated the retaliation from continuing to engage in vindictive conduct.\n{32} Thus, we should consider the term \u201cofficer\u201d in the context of the protective and deterrent purposes underlying the WPA. See Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, \u00b6 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 \u201cstate officer\u201d 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 \u201cpublic employer\u201d or \u201cofficer\u201d in a vacuum rather than in the context of the WPA. For instance, the definition of \u201cpublic officer\u201d in the Public Records Recovery Act expressly includes mere employees. NMSA 1978, \u00a7 14-5-2(A) (1973) (defining \u201cpublic officer\u201d as \u201cany officer or employee of the legislative, executive or judicial departments of the state or any of its agencies, and any officer or employee of any of the political subdivisions of the state, who is the official custodian of any public record or class of public records\u201d). And the Metropolitan Redevelopment Code defines \u201cpublic officer\u201d as \u201cany person who is in charge of any department or branch of government of the municipality.\u201d NMSA 1978, \u00a7 3-60A-4(U) (2000).\n{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 \u201cpublic employer\u201d and \u201cofficer\u201d 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, \u00b6 11, 146 N.M. 473, 212 P.3d 361 (stating that \u201c[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\u201d). 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.\nCYNTHIA A. FRY, Judge", "type": "dissent", "author": "FRY, Judge" } ], "attorneys": [ "Bach & Garcia LLC George Bach Albuquerque, NM for Appellant", "Brown Law Firm Joel M. Young ICevin M. Brown Albuquerque, NM for Appellees" ], "corrections": "", "head_matter": "Certiorari Granted, March 1, 2013,\nNo. 34,006\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-037\nFiling Date: December 19, 2012\nDocket No. 31,090\nK. 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.\nBach & Garcia LLC George Bach Albuquerque, NM for Appellant\nBrown Law Firm Joel M. Young ICevin M. Brown Albuquerque, NM for Appellees" }, "file_name": "0558-01", "first_page_order": 574, "last_page_order": 584 }