{ "id": 4363307, "name": "JAMES FLORES, Plaintiff-Appellant, v. MARY HERRERA, individually and as Secretary of State of the State of New Mexico, Defendant-Appellee; and MANNY VILDASOL, Plaintiff-Appellee, v. STATE OF NEW MEXICO, SECRETARY OF STATE'S OFFICE and MARY HERRERA, Defendants-Appellants", "name_abbreviation": "Flores v. Herrera", "decision_date": "2015-06-19", "docket_number": "No. 35,286; Docket No. 32,693; Docket No. 33,413", "first_page": "193", "last_page": "200", "citations": [ { "type": "official", "cite": "2015-NMCA-072" } ], "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": "309 P.3d 1047", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4333550 ], "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0700-01" ] }, { "cite": "473 U.S. 159", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197246 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "166", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/us/473/0159-01" ] }, { "cite": "119 N.M. 405", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561343 ], "weight": 3, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0405-01" ] }, { "cite": "1994-NMCA-154", "category": "reporters:neutral", "reporter": "NMCA", "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 19" }, { "page": "\u00b6\u00b6 18-19" } ], "opinion_index": 0 }, { "cite": "302 P.3d 1163", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "296 P.3d 1253", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-037", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191001 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 26, 32" }, { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 1, 11, 23" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0558-01" ] }, { "cite": "2007-NMCA-100", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692881 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0437-01" ] }, { "cite": "320 P.3d 1", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4077464 ], "pin_cites": [ { "page": "\u00b6 40" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0529-01" ] }, { "cite": "2005-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548868 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0063-01" ] }, { "cite": "308 P.3d 134", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-007", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "308 P.3d 975", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334806 ], "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0518-01" ] }, { "cite": "109 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0683-01" ] }, { "cite": "1990-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 15" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 857, "char_count": 22869, "ocr_confidence": 0.747, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34717796288509484 }, "sha256": "6dc026ac39d5d32c42b98303b110c15d7042456592c3e1d17367529e4af4e398", "simhash": "1:5968b812deece701", "word_count": 3681 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JONATHAN B. SUTIN, Judge", "WE CONCUR:", "RODERICK T. KENNEDY, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "JAMES FLORES, Plaintiff-Appellant, v. MARY HERRERA, individually and as Secretary of State of the State of New Mexico, Defendant-Appellee, and MANNY VILDASOL, Plaintiff-Appellee, v. STATE OF NEW MEXICO, SECRETARY OF STATE\u2019S OFFICE and MARY HERRERA, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} We address two appeals that raise issues concerning the scope of the Whistleblower Protection Act (the Act), NMSA 1978, \u00a7\u00a7 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\u2019s dismissal of his lawsuit. Cause No. 33,413 is an interlocutory appeal in which Ms. Herrera appeals the district court\u2019s denial of her motion to dismiss Mr. Vildasol\u2019s lawsuit against her, individually.\n{2} At issue is whether Ms. Herrera may be sued pursuant to the Act in her \u201cindividual capacity.\u201d We conclude that Ms. Herrera\u2019s 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 court\u2019s order denying Ms. Herrera\u2019s motion to dismiss Mr. Vildasol\u2019s claim under the Act, and we reverse the district court\u2019s order dismissing Mr. Flores\u2019s claim under the Act.\nBACKGROUND\n{3} Section 10-16C-3 provides that \u201c[a] public employer shall not take any retaliatory action against a public employee because the public employee\u201d engaged in specified protected activity. The Act defines a \u201cpublic employee\u201d as \u201ca person who works for or contracts with a public employer[.]\u201d Section 10-16C-2(B). A \u201cpublic employer\u201d includes \u201cevery office or officer\u201d within \u201cstate government[.]\u201d Section 10-16C-2(C)(1), (4).\n{4} A public employer that violates the Act\nshall 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.\nSection 10-16C-4(A).\n{5} Ms. Herrera served as Secretary of State from January 2007 through December 2010. Mr. Flores worked as Ms. Herrera\u2019s 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\u2019s employment in September 2010. The details underlying Mr. Flores\u2019s and Mr. Vildasol\u2019s 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\u2019s case, to other authorities, what they perceived as criminal activity by Ms. Herrera and the Office of the Secretary of State.\n{6} Mr. Flores filed a complaint against Ms. Herrera \u201cindividually and as Secretary of State\u201d for having violated the Act. Mr. Vildasol filed a complaint against the Secretary of State\u2019s Office and Ms. Herrera claiming, in relevant part, that the Secretary of State\u2019s Office and Ms. Herrera had violated the Act.\n{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\u2019s case granted Ms. Herrera\u2019s 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 \u201csuch recovery is inconsistent with the statute which protects \u2018public\u2019 employees from the acts of their \u2018public\u2019 employers.\u201d As to Mr. Vildasol\u2019s complaint, the district court denied Ms. Herrera\u2019s motion to dismiss.\n{8} On appeal, Mr. Flores argues that the district court erroneously differentiated between Ms. Herrera\u2019s 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\u2019s interpretation, the Act applies to former public officials and that the district court\u2019s narrow interpretation of the Act was inconsistent with the liberal construction afforded to whistleblower statutes, generally.\n{9} In her appeal from the court\u2019s denial of her motion to dismiss Mr. Vildasol\u2019s 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 \u201cpublic employee\u201d who \u201cworks for or contracts with a public employer},]\u201d he was ineligible to bring a lawsuit pursuant to the Act.\n{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\u2019s argument that Mr. Vildasol was not a public employee. We reverse the district court\u2019s dismissal of Mr. Flores\u2019s complaint, and we affirm the district court\u2019s order denying Ms. Herrera\u2019s motion to dismiss Mr. Vildasol\u2019s complaint.\nDISCUSSION\nSubject Matter Jurisdiction Is Not an Issue in These Appeals\n{11} At the outset, before we discuss the arguments raised by the parties, we address Ms. Herrera\u2019s and, in Mr. Flores\u2019s case, the district court\u2019s 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. \u201cSubject matter jurisdiction\u201d is the \u201cpower or authority to decide the particular matter presented.\u201d Sundance Mech. & Util. Corp. v. Atlas, 1990-NMSC-031, \u00b6 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) (\u201cAn employee may bring an action pursuant to this section in any court of competent jurisdiction.\u201d); see also N.M. Const, art. VI, \u00a7\u00a7 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).\n{12} Having reviewed Ms. Herrera\u2019s motions to dismiss, we conclude that, notwithstanding her use of the phrase \u201csubject matter jurisdiction,\u201d 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\u2019s dismissal of Mr. Flores\u2019s case was ostensibly premised upon Rule 1-012(B)(1), the court\u2019s reasoning clearly invoked Rule 1-012(B)(6). A party\u2019s failure to state a claim upon which relief can be granted has no effect upon a court\u2019s subject matter jurisdiction. See Sundance Mech. & Util. Corp., 1990-NMSC-031, \u00b6 15. In sum, we conclude that the use of the phrase \u201csubject matter jurisdiction\u201d in the context of these cases was a misnomer, and Rule 1 -012(B)(1) has no bearing on the issues now before us.\nStandard of Review\n{13} \u201cA motion to dismiss for failure to state a claim under Rule 1-012(B)(6)... tests the legal sufficiency of the complaint}.]\u201d Cordova v. Cline, 2013-NMCA-083, \u00b6 18, 308 P.3d 975, cert. granted, 2013-NMCERT-007, 308 P.3d 134. Dismissal under Rule 1-012(B)(6) \u201cis proper only when the law does not support a claim under the facts presented.\u201d Vigil v. State Auditor\u2019s Office, 2005-NMCA-096, \u00b6 4, 138 N.M. 63, 116 P.3d 854. We review de novo the district court\u2019s decision to grant or deny a motion to dismiss, and in so doing, we accept all well-pleaded factual allegations as true. Id.\n{14} As well, issues of statutory construction present legal questions that we review de novo. Bank of N.Y. v. Romero, 2014-NMSC-007, \u00b6 40, 320 P.3d 1. Finally, because the Act reflects a remedial purpose, we construe its provisions \u201cliberally to facilitate and accomplish its purposes and intent.\u201d Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, \u00b6 31, 142 N.M. 437, 166 P.3d 1091 (internal quotation marks and citation omitted); Janet v. Marshall, 2013-NMCA-037, \u00b6\u00b6 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.\nMs. Herrera Is an \u201cOfficer\u201d\n{15} Ms. Herrera argues that a \u201cformer officer\u201d is not a \u201cpublic employer\u201d 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 \u201cofficer\u201d in Section 10-16C-2(C)(4). In addition, she argues that because she no longer possesses any \u201csovereign power,\u201d she does not qualify as \u201can officer.\u201d 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 \u201cshall be liable to the public employee for .. . reinstatement with the same seniority status that the employee would have had but for the violation,\u201d which, obviously, a former officer would not be capable of doing.\n{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 \u201cofficial capacity.\u201d 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.\n{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\u2019s attempt to infer an additional time limitation from the Legislature\u2019s use of the term \u201cofficer\u201d 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\u2019s alleged retaliatory action that prompted these lawsirits occurred when she was an \u201cofficer\u201d possessed of \u201ca delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public.\u201d Janet, 2013-NMCA-037, \u00b6 12 (internal quotation marks and citation omitted); see NMSA 1978, \u00a7 1-2-1(A) (2011) (\u201cThe secretary of state is the chief election officer of the state}.]\u201d).\n{18} Further, Ms. Herrera\u2019s 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 \u00a710-16C-4(A) (\u201cA 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.\u201d). Additionally, Ms. Herrera\u2019s argument assumes that the only actionable conduct under the Act is employment termination or demotion when, in fact, the Act broadly prohibits \u201cany retaliatory action\u201d against whistleblowers. Section 10-16C-3.\n{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.\nThe Act Permits Lawsuits Against Officers in Their Individual Capacity\n{20} The distinction between \u201cofficial\u201d and \u201cindividual\u201d capacity lawsuits was explained by this Court in Ford v. New Mexico Department of Public Safety, 1994-NMCA-154, \u00b6 18, 119 N.M. 405, 891 P.2d 546. We explained that a lawsuit \u201cagainst a state official in her official capacity\u201d is merely a way of suing \u201can entity of which an officer is an agent.\u201d Id. (internal quotation marks and citation omitted). The purpose of such a lawsuit is to remedy a wrongful deprivation caused by an \u201centity\u2019s policy or custom[.]\u201d 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\u2019s successor in office automatically assumes her official role in the litigation. Rule 1-025(D)(1)NMRA; Ford, 1994-NMCA-154, \u00b6 18.\n{21} On the other hand, when a state official is sued for her own misconduct in office, \u201cthe defendant is the individual, not the office},]\u201d and when she leaves office, her successor \u201cis not substituted as the defendant in the litigation.\u201d Ford, 1994-NMCA-154, \u00b6 19. Generally, \u201can award of damages against an official in [her] personal capacity can be executed . . . against the official\u2019s personal assets}.]\u201d Graham, 473 U.S. at 166. Because Mr. Flores\u2019s and Mr. Vildasol\u2019s 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.\n{22} Ms. Herrera argues that, had the Legislature intended to allow individual capacity lawsuits, it would not have used the term \u201cofficer\u201d to define a public employer, but instead, it would have used the term \u201cperson\u201d or \u201cindividual\u201d as it did in other legislation, including the New Mexico Human Rights Act and the New Mexico Tort Claims Act. See NMSA 1978, \u00a7 28-1-2(B) (2007) (defining an \u201cemployer\u201d as that term is used in the Human Rights Act as \u201cany person employing four or more persons and any person acting for an employer\u201d); \u00a7 41-4-3 (F)(3), (9) (using the terms \u201cpersons\u201d and \u201cindividuals\u201d in enumerating those to whom the definition of \u201cpublic employee\u201d applies in the context of the Tort Claims Act), We do not agree with Ms. Herrera\u2019s reasoning.\n{23} Had the Legislature intended in the Act to preclude \u201cindividual capacity\u201d lawsuits against officers, it could have done so by altogether omitting the term \u201cofficer\u201d from the definition of \u201cpublic employer\u201d in Section 10-16C-2(C)(4). This would have permitted Plaintiffs to file lawsuits against the \u201coffice\u201d while prohibiting lawsuits against officers in their individual capacity for their alleged retaliatory actions against whistleblowers. Cf. Ford, 1994-NMCA-154, \u00b6\u00b6 18-19 (indicating that official-capacity lawsuits \u201cshould be treated as a suit against the [s]tate[,]\u201d whereas individual-capacity lawsuits implicate an individual\u2019s misconduct in office (internal quotation marks and citation omitted)). By expressly including every \u201cofficer\u201d within the definition of a \u201cpublic employer,\u201d however, the Legislature expressed its intention to permit individual-capacity lawsuits against such officers. See Janet, 2013-NMCA-037, \u00b6\u00b6 1, 11, 23 (recognizing that \u201c[t]he language in Section 10-16C-2(C) includes entities as well as any officer of any of those entities[,]\u201d thus, the question whether the defendants could be sued individually depended upon whether they were officers and recognizing that the Act holds \u201cofficers\u201d liable for violations). To interpret the Act as prohibiting an individual-capacity lawsuit against an officer would be tantamount to concluding that the term \u201cofficer\u201d in Section 10-16C-2(C)(4) was superfluous. This we will not do. See Baker v. Hedstrom, 2013-NMSC-043, \u00b6 24, 309 P.3d 1047 (stating that an appellate court \u201cmust interpret a statute so as to avoid rendering the Legislature\u2019s language superfluous\u201d).\nMr. Vildasol Was a Public Employee\n{24} We turn now to Ms. Herrera\u2019s argument that Mr. Vildasol \u201cis not and was not a \u2018public employee\u2019 who \u2018work[ed] for or contract[ed] with\u2019 former Secretary of State Herrera within the meaning of the [Act].\u201d As noted earlier, the Act provides that \u201cevery office or officer of any\u201d state government office constitutes a \u201cpublic employer[,]\u201d and a \u201cpublic employee\u201d is \u201ca person who works for . . . a public employer[.]\u201d Section 10-16C-2(B), (C)(1), (4). Further, the Act prohibits a \u201cpublic employer\u201d from taking \u201cany retaliatory action against a public employee\u201d for the enumerated whistleblowing actions listed in Section 10-16C-3.\n{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 \u201cworks for\u201d to support the assertion that she cannot be named as a defendant in Mr. Vildasol\u2019s lawsuit. To that end, she argues that Mr. Vildasol was employed and paid by the State, not by her, and the fact that she \u201cmay have acted as Mr. Vildasol\u2019s supervisor at various points during his employment at the [Secretary of State\u2019s 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\u2019s.\u201d\n{26} As discussed earlier, there is no question that, as the Secretary of State, Ms. Herrera was an \u201cofficer\u201d within the meaning of the Act. Assuming, as we must, the truth of the factual allegations in Mr. Vildasol\u2019s 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 \u201cwork for\u201d Ms. Herrera.\n{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\u2019s complaint and prior to Mr. Vildasol\u2019s 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\u2019s claim, we reject Ms. Herrera\u2019s argument that she was not Mr. Vildasol\u2019s \u201cpublic employer\u201d or that he was not her \u201cpublic employee\u201d for purposes of the Act.\n{28} Accordingly, we conclude that (1) the district court properly denied Ms. Herrera\u2019s motion to dismiss Mr. Vildasol\u2019s lawsuit under the Act, and (2) the district court erred in dismissing Mr. Flores\u2019s lawsuit under the Act.\nCONCLUSION\n{29} The district court\u2019s order granting Ms. Herrera\u2019s motion to dismiss Mr. Flores\u2019s case is reversed. The district court\u2019s order denying Ms. Herrera\u2019s motion to dismiss Mr. Vildasol\u2019s case is affirmed. The matters are remanded for further proceedings.\n{30} IT IS SO ORDERED.\nJONATHAN B. SUTIN, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Judge\nLINDA M. VANZI, Judge\nThe protected activity is set out in Section 10-16C-3 and consists of communicating \u201cto 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\u201d; providing information to or testifying before \u201ca public body as part of an investigation, hearing[,] or inquiry into an unlawful or improper act\u201d; or objecting to or refusing \u201cto participate in an activity, policyf,] or practice that constitutes an unlawful or improper act.\u201d\nSection 10-16C-2(C)(1), (4) defines a \u201cpublic employer\u201d as \u201cevery . . . officer\u201d within \u201cstate government}.]\u201d\nWe note that it is an open question, raised tangentially by Mr. Flores\u2019s brief in chief whether Ms. Herrera\u2019s 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 fond pursuant to the Tort Claims Act, NMSA 1978 \u00a7\u00a7 41-4-1 to -30 (1976, as amended through 2013). See, e.g., \u00a7 41-4-3(F)(l); \u00a7 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 \u201calleged to have been committed by the [elected official] while acting within the scope of [her] duty\u201d); \u00a7 41-4-23(B)(2); \u00a7 41-4-4(G) (\u201cThe duty to defend . . . continuefs] 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 the scope of duty while the [elected official] was in the employ of the governmental entity.\u201d). Because the district court\u2019s 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\u2019s financial responsibility for the litigation of these cases.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "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)" ], "corrections": "", "head_matter": "Certiorari Granted, June 19, 2015,\nNo. 35,286\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-072\nFiling Date: April 7, 2015\nDocket No. 32,693\nJAMES FLORES, Plaintiff-Appellant, v. MARY HERRERA, individually and as Secretary of State of the State of New Mexico, Defendant-Appellee, and MANNY VILDASOL, Plaintiff-Appellee, v. STATE OF NEW MEXICO, SECRETARY OF STATE\u2019S OFFICE and MARY HERRERA, Defendants-Appellants.\nDocket No. 33,413\nGarcia Ives Nowara\nMatthew L. Garcia\nAlbuquerque, NM\nfor Appellant Flores\nCuddy & McCarthy, LLP\nM. Karen Kilgore\nEvelyn A. Peyton\nSanta Fe, NM\nfor Appellee (No. 32,693)\nLaw Offices of Michael E. Mozes, P.C.\nMichael E. Mozes\nAlbuquerque, NM\nfor Appellee Vildasol\nHinkle Shanor LLP\nEllen S. Casey\nJaclyn M. McLean\nLoren S. Foy\nSanta Fe, NM\nfor Appellants (No. 33,413)" }, "file_name": "0193-01", "first_page_order": 209, "last_page_order": 216 }