Former NM public officials can be sued for whistleblower violations

In 2010, New Mexico Secretary of State Mary Herrera fired two employees of her office, James Flores and Manny Vildasol, after they reported to the FBI what they considered to be criminal activity by Herrera. At the time, she was running for re-election, and the firings garnered her some unfavorable media attention (see, for example, here and here). Herrera ultimately lost her re-election bid.

The employees sued Herrera under the Whistleblower Protection Act, but the trial court dismissed Flores’ lawsuit because: (1) it lacked “subject-matter jurisdiction” since Herrera was no longer the Secretary of State at the time Flores filed his lawsuit; and (2) because it found that Flores could not recover against Herrera in her individual capacity.

In Flores v. Herrera (April 7, 2015) the Court of Appeals reversed. Judge Sutin’s opinion is based on the following salient points:

1.  The trial court’s decision was not a matter of “subject-matter jurisdiction,” because the trial court does indeed have the power to adjudicate claims under the Whistleblower Protection Act.

2.  Nothing in the Act suggests that government officials gain immunity for their actions once they leave office.

3.  Herrera is properly a defendant in her individual capacity because she is being sued for her own personal (alleged) misconduct.

This decision seems quite correct to me. As a matter of policy, it seems desirable to for public officials to be accountable for their misconduct, even if they no longer hold office. For more on this case, see this story by Phaedra Haywood in the Santa Fe New Mexican.

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