NM Supreme Court: Whistleblowers can’t sue state officials in their personal capacities

Former New Mexico Secretary of State Mary Herrera allegedly fired two employees of her office in 2010 for speaking with the FBI, which was investigating her conduct. The employees sued Herrera under the New Mexico Whistleblower Protection Act. Last year, the Court of Appeals held that the plaintiffs could sue Herrera in her personal capacity. I wrote about that decision here.

In a unanimous decision, the Supreme Court reversed. See Flores v. Herrera.

Justice Nakamura’s opinion explains that although the statute makes “public employers” liable, and the statute’s definition of that term includes “every office or officer” of a governmental entity, the Whistleblower Protection Act does not allow lawsuits against an officer in his or her individual capacity.

First, she said, the Act does not explicitly make government officials liable in their individual capacities, and the Act’s language including “officer” within the term “public employer” does not do so because “[t]hose persons who occupy the offices of state government clearly do not act in their individual capacities when they take actions affecting the employment of public employees.”

Second, some of the statute’s remedies — such as injunctive relief reinstating an employee — could only apply to a state agency, not to an individual, like Herrera, who has left office.

Third, it is unnecessary to impose individual liability to fulfill the Act’s remedial purposes.

Finally, allowing recovery against a government official’s personal assets would discourage people from entering government service.Today’s Albuquerque Journal also has this story about the decision.

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