State ex rel. Stapletion v. Skandera

346 P.3d 1191

STATE of New Mexico ex rel. The Honorable Sheryl Williams STAPLETON, The Honorable Howie Morales, The Honorable Linda M. Lopez, American Federation of Teachers–New Mexico, Ellen Bernstein, and Ryan Ross, Petitioners–Appellants

v.Hanna SKANDERA, Secretary–Designate of the Public Education Department of the State of New Mexico, Respondent–Appellee.

33,484.

Court of Appeals of New Mexico.

Jan. 29, 2015.

Youtz & Valdez, P.C., Shane C. Youtz, Stephen Curtice, James A. Montalbano, Albuquerque, NM, for Petitioners–Appellants.

Montgomery & Andrews, P.A., Jeffrey J. Wechsler, Seth C. McMillan, Andrew S. Montgomery, Santa Fe, NM, for Respondent–Appellee.

OPINION

BUSTAMANTE, Judge.

{1} Petitioners appeal the district court's denial of their petition for a writ of mandamus ordering the Secretary–Designate (the Secretary) of the Public Education Department (the Department) to desist from implementing new regulations governing the evaluation of teachers in public schools. Like the district court, we conclude that the Secretary acted within the discretion authorized by statute and, therefore, cannot be compelled by a writ of mandamus to suspend the new regulations. We affirm.

BACKGROUND

{2} In January 2012 the Teacher and School Leader Effectiveness Act (the Act) was introduced in the New Mexico Legislature. Although it passed in the House of Representatives, ultimately the Legislature failed to pass the Act. Later that year, the Secretary published regulations governing evaluation of teachers in public schools, which were codified at Title 6, Chapter 69, Part 8 of the New Mexico Administrative Code. See 6.69.8 NMAC (08/30/2012). We will refer to these regulations collectively as “Part 8.” Part 8 is titled “Teacher and School Leader Effectiveness.” Id.

{3} The purpose of Part 8 is stated in the regulations.

This rule establishes uniform procedures for conducting annual evaluations of licensed school employees, for setting the standards for each effectiveness level, for measuring and implementing student achievement growth, and for monitoring each school district's implementation of its teacher and school leader effectiveness evaluation system. This rule also seeks to change the dynamic of placing emphasis on teacher effectiveness and provide the opportunity to acknowledge excellence, thereby replacing the binary system that emphasizes years of experience and credentials.

6.69.8.6 NMAC (08/30/2012). Part 8 supersedes the teacher evaluation regulations promulgated in 2003 as 6.69.4 NMAC (09/30/2003, as amended through 06/15/2009). See 6.69.8.8 NMAC (09/30/2013). Additional facts are provided in our discussion of Petitioners' arguments.

DISCUSSION

A. Standard of Review

{4} “[M]andamus lies to compel the performance of an affirmative act by another where the duty to perform the act is clearly enjoined by law and where there is no other plain, speedy[,] and adequate remedy in the ordinary course of law.” Lovato v. City of Albuquerque, 1987–NMSC–086, ¶ 6, 106 N.M. 287, 742 P.2d 499 ; see NMSA 1978, §§ 44–2–4, –5 (1884). “Mandamus is a drastic remedy to be invoked only in extraordinary circumstances.” Brantley Farms v. Carlsbad Irrigation Dist., 1998–NMCA–023, ¶ 12, 124 N.M. 698, 954 P.2d 763. Mandamus does not apply “to compel an executive officer acting within his discretion.” State ex rel. King v. Lyons, 2011–NMSC–004, ¶ 28, 149 N.M. 330, 248 P.3d 878. In other words, “[w]hen the legal duty in question is based on a statute, mandamus is appropriate only when that duty is clear and indisputable.” Johnson v. Vigil–Giron, 2006–NMSC–051, ¶ 22, 140 N.M. 667, 146 P.3d 312 (internal quotation marks and citation omitted).

{5} Generally, the grant or denial of a petition for writ of mandamus is reviewed for an abuse of discretion. FastBucks of Roswell, N.M., LLC v. King, 2013–NMCA–008, ¶ 7, 294 P.3d 1287. Within the abuse of discretion standard we consider whether the district court's ruling rested on its determination that the Secretary acted within her statutory authority and exercised her discretion under statute. That issue presented requires the interpretation of statutes. Thus, our review is de novo. Id. ¶ 6; OS Farms, Inc. v. N.M. Am. Water Co., 2009–NMCA–113, ¶ 19, 147 N.M. 221, 218 P.3d 1269. The scope of our review is limited to whether the Secretary's actions fall within her authority; we do not examine the prudence of the regulations themselves. See Am. Fed'n of State, Cnty. & Mun. Emps. v. Martinez, 2011–NMSC–018, ¶ 4, 150 N.M. 132, 257 P.3d 952 (“In considering whether to issue a prohibitory mandamus, we do not assess the wisdom of the public official's act[.]”).

{6} Petitioners make two broad arguments. First, they argue that the Secretary “[o]verstepped” the authority granted her by statute and “[u]surp [ed]” the authority of the Legislature to set public policy. Second, they maintain that two provisions in Part 8 expressly violate the Public School Code. NMSA 1978, §§ 22–1–1 to 22–33–4 (except Article 5A) (1967, as amended through 2014). We address these arguments in turn.

B. The Secretary Did Not Exceed Her Authority

{7} Petitioners maintain that Part 8 constitutes a “radical [ ] alter [ation of the] teacher evaluation standards” found in the Department's governing statutes. More specifically, Petitioners object to the inclusion of student performance as a measure of teacher competency and to the replacement of the “binary system” of evaluation (competent or incompetent) with one in which teachers are assessed according to five levels of competency (exemplary, highly effective, effective, minimally effective, and ineffective). 6.69.8.8(D)(6) NMAC. They maintain that these aspects of the regulations constitute a “fundamental shift in public policy” and therefore usurp the Legislature's policy-making function. We disagree that the Secretary has acted outside of her statutorily defined authority.

{8} “Agencies are created by statute, and limited to the power and authority expressly granted or necessarily implied by those statutes.” Qwest Corp. v. N.M. Pub. Regulation Comm'n, 2006–NMSC–042, ¶ 20, 140 N.M. 440, 143 P.3d 478. “Generally, the Legislature, not the administrative agency, declares the policy and establishes primary standards to which the agency must conform.” State ex rel. Taylor v. Johnson, 1998–NMSC–015, ¶ 22, 125 N.M. 343, 961 P.2d 768. Through enabling statutes, the Legislature may “delegate both adjudicative and rule-making power to administrative agencies.” New Energy Econ., Inc. v. Shoobridge, 2010–NMSC–049, ¶ 14, 149 N.M. 42, 243 P.3d 746. Thus, although courts have recognized the primacy of the Legislature's role, our Supreme Court “has acknowledged that elected executive officials and executive agencies also make policy, to a lesser extent, as authorized by the constitution or the [L]egislature [.]” State ex rel. Sandel v. N.M. Pub. Util. Comm'n, 1999–NMSC–019, ¶ 12, 127 N.M. 272, 980 P.2d 55 (alteration, internal quotation marks, and citation omitted). However, “[t]he administrative agency's discretion may not justify altering, modifying [,] or extending the reach of a law created by the Legislature.”Taylor, 1998–NMSC–015, ¶ 22, 125 N.M. 343, 961 P.2d 768.

{9} When reviewing agency action, we presume that “[r]ules and regulations enacted by an agency are ... valid” and we will uphold them if they are “reasonably consistent with the statutes that they implement.” Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1987–NMCA–153, ¶ 14, 107 N.M. 469, 760 P.2d 161, superseded by statute as stated in N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007–NMCA–010, 141 N.M. 41, 150 P.3d 991. Given this presumption, Petitioners bear the burden “of establishing the invalidity of [Part 8 ].” N.M. Mining Ass'n v. N.M. Mining Comm'n, 1996–NMCA–098, ¶ 8, 122 N.M. 332, 924 P.2d 741.

{10} The Secretary's duties and authority are addressed by several different statutes. The Public Education Department Act provides that “[t]he secretary may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the [D]epartment and its divisions.” NMSA 1978, § 9–24–8(D) (2004). The Public School Code also contains several provisions addressing the authority of the Secretary and the Department. Section 22–2–1 states that “[t]he [S]ecretary is the governing authority and shall have control, management and direction of all public schools, except as otherwise provided by law” and that “[t]he [D]epartment may ... adopt, promulgate[,] and enforce rules to exercise its authority and the authority of the [S]ecretary [.]” Section 22–2–2(B) and (C) state that “[t]he [D]epartment shall ... determine policy for the operation of all public schools and vocational education programs in the state, ... [and] supervise all schools and school officials coming under its jurisdiction[.]” In addition, Section 22–10A–19(A) requires the Department to “adopt criteria and minimum highly objective uniform statewide standards of evaluation for the annual performance evaluation of licensed school employees.” Through these provisions, the Legislature has delegated broad authority to the Secretary to define how teachers will be evaluated, so long as evaluations are “highly objective” and “uniform statewide.” Id. Thus, unless the Secretary has abused her discretion, mandamus is improper. See Brantley Farms, 1998–NMCA–023, ¶ 22, 124 N.M. 698, 954 P.2d 763 (“[T]he exercise of discretionary power or the performance of a discretionary duty cannot be controlled by mandamus.”).

{11} Petitioners argue that inclusion of student achievement as a performance measure for teachers represents a shift in public policy that can only be made by the Legislature. They appear to contend that the 2003 evaluation regulations, which focused on teachers' “skills, training[,] and knowledge” and did not include the assessment of student achievement to the same degree as the new regulations, properly implemented the Legislature's intent....