 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _______________

 3 Filing Date: January 29, 2015

 4 NO. 33,484

 5   STATE OF NEW MEXICO ex rel. THE
 6   HONORABLE SHERYL WILLIAMS
 7   STAPLETON, THE HONORABLE HOWIE
 8   MORALES, THE HONORABLE LINDA M.
 9   LOPEZ, AMERICAN FEDERATION OF
10   TEACHERS-NEW MEXICO, ELLEN
11   BERNSTEIN, and RYAN ROSS,

12        Petitioners-Appellants,

13 v.

14 HANNA SKANDERA, Secretary-Designate of
15 the PUBLIC EDUCATION DEPARTMENT OF
16 THE STATE OF NEW MEXICO,

17        Respondent-Appellee.

18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
19 C. Shannon Bacon, District Judge

20   Youtz & Valdez, P.C.
21   Shane C. Youtz
22   Stephen Curtice
23   James A. Montalbano
24   Albuquerque, NM

25 for Petitioners-Appellants
1   Montgomery & Andrews, P.A.
2   Jeffrey J. Wechsler
3   Seth C. McMillan
4   Andrew S. Montgomery
5   Santa Fe, NM

6 for Respondent-Appellee
 1                                       OPINION

 2 BUSTAMANTE, Judge.

 3   {1}   Petitioners appeal the district court’s denial of their petition for a writ of

 4 mandamus ordering the Secretary-Designate (the Secretary) of the Public Education

 5 Department (the Department) to desist from implementing new regulations governing

 6 the evaluation of teachers in public schools. Like the district court, we conclude that

 7 the Secretary acted within the discretion authorized by statute and, therefore, cannot

 8 be compelled by a writ of mandamus to suspend the new regulations. We affirm.

 9 BACKGROUND

10   {2}   In January 2012 the Teacher and School Leader Effectiveness Act (the Act)

11 was introduced in the New Mexico Legislature. Although it passed in the House of

12 Representatives, ultimately the Legislature failed to pass the Act. Later that year, the

13 Secretary published regulations governing evaluation of teachers in public schools,

14 which were codified at Title 6, Chapter 69, Part 8 of the New Mexico Administrative

15 Code.     See 6.69.8 NMAC (08/30/2012).          We will refer to these regulations

16 collectively as “Part 8.” Part 8 is titled “Teacher and School Leader Effectiveness.”

17 Id.

18   {3}   The purpose of Part 8 is stated in the regulations.

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

 8 6.69.8.6 NMAC (08/30/2012). Part 8 supersedes the teacher evaluation regulations

 9 promulgated in 2003 as 6.69.4 NMAC (09/30/2003, as amended through 06/15/2009).

10 See 6.69.8.8 NMAC (09/30/2013). Additional facts are provided in our discussion

11 of Petitioners’ arguments.

12 DISCUSSION

13 A.      Standard of Review

14   {4}   “[M]andamus lies to compel the performance of an affirmative act by another

15 where the duty to perform the act is clearly enjoined by law and where there is no

16 other plain, speedy[,] and adequate remedy in the ordinary course of law.” Lovato v.

17 City of Albuquerque, 1987-NMSC-086, ¶ 6, 106 N.M. 287, 742 P.2d 499; see NMSA

18 1978, §§ 44-2-4, -5 (1884). “Mandamus is a drastic remedy to be invoked only in

19 extraordinary circumstances.” Brantley Farms v. Carlsbad Irrigation Dist., 1998-

20 NMCA-023, ¶ 12, 124 N.M. 698, 954 P.2d 763. Mandamus does not apply “to

21 compel an executive officer acting within his discretion.” State ex rel. King v. Lyons,

22 2011-NMSC-004, ¶ 28, 149 N.M. 330, 248 P.3d 878. In other words, “[w]hen the



                                              2
 1 legal duty in question is based on a statute, mandamus is appropriate only when that

 2 duty is clear and indisputable.” Johnson v. Vigil-Giron, 2006-NMSC-051, ¶ 22, 140

 3 N.M. 667, 146 P.3d 312 (internal quotation marks and citation omitted).

 4   {5}   Generally, the grant or denial of a petition for writ of mandamus is reviewed

 5 for an abuse of discretion. FastBucks of Roswell, N.M., LLC v. King, 2013-NMCA-

 6 008, ¶ 7, 294 P.3d 1287. Within the abuse of discretion standard we consider whether

 7 the district court’s ruling rested on its determination that the Secretary acted within

 8 her statutory authority and exercised her discretion under statute, the issue presented

 9 requires the interpretation of statutes. Thus, our review is de novo. Id. ¶ 6; OS

10 Farms, Inc. v. N.M. Am. Water Co., 2009-NMCA-113, ¶ 19, 147 N.M. 221, 218 P.3d

11 1269. The scope of our review is limited to whether the Secretary’s actions fall

12 within her authority; we do not examine the prudence of the regulations themselves.

13 See Am. Fed’n of State, Cnty. & Mun. Emps. v. Martinez, 2011-NMSC-018, ¶ 4, 150

14 N.M. 132, 257 P.3d 952 (“In considering whether to issue a prohibitory mandamus,

15 we do not assess the wisdom of the public official’s act[.]”).

16   {6}   Petitioners make two broad arguments. First, they argue that the Secretary

17 “[o]verstepped” the authority granted her by statute and “[u]surp[ed]” the authority

18 of the Legislature to set public policy. Second, they maintain that two provisions in

19 Part 8 expressly violate the Public School Code. NMSA 1978, §§ 22-1-1 to 22-33-4



                                              3
 1 (except Article 5A) (1967, as amended through 2014). We address these arguments

 2 in turn.

 3 B.      The Secretary Did Not Exceed Her Authority

 4   {7}   Petitioners maintain that Part 8 constitutes a “radical[] alter[ation of the]

 5 teacher evaluation standards” found in the Department’s governing statutes. More

 6 specifically, Petitioners object to the inclusion of student performance as a measure

 7 of teacher competency and to the replacement of the “binary system” of evaluation

 8 (competent or incompetent) with one in which teachers are assessed according to five

 9 levels of competency (exemplary, highly effective, effective, minimally effective, and

10 ineffective). 6.69.8.8(D)(6) NMAC. They maintain that these aspects of the

11 regulations constitute a “fundamental shift in public policy” and therefore usurp the

12 Legislature’s policy-making function. We disagree that the Secretary has acted

13 outside of her statutorily defined authority.

14   {8}   “Agencies are created by statute, and limited to the power and authority

15 expressly granted or necessarily implied by those statutes.” Qwest Corp. v. N.M. Pub.

16 Regulation Comm’n, 2006-NMSC-042, ¶ 20, 140 N.M. 440, 143 P.3d 478.

17 “Generally, the Legislature, not the administrative agency, declares the policy and

18 establishes primary standards to which the agency must conform.” State ex rel.

19 Taylor v. Johnson, 1998-NMSC-015, ¶ 22, 125 N.M. 343, 961 P.2d 768. Through



                                             4
 1 enabling statutes, the Legislature may “delegate both adjudicative and rule-making

 2 power to administrative agencies.” New Energy Econ., Inc. v. Shoobridge, 2010-

 3 NMSC-049, ¶ 14, 149 N.M. 42, 243 P.3d 746. Thus, although courts have recognized

 4 the primacy of the Legislature’s role, our Supreme Court “has acknowledged that

 5 elected executive officials and executive agencies also make policy, to a lesser extent,

 6 as authorized by the constitution or the [L]egislature[.]” State ex rel. Sandel v. N.M.

 7 Pub. Util. Comm’n, 1999-NMSC-019, ¶ 12, 127 N.M. 272, 980 P.2d 55 (alteration,

 8 internal quotation marks, and citation omitted). However, “[t]he administrative

 9 agency’s discretion may not justify altering, modifying[,] or extending the reach of

10 a law created by the Legislature.” Taylor, 1998-NMSC-015, ¶ 22.

11   {9}   When reviewing agency action, we presume that “[r]ules and regulations

12 enacted by an agency are . . . valid” and we will uphold them if they are “reasonably

13 consistent with the statutes that they implement.” Tenneco Oil Co. v. N.M. Water

14 Quality Control Comm’n, 1987-NMCA-153, ¶ 14, 107 N.M. 469, 760 P.2d 161,

15 superseded by statute as stated in N.M. Mining Ass’n v. N.M. Water Quality Control

16 Comm’n, 2007-NMCA-010, 141 N.M. 41, 150 P.3d 991. Given this presumption,

17 Petitioners bear the burden “of establishing the invalidity of [Part 8].” N.M. Mining

18 Ass’n v. N.M. Mining Comm’n, 1996-NMCA-098, ¶ 8, 122 N.M. 332, 924 P.2d 741.




                                              5
 1   {10}   The Secretary’s duties and authority are addressed by several different statutes.

 2 The Public Education Department Act provides that “[t]he secretary may make and

 3 adopt such reasonable and procedural rules as may be necessary to carry out the

 4 duties of the [D]epartment and its divisions.” NMSA 1978, § 9-24-8(D) (2004). The

 5 Public School Code also contains several provisions addressing the authority of the

 6 Secretary and the Department. Section 22-2-1 states that “[t]he [S]ecretary is the

 7 governing authority and shall have control, management and direction of all public

 8 schools, except as otherwise provided by law” and that “[t]he [D]epartment may . . .

 9 adopt, promulgate[,] and enforce rules to exercise its authority and the authority of

10 the [S]ecretary[.]”     Section 22-2-2(B) and (C) state that “[t]he [D]epartment

11 shall . . . determine policy for the operation of all public schools and vocational

12 education programs in the state, . . . [and] supervise all schools and school officials

13 coming under its jurisdiction[.]” In addition, Section 22-10A-19(A) requires the

14 Department to “adopt criteria and minimum highly objective uniform statewide

15 standards of evaluation for the annual performance evaluation of licensed school

16 employees.” Through these provisions, the Legislature has delegated broad authority

17 to the Secretary to define how teachers will be evaluated, so long as evaluations are

18 “highly objective” and “uniform statewide.” Id. Thus, unless the Secretary has

19 abused her discretion, mandamus is improper. See Brantley Farms, 1998-NMCA-



                                                6
 1 023, ¶ 22 (“[T]he exercise of discretionary power or the performance of a

 2 discretionary duty cannot be controlled by mandamus.”).

 3   {11}   Petitioners argue that inclusion of student achievement as a performance

 4 measure for teachers represents a shift in public policy that can only be made by the

 5 Legislature. They appear to contend that the 2003 evaluation regulations, which

 6 focused on teachers’ “skills, training[,] and knowledge” and did not include the

 7 assessment of student achievement to the same degree as the new regulations,

 8 properly implemented the Legislature’s intent. See, e.g., 6.69.4.10 NMAC (providing

 9 for implementation of a high objective uniform standard of evaluation);

10 6.69.4.9(D)(4)(b) NMAC (discussing student achievement as a measure of a teacher’s

11 competency); 6.69.4.11(E)(1)(a) NMAC (same).

12   {12}   But there is nothing in the Legislature’s directive that teacher evaluations

13 should be “highly objective” and “uniform statewide” that addresses exactly how

14 teacher effectiveness should be measured. Indeed, even the 2003 regulations, with

15 which Petitioners agree, were based on the Department’s discretionary selection of

16 assessment criteria. We conclude that the statute leaves the particulars of a teacher

17 evaluation program to the Secretary.

18   {13}   A similar analysis applies to Petitioners’ argument that the Secretary

19 fundamentally altered the public policy of the state by “replacing the binary system”



                                              7
 1 of teacher evaluation with a more nuanced system. The statute requires only that the

 2 teacher evaluation program be objective and uniform. See § 22-10A-19(A). As long

 3 as these broad criteria are met, it is within the Secretary’s discretion to devise a

 4 structure for evaluations as she sees fit.

 5   {14}   Finally, to the extent that Petitioners argue that Part 8 is invalid because it was

 6 promulgated only after the Legislature failed to pass a bill mandating its provisions,

 7 we are unpersuaded.          Petitioners argue that the present matter is “virtually

 8 indistinguishable” from the facts in Taylor, in which an administrative agency

 9 implemented regulations after a bill to the same effect failed to pass in the

10 Legislature.     1998-NMSC-015, ¶ 10.             On appeal, the Court invalidated the

11 regulations. Id. ¶ 25. Its reasoning, however, was based on its determination that the

12 regulations “implement[ed] the type of substantive policy changes reserved to the

13 Legislature[,]” and therefore were beyond the agency’s authority, not on the fact that

14 the Legislature had rejected similar legislation. Id. Similarly, the failure of the

15 Legislature to pass the Teacher and School Leader Effectiveness Act has no bearing

16 on our analysis of whether the Secretary’s actions were within her discretion under

17 the current statutes. See id. Since we have concluded that the Secretary did not

18 exceed her authority, Taylor does not support Petitioners’ position.




                                                 8
 1 C.       Part 8 Does Not Violate the Public School Code

 2   {15}   In their second major argument, Petitioners contend that two provisions in Part

 3 8 are in direct violation of the Public School Code. They argue that whereas the

 4 statute requires principals to observe each teacher in the classroom, Part 8 permits

 5 assistant principals to observe teachers. Similarly, they argue that whereas the statute

 6 requires that any evaluation system be “uniform statewide,” Part 8 exempts charter

 7 schools from its regulations. These arguments are unavailing.

 8   {16}   Petitioners first contend that 6.69.8.8(H) NMAC conflicts with Section 22-

 9 10A-19(C). The former states that “[s]chool leaders shall observe instructional

10 practice of teachers using common research-based observational protocol approved

11 by the [D]epartment that correlates observations to improved student achievement.”

12 6.69.8.8(H) NMAC. The term “school leader[s]” includes both principals and

13 assistant principals. 6.69.8.7(N) NMAC. Section 22-10A-19(C) states, “[a]s part of

14 the highly objective uniform statewide standard of evaluation for teachers, the school

15 principal shall observe each teacher’s classroom practice to determine the teacher’s

16 ability to demonstrate state-adopted competencies.” We agree with the district court

17 that the regulation does not necessarily conflict with the statute because the statute

18 “mandates the participation of school principals [but] does not limit the persons who

19 may [also] observe [teachers].” (Emphasis added.) Neither does the fact that



                                               9
 1 6.69.8.8(H) NMAC allows either principals or assistant principals to observe teachers

 2 in classrooms relieve principals of their duty to do so under the statute. Even if we

 3 acknowledge that, as Petitioners argue, the regulation may be applied in such a way

 4 as to conflict with the statute, Petitioners provide no evidence that the Secretary has

 5 interpreted the regulation that way. “If the [Department] may interpret the regulation

 6 in a manner that is in compliance with the [Public School Code], we must affirm the

 7 regulation, leaving to a future time any challenge to the regulation as applied.” Old

 8 Abe Co. v. N.M. Mining Comm’n, 1995-NMCA-134, ¶ 22, 121 N.M. 83, 908 P.2d

 9 776. “Meanwhile, for purposes of this appeal, we will presume that the rule will not

10 be interpreted in a manner contrary to the [Public School Code].” Id.

11   {17}   Next, Petitioners argue that, because charter schools are exempt from Part 8,

12 the evaluation program does not comply with the statute’s requirement that any

13 evaluation program be uniformly applied to all schools. See 6.69.8.7(L) NMAC

14 (defining “[s]chool district” and stating that “[d]istrict-authorized charter schools are

15 excluded from being considered a school district for purposes of this rule”); § 22-

16 10A-19(A) (“The department shall adopt . . . uniform statewide standards of

17 evaluation for the annual performance evaluation of licensed school employees.”).

18 But the Legislature expressly exempted charter schools from the Public School

19 Code’s provisions related to teacher evaluations. Section 22-8B-5(C), which is part



                                              10
 1 of the Charter Schools Act within the Public School Code, requires the Department

 2 to “waive requirements or rules and provisions of the Public School Code . . .

 3 pertaining to . . . evaluation standards for school personnel[.]” Thus Part 8’s

 4 provision exempting charter schools does not contravene the uniformity requirement

 5 in the Public School Code.

 6   {18}   Petitioners make a cursory argument that the requirement in Section 22-10A-

 7 19(A) that evaluation programs be uniform throughout the state “could be seen as

 8 taking precedence [over the exemption in the Charter Schools Act].” They do not cite

 9 to any authority in support of this proposition. In addition, Petitioners do not state

10 how this specific argument was preserved, we do not find it in the pleadings, and the

11 district court did not address it in its order. We therefore do not address this

12 argument because it was not preserved below and is undeveloped on appeal. See

13 Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M.

14 26, 106 P.3d 1273 (“[O]n appeal, the party must specifically point out where, in the

15 record, the party invoked the court’s ruling on the issue. Absent that citation to the

16 record or any obvious preservation, we will not consider the issue.”); Headley v.

17 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076

18 (declining to review an undeveloped argument).




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1 CONCLUSION

2   {19}   Having concluded that the Secretary’s promulgation of Part 8 was within the

3 discretionary authority granted her by statute, we affirm the district court’s denial of

4 Petitioners’ petition for a writ of mandamus.

5   {19}   IT IS SO ORDERED.



6
7                                         MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9 __________________________________
10 JONATHAN B. SUTIN, Judge

11 __________________________________
12 RODERICK T. KENNEDY, Judge




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