                                                I attest to the accuracy and
                                                 integrity of this document
                                                   New Mexico Compilation
                                                 Commission, Santa Fe, NM
                                                '00'04- 13:55:03 2013.03.13
Certiorari Granted, March 1, 2013, No. 33,928

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-034

Filing Date: November 8, 2012

Docket No. 31,119

CHAD SKOWRONSKI,

       Plaintiff-Appellant,

v.

THE NEW MEXICO PUBLIC
EDUCATION DEPARTMENT and
VERONICA C. GARCIA, in her official
capacity as the Secretary of the New
Mexico Public Education Department,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM

for Appellant

Gary K. King, Attorney General
Andrea R. Buzzard, Assistant Attorney General
Santa Fe, NM

N.M. Public Education Department
Willie R. Brown, General Counsel
Santa Fe, NM

for Appellees

                                     OPINION

                                         1
SUTIN, Judge.

{1}    The district court affirmed a decision of the Secretary of the New Mexico Public
Education Department (the Department) revoking the teaching license of Chad Skowronski.
Skowronski appeals. We affirm.

BACKGROUND

{2}     At this point, we only recite a few of the many facts underlying a story strewn with
credibility issues seen completely differently by a hearing officer, who recommended
dismissal of the Department’s administrative charges against Skowronski, and the Secretary,
who alone made the final decision to revoke Skowronski’s teaching license. The underlying
facts will be more fully presented in later sections of this Opinion.

{3}      The Department charged Skowronski with engaging in inappropriate and improper
sexual contact or behavior with a fourteen-year-old female (the Victim). Skowronski, a
science teacher, had a teaching license issued by the Department. The alleged contact
occurred in the living room of persons who owned and operated the charter school where
Skowronski had been hired to teach and where the Victim was considering attending, and
who were also the Victim’s godparents. The Victim’s godparents hosted an event that
included a potluck followed by a poker game, which was attended, among other guests, by
Skowronski, the Victim, and the Victim’s parents. Following the party, the Victim’s parents
spent the night in a tent in a nearby field. The Victim, who had stayed overnight at her
godparents’ home many times, slept on the couch in the living room. Skowronski also slept
in the living room, on the floor at a distance, according to Skowronski, of ten feet from the
Victim, but according to the Victim and her father, within one to two feet of the Victim. The
alleged contact occurred when the Victim and Skowronski were alone in the living room.

{4}     The Department’s notice of contemplated action to take disciplinary action against
Skowronski’s license went first to a hearing officer. See NMSA 1978, § 61-1-4(F) (2003)
(explaining that if the licensee requests a hearing, a hearing shall be held within sixty days);
6.68.3.9(D)(1) NMAC (11/30/2005) (stating that all hearings may be conducted by a hearing
officer who is a licensed New Mexico attorney and who is not employed by the Department).
After an evidentiary hearing, the hearing officer made recommended findings of fact and
conclusions of law followed by a recommended decision. See 6.68.3.12(B) NMAC
(11/30/2005) (stating that the hearing officer “shall submit a formal written report to the
[S]ecretary consisting of [among other things] . . . proposed findings of fact, proposed
conclusions of law, and [a proposed] order”). The hearing officer found that the charges had
not been proved by a preponderance of the evidence. And he recommended that the notice
of contemplated action be dismissed with prejudice.

{5}   The hearing officer’s recommended decision went to the Secretary for final decision.
See NMSA 1978, § 61-1-13 (1993) (stating that after a hearing has been completed, the
members of the board shall consider the case and shall thereafter render a decision);

                                               2
6.68.3.13(A) NMAC (11/30/2005) (stating that the Secretary “shall render a final decision
and order based on a preponderance of the evidence”). The Secretary entered a decision and
order which, after indicating that she had familiarized herself with the record before the
hearing officer, and after adopting some of the hearing officer’s recommendations and
rejecting others, revoked Skowronski’s license, ultimately concluding “that good and just
cause hav[e] been established by a preponderance of the evidence to warrant revocation.”
As reflected later in this Opinion, the essential difference between the hearing officer’s view
of the circumstances and that of the Secretary was how these two decision makers saw the
credibility of Victim and Skowronski and the believability of their testimony.

{6}     Skowronski appealed to the district court. See NMSA 1978, §§ 39-3-1.1, 61-1-17
(1999); Rule 1-074 NMRA. In its final decision on the Rule 1-074 appeal, the district court
affirmed the decision of the Secretary. Skowronski appeals the decision of the district court
and asserts the following points: (1) the Department erred as a matter of law in submitting
his license revocation to the Secretary for final decision, (2) the Secretary erred in
substituting her own credibility findings for those of the hearing officer, (3) the Department
and the Secretary denied him due process of law, and (4) the Secretary’s decision was not
supported by substantial evidence.

DISCUSSION

I.     The Issue of the Secretary’s Authority to Make the Final Revocation Decision

{7}      Skowronski contends that the Secretary did not have constitutional or statutory
authority to delegate exclusive authority to a cabinet secretary to revoke a teaching license.
He argues that Article XII, Section 6 of the New Mexico Constitution and the Uniform
Licensing Act (the Licensing Act), NMSA 1978, §§ 61-1-1 to -33 (1957, as amended
through 2003), required the Department to refer the hearing officer’s recommended decision
for a final decision by a quorum instead of by a single individual. The issue requires us to
interpret constitutional and legislative acts, issues of law only, and our review is de novo.
City of Aztec v. Gurule, 2010-NMSC-006, ¶ 5, 147 N.M. 693, 228 P.3d 477; see Att’y Gen.
v. N.M. Pub. Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453. We
first set out the relevant constitutional and statutory provisions, plus administrative rules
promulgated by the Department. Afterward, we analyze the question of what Article XII,
Section 6 and the applicable statutes intended in regard to who makes the final revocation
decision.

The Constitution

{8}    Article XII, Section 6 states in full:

       Public education department; public education commission.

               A.      There is hereby created a “public education department” and

                                                3
       a “public education commission” that shall have such powers and duties as
       provided by law. The department shall be a cabinet department headed by
       a secretary of public education who is a qualified, experienced educator who
       shall be appointed by the governor and confirmed by the senate.

               B.      Ten members of the public education commission shall be
       elected for staggered terms of four years as provided by law. Commission
       members shall be residents of the public education commission district from
       which they are elected. Change of residence of a commission member to a
       place outside the district from which he was elected shall automatically
       terminate the term of that member.

              C.      The governor shall fill vacancies on the commission by
       appointment of a resident from the district in which the vacancy occurs until
       the next regular election for membership on the commission.

               D.      The secretary of public education shall have administrative
       and regulatory powers and duties, including all functions relating to the
       distribution of school funds and financial accounting for the public schools
       to be performed as provided by law.

              E.      The elected members of the 2003 state board of education
       shall constitute the public education commission, if this amendment is
       approved, until their terms expire and the districts from which the state board
       of education were elected shall constitute the state public education
       commission districts until changed by law.

{9}     Before this amendment establishing the Public Education Department, the Secretary
of Public Education and the State Board of Education had the final administrative say on
revocation of licenses. See, e.g., Bd. of Educ. of Melrose Mun. Sch. v. N.M. Bd. of Educ.
(Melrose), 106 N.M. 129, 130-31, 740 P.2d 123, 124-25 (Ct. App. 1987) (involving whether
the State Board of Education erred in reversing the credibility determinations of a local
board); Bd. of Educ. of Alamogordo Pub. Sch. v. Jennings, 98 N.M. 602, 604-05, 651 P.2d
1037, 1039-40 (Ct. App. 1982) (involving whether the State Board of Education erred in
reversing a local board), overruled on other grounds by Melrose, 106 N.M. 129, 740 P.2d
123. Upon amendment, the Public Education Commission (the Commission) was originally
composed of the elected members of the 2003 State Board of Education. N.M. Const. art.
XII, § 6(E). But the powers and duties of the Commission were not those given to the
previous State Board of Education but, instead, were those “provided by law.” N.M. Const.
art. XII, § 6(A).

The Licensing Act

{10}   The Licensing Act pre-dated the amendment of Article XII, Section 6. The Licensing

                                               4
Act defines “board,” an operative word in the matter before us, as, among other things, “a board,
commission[,] or agency that administers a profession or occupation licensed pursuant to
Chapter 61 NMSA 1978[.]” Section 61-1-2(A)(3). The Licensing Act also defines “board” as
“any other state agency to which the . . . Licensing Act . . . is applied by law[.]” Section 61-1-
2(A)(4). Taking several sections of the Licensing Act together, the Act provides the procedures
required for revocation of licenses by boards. See, e.g., §§ 61-1-2(A)(3), (4), (C), (D); §§ 61-1-4
to -17, -19, -21. A licensee has a right to a hearing before the board that has authority to take
revocation action. Section 61-1-3(F). The hearing can take place before the board or before a
board-selected hearing officer who must submit a report to the board with findings of fact.
Section 61-1-7(A).

{11} Of particular note is Section 61-1-13(A). It provides in part that “[a]fter a hearing has
been completed, the members of the board shall proceed to consider the case and as soon as
practicable shall render their decision, provided that the decision shall be rendered by a quorum
of the board.” Id. Skowronski relies on this section in arguing that because the term “quorum”
can apply only to multiple-member bodies, Section 61-1-13(A) necessarily mandates that more
than a singular individual, such as the Secretary, must participate in revocation decisions. See
Polk Cnty. v. State Bd. of Equalization, 484 S.W.2d 49, 56 (Tenn. Ct. App. 1972) (“The word
‘quorum’ implies a meeting, and the action must be group action, not merely action of a
particular number of members as individuals.” (internal quotation marks and citation omitted)).
He points out that the Licensing Act applies to the licensing of teachers and that it requires that
a revocation decision be made by “members of the board,” meaning members of any board,
commission, or agency as to which the Licensing Act applies. See § 61-1-2(A)(3), (4); see also
NMSA 1978, § 22-10A-31 (2003) (stating, in relation to licensed school employees, “[i]n
accordance with the procedures provided in the . . . Licensing Act, . . . the state board
[department] may . . . revoke a department-issued license”). Skowronski asserts that either the
Commission created in the amendment to Article XII, Section 6 or some other body of at least
more than one person was required to review the record before the hearing officer and make a
final decision.

The Public Education Department Act

{12} The Public Education Department Act (the Education Act), NMSA 1978, §§ 9-24-1 to
-15 (2004, as amended through 2006), was a result of the 2003 constitutional amendment to
Article XII, Section 6. The constitutional amendment amended the “state board of education”
and the “state department of public education” out of existence and created in their stead a
“public education commission” and a “public education department” to be headed by a cabinet-
level “secretary of public education” appointed by the governor. N.M. Const. art. XII, § 6(A);
see id. annot. (the 2003 amendment) (explaining that Subsection (A) of Article XII, Section 6
(1986), which had provided for the creation of a “state board of education” and a “state
department of public education” was rewritten by the 2003 amendment, which was subsequently
adopted through a special election on September 23, 2003). The Education Act clarifies that all
references in law to the state board of education and all references to the state department of
public education or the department of education “shall be deemed to be references to the public

                                                5
education department.” Section 9-24-15(C). Pursuant to Sections 22-10A-1 to -11.1, it is the
“state board [department]” that issues licenses.

{13} Under the Education Act, the Secretary is the administrative head of the Department.
See § 9-24-5(A). The powers and duties of the Secretary include “manag[ing] all operations of
the [D]epartment and . . . administer[ing] and enforc[ing] the laws with which he or the
[D]epartment is charged” and “[t]o perform his duties, the [S]ecretary has every power expressly
enumerated in the law, whether granted to the [S]ecretary [or] the [D]epartment . . . . [including]
tak[ing] administrative action by issuing orders . . . to ensure implementation of and compliance
with the provisions of law for which administration or execution he is responsible and to enforce
those orders . . . by appropriate administrative action in the courts[.]” Section 9-24-8(A), (B)(5).
In addition, “[t]he [S]ecretary 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.” Section 9-24-8(D).

{14} Section 9-24-9(A) of the Education Act relates to the Public Education Commission
created under Article XII, Section 6 and states that “[t]he [C]ommission shall be administratively
attached to the [D]epartment, with administrative staff provided by the [D]epartment.” In terms
of the duties and responsibilities of the Commission, Section 9-24-9(A) states only that “[t]he
[C]ommission shall advise the [D]epartment on policy matters and shall perform other functions
as provided by law.”

{15} The Secretary adopted regulations pursuant to Section 9-24-8(D). See 6.68.3.1 to .16
NMAC (11/30/2005). The regulations track the Licensing Act and provide for a notice of
contemplated action, time limits for requesting and scheduling a hearing, appointment of a
hearing officer, subpoena authority for discovery and hearing purposes, discovery rights,
recitation of a licensee’s rights, and an administrative hearing. See 6.68.3.8 to .15 NMAC. In
particular, New Mexico Administrative Code Regulation 6.68.3.12(B) provides for submission
to the Secretary of a hearing officer’s report, and Regulation 6.68.3.13(A), (B), and (C) provides
for a final decision of the Secretary. The regulations are silent with respect to the Commission.
And they do not provide for a hearing before the Secretary.

The Public School Code and the School Personnel Act

{16} Sections in the Public School Code, NMSA 1978, §§ 22-1-1 to -31-6 (excluding Article
5A) (1967, as amended through 2012), and the School Personnel Act, NMSA 1978, §§ 22-10A-1
to -39 (1967, as amended through 2011), namely, Section 22-2-2(K) of the Public School Code
and Section 22-10A-31 of the School Personnel Act relate to revocation of teachers’ licenses.
Section 22-10A-31 provides: “In accordance with the procedures provided in the . . . Licensing
Act . . ., the state board [department] may deny, suspend[,] or revoke a [D]epartment-issued
license for incompetency, moral turpitude[,] or any other good and just cause.”1 Section 22-2-


       1
          Skowronski asserts that the bracketed “[department]” in Section 22-10A-31 was
inserted by the compilers of the statutory material. Skowronski notes that the New Mexico

                                                 6
2(K) similarly provides that “[t]he [D]epartment shall . . . deny, suspend[,] or revoke a license
according to law for incompetency, moral turpitude[,] or any other good and just cause[.]”

The Authority Question

{17} The puzzling question here is whether the Article XII, Section 6 amendment and the
Education Act grant to the Secretary the exclusive authority to revoke a teacher’s license. The
Licensing Act, a general act controlling the process for revocation of licenses issued by agencies
covered by the Licensing Act, and including teachers’ licenses, has remained untouched through
the various alterations made by the Article XII, Section 6 amendment and post-amendment
legislation, in regard to how a “board,” as defined in the Licensing Act, is to make the final
decision regarding license revocation. In the Education Act, the Legislature has apparently
construed that Article XII, Section 6(A)’s reference to “such powers and duties as provided by
law” that the Department and the Commission shall have allows the Legislature to limit the
Commission’s powers and duties to nothing beyond a purely advisory role. Section 9-24-9(A).
Yet, the Constitution does not give any hint that the Commission is to be relegated solely to an
advisory position. Also, in the Education Act, the Legislature gave broad duties and
responsibilities to the Secretary. See § 9-24-8. But nothing in the Education Act specifically
grants the Secretary the exclusive duty and responsibility to make final license revocation
decisions. The Public School Code and the School Personnel Act also contain no such specific
grant to the Secretary, leaving the revocation decision to the “board” or “department.” See
§§ 22-2-2(K), 22-10A-31. Only through the promulgated Department regulations is the
Secretary made the exclusive decider in regard to license revocation. See 6.68.3.13(A), (B), (C)
NMAC.

{18} The Department and the Secretary argue that, based on the constitutional amendment and
Sections 9-24-15(C), 22-10A-31, 22-2-2(K), the Department is charged with the duty to revoke
teaching licenses issued by the Department. They emphasize that the Department is headed by
the Secretary with broad powers and duties, who must enforce the laws with which the
Department is charged, including Section 22-10A-31, and who must take the required
administrative actions to enforce Section 22-10A-31. Their logic moves to the further position
that, in her enforcement of Section 22-10A-31, the Secretary must follow the procedures of the
Licensing Act and that she did so by adopting regulations pursuant to Section 9-24-8(D). The
regulations grant to the Secretary the authority to decide the revocation question after reviewing
the report of the hearing officer. 6.68.3.13(A), (B), (C) NMAC.

{19}   The Department and the Secretary also argue a number of further points. They argue that



Session Laws 2003, Chapter 153, Section 52 sets out the original and actual enactment
without the word “[department]” immediately following the word “board.” His apparent
purpose is to advance a view that the Legislature intended the term “board” to remain a
purposeful and controlling term when it comes to actions of the Department relating to
revocation of license. We do not find the position persuasive.

                                                7
“quorum” in Section 61-1-13 of the Licensing Act applies when the deciding body is a multiple-
member board and not when, as here, “the decider is a single individual[.]” They argue that the
language of the Licensing Act, which is general legislation, does not override the specific
constitutional authority permitting specific legislation and control in regard to the question of
authority to revoke licenses. They assert that the Licensing Act’s procedures “embrace a ‘state
agency’ made subject to its coverage by law” and that the agency in this case is the Department
whose Secretary is required to enforce Section 22-10A-31. They further argue that nowhere in
the Constitution or the statutes is the Commission given a duty or authority to play any part in
the administrative revocation process. In regard to the Commission, the Department and the
Secretary point out that the Commission has enumerated statutory duties as expressly set out in
Sections 22-2-2.2, 22-2-14(C), (G), 22-8B-16, 22-14-3, and 22-14-3.1. Among the duties are
approving or disapproving charter school applications, see § 22-8B-16, and supervising the
administration of federal aid funds relating to vocational education and vocational rehabilitation.
See §§ 22-14-3, -3.1. The Department and the Secretary conclude that logic and common sense
require the conclusion that, under the statutory scheme relating to education, the Secretary, and
not the Commission or any other group, has the authority to make the final determination of
revocation and that any view to the contrary is absurd.

{20} There does exist a gap between the Licensing Act’s plural-member or quorum authority
as applied to boards, commissions, or agencies that regulate license issuance and that of the
Education Act, the Public School Code, and the School Personnel Act. The Licensing Act does
not appear to have ever contemplated that license revocation be in the exclusive domain of a
single person, even a cabinet secretary. The use of “quorum” in the Licensing Act, as well as
the Act’s use of “members of the board,” indicates that the Legislature contemplated that more
than a single person would make a revocation decision. The Licensing Act has not been
amended to change these procedural requirements. Yet, in the Education Act, the Legislature
chose to severely limit the Commission’s duties and responsibilities. And, in the Public School
Code, the Legislature did not grant authority to discipline licensees in its enumeration of the
duties of the Commission. It appears that the Legislature intended in the School Personnel Act
to equate “board” with the “department.” See, e.g., § 22-10A-3(A)-(C); see also § 22-10A-
31(A) (“[T]he state board [department] may deny, suspend[,] or revoke a department-issued
license for incompetency, moral turpitude[,] or any other good and just cause.”); § 9-24-15(C)
(“All references in law to the state board of education shall be deemed to be references to the
public education department. All references to the state department of public education or the
department of education shall be deemed to be references to the public education department.”).
As the district court analyzed this, the intent extends to substituting the Department for the
Board as authority to revoke a teaching license with final authority resting in the Secretary. The
district court also particularly noted that none of the various laws giving authority to the Public
Education Commission grant the Commission the authority to revoke teaching licenses.
Furthermore, the Secretary promulgated regulations giving the Secretary exclusive and final
authority as to license revocations. Those regulations have the force of law. See, e.g., Truong
v. Allstate Ins. Co., 2010-NMSC-009, ¶ 24, 147 N.M. 583, 227 P.2d 73; Duke City Lumber Co.
v. N.M. Envtl. Improvement Bd., 101 N.M. 291, 292, 681 P.2d 717, 718 (1984) (“The Legislature
grants agencies the discretion of promulgating rules and regulations which have the force of

                                                8
law.”).

{21} We are hard pressed to hold that the Secretary lacked authority to revoke Skowronski’s
license. Article XII, Section 6 grants broad authority to the Legislature in regard to the duties
and authority of the Commission and the Secretary. The Legislature enacted a scheme of
specific legislation relating to those duties and authority. It is not our position to question the
wisdom of placing the final decision regarding revocation of a teacher’s license in one person.
See State ex rel. Udall v. Pub. Emps. Ret. Bd., 120 N.M. 786, 788, 907 P.2d 190, 192 (1995)
(stating that “[i]t is not the province of [the c]ourt to inquire into the wisdom or policy of an act
of the Legislature”). We think it is significant that, other than arguing how the constitutional and
statutory provisions are to be interpreted, Skowronski cites no authority to support his
arguments. Thus, in interpreting the entire constitutional and statutory education-related
scheme, we must side with the position of the Department and the Secretary. We see no
constitutional mandate that requires an interpretation of the constitutional and statutory scheme
as placing the final decision-making authority in the Commission or some unspecified group or
as precluding the Secretary from having the final administrative say. Nor do we see any basis
in the scheme to determine that the Commission or any group has the authority to make the
revocation decisions. We therefore hold that neither the Secretary, the Department, nor the
district court erred on the question of the Secretary’s authority to make the final revocation
decision.

II.       The Issues of Substitution of Credibility Determinations and Denial of Due Process

The Administrative Hearing and Review Standards

{22} Regulation 6.68.3.8(B) states that the Department “may suspend, revoke[,] or take other
disciplinary action against a license . . . for incompetency, immorality[,] or any other good and
just cause.” The regulation lists nine examples of “[o]ther good and just cause.” Id. Barring
success on his lack-of-authority argument, it seems clear that Skowronski does not contest that,
were the Victim’s allegations true, revocation would be proper under Regulation 6.68.3.8(B).

{23} The regulations provide that the purpose of the hearing before the hearing officer is “to
determine whether sufficient grounds exist for the suspension, revocation[,] or other disciplinary
action” and that the Department has the “burden of proof . . . to establish by a preponderance of
the evidence that sufficient grounds exists.” 6.68.3.11(A) NMAC. After the hearing, the
hearing officer must submit a formal written report to the Secretary containing proposed findings
of fact, proposed conclusions of law, and a proposed order. 6.68.3.12(B) NMAC.

{24} The regulations contemplate that the Secretary’s role is that of adjudicator. The
Secretary has the duty to “review the report of the hearing officer together with any briefs or
proposed findings/conclusions/orders timely submitted by the parties” and to then “render a final
decision and order based on a preponderance of the evidence.” 6.68.3.13(A) NMAC. The
Secretary is required to “(1) adopt the hearing officer’s proposed findings of fact, conclusions
of law[,] and order; or (2) modify said findings of fact and conclusions of law and order and

                                                 9
render a decision; or (3) reopen the case to receive additional evidence . . .; or (4) reject any
action against the licensee’s licensure[.]” 6.68.3.13(A)(1)-(4) NMAC. The regulations
expressly state that “[t]he [S]ecretary is not an appellate reviewer of the hearing officer’s
proposed findings/conclusions/order[,]” but that “the [S]ecretary is ultimately responsible for
issuing a final decision and order relative to possible disciplinary action against a licensee’s
educator licensure.” 6.68.3.13(B) NMAC. If the Secretary “seeks to deviate” from proposed
findings of fact or conclusions of law of the hearing officer, the Secretary must go further and
make “an independent review of the transcript of the [proceedings]” before the hearing officer.
Id. The Secretary’s deviations must be “supported by a preponderance of the evidence[.]” Id.

Substitution of Credibility Determinations

{25} The issue is whether the Secretary erred in (1) failing to defer to and rejecting the hearing
officer’s credibility determinations that supported a recommendation to dismiss the
Department’s charges; and (2) making her own, different credibility determinations to support
revocation. Thus, the issue requires analysis of what legal requirement exists, if any, that
imposes a duty upon the Secretary to defer to the credibility determinations of the hearing
officer. This issue is one of law, which we review de novo. Gurule, 2010-NMSC-006, ¶ 5.

{26} Skowronski argues that neither the Licensing Act nor the Department’s regulations
permit the Secretary to “reject outright” the hearing officer’s credibility determinations or to
substitute her own credibility findings or her “own views” for those of the hearing officer. In
support of his contention, Skowronski discusses three New Mexico cases: In re Bristol, 2006-
NMSC-041, 140 N.M. 317, 142 P.3d 905; Melrose, 106 N.M. 129, 740 P.2d 123; and Jennings,
98 N.M. 602, 651 P.2d 1037. Skowronski’s authorities do not support his contention.

{27} In re Bristol is distinguishable and inapplicable. In re Bristol involved attorney
disciplinary proceedings and described a rule-driven disciplinary process that differed in key
respects from the process set forth in the Department’s regulations. 2006-NMSC-041, ¶ 1.
Disciplinary proceedings against an attorney commenced with a hearing before a hearing
committee. Id. ¶ 2. The hearing committee was designated to take evidence during the course
of a formal disciplinary proceeding and to issue “its findings of fact, conclusions and
recommendations for discipline or other disposition of the matter, which are submitted directly
to the [d]isciplinary [b]oard.” Id. ¶¶ 2, 15 (internal quotation marks and citation omitted). The
disciplinary board then appointed a hearing panel to review the recommended decision of the
hearing committee. Id. ¶¶ 3, 12. Our Supreme Court emphasized in In re Bristol that in terms
of its review of the committee’s factual findings, the hearing panel’s role was consistent with
the role of a district court acting in an appellate capacity to review an administrative agency’s
factual determinations. Id. ¶ 16. Thus, the hearing panel was to “defer to the hearing committee
on matters of weight and credibility, viewing the evidence in the light most favorable to the
hearing committee’s decision[,] and resolving all conflicts and reasonable inferences in favor
of the decision reached by the hearing committee.” Id.

{28}   Unlike the hearing committee in In re Bristol, which was charged with making findings

                                               10
and conclusions, the hearing officer in this case was granted the more limited duty of making
proposed findings and proposed conclusions. See id. ¶ 2. Compare Rule 17-104(C)(3) NMRA
(stating in regard to the rules governing attorney discipline that hearing committees “shall have
the power and duty . . . to report to the [d]isciplinary [b]oard their findings of fact, and
conclusions of law[,] and recommendations”), with 6.68.3.12(B) NMAC (stating that “the
hearing officer shall submit a formal written report to the [S]ecretary consisting of . . . proposed
findings of fact [and] proposed conclusions of law” (emphasis added)). And unlike the hearing
panel in In re Bristol, which was to review the hearing committee’s findings of fact in a
deferential, appellate capacity, here, the Secretary was explicitly “not an appellate reviewer of
the hearing officer’s proposed findings/conclusions/order.” 6.68.3.13(B) NMAC. “Rather, the
[S]ecretary is ultimately responsible for issuing a final decision and order relative to possible
disciplinary action against a licensee’s educator licensure.” Id. In light of the differences
between the respective duties of the In re Bristol hearing committee and the hearing officer in
this case and the differences between the In re Bristol hearing panel and the Secretary in this
case, In re Bristol has no bearing on our analysis of the issues presented in this case.

{29} Further, we note that neither Melrose nor Jennings supports Skowronski’s argument that
the Secretary was not permitted to reject the hearing officer’s proposed findings and conclusions.
In fact, they tend to support the opposite conclusion. In Jennings, this Court held that the State
Board of Education was entitled to reach conclusions contrary to those of its own hearing officer
provided that the conclusion was not unreasonable and was supported by substantial evidence.
98 N.M. at 608, 651 P.2d at 1043. In Jennings, this Court upheld the State Board of Education’s
decision notwithstanding the fact that the extent of the Board’s record examination was limited
to its having “reviewed the report” of the hearing officer. Id. at 604, 651 P.2d at 1039; see also
id. at 614, 651 P.2d at 1049 (Donnelly, J., dissenting) (explaining that “fundamental fairness
requires that when the State Board . . . elects to disregard the findings and conclusions of its own
hearing officer and to arrive at a contrary result, it must review the entire record of the . . .
hearing” especially where “the ultimate decision rests upon the credibility of . . . opposing major
witnesses”).

{30} In Melrose, this Court explained that “Jennings was incorrectly decided to the extent
[that] it permits the State Board to reach a decision contrary to the hearing officer’s, particularly
on issues involving the credibility of witnesses, without the State Board having reviewed the
transcript of proceedings, as it relates to the issue involved.” Melrose, 106 N.M. at 131, 740
P.2d at 125. We clarified, however, that

        our decision here does not affect the holding of Jennings to the effect that the
        State Board can reverse the decision of its hearing officer, without taking new
        evidence, even on points turning on the credibility of witnesses. We only require
        that before the State Board opts to reject the decision of its hearing officer,
        particularly when the credibility of the witnesses is at issue, that at the very least
        it review so much of the transcript of the proceedings before the hearing officer
        as is necessary to support its decision.


                                                 11
Melrose, 106 N.M. at 131, 740 P.2d at 125 (emphasis added).

{31} Skowronski does not argue, nor on this record could he reasonably argue, that the
Secretary rejected the hearing officer’s proposed findings of fact or his views of the credibility
of the witnesses without having reviewed the transcript of the proceedings. The Secretary stated
in her final decision that she had “familiarized [herself] with the record, including the hearing
officer’s report, and [was] otherwise fully advised in this matter[.]” She follows this statement
with nine full pages of findings of fact, each supported by references to the hearing transcript
and other parts of the record. Thus, it is clear that the Secretary, in rejecting the hearing officer’s
proposed findings, did so in a manner that comported with Jennings and that was in line with
Judge Donnelly’s dissent that we cited with approval in Melrose. See Melrose, 106 N.M. at 131,
740 P.2d at 125.

{32} Finally, contrary to Skowronski’s argument that the Secretary was not permitted to reject
the hearing officer’s credibility determinations, the Department’s regulations provide the
Secretary with the liberty to deviate from any of the hearing officer’s proposed findings or
conclusions provided that any deviation is supported by a preponderance of the evidence after
conducting an independent review of the transcript of the hearing. 6.68.3.13(B) NMAC. By his
failure to acknowledge this aspect of the Department’s regulations, Skowronski avoids calling
attention to an obvious gap in his argument that the Secretary exceeded her authority by
rejecting the hearing officer’s proposed findings. At the same time, Skowronski also forgoes
any potential argument regarding whether the Secretary’s deviations were supported by a
preponderance of the evidence, thus leaving us under no obligation to consider the issue. See
Rivera-Platte v. First Colony Life Ins. Co., 2007-NMCA-158, ¶ 28, 143 N.M. 158, 173 P.3d 765
(declining to address an issue that was not briefed on appeal). In sum, neither the Department’s
regulations nor the case law cited by Skowronski supports a holding that the Secretary exceeded
her authority by making her own credibility or fact-based determinations. We see no basis for
reversal in this regard.

Due Process

{33} The question whether due process was violated is a question of law that we review de
novo. Gurule, 2010-NMSC-006, ¶ 5. State revocation of a professional or occupational license
requires procedural due process. See Bell v. Burson, 402 U.S. 535, 539 (1971) (stating that
licenses are not to be taken away without the procedural due process required by the Fourteenth
Amendment); see also Barry v. Barchi, 443 U.S. 55, 69-70 (1979) (Brennan, J., concurring)
(stating that due process applies even more particularly to a revocation of an occupational
license). A procedural due process analysis involves consideration of three factors.

        First, the private interest that will be affected by the official action; second, the
        risk of an erroneous deprivation of such interest through the procedures used, and
        the probable value, if any, of additional or substitute procedural safeguards; and
        finally, the [g]overnment’s interest, including the function involved and the fiscal
        and administrative burdens that the additional or substitute procedural

                                                  12
       requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Bd. of Educ. of Carlsbad Mun. Sch. v.
Harrell, 118 N.M. 470, 478, 882 P.2d 511, 519 (1994) (recognizing the three Mathews factors).

{34} Skowronski contends that “[t]he most serious [d]ue [p]rocess violation occurred as a
result of the Secretary’s overruling the [h]hearing [o]fficer’s credibility findings[] without the
opportunity . . . to observe the witnesses’ demeanor.” In support of this contention, Skowronski
calls our attention to a number of cases containing language that is ostensibly helpful, yet
actually are unpersuasive in the context of his due process argument. For example, we do not
find persuasive Skowronski’s citation to dicta from cases in which courts from other
jurisdictions described their respective standards of review applicable to appeals from
administrative agency decisions and did not consider due process arguments. See, e.g., Dep’t
of Health & Welfare v. Sandoval, 742 P.2d 992, 995-96 (Idaho Ct. App. 1987); Md. Comm’n on
Human Relations v. Kaydon Ring & Seal, Inc., 818 A.2d 259, 275-76 (Md. Ct. Spec. App. 2003);
McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 821-23 (Tenn. Ct. App. 2005).

{35} Additionally, Skowronski’s reliance on In re Villeneuve, 709 A.2d 1067 (Vt. 1998), is
misplaced. In In re Villeneuve, the Vermont Supreme Court followed the majority rule that,
generally, due process only requires that board members or administrative officers, who were
not present when testimony was taken, review the testimony before participating in an
administrative decision. See id. at 1070. Based on the particular facts of In re Villeneuve, which
involved a determination by the New Motor Vehicle Arbitration Board that a new vehicle was
not a “lemon” and that the purchaser of the vehicle was, therefore, not entitled to a refund, the
court noted that members of the board who were absent from the hearing, and therefore did not
personally view or test drive the vehicle, prevented the absent members from participating in the
board’s decision. Id. at 1068, 1070-71. The court agreed with the lower court that “the view and
test drive must have been important to the board majority’s evaluation that the defects and
warranty non[-]conformities did not ‘substantially impair the use, market value[,] or safety of
the vehicle.’ ” Id. at 1070. Thus, in In re Villeneuve, the record “did not provide a reasonable
basis for evaluating the evidence” because the board’s decision depended upon its inspection and
test drive of the vehicle. Id. (internal quotation marks omitted). In In re Villaneuve, insofar as
the board’s decision did not depend upon witness testimony or credibility determinations, does
not stand for the proposition that the dictates of due process demand that credibility
determinations are made based on personal observation of a witness’s demeanor, and
Skowronski’s argument is not buttressed by this case.

{36} Of Skowronski’s numerous citations, three cases are on point insofar as they discuss due
process claims in the context of appeals from administrative decisions: Hearne v. Chicago
School Reform Board of Trustees, 749 N.E.2d 411 (Ill. App. Ct. 2001); Stanley v. Review Board
of Department of Employment & Training Services, 528 N.E.2d 811 (Ind. Ct. App. 1988); and
Appeal of Dell, 668 A.2d 1024 (N.H. 1995). Nevertheless, we do not believe these cases provide
a basis for reversing the Secretary’s decision.


                                               13
{37} The Hearne, Stanley, and Appeal of Dell courts all recognized that, generally,
administrative boards are at liberty to reject the recommendations of their hearing officers, based
on a review of the evidence of record and transcripts, provided that the board adequately
explains its conclusions; however, they explained that an exception to the general rule is
warranted where credibility alone is the determinative factor. Hearne, 749 N.E.2d at 421, 425-
26; Stanley, 528 N.E.2d at 813-14; Appeal of Dell, 668 A.2d at 1033-34.

{38} Yet the Hearne, Stanley, and Appeal of Dell courts also recognized that such an
exception is narrowly limited to those cases in which it is clear that the board either failed to
adequately support its decision with references to the record, Hearne, 749 N.E.2d at 426, or
where a review of the record could not support such a determination because demeanor
credibility was the only basis from which the fact-finder could draw a conclusion as to who was
being honest. See Stanley, 528 N.E.2d at 815 (stating that the board “[h]aving never heard or
seen the witnesses, having no first hand perception of the manner in which they offered their
testimony, and having no other evidence from which to discern the truthfulness of the witnesses’
statements, the board nevertheless rejected the referee’s findings in favor of its own groundless
opinion of demeanor credibility” thereby “essentially [denying] the parties the right to be heard”
(emphasis added)); Appeal of Dell, 668 A.2d at 1034 (explaining that “members of the hearing
panel acting as fact[-]finders must be present for testimony . . . that concerns the disputed factual
basis of a complaint where determination of those disputed facts rests, in some material part, on
the fact[-]finder’s assessment of their credibility, as shown by their demeanor or conduct at the
hearing[,]” but recognizing an exception to that rule which is applicable to cases in which the
board can evaluate the evidence in the record by employing its own expertise and technical
judgment to the facts therein (omission in original) (internal quotation marks and citation
omitted)).

{39} Here, although the hearing officer indicated in his proposed findings of fact that “the
demeanor of the witnesses while testifying” was one factor that led to his proposed decision in
favor of Skowronski, the hearing officer did not base his determination exclusively on this
factor. The Secretary, on the other hand, based her decision on the facts presented by the various
witnesses, the contradictions therein, and upon the Victim’s written statement. The Secretary’s
conclusions were supported by the record and were based on her analysis of the facts and factual
contradictions that were discernable from her review of the transcript and from the Victim’s
written statement. We are not persuaded that the facts of this case fit the narrow “on credibility
alone” exception recognized by the courts in Hearne, Stanley, and Appeal of Dell.

{40} In sum, the Secretary’s determination in this case was permissible under New Mexico
law, and we are not persuaded that case law from other jurisdictions compels a different
conclusion. See Melrose, 106 N.M. at 131, 740 P.2d at 125 (explaining that even in those cases
in which the decision turns on the credibility of witnesses, fundamental fairness and due process
may be met provided that the board reviews the entire record). We conclude that the
administrative procedure used here did not create a risk of erroneous deprivation of
Skowronski’s occupational license. See Mathews, 424 U.S. at 335. Accordingly, we hold that
Skowronski was not deprived of his right to due process by the fact that the Secretary failed to

                                                 14
observe the witnesses’ demeanor or by her failure to defer to the hearing officer’s proposed
findings of fact.

{41} Through his remaining due process arguments, Skowronski attempts to support his due
process deprivation claim with claims of the Department’s and the Secretary’s bias. The claims
of bias are speculative and unsupported by the record. As such, we decline to consider them.
See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819,
824 (1992) (declining to consider arguments based on factual allegations that are unsupported
by citation to the record proper).

{42} Also unavailing is Skowronski’s claim, based on Giglio v. United States, 405 U.S. 150,
154 (1972), that he was deprived of due process because the Department did not reveal to the
hearing officer “serious discrepancies” between the Victim’s statements contained in the
Department’s investigative file and her sworn testimony. First, Skowronski does not show that
Giglio, which stems from and applies to criminal prosecutions, has ever been or should now be
applied in the context of an administrative hearing. See id. (explaining that in a criminal case,
the prosecution must disclose evidence which might alter the fact-finder’s judgment of the
credibility of a crucial prosecution witness). Second, even were we to assume that the
Department’s failure to reveal these “serious discrepancies” to the hearing officer created a “risk
of an erroneous deprivation” of Skowronski’s license, any potential risk was negated by the
hearing officer’s impression of the veracity of the Victim. See Mathews, 424 U.S. at 334-35
(stating that the risk of an erroneous deprivation of a private interest through the procedures used
is considered, among other factors, in analyzing a due process argument). Because the hearing
officer believed Skowronski and did not believe the Victim, we do not see how the “potential
safeguard”of requiring the Department to point to additional evidence that tended to show that
the Victim was untruthful would have had a material bearing on the hearing officer’s result. See
id. (stating that, in examining a procedural due process argument, courts should consider “the
probable value, if any, of additional or substitute procedural safeguards”). This argument does
not provide a basis for reversal.

{43} Skowronski’s final due process claim is that the district court erred in denying him the
opportunity to pursue further discovery, under the court’s original jurisdiction, contrary to Maso
v. State Taxation & Revenue Department, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, and
despite Skowronski’s allegations of bias and political motivation. Skowronski argues that, as
in Maso, his contentions regarding the Department’s bias in regard to teachers accused of sexual
misconduct, based simply upon the accusation, could not be “brought up” in the administrative
proceedings over which the Department presided, nor could he have obtained discovery at that
level to pursue a contention of bias. Skowronski argues that the district court had exclusive
jurisdiction to consider the constitutional due process claim in the first instance and that the
district court had “no constitutional authority . . . to ‘decline’ to accept general jurisdiction over
an allegation that an agency proceeding violated [d]ue [p]rocess, any more than a district court
may decline to hear any complaint within its general jurisdiction.” Yet Skowronski does not
seek reversal on a separate and distinct ground that the district court erred in denying his request
for discovery under a theory that the court had general jurisdiction to do so. Rather, he indicates

                                                 15
only that the district court’s decision to “ ‘decline[] to invoke its original jurisdiction’ is
particularly troubling” as some sort of extension of his point on appeal that he was denied due
process by the Department and the Secretary. We fail to see the connection.

{44} In sum, Skowronski’s claimed due process violations are variously unsupported by law
or the record. As such, they do not provide a basis for reversal. We hold that Skowronski’s due
process right was not violated by the Department, the Secretary, or the district court.

III.    The Secretary’s Decision and Order Was Supported by Substantial Evidence

{45} Skowronski contends that the Secretary’s decision is not supported by substantial
evidence. The district court reviews an agency’s final decision. Section 39-3-1.1; see also § 61-
1-17 (“A person entitled to a hearing provided for in the . . . Licensing Act . . ., who is aggrieved
by an adverse decision of a board issued after hearing, may obtain a review of the decision in
the district court pursuant to the provisions of Section 39-3-1.1[.]”).

{46} The district court addressed in detail the evidence on which the Secretary relied, and
“[u]nder the applicable standard of review, the [c]ourt . . . affirm[ed] the Secretary’s decision.”
By “decision,” the court presumably meant, as it stated at the beginning of its decision, “the
decision by the . . . Department, acting through the . . . Secretary . . ., to revoke [Skowronski’s]
teaching license[.]” Pursuant to Section 39-3-1.1(D), Section 61-1-17, and also Rule 1-074,
under its review standard, the district court is limited to deciding whether the administrative
agency acted fraudulently, arbitrarily, or capriciously; whether, based on a review of the whole
record, its decision is supported by substantial evidence; whether the agency acted in accordance
with the law; or whether its action was outside the scope of the authority of the agency. Paule
v. Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240.
The scope and standard of our review of a decision of an administrative agency is the same as
the scope and standard of review of that decision by the district court, although we, at the same
time, determine whether the district court erred in its review. Id.; Rio Grande Chapter of Sierra
Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806.

{47} An administrative decision will be upheld if the reviewing court is satisfied that there is
substantial evidence in the record as a whole to support the agency’s decision and that the
evidence in the record demonstrates that the decision is reasonable. Santa Fe Exploration Co.,
114 N.M. at 114, 835 P.2d at 830. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion” reached by the fact-finder.
N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 28, 142
N.M. 533, 168 P.3d 105 (internal quotation marks and citation omitted); see N.M. Mining Ass’n
v. N.M. Water Quality Control Comm’n, 2007-NMCA-010, ¶ 30, 141 N.M. 41, 150 P.3d 991
(stating that “[s]ubstantial evidence is evidence that a reasonable mind would recognize as
adequate to support the conclusions reached by a fact-finder”). Whole record review requires
the appellate courts to “look not only at the evidence that is favorable, but also evidence that is
unfavorable to the agency’s determination[,]” Fitzhugh v. N.M. Dep’t of Labor, 1996-NMSC-
044, ¶ 23, 122 N.M. 173, 922 P.2d 555, and to then decide whether, on balance, the agency’s

                                                 16
decision was supported by substantial evidence. Trujillo v. Emp’t Sec. Dep’t, 105 N.M. 467,
469, 734 P.2d 245, 247 (Ct. App. 1987). Finally, we note that “the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Id. at 470, 734 P.2d at 248 (internal quotation
marks and citation omitted).

{48} To the extent that Skowronski’s sufficiency of the evidence claim rests upon his
contention that the Secretary’s decision was not supported by substantial evidence and was
crucially faulty because she did not observe the demeanor of the witnesses, we are not
persuaded. Having already rejected the premise upon which this argument is based, namely that
the Secretary should have deferred to the hearing officer’s credibility determinations and that
she erred in substituting her own credibility findings for those of the hearing officer, we will not
consider them for a second time. The Secretary was permitted to deviate from the hearing
officer’s proposed findings provided that her deviation was supported by a preponderance of the
evidence and that it was based upon a review of the hearing transcripts. 6.68.3.13(B) NMAC.
Further, the Secretary was permitted to make credibility determinations based on an independent
review of the record. See Melrose, 106 N.M. at 131, 740 P.2d at 125 (indicating that credibility
determinations can be made from a review of the record). And the Secretary was expressly not
to act in an appellate capacity but as an independent adjudicator. 6.68.3.13(B) NMAC.

{49} Additionally, we reject Skowronski’s related contention that “[t]he question before the
[d]istrict [c]ourt was not merely whether there was substantial evidence to support the
Secretary’s finding that [Skowronski] molested [the Victim], but whether there was substantial
evidence to support the Secretary’s rejection of the [h]earing [o]fficer’s finding that [the
Victim’s] demeanor signaled to the [h]earing [o]fficer that her testimony was false.” This
argument advances a standard of review that does not exist, and Skowronski cites no authority
to support the standard. We will not adopt it. See In re Adoption of Doe, 100 N.M. 764, 765,
676 P.2d 1329, 1330 (1984) (stating that an appellate court will not consider an issue if no
authority is cited in support of the issue and will assume that no such authority exists).
Furthermore, Skowronski’s argument is essentially that the Secretary improperly substituted her
own credibility determinations for those of the hearing officer, and we have held against
Skowronski on that issue.

{50} Having reviewed the Secretary’s decision under the standard of review set forth earlier
in this Opinion, the district court concluded that “[w]hile the [c]ourt disagrees with the
[Secretary] about some of the particulars, there is still sufficient evidence to support what the
Secretary decided. Under the applicable standard of review, the [c]ourt must affirm the
Secretary’s decision.” Having reviewed the whole record, we agree with the determination of
the district court. The Secretary’s decision was supported by substantial evidence, particularly
by the Victim’s testimony and written statement. Notwithstanding the existence in the record
of facts that were supportive of Skowronski’s position, we cannot on this record conclude that
the Secretary’s decision was not supported by substantial evidence. See Trujillo, 105 N.M. at
470, 734 P.2d at 248 (stating that “the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being supported by

                                                17
substantial evidence” (internal quotation marks and citation omitted)).

CONCLUSION

{51}   We affirm.

{52}   IT IS SO ORDERED.

                                             _______________________________________
                                             JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for Skowronski v. N.M. Pub. Educ. Dep't, No. 31,119

ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal
Due Process
Hearings
Investigations
Judicial Review
Sufficiency of Evidence

APPEAL AND ERROR
Prejudicial Error
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
New Mexico Constitution, General

GOVERNMENT
Education and Schools
Licensing

STATUTES
Legislative Intent



                                              18
