HB 298
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AN ACT
RELATING TO MUNICIPALITIES; AMENDING SECTIONS OF THE
MUNICIPAL CODE; CLARIFYING THE GOVERNING LAW OF MAYOR-COUNCIL
FORMS OF GOVERNMENT; PROVIDING PROCEDURES FOR FILLING
VACANCIES; PROVIDING PROCEDURES FOR THE APPOINTMENT OF
OFFICIALS AND VOTING ON MATTERS BEFORE A GOVERNING BODY;
CLARIFYING MAYORAL AUTHORITY, POWERS AND DUTIES; PROVIDING
PROCEDURES FOR THE NOMINATION AND APPOINTMENT OF EMPLOYEES
AND OFFICIALS; CODIFYING THE MAYOR AND GOVERNING BODY'S LACK
OF AUTHORITY OVER JUDICIAL BRANCH AFFAIRS; REQUIRING
ORGANIZATIONAL MEETINGS; PROVIDING THAT APPOINTED MEMBERS OF
A GOVERNING BODY ARE NOT SUBJECT TO MERIT-SYSTEM ORDINANCES;
REQUIRING MEMBERS OF A GOVERNING BODY TO RECUSE THEMSELVES
FROM VOTING WHEN TRUE OR PERCEIVED CONFLICTS OF INTEREST
EXIST; SPECIFYING PROCEDURES FOR SUCH RECUSALS; REMOVING THE
REQUIREMENT THAT SPECIAL ELECTIONS OCCUR WITHIN NINETY DAYS
OF THE ADOPTION OF AN ORDINANCE TO CHANGE THE NUMBER OF
MEMBERS OF A GOVERNING BODY OR TRUSTEES OR SUCH A PETITION;
AMENDING THE POWERS AND DUTIES OF A GOVERNING BODY; AMENDING
THE POWERS OF A COMMISSION IN A COMMISSION-MANAGER FORM OF
GOVERNMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 3-11-1 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-1) is amended to read: HB 298
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"3-11-1. APPLICABILITY.--
A. The provisions of Sections 3-11-1 through
3-11-7 NMSA 1978 are applicable only to those municipalities
governed under the mayor-council form of government and that
have not elected to be governed under the commission-manager
form of government.
B. In the event that a home rule municipality has
adopted procedures in the municipality's charter that
conflict with the provisions of Chapter 3, Article 11 or 12
NMSA 1978, the municipality's charter shall govern."
SECTION 2. Section 3-11-2 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-2) is amended to read:
"3-11-2. MAYOR--VACATED OFFICE--APPOINTMENT BY
GOVERNING BODY.--In case of the death, disability,
resignation or change of residence from the municipality of
the mayor, the governing body shall appoint a qualified
elector to fill the vacancy of the office of the mayor by a
majority vote of the members of the governing body that are
present; provided that:
A. the governing body shall vote at the next
meeting immediately following the vacancy to fill the vacancy
if the vacancy has not been filled within fifteen days after
the vacancy occurred; and provided further that so long as
the vacancy remains unfilled, the item shall be included on
each subsequent governing body meeting agenda until the HB 298
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vacancy is filled;
B. the qualified elector appointed to fill the
vacancy shall serve until the next regular local election or
municipal officer election, whichever is applicable, when a
qualified elector shall be elected to fill the remaining
unexpired term, if any; and
C. a resigning mayor shall not select a nominee or
be involved in the appointment of a successor to fill a
vacancy in the office of mayor."
SECTION 3. Section 3-11-3 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-3) is amended to read:
"3-11-3. MAYOR--PRESIDING OFFICER OF GOVERNING BODY--
LIMITATION ON VOTE--QUORUM.--
A. The mayor of a municipality is the presiding
officer of the governing body and shall constitute a member
of the governing body for purposes of determining whether a
quorum exists.
B. In all municipalities, the mayor shall vote
only when there is a tie vote between members of a governing
body; provided that the mayor is vested with the authority to
break a tie vote in all circumstances, including matters
requiring an affirmative vote of a supermajority of members
of the governing body.
C. A member of a governing body presiding as the
mayor pro tem shall retain the ability to vote as a member of HB 298
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the governing body but shall not vote as a mayor in the event
of a tie vote as provided pursuant to Subsection B of this
section."
SECTION 4. Section 3-11-4 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-4) is amended to read:
"3-11-4. MAYOR--CHIEF EXECUTIVE OFFICER--POWERS.--The
mayor is the chief executive officer and shall:
A. enforce the ordinances and regulations of the
municipality;
B. exercise within the municipality the authority,
indirectly through the use of police personnel, to suppress
disorders and keep the peace; and
C. perform other duties compatible with the
mayor's office that the governing body may require; provided
that such performance is in accordance with state law or the
municipality's charter."
SECTION 5. Section 3-11-5 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-5, as amended) is amended to read:
"3-11-5. ORGANIZATIONAL MEETING--MAYOR--APPOINTMENT OF
OFFICERS AFTER ELECTION.--
A. After each regular local election or municipal
officer election, the governing body shall hold an
organizational meeting no earlier than fifteen days but no
later than twenty-one days after the newly elected officials
begin their terms. Such a meeting may constitute a special HB 298
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meeting or a regular meeting of the governing body.
B. At the organizational meeting of the governing
body, the mayor shall submit, for confirmation by the
governing body, the names of persons who shall fill the
appointive offices of the municipality.
C. The failure of the mayor to nominate an
appointee to the governing body for appointment to office at
the organizational meeting does not preclude the mayor from
doing so at a subsequent meeting. If the governing body
fails to confirm any person as an appointive official of the
municipality, the mayor at the next regular meeting of the
governing body may submit the name of a previous nominee or
another person to fill the appointed office of the
municipality. Failure to fill a vacant office shall not
constitute malfeasance of an elected official.
D. Any person holding an appointed office at the
time of the regular local election or municipal officer
election shall continue in that office until the person's
successor has been appointed and is qualified."
SECTION 6. Section 3-11-6 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-6) is amended to read:
"3-11-6. MAYOR--AUTHORITY TO APPOINT, SUPERVISE AND
DISCHARGE EMPLOYEES.--
A. Subject to the approval of a majority vote of
all members of the governing body, the mayor shall: HB 298
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(1) appoint all officers and employees
except those holding elective office; and
(2) designate an employee to perform any
service authorized by the governing body.
B. The mayor may appoint temporary employees as
required for the proper administration of municipal affairs.
The employee shall serve only until the next regular meeting
of the governing body at which a quorum is present. The
temporary employment shall cease, and the employee shall not
be reappointed unless appointment is confirmed by the
governing body. A temporary employee is entitled to usual,
ordinary and reasonable compensation for services rendered to
the municipality.
C. Only the mayor shall:
(1) supervise the employees of the
municipality;
(2) examine the grounds of reasonable
complaint made against any employee; and
(3) cause any violations or neglect of the
employees' duties to be corrected promptly or reported to the
proper authority for correction and punishment.
D. Subject to the limitation of a merit system
ordinance of the municipality:
(1) the governing body may discharge an
appointed official or employee by a majority vote of all the HB 298
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members of the governing body; and
(2) the mayor may discharge an appointed
official or employee upon the approval of a majority vote of
all the members of the governing body.
E. The mayor may suspend an appointed official or
employee until the next regular meeting of the governing
body, at which time the suspension shall be approved or
disapproved by a majority vote of all the members of the
governing body. If the suspension of the appointed official
or employee is disapproved by the governing body, the
suspended appointed official or employee shall be paid the
compensation that the appointed official or employee was
entitled to receive during the time of the suspension.
F. Any appointed official or employee who is
discharged shall:
(1) upon the official's or employee's
request, be given, by the mayor in writing, a list of reasons
for the discharge; and
(2) be paid any vacation pay that may have
accrued, subject to the limitations of a merit system
ordinance.
G. Neither the mayor nor the governing body shall
supervise, hire, discipline or terminate any employee,
personnel or judge of the judicial branch.
H. Appointed members shall not be subject to a HB 298
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merit system ordinance."
SECTION 7. Section 3-11-7 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-10-7) is amended to read:
"3-11-7. ADDITIONAL POWERS OF MAYOR.--The mayor shall
sign all commissions, licenses and permits granted by the
governing body and other acts that the law or ordinances may
require, or the commissions, licenses and permits may be
authenticated as authorized pursuant to the:
A. Uniform Facsimile Signature of Public Officials
Act;
B. Uniform Electronic Transactions Act; and
C. Electronic Authentication of Documents Act."
SECTION 8. Section 3-12-1 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-11-1, as amended) is amended to read:
"3-12-1. VACANCY ON GOVERNING BODY--APPOINTMENT--
PROCEDURES.--
A. A vacancy on the governing body of a mayor-
council municipality shall be filled by appointment of a
qualified elector by the mayor of the municipality, with the
advice, the consent and a majority vote of the members of the
governing body that are present; provided that the governing
body shall vote at the next meeting immediately following the
vacancy to fill the vacancy if the vacancy has not been
filled within fifteen days after the vacancy occurred; and
provided further that so long as the vacancy remains HB 298
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unfilled, the item shall be included on each subsequent
governing body meeting agenda until the vacancy is filled.
B. A qualified elector appointed to fill a vacancy
on the governing body shall serve until the next regular
local election or municipal officer election, whichever is
applicable, at which time a qualified elector shall be
elected to fill the remaining unexpired term, if any."
SECTION 9. Section 3-12-2 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-11-2, as amended) is amended to read:
"3-12-2. GOVERNING BODY--CORPORATE AUTHORITY--
LEGISLATIVE BODY--MEMBERS OF A GOVERNING BODY AND BOARDS OF
TRUSTEES--QUORUM--RECUSAL.--
A. The corporate authority of a municipality is
vested in the governing body that shall constitute the
legislative branch of the municipality and shall not perform
any executive functions except those functions assigned to it
by law.
B. A majority of the members of the governing body
currently serving is a quorum for the purpose of transacting
business. All members of the governing body present at a
meeting are counted toward a quorum.
C. Unless otherwise provided by law, a question
before the governing body shall be decided by a majority vote
of the members present.
D. A member of a governing body shall recuse the HB 298
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member's self from a vote only when a true or perceived
conflict of interest exists regarding an item currently being
deliberated by the governing body. Upon the recusal at such
meeting, the governing body member shall state the conflict
of interest on the record and then leave the meeting room
until deliberation on that item has concluded. A recusal or
abstention of a governing body member is counted as a vote
neither for nor against a question before the governing body.
E. The governing body of a municipality having a
mayor-council form of government is the governing body or
board of trustees whose members are the mayor and not less
than four or more than ten members of the governing body or
trustees. Any governing body of more than six members of the
governing body or trustees may provide by ordinance for the
election of two members of the governing body or trustees for
each ward or district or create or abolish wards or districts
or alter the boundary of existing wards or districts;
provided that only one member of the governing body or
trustee shall be elected from a ward or district at any one
election.
F. In those municipalities with a mayor-council
form of government, when there is a requirement that a
certain fraction or percentage of the members of the entire
governing body or of all the members of the governing body or
of the entire membership of the governing body or other HB 298
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similar language other than the requirement of a simple
majority vote for the measure, the mayor shall not be counted
in determining the actual number of votes needed but shall
vote to break a tie vote as provided in Section 3-11-3 NMSA
1978, unless the mayor has declared a conflict of interest.
G. The governing body of a municipality may
redistrict the municipality whenever redistricting is
warranted. Upon petition signed by qualified electors equal
in number to the votes cast for the member of the governing
body or trustee receiving the greatest number of votes at the
last regular municipal election, the governing body of the
municipality shall redistrict the municipality."
SECTION 10. Section 3-12-2.1 NMSA 1978 (being Laws
1981, Chapter 198, Section 1, as amended) is amended to read:
"3-12-2.1. GOVERNING BODY--MAYOR-COUNCIL--CHANGE IN
NUMBER OF MEMBERS.--
A. The number of members of the governing body or
board of trustees of a municipality having a mayor-council
form of government may be changed as set forth in this
section; provided such number shall not be less than or more
than that number specified in Subsection E of Section 3-12-2
NMSA 1978.
B. The members of a governing body may adopt an
ordinance that increases or decreases the number of members
of the governing body or trustees and call an election on HB 298
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that question in accordance with the Election Code.
C. The governing body of the municipality shall
adopt an election resolution calling an election on the
question of approving or disapproving a change in the number
of members of a governing body or trustees if there is filed
with the municipal clerk a petition requesting an election on
such a change and the petition is signed by at least five
percent of the number of registered voters of the
municipality. The petition shall specify the number of
members of the governing body in addition to the mayor that
shall constitute the governing body of the municipality. The
petition shall be validated by the municipal clerk by
verification that it contains the required number of
signatures of registered voters. The election resolution
shall be adopted within thirty days after the petition is
verified by the municipal clerk.
D. A special election to approve or disapprove a
change in the number of members of the governing body or
trustees shall be held at the first available election in
which the question can be placed on the ballot in accordance
with the provisions of the Election Code. The municipality
shall pay for the cost of the election.
E. If at an election called pursuant to this
section a majority of the registered voters voting on the
question of changing the number of members of the governing HB 298
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body or trustees vote in favor of such change, all members of
the governing body or trustees shall serve until their
current term of office expires. At each of the subsequent
two regular municipal elections, one-half of the newly
required number of members of the governing body or trustees
shall be elected.
F. If a majority of the registered voters voting
on the question of changing the number of members of the
governing body or trustees disapproves or approves of such
change, then such change in the number of members shall not
be considered again for a period of four years from the date
of the election."
SECTION 11. Section 3-12-3 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-11-3, as amended) is amended to read:
"3-12-3. GOVERNING BODY--POWERS AND DUTIES.--
A. The governing body of a municipality having a
mayor-council form of government shall:
(1) elect one of its members to act as mayor
pro tem in the absence of the mayor;
(2) possess all powers granted by law and
other municipal powers not conferred by law or ordinance on
another officer of the municipality;
(3) manage and control the finances and all
property, real and personal, belonging to the municipality;
(4) determine the time and place of holding HB 298
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its meetings, which shall be open to the public;
(5) determine and adopt the rules of its own
proceedings at an organizational meeting;
(6) keep minutes of its proceedings, which
shall be open to examination by any citizen;
(7) adopt rules and regulations necessary to
effect the powers granted municipalities;
(8) prescribe the compensation and fees to
be paid municipal officers and employees;
(9) prescribe the powers and duties of those
officers whose terms of office or powers and duties are not
defined by law and impose additional powers and duties upon
those officers whose powers and duties are prescribed by law;
and
(10) have the authority to cross-commission
public safety officers by resolution; provided that the
resolution shall be renewed at each subsequent meeting of the
governing body as necessary.
B. The governing body of a municipality having a
mayor-council form of government may:
(1) remit the fine of any person convicted
of a violation of a municipal ordinance; and
(2) compel the attendance of absent members
in such manner and under such penalties as it deems
desirable. HB 298
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C. The mayor or a majority of the members of the
governing body may call special meetings by notice to each
member of the governing body, personally served or left at
the member's usual place of residence; provided that such
meetings shall be in accordance with the Open Meetings Act."
SECTION 12. Section 3-14-12 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-13-12) is amended to read:
"3-14-12. POWERS VESTED IN COMMISSION--DUTIES OF
COMMISSION.--
A. All powers of the municipality are vested in
the commission. The commission shall:
(1) pass all ordinances and other measures
conducive to the welfare of the municipality;
(2) perform all acts required for the
general welfare of the municipality;
(3) in addition to the office of manager,
create all offices necessary for the proper carrying on of
the work of the municipality; and
(4) have the authority to cross-commission
public safety officers by resolution; provided that the
resolution shall be renewed at each subsequent meeting of the
commission as necessary.
B. The commission shall appoint a manager and
shall hold the manager responsible for the proper and
efficient administration of the municipal government."