HOUSE BILL 298
57th legislature - STATE OF NEW MEXICO - first session, 2025
INTRODUCED BY
Christine Chandler and Mark Duncan
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:
"3-11-1. [POWERS OF MAYOR] APPLICABILITY.--
A. The provisions of Sections [14-10-1 through 14-10-7 New Mexico Statutes Annotated, 1953 Compilation] 3-11-1 through 3-11-7 NMSA 1978 are applicable only to those municipalities governed under the mayor-council form of government and [which] 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 [by majority vote] a qualified elector to fill the vacancy [for the unexpired term of office] 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 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 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. [cause] enforce the ordinances and regulations of the municipality [to be obeyed];
B. exercise within the municipality [powers conferred upon sheriffs of counties] the authority, indirectly through the use of police personnel, to suppress disorders and keep the peace; and
C. perform other duties compatible with [his] the mayor's office [which] 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 meeting or a regular meeting of the governing body.
[A.] 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 [and the names of persons who shall be employed by 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 [or employee] of the municipality, the mayor at the next regular meeting of the governing body [shall] may submit the name of a previous nominee or another person to fill the appointed office [or to be employed by] of the municipality. Failure to fill a vacant office shall not constitute malfeasance of an elected official.
[B.] 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:
(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 [his] appointment is confirmed by the governing body. A temporary employee is entitled to [the] 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 [adopted as authorized in Section 14-12-4 New Mexico Statutes Annotated, 1953 Compilation] of the municipality:
(1) the governing body may discharge an appointed official or employee by a majority vote of all the 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. [or
(3)] 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 [he] that the appointed official or employee was entitled to receive during the time of [his] the suspension.
[E.] F. Any appointed official or employee who is discharged shall:
(1) upon [his] the official's or employee's request, be given, by the mayor in writing, a list of reasons for [his] the discharge; and
(2) be paid any vacation pay [which he] 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 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 [under the] 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.--
[Any] 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, [and] the consent and a majority vote of the members of the governing body [Any] 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 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 [COUNCIL] 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 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.
[D.] E. The governing body of a municipality having a mayor-council form of government is the [council] governing body or board of trustees whose members are the mayor and not less than four or more than ten [councilmen] members of the governing body or trustees. Any governing body of more than six [councilmen] members of the governing body or trustees may provide by ordinance for the election of two [councilmen] 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 [councilman] member of the governing body or trustee shall be elected from a ward or district at any one election.
[E.] 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 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 [he] shall vote to break a tie vote as provided in Section 3-11-3 NMSA 1978, unless [he] the mayor has declared a conflict of interest.
[F.] 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 [councilman] 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 [on the council] 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 [D] E of Section 3-12-2 NMSA 1978.
B. [A majority of the members elected to the governing body may adopt an ordinance increasing or decreasing the number of councilmen or trustees of that body and calling a special election on the question of approving or disapproving the change] 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 that question in accordance with the Election Code.
C. The governing body of the municipality shall adopt an election resolution calling [a special] an election on the question of approving or disapproving a change in the number of [councilmen] 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 [councilmen] members of the governing body in addition to the mayor [which] 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 [ten] 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 [councilmen] members of the governing body or trustees shall be held [within ninety days after the adoption of the ordinance as provided in Subsection B of this section or within ninety days after the date the petition is verified as provided in Subsection C of this section, as the case may be, or the election may be held in conjunction with a regular municipal election, if such election occurs within ninety days after the adoption of the ordinance or verification of the petition] 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 [councilmen] members of the governing body or trustees vote in favor of such change, all [councilmen] 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 [councilmen] 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 [councilmen] 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 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; [and]
(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.
[C. The governing body may compel the attendance of absent members in such manner and under such penalties it deems desirable.
D.] 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 [his] 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; [and]
(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 [him] the manager responsible for the proper and efficient administration of the municipal government."
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