Summary:

 House Bill 298 (HB 298) relates to municipalities, amending sections of the municipal code; clarifying the governing law of mayor-council forms of government; providing procedures for filling vacancies and appointment of officials and voting; 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; 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. 

Legislation Overview:

 House Bill 298 (HB 298) amends Section 3-11-1 NMSA 1978 to state that 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 is to govern.

Section 3-11-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-10-2) is amended to read:

In case of the death, disability, resignation or change of residence from the municipality of the mayor, the governing body is to appoint a qualified elector to fill the vacancy of the office by a majority vote of the members of the governing body that are present; provided that: A. the governing body is to 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 is included on each subsequent governing body meeting agenda until the vacancy is filled; B. the qualified elector appointed to fill the vacancy is to 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 may not select a nominee or be involved in the appointment of a successor to fill a vacancy in the office of mayor.

Section 3-11-3 NMSA 1978 is amended to read: 

The mayor of a municipality is the presiding officer of the governing body and will constitute a member of the governing body for purposes of determining whether a quorum exists. In all municipalities, the mayor may 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. A member of a governing body presiding as the mayor pro tem will retain the ability to vote as a member of the governing body but may not vote as a mayor in the event of a tie vote as provided pursuant to Subsection B of this section.

Section 3-11-4 NMSA 1978  is amended to add the caveat that the mayor must perform their duties, provided such performance is in accordance with state law.

Section 3-11-5 NMSA 1978 is amended to add:

After each regular local election or municipal officer election, the governing body is to 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.

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.

Failure to fill a vacant office does not constitute malfeasance of an elected official.

Any appointed official or employee who is discharged is to be paid any vacation pay that may have accrued, subject to the limitations of a merit system ordinance. Neither the mayor nor the governing body shall supervise, hire, discipline or terminate any employee, personnel or judge of the judicial branch. Appointed members may not be subject to a merit system ordinance.

Section 14-11-1 is amended to provide that 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 votes 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 must be included on each subsequent governing body meeting agenda until the vacancy is filled.

Section 3-12-2 NMSA 1978 is amended to state:

Members of governing bodies must recuse themselves 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 must 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.

Section 3-12-2.1 is amended to state:

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.

A special election to approve or disapprove a change in the number of members of the governing body or trustees must 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.

Section 3-14-12 NMSA 1978 is amended to provide that the commission has the authority to cross-commission public safety officers by resolution; provided that the resolution is renewed at each subsequent meeting of the commission as necessary.

 

Current Law:

 Current law does not include the allowances, changes, prohibitions and deadlines described in the proposed act; procedures for filling vacancies and appointment of officials and voting are not as detailed; clarification on certain mayoral authority, powers and duties is not available; powers and duties of governing bodies are not as detailed, especially in regard to recusals; clarification on the powers and duties of a commission-manager form of government is not available.