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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ______________

Filing Date: May 14, 2014

Docket No. 32,059

DEBORAH RAINALDI, SHONNA BACA,

and ROBERT KESSEL, on behalf of themselves 

and all others similarly situated, 

Plaintiffs-Appellants,

v.

CITY OF ALBUQUERQUE,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Valerie A. Huling, District Judge

Youtz & Valdez, P.C.

Shane C. Youtz

Stephen Curtice

Albuquerque, NM

for Appellants

City of Albuquerque

David Tourek, City Attorney

Samantha M. Hults, Assistant City Attorney

Rebecca E. Wardlaw, Assistant City Attorney

Albuquerque, NM

for Appellee

OPINION

HANISEE, Judge.

{1} In this single issue appeal, we are called upon to resolve a matter of first impression:

whether the City of Albuquerque’s (the City) overtime compensation schedule for
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Albuquerque Police Department (APD) employees violates the statutory time payment

provisions required of New Mexico employers. See NMSA 1978, § 50-4-2(A) (2005)

(requiring the designation of regular pay days on at least a semimonthly basis and that

compensation for services rendered be postponed no later than ten days after the close of the

pay period). The district court granted the City’s motion for summary judgment and

dismissed the collective action complaint brought by certain affected APD employees

(Plaintiffs), ruling that the City’s two-week processing delay of overtime accrued during the

second week of a given bi-weekly pay period complies with Section 50-4-2(A). We hold that

the City’s overtime compensation schedule violates the statutory requirement of Section 50-

4-2(A) that employees be compensated for “all services rendered” within ten days after the

close of a given pay period, and that the City is not exempt from compliance. We reverse.

BACKGROUND

{2} APD employees are paid on a bi-weekly basis. Prior to July 3, 2009, employee

paychecks included compensation for both regular and overtime services provided during

a given pay period. This practice ended pursuant to Department Special Order 09-53, issued

by the APD Chief of Police on June 10, 2009, which changed the manner in which time

sheets were submitted for administrative payroll processing. As a result of the modification,

on days they are paid, APD employees receive overtime pay accumulated during the first

week of the particular pay period, combined with that from the second week of the preceding

pay period. Stated differently, compensable overtime performed during the second week of

a particular pay period is processed during the subsequent pay period. APD maintained that

the modification was designed to reduce timesheet revisions and to improve supervisory

capacity to “track and audit time and identify discrepancies.”

{3} Nearly two years after APD implemented the modification, Plaintiffs filed a lawsuit

in district court alleging that the City’s overtime pay structure violates the statutory

requirements for employee compensation. Section 50-4-2(A) states, in relevant part:

An employer in this state shall designate regular pay days, not more than

sixteen days apart, as days fixed for the payment of wages to all employees

paid in this state. The employer shall pay for services rendered from the first

to the fifteenth days, inclusive, of any calendar month by the twenty-fifth day

of the month during which services are rendered, and for all services

rendered from the sixteenth to the last day of the month, inclusive, of any

calendar month by the tenth day of the succeeding month.

The City answered and sought summary judgment based on an absence of material factual

disputes and various theories, discussed herein, under which the City asserted it was entitled

to judgment as a matter of law. Following a hearing, the district court agreed and granted the

City’s motion for summary judgment. Plaintiffs appeal, arguing that although the City

satisfies the statutory requirement to “designate regular pay days[] not more than sixteen

days apart,” its manner of pay violates the second statutory requirement that employees be
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paid for all services rendered during a particular pay period in accordance with the

prescribed time line. Plaintiffs additionally contend that the City’s proffered bases for

exemption do not liberate it from compliance with Section 50-4-2(A).

DISCUSSION

A. Standard of Review

{4} Summary judgment is proper when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc.,

1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “[I]f no material issues of fact are in

dispute and an appeal presents only a question of law, we apply de novo review.” City of

Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213

P.3d 1146.

B. The City’s Overtime Compensation Schedule for APD Employees Does Not

Comply With Section 50-4-2(A)

{5} On appeal, Plaintiffs do not assert that summary judgment was improper due to the

existence of genuine issues of material fact. Instead, Plaintiffs argue that the City

“[u]nquestionably [v]iolates” the “[c]lear and [u]nambiguous [c]onstraints” of Section 50-4-

2(A) as a matter of law, and none of the City’s “proffered defenses excuse [its] failure to

abide by the plain language of the statute[.]”

{6} Section 50-4-2(A) imposes on employers two distinct wage payment requirements:

(1) that employers “shall designate regular pay days, not more that sixteen days apart, as

days fixed for the payment of wages to all employees paid in [the] state[,]” and (2) that

employers “shall pay for services rendered from the first to the fifteenth days . . . by the

twenty-fifth day of the month during which services are rendered, and for all services

rendered from the sixteenth to the last day of the month . . . by the tenth day of the

succeeding month.” Id. The parties do not dispute that the City’s bi-weekly compensation

schedule, designating pay days every fourteen days, is in compliance with the frequency of

compensation requirement. The parties disagree, however, as to whether the City complies

with the second statutory requirement establishing the timing by which compensation for

services is due. See § 50-4-2(A).

{7} Plaintiffs assert that because the City does not compensate for overtime earned

during the second week of a pay period until the pay day following the subsequent pay

period, which occurs twenty-one days later, the City is afoul of the requirement that payment

for all services rendered be made by the tenth day following conclusion of any given period.

The City initially responds that because its pay days occur more frequently than is required

by Section 50-4-2(A), it is in compliance with the statute. Our review of the wording of the

statute, however, provides no indication that employers choosing to schedule pay periods at

a greater frequency than is statutorily required are consequently freed from having to
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compensate employees for all services rendered by the time payment is otherwise due. In

fact, with the limited exception of “state employees, other than employees of institutions of

higher education,” whose salaries and wages are governed by the rules of the department of

finance and administration, “an employer shall pay wages in full[.]” Section 50-4-2(B).

{8} We recognize that Section 50-4-2(A) facially illustrates a semimonthly payment

schedule, requiring one pay day by the twenty-fifth day of the month for services rendered

between the first and fifteenth days, and another by the tenth day of the succeeding month

for services rendered between the sixteenth and last days of the month. As we have noted,

the City does not utilize this semimonthly schedule, but rather a bi-weekly payment

schedule; thus, the specific semimonthly payment deadlines are inapplicable here.

Nonetheless, we have previously observed the statutory compensation time line to require

payment within ten days after the close of any given pay period, not just a bi-monthly one.

See N.M. Dep’t of Labor v. A.C. Elec., Inc., 1998-NMCA-141, ¶ 20, 125 N.M. 779, 965 P.2d

363 (citing Section 50-4-2(A) as requiring “payment of wages on at least semi[]monthly

basis with payment deferred no later than ten days after close of pay period”). The City’s

current overtime compensation schedule does not render payment for overtime services

within ten days after the close of the given pay period, but defers payment for the second

week of the pay period until the subsequent pay day, twenty-one days following the

conclusion of the pay period. This delayed compensation of accrued overtime is not

consistent with the ten-day payment window specified in Section 50-4-2(A).

{9} Accordingly, we conclude that the manner in which the City compensates its APD

employees is inconsistent with that statutorily required of employers in New Mexico. We

must next resolve whether the City has asserted any basis on which it is excluded or is

otherwise exempt from the category of employers governed by Section 50-4-2(A).

C. The City’s Proffered Exemptions Do Not Liberate it from Compliance With

Section 50-4-2(A)

{10} The City argues that even if its overtime compensation schedule is disallowed by

Section 50-4-2(A), it is exempt from compliance on any of four distinct bases: (1) Section

50-4-2(B) provides an exception for state public employers, and as an auxiliary of the state,

the City is likewise exempt; (2) the Legislature did not intend Section 50-4-2(A) to apply to

any public employers; (3) public employers are explicitly excluded from the definition of

“employer” under Section 50-4-21 of the New Mexico Minimum Wage Act (MWA), NMSA

1978, §§ 50-4-19 to -30 (1955, as amended through 2009); and (4) as a home rule

municipality, the City may “exercise all legislative and policy making functions[.]” We

address each of the City’s arguments below and conclude that none exempt it from the

statutorily mandated compensation time line of Section 50-4-2(A).

1. The City Does Not Qualify for Exemption Under Section 50-4-2(B) Despite

Being an Auxiliary of the State
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{11} First, the City argues that it is exempt from compliance with Section 50-4-2(A)

because Section 50-4-2(B) excepts “payment of salaries and wages to state employees[.]”

As an “auxiliary of the state[,]” the City asserts that it is included within the grouping of

statutorily exempt state public employers. The City relies on Morningstar Water Users Ass’n

v. Farmington Municipal School District,1995-NMSC-052, ¶ 37, 120 N.M. 307, 901 P.2d

725, and City of Albuquerque v. New Mexico Public Regulation Commission, 2003-NMSC028, ¶ 3, 134 N.M. 472, 79 P.3d 297 for this proposition.

{12} We conclude that Plaintiff’s reliance on both cases is misplaced. While Morningstar

Water Users Ass’n does state, as the City contends, that a municipality “is an auxiliary of the

state government,” this relationship does not equate municipalities such as the City with the

state for the purposes of benefits or privileges. See Morningstar Water Users Ass’n, 1995-

NMSC-052, ¶ 37 (citing Loeb v. City of Jacksonville, 134 So. 205, 207 (Fla. 1931), which

stated that, “[a] ‘city’ is a mere auxiliary to the state government. It is a public institution for

self-government and local administration of the affairs of state”); Hurley v. Vill. of Ruidoso,

2006-NMCA-041, ¶ 7, 139 N.M. 306, 131 P.3d 693 (declining to recognize the proposition

that a municipality is an auxiliary of the state as pertinent to the analysis of whether a

municipality is afforded the same benefits and immunities possessed by the state). Likewise,

Public Regulation Commission does not establish the proposition that municipalities are

treated identically to the state for purposes of benefits such as statutory exemption, but

instead holds that political subdivisions of the state possess “only such powers as are

expressly granted to it by the Legislature[.] 2003-NMSC-028, ¶ 3 (internal quotation marks

and citation omitted). See New Mexicans for Free Enter. v. City of Santa Fe (NMFE), 2006-

NMCA-007, ¶ 13, 138 N.M. 785, 126 P.3d 1149 (stating that because the municipality is an

auxiliary of the state, the municipalities are “subordinate to the state government”).

{13} More tellingly, the plain wording of Section 50-4-2(B) expressly exempts only the

State from the payment rigors to which New Mexico employers must adhere. Because

municipalities such as the City are not discharged from compliance by the statutory language

chosen by the Legislature and are not otherwise assisted by our jurisprudence, we will not

ourselves supply exemption. Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M.

512, 226 P.3d 611 (stating that under the plain meaning rule, “[w]e will not read into a

statute language which is not there, especially when it makes sense as it is written” (internal

quotation marks and citation omitted)). See Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M.

618, 930 P.2d 153 (stating that the plain meaning rule requires a court to “give effect to [the

statute’s] language and refrain from further statutory interpretation” when the language is

clear and unambiguous). We conclude that the lone delineated exception to the payment

schedule contained in Section 50-4-2(B) is expressly applicable to the compensation of

certain “state employees” only and does not by extension apply to auxiliaries of the state,

such as the City.

2. The City is Not Excused From Compliance With Section 50-4-2(A) on the Basis

That the Phrase “Public Employer” is Absent From the Definition of

“Employer” Contained in Section 50-4-1(A)
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{14} As a second basis for exemption, the City argues that the Legislature intended the

City to be excused from compliance with Section 50-4-2(A) because the phrase “public

employer” is not expressly included within the definition of “employer” under Section 50-4-

1(A). In pertinent part, Section 50-4-1(A) defines “employer” as “every person, firm,

partnership, association, corporation, receiver or other officer of the court of this state, and

any agent or officer of any of the above mentioned classes[.]” We conclude this language

includes New Mexico employers of any category.

{15} Our perspective is supported by the purposeful and carefully limited exclusion of

salaries and wages paid to most state employees as permitted by Section 50-4-2(B). This

provision would be needless were Section 50-4-2(A) inapplicable to the State in its capacity

as a public employer. This necessary exemption is then limited insofar as it applies only to

wages paid to state employees “other than employees of institutions of higher education.”

Section 50-4-2(B). We view this language to constitute the State’s limited exemption from

compliance with Section 50-4-2(A) excluding employees in higher education occupations

that are paid according to the schedule and time limitations established within Section 50-4-

2(A). See § 50-4-2(B). By so exactingly describing the nature of the State’s exclusion from

the statute, we must presume that were other exclusions to exist, they would not have gone

unmentioned or otherwise wholly omitted from the statute. When the Legislature has spoken

with precision on a topic—here establishing a lone category of exclusion from the statute’s

otherwise general application—it is not the proper role of the judiciary to make plural that

which is singular. See City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069,

¶ 20, 141 N.M. 686, 160 P.3d 595 (“As a matter of statutory construction, we do not read

language that is not present into a statute.”); Swink v. Fingado, 1993-NMSC-013, ¶ 29, 115

N.M. 275, 850 P.2d 978 (“Legislative silence is at best a tenuous guide to determining

legislative intent.”).

{16} The City makes several arguments geared toward our application of something other

than this general approach to statutory construction. First, it maintains that “when the

[L]egislature wants to include governmental employers in its statutes, it does so explicitly.”

We are not persuaded by this overly general assertion. Our examination of NMSA 1978,

Chapter 50, Article 4 (1933, as amended through 2013) indicates that when the Legislature

did not intend a statutory provision to apply to specific entities—the state and all of its

political subdivisions—it instead explicitly provided broader exemption. For example, in the

separate definitional section applicable to the MWA, also set forth in Chapter 50, Article 4,

the Legislature expressly excluded “the state or any political subdivision of the state” from

the definition of an “employer.” See § 50-4-21(B). Contrary to the City’s argument, within

Chapter 50, Article 4, we see no indication that when the Legislature intended a statutory

provision to apply to specific governmental employers, it explicitly added those employers.

We do, however, observe that where the Legislature did not want to include governmental

employers, it expressly excluded them. Section 50-4-21(B). Yet Section 50-4-1 does not

contain the express exclusion contained in Section 50-4-21. Considering the manners in

which exclusions within both statutes were expressed, we are not persuaded that Section 50-

4-2(A) silently intended that its payment mandates were inapplicable to municipalities
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simply because municipalities were not affirmatively identified as employers within the

statute.

{17} Second, the City asserts that the legislative history of NMSA §§ 50-4-1 to -12 (1937,

as amended through 2005) compels the conclusion that Section 50-4-2(A) is “clearly not

applicable to public employees.” Indeed, when the Act was originally passed, it was entitled

“An Act to Establish Regular Pay[]Days and to Regulate the Payment of Wages and

Compensation for Labor or Service in Private Employment and Repealing All Acts in

Conflict Herewith.” 1937 N.M. Laws, ch. 109 (emphasis added). The City asserts that due

to the original title’s application to solely “[p]rivate [e]mployment,” the current version of

the statute must intend all public employers to be exempt. Id. We are not persuaded that

changes to the title of the statute lead to such a conclusion for two reasons. First, the statute

no longer contains a title implicating only private employers; the chapter is currently entitled

“Employment Law.” See NMSA 1978, Chapter 50. We cannot construe modification of the

original titling language to contradictorily indicate the Legislature’s intent to continue to

exclude public employers from the statute’s breadth. Second, we have noted that the

Legislature subsequently included the provision within Section 50-4-2(B) that exempts

certain state employers from compliance. This single, limited exemption appears to indicate

that non-exempt state employers and other public employers are, consistent with the

elimination of the “[p]rivate [e]mployment” descriptor contained within the enacting title of

the legislation, subject to compliance with Section 50-4-2(A) unless otherwise specified.

{18} Third, the City argues that not only was the title of the Act changed, but the 1937

iteration of the statute utilized the phrase “every employer,” while the current Section 50-4-

2(A) applies to “[a]n employer.” Compare 1937 N.M. Laws, ch. 109, § 2, with Section 50-4-

2(A). Yet we cannot construe such a minute and seemingly indistinct alteration to the way

employers are described to transformatively exclude all public employers from the statutory

definition. As we have noted, Section 50-4-2(B)’s express exclusion of the state in its

capacity as an employer would be plainly unnecessary were all public employers otherwise

exempted. See Section 50-4-2(B).

{19} The City’s fourth assertion that the Legislature did not intend for municipalities to

be included in the definition of “employer” under Section 50-4-1(A) is based on the fact that

the payment of wages to public employees is not addressed in Chapter 50, Article 4, but

rather in NMSA 1978, § 10-7-2(A) (2005). This argument is likewise unavailing. Like

Section 50-4-2(B), Section 10-7-2(A) is only applicable to “[p]ersons employed by or on

behalf of the state[.]” As we discussed above, a municipality is not to be equated with the

state for the purpose of the statutory interpretation of Section 50-4-1(A).

{20} In rejecting the City’s arguments in these regards, we note that if public policy or

unique circumstances such as those in existence with regard to APD overtime justify the

addition of municipalities as excluded employers for purposes of Section 50-4-2, it is the

Legislature’s prerogative to modify the statute it wrote. We hold that as written, the City is

not excluded from the definition of employer under Section 50-4-1(A) based on its absence
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Some confusion existed on the part of Plaintiffs with regard to the MWA. In their

original complaint, Plaintiffs asserted a violation of Section 50-4-2 and referenced this

section as part of the MWA. The MWA, however, only contains Sections 50-4-19 through

50-4-30. See § 50-4-20. Plaintiffs acknowledge this mistake in their brief in chief and now

contend that the MWA “has no bearing on this case.” 

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from the exclusionary statutory language, and we will not read the further exclusion of

municipalities into Section 50-4-1(B) where such language does not there appear.

3. The City is Not Exempt From Compliance with Section 50-4-2(A) by Virtue of

the Definition of “Employer” Under the MWA

{21} As its third proffered exception, the City argues it is exempt from compliance with

Section 50-4-2(A) because the payment of overtime wages is collaterally addressed within

Section 50-4-22(D) of the MWA, and under its definition of employer, political subdivisions

of the state are explicitly excluded. The MWA defines “employer” as “any individual,

partnership, association, corporation, business trust, legal representative . . . but shall not

include . . . the state or any political subdivision of the state[.]” Section 50-4-21(B). The

parties agree that in this context the City is excluded from this definition of employer;

however, they dispute whether exclusion under the MWA bears the reach to exempt the City

from compliance with Section 50-4-2(A). Plaintiffs contend that because Section 50-4-2(A)

is not contained within the MWA itself, the City cannot be peripherally exempted from

compliance with Section 50-4-2(A) based on an inapplicable statutory definition of employer

contained within a separate and distinct act. See § 50-4-20 (stating that “Sections 50-4-19

through 50-4-30 . . . may be cited as the ‘Minimum Wage Act.’ ”)1

 Conversely, the City

argues that because Section 50-4-22(D) of the MWA governs the very necessity of employee

compensation for overtime services, and because the City is not an employer required to

provide overtime compensation for purposes of Section 50-4-21(B), it is exempted from a

statutorily mandated pay schedule with regard to overtime compensation.

{22} Here, the City has opted not to utilize its statutory exemption from overtime

compensation and has instead decided to pay its employees for such additional services. But

even in this circumstance, we find no authority to support the assertion that by electing to

compensate its employees for overtime services, the City is automatically exempted from

the statutorily mandated compensation schedule for “all services rendered.” Section 50-4-

2(A). Because work completed during overtime hours constitutes a service rendered by the

employee, determined by the City to be compensable, Section 50-4-2(A) continues to

mandate that the City must pay its employees within ten days of the end of a particular pay

period.

{23} In conjunction with this argument, the City argues that we should interpret the MWA

guided by federal law. See Garcia v. Am. Furniture Co., 1984-NMCA-090, ¶ 13, 101 N.M.

785, 689 P.2d 934 (stating that it is appropriate to look to the decisions of federal courts
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when interpreting a New Mexico statute when the federal and New Mexico statutory

provisions are similar). The City asserts that Section 50-4-22(D), the overtime provision of

the MWA, is similar to the federal overtime provision, 29 U.S.C. § 207(a) (2012), set forth

within the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 (2012). Accordingly, it

contends we should look to federal law to determine whether the City’s overtime

compensation schedule is improper.

{24} The FLSA requires non-exempt employers to compensate employees at a rate of at

least one and one-half times the regular rate when employees work in excess of forty hours

per week, similar to Section 50-4-22(D). See 29 U.S.C. § 207(a)(1). Under federal law,

“[t]he general rule is that overtime compensation earned in a particular work[]week must be

paid on the regular pay day for the period in which such work[]week ends.” 29 C.F.R. §

778.106 (2013). However, when the proper amount of overtime cannot be determined until

after the end of the regular pay period, the employer may compensate for overtime “as soon

after the regular pay period as is practica[l]” without violating the Act. Id.

{25} The City contends that its fourteen-day delay in processing overtime is in compliance

with the federally analogous “prompt payment requirement” of the FLSA and is, therefore,

not in violation of Section 50-4-2(A). For this contention, the City relies on Nolan v. City

of Chicago, 162 F. Supp. 2d 999, 1003-04 (N.D. Ill. 2001). Nolan held that a delay in

overtime compensation of approximately twenty-eight days was not in violation of 29 C.F.R

. § 778.106 because payment was made “as soon as is practica[l].” Nolan, 162 F. Supp. 2d

at 1005. However, Nolan is distinguishable from the present case. In Nolan, the City of

Chicago was a recognized employer under the FLSA and directly subject to the overtime

compensation requirements. Nolan, 162 F. Supp. 2d at 1001. Here, as the City notes, by

virtue of Section 50-4-21(B), it is exempt from Section 50-4-22(D) and therefore not

required to compensate for overtime services. Furthermore, the Nolan court acknowledged

that the overtime calculation process at issue was a highly complex system, and although the

City of Chicago was working to implement a more efficient automated system, it was, at the

time, unable to implement a system that could process overtime in a timely manner. Nolan,

162 F. Supp. 2d at 1001. In the present case, prior to July 3, 2009, the City compensated

APD employees for accrued overtime hours in a timely manner. It was not until the APD

Chief of Police modified the time sheet submission requirements that the City encountered

delays in processing time. Additionally, there was no indication from the City that it was

working to create a more timely and efficient system. Because the City is not an employer

for the purposes of the mandatory compensation of overtime and has shown a previous

ability to provide timely calculation of overtime hours, we determine this case is not

analogous to Nolan and decline to extend the Nolan interpretation to contrary New Mexico

law. In any event, nothing within Nolan provides a basis in law by which we or the City can

conclude that the payment requirements of Section 50-4-2(A), even considered in the light

of the MWA, may be circumvented.

4. The City is Not Vested With the Authority to Implement its Own Pay Schedule,

in Conflict with Section 50-4-2(A), by Virtue of its Status as a Home Rule
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Municipality

{26} In its final exemption argument, the City asserts that it has the right to administer its

currently implemented pay schedule under the home rule provision of Article X, Section 6

of the New Mexico Constitution. The home rule provision provides that “[a] municipality

which adopts a charter may exercise all legislative powers and perform all functions not

expressly denied by general law or charter.” N.M. Const. art. X, § 6(D). A“ ‘general law’

” is a “law that applies generally throughout the state, or is of statewide concern, as

contrasted to a ‘local’ or ‘municipal’ law[.]” City of Albuquerque v. N.M. State Corp.

Comm’n, 1979-NMSC-095, ¶ 7, 93 N.M. 719, 605 P.2d 227. A determination of whether the

state has expressly denied a municipality’s authority to act “involves an inquiry into whether

the statute evinces any intent to negate the municipal legislative power at issue[.]” Prot. &

Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 47, 145 N.M. 156, 195 P.3d 1

(alterations, internal quotation marks, and citation omitted). The general law need not have

explicit language of negation; “words or expressions which are tantamount or equivalent to

such a negation are equally effective.” State ex rel. Haynes v. Bonem, 1992-NMSC-062, ¶

22, 114 N.M. 627, 845 P.2d 150.

{27} Our first step in determining if the City’s creation of its own overtime compensation

schedule is expressly denied by general law is whether Section 50-4-2 is a general law. “A

general law impacts all inhabitants of the state rather than just the inhabitants of a

municipality.” NMFE, 2006-NMCA-007, ¶ 18. Although Section 50-4-2(B) does create a

limited exception for the compensation of many state employees, employee compensation

is a subject that affects working individuals statewide, not solely within the local bounds of

the municipality of Albuquerque. Section 50-4-2 is a “general law because it applies

generally throughout the state, relates to a matter of statewide concern, and impacts workers

across the entire state.” NMFE, 2006-NMCA-007, ¶ 18.

{28} In order to determine if Section 50-4-2 expressly denies the City the power to create

an overtime compensation schedule that varies from the time line articulated in Section 50-4-

2(A), we must consider whether Section 50-4-2(A) “evinces any intent to negate such

municipal power, whether there is a clear intent to preempt that governmental area from

municipal policymaking, or whether municipal authority to act would be so inconsistent with

[Section 50-4-2(A)] that [Section 50-4-2(A)] is the equivalent of an express denial.” NMFE,

2006-NMCA-007, ¶ 19. Here, Section 50-4-2(A) expressly creates an employee

compensation time line in which an employer must pay its employees for all services

rendered within ten days after the completion of the pay period. See A.C. Elec., Inc., 1998-

NMCA-141, ¶ 20. As we have determined, the City is included in the definition of an

“employer” under Section 50-4-1(A), the definitional provision applicable to Section 50-4-

2(A), and we conclude that the creation of an exemption on the basis of the City’s home rule

status would in effect defeat the Legislature’s apparent intent to preempt municipal action

in this area. Because Section 50-4-2(A) articulates an express compensation schedule for all

services rendered and contains no broadly worded exception into which municipalities such

as the City fall, we conclude that the statute’s timeliness mandate serves as an express denial
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of the City’s proffered authority to create its own overtime compensation schedule for APD

employees.

{29} Although the City argues that the compensation of its employees is a “locally limited

proprietary function and falls within the home rule” and that it has the autonomy to act

without state interference in matters of local concern, the City is not acting in an area of

purely local concern. While it is true that the state cannot constitutionally deprive a home

rule municipality from legislating on purely local affairs, see Apodaca v. Wilson, 1974-

NMSC-071, ¶ 16, 86 N.M. 516, 525 P.2d 876, the specific issue of concern here is not the

compensation of all City employees, but the overtime compensation of employees of the

City’s police department. The operation of a police force is not a local or proprietary

function, but a governmental one. Barnett v. Cal M, Inc., 1968-NMSC-159, ¶ 8, 79 N.M.

553, 445 P.2d 974 (“It is firmly established by the great weight of authority that the

operation of a police department is a governmental function[.]”). As a governmental

function, the City acts in this analysis as an agent of the state; thus, the compensation of

employees of its police force is not incidental to its authority under the home rule. See N.M.

State Corp. Comm’n, 1979-NMSC-095, ¶ 8 (concluding that a municipality carrying out a

governmental function is acting as an agent of the state, and only when a municipality is

acting in a proprietary capacity is a power incidental to the home rule). Here, because the

City acts in a governmental capacity in this area of general public concern, it does not have

the autonomy to act free from legislative interference by the state and is bound by the

general law directives of Section 50-4-2(A).

CONCLUSION

{30} For the foregoing reasons, we reverse the district court’s decision to grant summary

judgment to the City and remand for further proceedings consistent with this Opinion.

{31} IT IS SO ORDERED.

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J. MILES HANISEE, Judge

WE CONCUR:

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CYNTHIA A. FRY, Judge

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MICHAEL E. VIGIL, Judge