NM Stat § 4-38-1 (2021)
2021 New Mexico Statutes|Chapter 4 - Counties|Article 38 - Board of County Commissioners|Section 4-38-1 - [Exercise of county powers.]

The powers of a county as a body politic and corporate shall be exercised by a board of county commissioners. History: Laws 1876, ch. 1, § 3; C.L. 1884, § 334; C.L. 1897, § 653; Code 1915, § 1188; C.S. 1929, § 33-4201; 1941 Comp., § 15-3501; 1953 Comp., § 15-37-1. ANNOTATIONSCross references. — For powers of counties generally, see 4-37-1 NMSA 1978. For management powers of board generally, see 4-38-18 NMSA 1978. For filling of vacancies in legislative offices, see N.M. Const., art. IV, § 4. For control of property of disincorporated municipalities, see 3-4-7 NMSA 1978. For subdivision planning, see 3-20-5 NMSA 1978 et seq. For investigation of bonds of county and precinct officers, see 10-2-12 NMSA 1978. For filling of vacancies in county and precinct offices, see 10-3-3 NMSA 1978. For liability of governmental entities and public employees, see 41-4-1 NMSA 1978 et seq. For subdivision regulation, see 47-6-9 NMSA 1978 et seq. Government of county vested in boards of county commissioners. — By the 1876 act of which this section was a part, it was evidently intended that the government of the county should pass from the probate judge to the boards of county commissioners. Coler v. Board of Cnty. Comm'rs, 1891-NMSC-024, 6 N.M. 88, 27 P. 619. Allocation of public funds. — Where a county or political subdivision is confronted with a shortage of available revenues, the county is invested with discretion concerning the allocation of public funds. Gallegos v. Trujillo, 1992-NMCA-090, 114 N.M. 435, 839 P.2d 645, cert. denied, 114 N.M. 314, 838 P.2d 468. Investment decision-making. — The county treasurer determines how to deposit and invest county funds. That decision must then be approved by the board of county commissioners, sitting as the county board of finance. The board of finance has no power to modify the county treasurer's decision without the treasurer's concurrence. On the other hand, the county treasurer cannot impose a unilateral decision upon the board of finance. Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, 111 N.M. 278, 804 P.2d 1097. There is no statutory prohibition against delegation to the county treasurer by the board of county commissioners, sitting as the county board of finance, of specific investment decision-making. For example, the board could adopt a policy and permit the treasurer to make investment decisions that conform to the policy. Such delegation may be essential to enable the treasurer to respond to sudden changes in the financial markets. Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, 111 N.M. 278, 804 P.2d 1097. Adoption of merit system or approval of collective-bargaining agreement. — There is no statutory impediment in general to the adoption by the board of county commissioners of a merit system or approval of a collective-bargaining agreement that includes at least some employees of the county treasurer. Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, 111 N.M. 278, 804 P.2d 1097. A board of county commissioners does not unlawfully infringe upon a county treasurer's prerogatives unless it undermines the treasurer's ability to perform the duties of the office by means that are not granted to the board by statute. Ordinances providing for merit systems or collective-bargaining agreements can pass that test. Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, 111 N.M. 278, 804 P.2d 1097. Employment offer from two commissioners held invalid. — The action of two county commissioners orally extending an offer of a two-year employment was without statutory authority because it was not made at a duly constituted meeting of the board and, thus, it was not a valid act capable of binding the county. Trujillo v. Gonzales, 1987-NMSC-119, 106 N.M. 620, 747 P.2d 915. County officials are trustees for the people within the county. — As such, they are required to act with reasonable skill and diligence, and to discharge their duties with that prudence, caution and attention which careful men usually exercise in the management of their own affairs. 1967 Op. Att'y Gen. No. 67-149. General superintending authority. — A county commission or a county council does not have any general superintending authority over other elected county officials. 1987 Op. Att'y Gen. No. 87-18. Violation of law. — Elected county officials who fail to perform their official duties are subject to removal, civil suit or criminal prosecution if they violate the law. 1987 Op. Att'y Gen. No. 87-18. Ownership, operation and maintenance of an airport is within the powers of the board of county commissioners. 1947 Op. Att'y Gen. No. 47-5007. Closing county offices on Saturdays. — In view of the language of the statutes and the holdings in the supreme court, the county commissioners in the various counties have the absolute power and discretion to determine if they should close the county offices on Saturdays. 1955 Op. Att'y Gen. No. 55-6221. Approval of purchases must be made in public meeting. — A county commission may not, consistently with the Open Meetings Act, Chapter 10, Article 15 NMSA 1978, approve purchases by telephone. When it approves purchases, a county commission is conducting public business and taking official action. Therefore, to be valid, this action must be taken by the commissioners acting as a body at a meeting open to the public and according to the requirements of the Open Meetings Act. 1991 Op. Att'y Gen. No. 91-12. Board of county commissioners may legally award a franchise to a water company for the operation of a water system outside corporate limits of a municipality. 1946 Op. Att'y Gen. No. 46-4915. Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 124 to 166. Power of board to make appointment to office extending beyond its own term, 70 A.L.R. 794, 149 A.L.R. 336. Compromise claim, power of county or its officials to, 15 A.L.R.2d 1359. Real estate: power of governing body of county to dispose of county real estate in absence of specific statutory authority, 21 A.L.R.2d 722. 20 C.J.S. Counties § 70.