2023 New Mexico Statutes › Chapter 3 - Municipalities › Article 11 - Mayor-Council Municipality; Mayor › Section 3-11-6 - Mayor; authority to appoint, supervise and discharge employees.

A. Subject to the approval of a majority 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. 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 3-13-4 NMSA 1978:
(1) the governing body may discharge an appointed official or employee by a majority of all the members of the governing body;
(2) the mayor may discharge an appointed official or employee upon the approval of a majority of all the members of the governing body; or
(3) 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 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 was entitled to receive during the time of his suspension.
E. Any appointed official or employee who is discharged shall:
(1) upon his request, be given, by the mayor in writing, a list of reasons for his discharge; and
(2) be paid any vacation pay which he may have accrued.
History:
1953 Comp., § 14-10-6, enacted by Laws 1965, ch. 300.
ANNOTATIONS
Mayoral control of judicial branch unconstitutional.
— Any statutory scheme under which the executive and legislative branches of a municipal government can control or exercise the inherent powers of the judiciary would be violative of N.M. Const., art. III and art. VI, § 1.
Mowrer v. Rusk
, 1980-NMSC-113, 95 N.M. 48, 618 P.2d 886.
Approval required.
— The power to appoint being in the mayor, "subject to the approval of a majority of all members of the governing body," there can be no appointment until the approval has been obtained.
Arellano v. Lopez
, 1970-NMSC-058, 81 N.M. 389, 467 P.2d 715.
Authority to discharge not superseded by city manager's authority.
— There is nothing in 3-14-14A(2) NMSA 1978 to indicate that the mayor's and/or city council's authority to discharge and employ under Subsection D of this section is superseded by the city manager's authority to discharge persons in administrative service.
Sanchez v. City of Belen
, 1982-NMCA-070, 98 N.M. 57, 644 P.2d 1046, cert. denied, 98 N.M. 336, 648 P.2d 794.
Village clerk-treasurer not subject to merit system.
— A village clerk-treasurer was an appointed official under 3-12-4 NMSA 1978 to whom the village had no authority to apply its merit system ordinance adopted under 3-13-4 NMSA 1978. Construing the word "employees" in 3-13-4 NMSA 1978 as not including appointed officers conforms to common usage.
Webb v. Village of Ruidoso Downs
, 1994-NMCA-026, 117 N.M. 253, 871 P.2d 17, cert. denied, 117 N.M. 524, 873 P.2d 270.
Court personnel excluded from general merit system.
— Personnel directly employed by the courts cannot constitutionally be included in a general merit system or ordinance.
Mowrer v. Rusk
, 1980-NMSC-113, 95 N.M. 48, 618 P.2d 886.
Discharge of municipal employee held invalid but requested relief refused.
— In a mayor-council form of municipal government which has four councilmen and a mayor, who votes only to break a tie vote, where one councilman voted against the discharge of a municipal employee, while two councilmen and the mayor voted in favor of his termination, and one councilman was absent, the vote did not result in a valid discharge, which could only result from three councilmen voting in favor thereof, or a tie vote, broken by the mayor in favor of termination. However, it was not error for the trial court to concede that the vote was improper but nonetheless refuse to grant the equitable relief requested because even if the absent councilman had voted against termination there would have been a tie, which the mayor's vote would have broken.
Abeyta v. Town of Taos
, 499 F.2d 323 (10th Cir. 1974).
Failure to submit name at organizational meeting.
— Subsection A of Section 3-11-5 NMSA 1978 and Subsection A of this section should be read in conjunction with one another; therefore, the failure of a mayor to submit a name to the governing body for appointment to office at the organizational meeting does not preclude him or her from doing so at subsequent meetings. 1988 Op. Att'y Gen. No. 88-74.
Absolute majority of council required to affirm employment of municipal employees.
— The employment of municipal officers and employees requires affirmation by an absolute majority of the city council regardless of how many members are present and voting. 1982 Op. Att'y Gen. No. 82-08.
A "majority" of the governing body is one more than half of the councilmen present
at the vote. 1969 Op. Att'y Gen. No. 69-148.
Words "confirmation," "confirm" and "approved" have the same meaning
and can be used interchangeably. 1966 Op. Att'y Gen. No. 66-147.
Mayor's firing power stems from statutory hiring power.
In the absence of legal restraint, the power to appoint simply carries with it as an incident thereto the power to remove. 1963 Op. Att'y Gen. No. 63-74 (rendered under former law).
Actual hiring requires the concurrence of a majority of the city council.
1962 Op. Att'y Gen. No. 62-103.
Temporary employees.
— The mayor is precluded from again temporarily appointing or employing individuals to the same position after the holding of the next regular meeting of the town board, at which a quorum is present, and where there has been a failure or refusal of the town board to confirm such employee. In the event such employee's name is not submitted to the next regular town board, where there is a quorum present, or where the appointment fails to obtain approval from the board, the employee may not thereafter be continued in the same position or reappointed by the mayor for such temporary, extra or emergency employment without his name first being submitted to the town board and approved by them. 1962 Op. Att'y Gen. No. 62-68.
Appointment and discharge of city manager.
— The mayor is responsible for appointing the city manager and is empowered to remove him, although his appointment or removal is subject to the city council's approval. 1987 Op. Att'y Gen. No. 87-69.
Law reviews.
— For article, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 249, 251, 309 et seq.
62 C.J.S. Municipal Corporations §§ 355, 418 to 441.