2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 12 - Governing Body of Municipality
Section 3-12-2 - Governing body; corporate authority; legislative body; members of council and boards of trustees; quorum.

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 is a quorum for the purpose of transacting business.

C. Unless otherwise provided by law, a question before the governing body shall be decided by a majority vote of the members present.

D. The governing body of a municipality having a mayor-council form of government is the council or board of trustees whose members are the mayor and not less than four or more than ten councilmen or trustees. Any governing body of more than six councilmen or trustees may provide by ordinance for the election of two councilmen 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 or trustee shall be elected from a ward or district at any one election.

E. 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 has declared a conflict of interest.

F. 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 or trustee receiving the greatest number of votes at the last regular municipal election, the governing body of the municipality shall redistrict the municipality.

History: 1953 Comp., § 14-11-2, enacted by Laws 1965, ch. 300; 1985, ch. 203, § 2; 1992, ch. 6, § 2; 2003, ch. 208, § 1.

Cross references. — For mayor as presiding officer of governing body, see 3-11-3 NMSA 1978.

For mayor as chief executive officer, see 3-11-4 NMSA 1978.

For sale or lease of property, see 3-54-1 NMSA 1978 et seq.

For public meetings of policy-making bodies, see 10-15-1 to 10-15-4 NMSA 1978.

For monthly summary of minutes, see 10-17-1 to 10-17-3 NMSA 1978.

For publication of proceedings, see 14-11-11 NMSA 1978.

The 1985 amendment substituted "Any governing body of more than six councilmen or trustees" for "The governing body" and deleted "one or" following "for the election of" near the beginning of the second sentence in Subsection D, substituted "provided that only one councilman or trustee shall be elected from a ward at any one election" for "or provide for the election of councilmen or trustees on an at-large basis" at the end of the second sentence in Subsection D, and added Subsection F.

The 1992 amendment, effective May 20, 1992, in Subsection D, substituted "or" for "nor" preceding "more" in the first sentence and inserted "or district" and "or districts" several times in the second sentence; and, in Subsection F, substituted "councilman or trustee" for "commissioner" in the second sentence.

The 2003 amendment, effective June 20, 2003, in Subsection E, substituted "with a mayor-council form of government, when" for "where a mayor has no vote except in case of a tie vote and" near the beginning, added "but he shall vote to break a tie vote as provided in Section 3-11-3 NMSA 1978 unless he has declared a conflict of interest" at the end.

Validity of acts of de facto city council. — Where for 10 years the only governing body a city has had has been a council of four members, one from each ward, and the acts of such governing body have been acquiesced in by the inhabitants of the city, contracts have been made and enforced, relations had with county and state governments, bonds issued in good faith and its contracts relied on by private citizens, its acts would be considered valid. Ackerman v. Baird, 1938-NMSC-013, 42 N.M. 233, 76 P.2d 947.

A mayor is counted for purposes of a quorum. 1969 Op. Att'y Gen. No. 69-148.

Quorum where temporary vacancy of council position exists. — In a mayor-board of trustees municipality where there is a temporary vacancy of a councilman's position, a quorum is decided on the basis of the original full membership, even though the local governing body is at less than full strength. 1971 Op. Att'y Gen. No. 71-46.

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.

Mayor's power to cast tie-breaking vote. — Where the mayor has no vote except in case of a tie vote of the councilmen and where the councilmen's vote is a tie, the mayor's vote is counted in determining the simple majority required in favor of the issue. 1969 Op. Att'y Gen. No. 69-148.

The mayor of a town is entitled to vote on the question of confirming one of his own appointments when the other trustees have registered a tie vote. 1960 Op. Att'y Gen. No. 60-98.

Subsection E of this section contemplates the possibility that the mayor's voting might be further limited by a local ordinance or by rules of the governing body itself. 1969 Op. Att'y Gen. No. 69-148.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 139, 155 to 180.

Libel and slander: statements or utterances by member of municipal council, or of governing body of other political subdivision, in course of official proceedings, as privileged, 40 A.L.R.2d 941.

Majority of members of municipal council voting on issue, what constitutes, 43 A.L.R.2d 698.

Abstention from voting of member of municipal council present at session as affecting requisite voting majority, 63 A.L.R.3d 1072.

62 C.J.S. Municipal Corporations §§ 208 to 246.