Attorney General Opinions and Advisory Letters
Decision Information
Citations - New Mexico Appellate Reports
City of Albuquerque v. New Mexico Public Regulation Commission - cited by 92 documents
Cooper v. Chevron U.S.A., Inc. - cited by 108 documents
Jicarilla Apache Nation v. Rodarte - cited by 86 documents
Morningstar Water Users Ass'n, Inc. v. Farmington Mun. Sch. Dist. No. 5 - cited by 106 documents
State ex rel. Haynes v. Bonem - cited by 87 documents
City of Albuquerque v. New Mexico Public Regulation Commission - cited by 92 documents
Cooper v. Chevron U.S.A., Inc. - cited by 108 documents
Jicarilla Apache Nation v. Rodarte - cited by 86 documents
Morningstar Water Users Ass'n, Inc. v. Farmington Mun. Sch. Dist. No. 5 - cited by 106 documents
State ex rel. Haynes v. Bonem - cited by 87 documents
Decision Content
STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
July 29, 2020
Representative Matthew McQueen
D - Santa Fe, Torrance, Valencia & Bernalillo District 50
7 Avenida Vista Grande B7-120
Santa Fe, NM 87508
Email: mcqueenfornm@gmail.com
Matthew.McQueen@nmlegis.gov
Re: Opinion Request – Potential Transition to Commission-Manager Form of
Government
Dear Representative McQueen:
You have requested an Attorney General opinion regarding the Town of Edgewood’s
potential transition from a mayor-council form of government to a commission-manager
form of government to be decided as part of a special election to be held on August 24,
2020. Specifically, you are seeking an analysis regarding the effect on the current
governing body if the majority of votes cast by the electorate are in favor of the
commission-manager
form
of
government,
including
when
the
newly
elected
commissioners will take office after the commission elections held on November 2, 2021.
Additionally, you requested analysis regarding the interim responsibilities of the current
mayor and town council during the potential transition period from the mayor-council to
commission-manager forms of government.
Background
On March 23, 2020 a petition was filed with the clerk of the Town of Edgewood seeking
to change Edgewood’s form of government to the commission-manager form of
government. On May 26, 2020, pursuant to NMSA 1978, Section 3-14-2 and an opinion
issued by the Secretary of State, the current governing body passed Resolution 2020-09
calling for a special election on August 24, 2020 and placing the ballot question regarding
the potential transition on the ballot of that special election.
Edgewood received a subsequent related opinion from the Secretary of State indicating
that, due to Edgewood’s decision pursuant to the Local Elections Act (“LEA”), NMSA
1978, Section 1-22-3.1(B), to elect its municipal officers during the Regular Local Election
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Representative Matthew McQueen
July 29, 2020
Page 2
(“RLE”), the election of the new commissioners would not be held until the 2021
November election. The Secretary of State indicated that Edgewood is not permitted to
elect its municipal officers at any other time unless it officially rescinds its decision
regarding municipal officer elections.
1
Analysis
As a preliminary matter, there are several rules of statutory construction that guide this
analysis. First, in construing a statute, our goal is to give primary effect to the legislative
intent, which is evidenced primarily through the statute’s language. See Souter v. Ancae
Heating and Air Conditioning, 2002-NMSC-0078, 132 N.M. 608, 611. Second, under the
plain meaning rule, we give statutory language its ordinary meaning unless the Legislature
indicates a different meaning is necessary. See Cooper v. Chevron, 2002-NMSC-020, 132
N.M. 382, 388. In determining the plain meaning of a statute, the court often turns to the
dictionary definition to determine the ordinary meaning of words. State v. Boyse, 2013-
NMSC-024, ¶ 9, 202 P.3d 830, 832. Finally, statutes regarding the same subject matter
should be read together as harmoniously as possible in a way that facilitates their operation
and achievement of their goals. See Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035,
136 N.M. 630, 634-5.
Commissioners’ Term of Office
Should the electorate of Edgewood vote in favor of a commission-manager form of
government as part of the August special election, the current governing body is required
to:
adopt an election resolution calling for the holding of an election for
the purpose of electing five commissioners at the first regular or
local or general election following adoption of the resolution. The
election shall be conducted in the same manner as are regular
local elections pursuant to the terms of the Local Election Act.
The commissioners so elected shall determine their terms of office
by lot, so that three commissioners shall serve until the next regular
local
election
and
two
commissioners
shall
serve
until
the
succeeding regular local election.
NMSA 1978, § 3-14-8 (emphasis added). Commissioners “shall hold office for staggered
periods of four years and until their successors are elected and take office as provided in
the Local Election Act.” Id. at (B) (emphasis added). The LEA states that “[t]he term of
office of a candidate elected in a regular local election. . . shall begin on January 1
following the candidate's election.” NMSA 1978, § 1-22-18 (emphasis added).
1
This opinion does not address the accuracy of the Secretary of State’s opinion as Edgewood has officially
resolved to hold the commission elections in November 2021 pursuant to the Secretary of State’s opinion
as well as a writ of mandamus issued by the First Judicial Court in Case No. D-101-CV-2020-01091.
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Representative Matthew McQueen
July 29, 2020
Page 3
Section 3-14-8 requires that the election of commissioners should occur in the same manner
as RLEs held pursuant to the LEA, and that commissioners shall be elected and take office
as provided in the LEA. The LEA requires that all candidates elected as part of an RLE
will commence their terms on January 1 of the following year. Because Edgewood’s first
commissioners must be elected as part of an RLE, the plain and harmonious reading of the
LEA, in conjunction with relevant commission-manager provisions, requires that the
commissioners begin their four-year terms on January 1 after the RLE in which they were
elected. The four-year terms will end on December 31 of the fourth year unless a successor
is not elected or does not take office. See NMSA 1978, § 3-10-1(E).
Although the language in NMSA 1978, Section 3-14-8 regarding the initial election of
commissioners
potentially
permits
the
commencement
of
terms
soon
after
the
commissioners’ election, this likely applies to municipalities that hold their municipal
officer elections on municipal officer election day in March pursuant to NMSA 1978,
Section 1-22-3.1(A). Municipal officers elected on municipal officer election day would
begin their terms on the first day of the following month of the election. NMSA 1978, § 1-
22-3.1(F). There is no similar provision in the LEA related to the candidates elected as part
of an RLE. In fact, commissioner vacancy will be filled by appointment for a term to last
through the following RLE; therefore, no commissioner will take office immediately after
their election, except on January 1 after the RLE. See NMSA 1978, § 3-14-9.
The Secretary of State determined that should the electorate vote to transition to a
commission-manager form of government as part of the special election held in August of
2020, the election of Edgewood’s commissioners would occur in November of 2021. For
this and the above stated reasons, commissioners elected as part of the RLE held in
November of 2021 will commence their terms on January 1, 2022.
Expiration of Terms of Current Elected Officers
New Mexico law provides that “[a]ny elected municipal official whose term of office has
expired shall continue in that office until a successor is elected and has taken office
pursuant to the provisions of the Local Election Act.” NMSA 1978, § 3-10-1(E). This
provision applies to both members of mayor-council and commission-manager governing
bodies. See Id. at (A) & (B).
Given that Edgewood has decided to elect each of its municipal officers at RLEs, it is
unlikely that the terms of the members of the current mayor-council governing body would
expire prior to the next RLE in November of 2021, or the end of a normal member term on
December 31, 2021. See NMSA 1978, §§ 1-22-2(D) ( “regular local election” means the
biennial local election at which local governing body members are elected pursuant to the
provisions of the Local Election Act”); 3-10-1(D) (“the terms of office for the mayor and
members of the governing body shall be four years. The term of office for members of the
governing body shall be staggered so that the terms of office for one-half of the members
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Representative Matthew McQueen
July 29, 2020
Page 4
of the governing body will expire every two years”). Therefore, each current member or
subsequently elected member of Edgewood’s mayor-council governing body should
remain in their official position until the new Commission takes office on January 1, 2022.
However, should a member’s term expire prior to the new commissioners taking office,
Edgewood should adhere to either the LEA or vacancy provisions related to mayor-council
governing bodies in order to fill the open seat until the terms of the new commissioners
begin. See NMSA 1978, §§ 1-22-3 (RLE provisions); 1-22.3.1 (election of municipal
officers); 3-12-1 (vacancy on a governing body).
Status and Duties of Current Elected Officers During Transition
Except with respect to “home rule municipalities”
2
, all of the powers and authority of a
municipality, including implied powers necessary to implement expressed powers, are
granted by the Legislature. City of Albuquerque v. New Mexico Public Regulation Com’n,
2003-NMSC-028, ¶ 3, 134 N.M. 472, 476; see also Morningstar Water Users Ass’n Inc. v.
Farmington Mun. School Dist. No. 5, 1995-NMSC-052, ¶ 37, 120 N.M. 307, 316; State v.
ex rel. Haynes v. Bonem, 1992-NMSC-062, ¶ 11, 114 N.M. 627, 631 (powers of “home
rule municipalities”).
Members of governing bodies of mayor-council municipalities have been granted specific
powers and duties by the Legislature. See NMSA 1978, §§ 3-12-3 (powers of the governing
body); 3-11-4 (powers of the mayor); 3-11-7 (additional powers of the mayor). Conversely,
members of governing bodies of commission-manager municipalities have been granted
entirely distinct powers and duties. See NMSA 1978, §§ 3-14-12 (powers of commission);
3-14-14 (duties of manager). These two forms of government are distinct as are the official
positions held by their members. NMSA 1978, § 3-10-1 (explicitly identifying offices in
both forms of government).
In addition to the general powers and duties provided to governing bodies of municipalities,
the Legislature has also provided many specific powers and duties. Among those is the
organization of a commission-manager form of government. Specifically, if the electorate
votes in favor of a commission-manager form of government, “the governing body shall
proceed
to
organize
the
municipality
under
the
commission-manager
form
of
government.” NMSA 1978, § 3-14-3 (emphasis added). “The governing body of a
municipality organizing under the commission-manager form of government shall district
the municipality into five commissioner districts.” NMSA 1978, § 3-14-6. “Organize” is
not specifically defined in any related or general statute. However, the dictionary
definitions include, in relevant part, “to arrange by systematic planning” and “to set up an
administrative structure for.” Merriam Webster Dictionary Online, https://www.merriam
webster.com/dictionary/organize (last visited July 17, 2020).
2
“Home rule municipalities” are those that have adopted a charter pursuant to the Constitution of
New Mexico, art. 10, § 6. Edgewood is not believed to have adopted a “home rule” charter as of the
date of this opinion.
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Representative Matthew McQueen
July 29, 2020
Page 5
Edgewood’s current governing body consists of duly elected officers, including a mayor
and multiple city council members. Those individuals are only empowered to take actions
explicitly or implicitly authorized by the Legislature for those specific offices. Therefore,
except where the powers are identical or overlap, the members of the current governing
body should not assume any powers granted to the future commission and manager. Except
with respect to the duties arising from the transition to a commission-manager form of
government, the current governing body should operate as normal until such time as the
first commissioners have taken their offices.
During the transition period, the current governing body should utilize its powers and
authority to arrange for, or set up an appropriate administrative structure in order for the
new commission to assume governing authority over the town of Edgewood on January 1,
2022. This explicitly includes the districting of Edgewood into 5 separate commissioner
districts, as well as any additional actions necessary to provide for the election of new
commissioners, and the transition to a commission-manager form of government.
Conclusion
If the Edgewood electorate votes in favor of a commission-manager form of government,
the first commissioners will be elected as part of the November 2021 election and will take
office on January 1, 2022. The members of the current governing body should remain in
their official positions until the expiration of each of their terms, presumably on December
31, 2021. Additionally, the current governing body should continue normal operations in
their official positions until the newly formed commission takes office. As part of the
transition, the current governing body will be tasked with preparing for the formation and
operation of a commission-manager form of government, including the districting of the
town and the election of commissioners out of the 5 separate commissioner districts.
Please be advised that this opinion is a public record, not subject to the attorney-client
privilege. As such, we may provide copies to the public. If this office may be of further
assistance, or if you have any questions regarding the matters discussed herein, please do
not hesitate to contact our office.
Sincerely,
Miguel Lozano
Assistant Attorney General
Cc:
Mayor John Bassett, Town of Edgewood
Secretary of State Maggie Toulouse Oliver
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.