Opinion No. 14-1347
October 1, 1914
TO: Mr. J. R. Hull, Clovis, New Mexico.
MAYOR OF CITY.
Mayor of city has no power to remove appointees of his predecessor without consent of the city council.
OPINION
{*207} I have just received your letter of yesterday, in which you say that the City Council of Clovis called a special election for the purpose of electing a mayor to fill the unexpired term of Mayor Old-ham, and his successor has been elected, and the point now arises whether that successor has the power to remove appointees of the former mayor, such as city marshal, etc., against the will of the Council, and you ask my opinion on this matter.
I am unable to discover in the statutes, any power given to the mayor to remove any appointive officer against the will of the Council. The mayor has authority, under Section 2457 of the Compiled Laws of 1897, to sign all commissions, licenses and permits granted {*208} by the authority of the City Council, and such other acts as, by law or ordinance, require his certificate. Under Section 2458, it is made his duty to supervise the conduct of all the officers of the city, examine the grounds of all reasonable complaints made against any of them, and cause all violations of duty to be promptly corrected or reported to the proper tribunal for punishment or correction. By Section 2462, the Council is directed to appoint, or provide by ordinance, for the election of all such city officers as may be necessary, and all city officers whose terms of service are not prescribed, shall perform such duties, exercise such powers and continue in office such period, not exceeding one year and until their successors are appointed and qualified, as shall be prescribed by ordinance. Section 2465 is the one which provides for removal of officers, which must be by a vote of a majority of all the members elected to the City Council. Section 2466, however, which is a much later statute than those already referred to, appears fully to cover the subject. In that section, the mayor is given power to nominate all appointive officers, and if the persons so nominated, receive a majority of the votes of the Council, then they shall hold their offices for the term for which appointed, unless removed as by law provided. This section also declares that the appointive officers are a marshal, members of the police, an attorney and such other officers as may be, by ordinance, provided for.
The power of the mayor to appoint to office can only be exercised with the consent of a majority of the members of the Council, but he is not given any power to remove officers, that power being given only to a majority of all the members elected to the City Council.
In this connection, attention should be called to Section 2 of Article XX of the Constitution, which provides that "Every officer, unless removed, shall hold his office until his successor has duly qualified." If the newly elected mayor should nominate to the Council, persons to fill the appointive offices and a majority of the Council should vote in favor of such appointment, that would work a change in the office which would be effectual as soon as the new appointee should qualify. If, however, the Council should refuse to confirm the nomination, the present incumbent would continue in office until some other persons should be legally nominated, confirmed and should qualify.
The fact that a mayor has been newly elected, cannot operate to give him any more power in such matters than his predecessor would have had if he had continued to serve as mayor for the full term for which he was elected.