In New Mexico, can a county manager or county commission overrule the elected county treasurer on hiring a deputy or investing county money?

Plain-English summary

Representative D. Wonda Johnson asked two questions arising from a dispute in McKinley County: who controls hiring of staff in the county treasurer's office, and who controls the investment of county funds. The McKinley County Treasurer had alleged that the county manager's office was hiring his deputy and that the commission was making investment decisions without consulting him. The AG declined to adjudicate those specific allegations but laid out the controlling state law.

On hiring, the AG concluded that under NMSA § 4-38-19(A) and § 10-1-13(C), elected county officers have exclusive authority to hire and supervise their own deputies and staff. The county commission can set salaries (because it controls the budget) and can adopt a county-wide merit system or personnel policy that covers things like working hours, leave, and conduct standards, but cannot use that authority to take over hiring or to dictate the substantive duties of employees who work for elected officers. The Court of Appeals in Board of County Commissioners v. Padilla (1990) is the leading case, which directly addressed an attempt to subject county treasurer employees to a merit system.

On investments, the answer is shared authority. NMSA § 6-10-8 makes the county commission a "county board of finance," and § 6-10-10 requires the treasurer to act on county investments only "with the advice and consent" of the board of finance. The Court of Appeals in Padilla read this as a kind of split authority: the treasurer has the power of choice (deciding how and where to deposit and invest), but the board of finance has a veto power. Neither can act unilaterally. The board cannot rewrite the treasurer's investment plan; the treasurer cannot impose a plan over the board's objection.

The opinion is careful to say it is not adjudicating McKinley County's specific dispute. It only describes the legal framework that applies.

What this means for you

If you're an elected county treasurer

You have exclusive authority to hire your deputy and other staff who carry out the duties of your office. The county commission can set salary levels (it controls the budget) and apply a county-wide merit system to your office, but the merit system cannot take over hiring decisions or supervise the substantive work of your employees. If a county manager is hiring or supervising your deputy, that is not authorized by state law. On investments, you make the call but need the commission to sign off in its role as the board of finance. Document your investment decisions, present them formally to the board, and demand a formal vote rather than informal pushback.

If you're an elected county officer other than treasurer (assessor, sheriff, clerk, etc.)

The hiring analysis applies to you too. Section 4-38-19(A) gives "elected county officials" the authority to hire and recommend the salaries of staff carrying out their statutory duties. Section 10-1-13(C) lets each county officer appoint a deputy. A merit system can govern working conditions but cannot take over hiring or substantive supervision. This opinion is a useful citation if your county manager or commission is reaching into your office.

If you serve on a county commission

Your authority over staffing in the elected officers' offices is limited to (a) setting salary levels via the budget, and (b) adopting personnel policies on working conditions like hours, leave, and conduct, that do not "infringe upon the ability of the [elected officer] to perform the duties of the office." Direct supervision of those staff, hiring decisions, and reorganization of substantive duties belong to the elected officer. On investments, your role as the county board of finance is critical: the treasurer cannot deposit or invest county funds without your "advice and consent." But you also cannot make those decisions yourself; your power is to approve or veto the treasurer's choice, not to substitute your own.

If you're a county manager

The opinion does not address county managers specifically, but the analysis is unfavorable to manager-led hiring of elected officers' staff. If your county charter or job description has you hiring employees who report to the treasurer, the assessor, or other elected officers, that arrangement is hard to square with §§ 4-38-19(A) and 10-1-13(C). Audit your hiring practices and discuss with the commission and the elected officers.

If you're a county resident

This is a clarification of who is accountable for what within county government. When you have a complaint about staff in the treasurer's office, the treasurer is responsible. When you want to influence county investment policy, both the treasurer and the commission have to agree. The split-authority structure is by design: the legislature wanted both branches of county government to weigh in before public funds get committed.

Common questions

Can the county manager hire my deputy?

No. The elected county officer has the statutory authority to appoint the deputy. NMSA § 10-1-13(C) is direct: "Each county officer shall appoint a deputy or clerk, as allowed by law." A county manager hiring your deputy is not authorized by state law, even if a local rule or job description says otherwise.

Can the county commission impose a merit system on the treasurer's office?

Yes, but with limits. Padilla v. Board of County Commissioners (1990) explicitly authorized application of a county merit system to "at least some employees of the" treasurer's office. The merit system can govern working hours, leave, classification, pay scales, and discipline procedures. It cannot take over hiring or authorize someone other than the treasurer to supervise substantive job duties.

Who decides where to invest county money?

The treasurer has the power to choose investments, but only the permissible categories listed in § 6-10-10(F), (G), and (H), which include government bonds, federally insured securities, and similar instruments. The board of finance (i.e., the county commission) must give "advice and consent" before any investment can be executed.

What happens if the treasurer and the commission disagree?

Under Padilla, neither side wins by default. The board of finance has a veto, but cannot impose its own choice. The treasurer can propose, but cannot execute over a board veto. Practically, the dispute either gets resolved through negotiation or the funds sit while it is being worked out. The opinion does not propose a deadlock-breaker.

Can the commission make investment decisions without consulting the treasurer?

No. The statute requires the treasurer to make the decision "with the advice and consent" of the board, which is the opposite of allowing the board to act without the treasurer. If your commission has been investing county funds without involving the treasurer, that is contrary to the statute as construed in Padilla.

Does the opinion settle the McKinley County dispute?

No. The AG was explicit that "[o]ur Opinion herein is not intended, and should not be read as, an adjudication of the allegations regarding the McKinley County Treasurer's office and the McKinley County Commission." The opinion lays out the controlling law; the parties or a court still have to apply that law to the facts.

Background and statutory framework

Two statutory schemes govern this opinion. The first is the county-personnel framework in NMSA § 4-38-19(A) and § 10-1-13(C). Section 4-38-19(A) divides authority over county employees: the county commission can "set the salaries of such employees and deputies as it feels necessary to discharge the functions of the county," but "elected county officials have the authority to hire and recommend the salaries of persons employed by them to carry out the duties and responsibilities of the offices to which they are elected." Section 10-1-13(C) reinforces that each county officer "shall appoint a deputy or clerk."

Earlier AG opinions, No. 81-29 (1981) and No. 90-05 (1990), already concluded that a county commission can adopt a merit system covering elected officers' staff for things like classification, pay ranges, working hours, and discipline procedures. The 1990 Court of Appeals decision in Board of County Commissioners v. Padilla put a judicial gloss on those opinions, holding that there is "no statutory impediment in general" to such a system but that it may not "infringe upon . . . the ability of the [t]reasurer to perform the duties of the office."

The second framework governs investment of county funds. NMSA § 6-10-8 designates the county commission as the "county board of finance" with authority to qualify and select federally insured depository institutions. NMSA § 6-10-10(A) requires the treasurer to deposit public money in a designated depository institution. Section 6-10-10(F) extends the same advice-and-consent structure to investments of unspent bond proceeds and money "not immediately necessary for . . . public uses," restricting investments to enumerated categories of government bonds, federally insured securities, and similar instruments.

The Court of Appeals in Padilla (1990) interpreted these provisions at length, concluding that "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." Para. 34. The opinion follows that reading.

The AG limited the scope of its analysis under NMSA § 8-5-2(D), which restricts AG opinions to "questions of law" and excludes adjudication of factual disputes.

Citations

The hiring analysis rests on NMSA § 4-38-19(A), § 10-1-13(C), and Board of County Commissioners v. Padilla, 1990-NMCA-125. Earlier AG opinions on the merit-system question are N.M. Att'y Gen. No. 81-29 (Nov. 10, 1981) and No. 90-05 (Mar. 12, 1990). The investment analysis applies NMSA § 6-10-8 and § 6-10-10, with the controlling judicial gloss from Padilla, 1990-NMCA-125.

Source

• Landing page: https://nmdoj.gov/publication/opinion/2024-08-opinion-county-treasurers-authority-to-hire-a-deputy-and-invest-county-funds/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-No.-2024-08.pdf

Original opinion text

August 14, 2024
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2024-08

To:

The Honorable D. Wonda Johnson, New Mexico State Representative

Re:

Attorney General Opinion – County Treasurer's Authority to Hire a Deputy and Invest County Funds

Questions

1. Who is responsible for the hiring and supervision of the deputy and other employees of the county treasurer's office?

2. Who has control over the investment of county funds?

Answers

1. The county treasurer and other elected county officers have exclusive statutory authority to hire and supervise deputies and other employees of their offices. A merit system or similar personnel policy adopted by the county commission governing the hours, leave time and other working conditions for county employees may be applied to the county treasurer's office, as long as it does not improperly infringe upon the treasurer's ability to perform the duties of the office.

2. Neither the county commission nor the county treasurer has sole control over the investment of county funds. State law confers upon the county treasurer the power to make investment decisions, but only with the advice and consent of the county commission, acting in its capacity as the county board of finance.

Background

It is our understanding that the questions posed in this request arise from allegations made by the McKinley County Treasurer. According to the County Treasurer, he and other elected county officials in McKinley County are not permitted to hire their respective chief deputies. He alleges that all County employees, including those of elected County officials, are under the control of the County Manager's office. With regard to his office specifically, the McKinley County Treasurer alleges that investments in the County's name have been made without consulting his Office and the County Commission has interfered with his responsibilities to make investments and manage the County's investment portfolio.

Our Opinion herein is not intended, and should not be read as, an adjudication of the allegations regarding the McKinley County Treasurer's office and the McKinley County Commission. Instead, our analysis is limited to providing our opinion upon the questions of law posed in this request. See NMSA 1978, § 8-5-2(D) (1975) ("[T]he attorney general shall . . . give his opinion in writing upon any question of law submitted to him by the legislature or any branch thereof, any state official, elective or appointive, or any district attorney on any subject pending before them or under their control with which they have to deal officially or with reference to their duty in office" (emphasis added)). Our conclusions are intended to provide only a framework of the controlling law; they are not intended to resolve or comment upon the underlying controversy in McKinley County. See id.

Analysis

The County Treasurer and Other Elected County Officers Have Exclusive Statutory Authority to Hire and Supervise Deputies and Other Employees of Their Offices.

State law expressly provides elected county officers, including the county treasurer, with authority to hire a deputy and employees to perform the duties of their offices. While a "board of county commissioners may set the salaries of such employees and deputies as it feels necessary to discharge the functions of the county, . . . elected county officials have the authority to hire and recommend the salaries of persons employed by them to carry out the duties and responsibilities of the offices to which they are elected." NMSA 1978, § 4-38-19(A) (1973). With respect to deputies in particular, state law provides:

Each county officer shall appoint a deputy or clerk, as allowed by law, who shall take the oath of office required of the appointing county officer and shall receive [a] salary as provided by law. In case of the death of the appointing county officer, the deputy shall continue in office and perform the duties of the county officer until a new county officer is appointed and qualified as required by law.

NMSA 1978, § 10-1-13(C) (2011).

Based, in part, on a county commission's authority to set the salaries of county employees, previous opinions of this Office have concluded that a county commission has authority to control the working conditions of county employees, including those of elected county officers. That authority includes the adoption of a merit system or similar personnel policy governing matters such as classification of employees, pay scales and ranges, working hours, and methods of employment, promotion, demotion, suspension and discharge. See N.M. Att'y Gen., No. 90-05 (Mar. 12, 1990); N.M. Att'y Gen., No. 81-29 (Nov. 10, 1981); see also Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, ¶ 21, 111 N.M. 278 (holding that there was "no statutory impediment in general" to a county commission's adoption of a merit system that "includes at least some employees of the" county treasurer).

Any merit system or similar policy regulating the working conditions of county employees must operate consistently with the statutory authority of elected county officers to hire, recommend salaries, and perform their official duties. The provisions of a merit system may not "infringe upon . . . the ability of the [t]reasurer to perform the duties of the office[,]" Padilla, 1990-NMCA-125, ¶ 19, or provide someone other than the county treasurer with supervisory or other authority to control the duties and responsibilities of persons employed by the treasurer. See N.M. Att'y Gen., No. 90-05 (Mar. 12, 1990); N.M. Att'y Gen., No. 81-29 (Nov. 10, 1981).

In summary, state law provides the county treasurer with exclusive authority to hire and recommend the salaries of a deputy and employees to carry out the duties and responsibilities of the treasurer's office. The county commission is authorized to set the salaries of the treasurer's deputy and employees and may apply a merit system or other personnel policy governing the working conditions for county employees to the county treasurer's office. A merit system may be applied to the treasurer's office only to the extent it does not improperly infringe upon the county treasurer's authority to hire and supervise employees or interfere with the county treasurer's ability to perform the duties of the treasurer's office.

The County Treasurer Is Empowered to Make Investment Decisions, but Only with the Advice and Consent of the County Commission, Acting in its Capacity as the County Board of Finance.

The county commission and county treasurer each have a statutorily defined role with respect to deposits and investments of county funds. The board of county commissioners "constitute[s] a county board of finance[.]" NMSA 1978, § 6-10-8 (1987). The board of finance supervises "the determination of the qualifications and selection" of federally insured banks and other depository institutions "to receive the public money" of the county. Id. The county treasurer has "supervision of the deposit and safekeeping of the public money of his county . . . and with the advice and consent" of the county board of finance, designates the depository institutions "to receive on deposit all moneys entrusted in [the treasurer's] care." Id. Public money the county treasurer has "on hand" must be deposited in a designated depository institution. NMSA 1978, § 6-10-10(A) (2021).

Similarly, the county treasurer, "with the advice and consent" of the board of finance, is authorized to invest money remaining unspent from the issue of bonds, other securities and "all money not immediately necessary for . . . public uses" and not invested in banks or other federally chartered depository institutions. Section 6-10-10(F). The permissible investments for county treasurers are specified in the statute, and include government bonds and securities, securities issued and backed by the U.S. government, and federally insured obligations. Section 6-10-10(F), (G), (H).

In Padilla, the Court of Appeals relied on Sections 6-10-8 and 6-10-10 to determine the roles of the county board of finance and county treasurer with respect to the investment of county funds. The decision includes a thorough analysis of those provisions and other statutes related to the deposit and investment of public funds, including their legislative history. The court gave particular weight to language in those provisions allowing the county treasurer to act only "with the advice and consent" of the county commission. See Padilla, 1990-NMCA-125, ¶¶ 26-33. Based on that language, the court determined that neither the county commission nor the county treasurer possessed sole policy-making authority over county investments and held that

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.

Id. ¶ 34; see also id. ¶ 29 ("advice and consent" relationship between the county treasurer and county board of finance means that "decisions concerning the placement of county funds in depository institutions and the investment of county funds in government securities are, in the first instance, a matter for the county treasurer; the board of finance has a veto power over every such decision, but it does not have the power of choice itself").

The statutes governing the investment of county funds, as interpreted in Padilla, require a cooperative relationship between the county board of finance and the county treasurer. The power to decide how and where to deposit or invest county funds rests with the county treasurer, but the county treasurer's decisions cannot be executed without the board's "advice and consent."

Conclusion

It is the opinion of this Office that the county treasurer and other elected county officers have exclusive statutory authority to hire and supervise deputies and other employees of their offices. A merit system or similar personnel policy adopted by the county commission governing the hours, leave time and other working conditions for county employees may be applied to the county treasurer's office, as long as it does not improperly infringe upon the treasurer's ability to perform the duties of the office.

Further, neither the county commission nor the county treasurer has sole control over the investment of county funds. State law confers upon the county treasurer the power to make investment decisions, but only with the advice and consent of the county commission, acting in its capacity as the county board of finance.

We reiterate that our conclusions herein are intended to provide only a framework of the controlling law; they are not intended to resolve or comment upon the underlying controversy in McKinley County.

Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL
/s/ Seth C. McMillan
Seth C. McMillan
Deputy Solicitor General