Can a New Mexico school board member vote against a check the superintendent has already paid?

Plain-English summary

A New Mexico state senator asked the AG who actually has the power to approve a check spent on behalf of a school district, and what an individual board member can do when they have concerns about an expenditure. AG Raúl Torrez's office answered the question in two parts.

First, the school board, acting collectively in an open meeting, is the body that formally approves expenditures. An individual board member, acting alone, cannot bind the district, cannot approve or reject a particular check by themselves, and cannot take official action outside a quorum. The Public School Finance Act, NMSA 1978, § 22-8-37, requires that disbursements be made by "voucher and warrants or checks of the local school board," which the AG reads as a board-level power.

Second, an individual board member is fully entitled to question, discuss, and vote against any expenditure during an open meeting, including expenditures the superintendent has already paid under a delegated voucher-approval resolution under 6.20.2.14(H) NMAC. The AG roots this in the trustee role of school board members and the fiduciary duty that goes with it.

The opinion adds an important caution: if the superintendent has already paid a vendor under properly delegated authority, the board cannot simply rescind that payment after the fact without legal risk. Once an agent with actual authority has acted, a third-party vendor may have rights against the district under standard agency principles. Boards in that position should talk to counsel before voting to claw back a completed payment.

What this means for you

If you are a New Mexico school board member

You can speak up about any expenditure at a board meeting, even after the check is already in the vendor's hands. You are a trustee, and questioning expenditures is part of the job. What you cannot do is unilaterally stop or undo a check on your own authority. The board has to act as a body, in a properly noticed open meeting, and approve or reject expenditures by a vote of a quorum. If you want to push back on a particular line item, get it placed on the agenda, raise it at the meeting, and ask for a vote.

If the superintendent has already paid the bill under a standing voucher-approval resolution, do not assume the board can simply vote to take the money back. Ask the district's attorney to walk through the contract and agency-law implications before the vote. Section 22-5-13 requires mandatory training for new board members; if you have not been through it, this opinion is a good prompt to ask the New Mexico School Boards Association about the next session.

If you are a New Mexico school district superintendent or business officer

The opinion confirms that a superintendent who pays vendors under a board resolution adopted per 6.20.2.14(H) NMAC is exercising delegated board authority, not independent authority. Your authority to approve a voucher in the gap between board meetings comes from the board's resolution; if that resolution is unclear, narrow, or absent, your check-cutting authority is too. Make sure (a) the resolution authorizing pre-meeting voucher approvals is current, (b) the summary of vouchers paid between meetings is presented at the next regular meeting for ratification, and (c) the minutes reflect that ratification.

If a board member is signaling they may try to rescind a payment you have already made, get district counsel involved before the meeting, not after.

If you are a parent, taxpayer, or community member following a school district

You can attend a board meeting and watch the discussion of district expenditures. The board is required to formally approve disbursements during a regular meeting, and a "summary listing of the vouchers" must be presented at that meeting under 6.20.2.14(H) NMAC. If a board member is raising concerns about a particular check, the opinion confirms they are well within their authority to do so during an open meeting. The board will need a majority vote to take official action.

If you advise a New Mexico school district

The opinion synthesizes a tidy authority chain: § 22-5-4(C) (board may review and approve the annual budget), § 22-8-37 (disbursements by board check), 6.20.2.14(H) NMAC (delegated pre-meeting voucher approval, then board ratification), Landers (board acts only as a body), and Barron (agent with actual authority can bind the principal). Use this opinion when counseling a board on the limits of an individual member's authority, and when assessing the litigation risk of attempting to rescind a payment a superintendent already made.

Common questions

Q: Can one board member stop a check on their own?
A: No. A school board member acting alone has no authority to approve or reject expenditures. Authority is vested in the board as a body. Landers v. Bd. of Educ., 1941-NMSC-039, made that point a long time ago and the AG cites it directly.

Q: Can a board vote against a check that the superintendent has already paid?
A: They can hold the vote and they can express disapproval, but the AG cautions that rescinding a completed payment that was made by a properly authorized superintendent is legally risky. Under standard agency law (Barron v. Evangelical Lutheran Good Samaritan Soc., 2011-NMCA-094), an agent acting with actual authority can bind the principal, which is the district. Talk to district counsel before attempting a rescission.

Q: Where does a superintendent's check-signing authority come from?
A: From a formal board resolution. 6.20.2.14(H) NMAC lets a school board pre-authorize the superintendent to approve vouchers between meetings, but the same regulation requires that a summary listing of those vouchers be presented at the next regular meeting for formal approval and entry in the minutes.

Q: Does this opinion only apply to checks?
A: The two questions presented were specifically about checks, but the AG's reasoning covers any disbursement. Section 22-8-37 authorizes disbursements "by voucher and warrants or checks of the local school board." The form does not change who has authority.

Q: What about emergency expenditures or routine bills?
A: The opinion acknowledges that boards generally meet only once a month and that delegated voucher approval is a practical accommodation. The AG endorses the framework: superintendent acts with delegated authority between meetings, and the board ratifies after the fact.

Q: Are school board meetings where these decisions happen open to the public?
A: Yes. The discussion in the opinion assumes board action happens in an open meeting, consistent with the New Mexico Open Meetings Act. The AG's office maintains a separate Open Meetings Act compliance guide if you want details on noticing and procedure.

Background and statutory framework

New Mexico school district finances run through the Public School Finance Act and the Public School Code, supplemented by Public Education Department rules in Title 6, Chapter 20 of the New Mexico Administrative Code.

Section 22-8-37 is the core anchor: it requires that public school money be kept by a county treasurer or a district board of finance and that disbursements be made by voucher, warrant, or check of the local school board. The statutory phrasing puts the disbursement power at the board level, not at the level of an individual official.

Section 22-5-4 sets out the school board's general powers, including the power to "review and approve the annual school district budget" and to "adopt rules pertaining to the administration of all powers or duties of the local school board." The AG reads "review and approve" broadly to encompass discussion of individual expenditures within the budget framework.

The Public Education Department's regulations recognize that a board cannot practically meet often enough to pre-approve every voucher. 6.20.2.14(H) NMAC permits a board, through a formal resolution, to authorize the superintendent to approve vouchers for payment between meetings; the same provision then requires a summary listing of those vouchers to be presented at the next regular board meeting for formal approval and entry in the minutes. The Public Education Department's Manual of Procedures for Cash Controls (PSAB Supplement 7) elaborates on the same framework.

The case law backs up the structural point that a board acts only as a body. Landers v. Bd. of Educ. of Town of Hot Springs, 1941-NMSC-039, holds that informal, separate, individual action of a majority of board members does not bind the board. Alarcon v. Albuquerque Pub. Sch. Bd. of Educ., 2018-NMCA-021, more recently reaffirmed that the school board remains the "policy-setting body" of the district even when statute allocates particular operational responsibilities to the superintendent. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, described the "significant political and financial autonomy" of local school boards under prior law.

The agency-law concern about rescinding completed payments comes from Barron v. Evangelical Lutheran Good Samaritan Soc., 2011-NMCA-094, 150 N.M. 669, which articulates the standard rule that an agent with actual or apparent authority can bind a principal. If the superintendent has actual authority under a board resolution to pay the vendor, the district is bound by that payment, and unilaterally taking the money back exposes the district to the vendor's contract and unjust-enrichment claims.

Citations and references

New Mexico statutes (Public School Finance Act):
- NMSA 1978, § 22-8-37 (disbursements by voucher, warrant, or check of local school board)
- NMSA 1978, § 22-5-4 (school board powers and duties)
- NMSA 1978, § 22-5-13 (mandatory school board training)
- NMSA 1978, § 22-5-14 (local superintendent powers and duties)

New Mexico regulations:
- 6.20.2.8 NMAC (financial accounting requirements)
- 6.20.2.12 NMAC (organizational structure)
- 6.20.2.14 NMAC (voucher approval, including superintendent pre-approval and board ratification)

Cases:
- Landers v. Bd. of Educ. of Town of Hot Springs, 1941-NMSC-039, 45 N.M. 446, board can act officially only as a body in convened session
- Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, historical autonomy of local school boards
- Alarcon v. Albuquerque Pub. Sch. Bd. of Educ., 2018-NMCA-021, school board remains policy-setting body even where statute allocates operational duties to superintendent
- Barron v. Evangelical Lutheran Good Samaritan Soc., 2011-NMCA-094, 150 N.M. 669, agent with actual or apparent authority can bind a principal

Other authorities cited:
- New Mexico School Boards Association, School Board Member Handbook (2012)
- Public Education Department, Manual of Procedures for Cash Controls (PSAB Supplement 7)
- Trustee, Black's Law Dictionary (11th ed. 2019)

Source

• Landing page: https://nmdoj.gov/publication/opinion/2024-11-opinion-the-role-of-a-school-board-member-in-approving-checks/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2024-11.pdf

Original opinion text

August 27, 2024

OPINION OF RAÚL TORREZ
Attorney General

Opinion No. 2024-11

To: Senator Antoinette Sedillo-Lopez, New Mexico State Senate

Re: Opinion Request – The Role of a School Board Member in Approving Checks

Questions

1. What is the role of a school board member in approving the allocation of funds in the form of check when a board member has concerns about the spending?

2. May a school board member question, address, or vote against these items in an open meeting?

Answers

1. A school board is the policymaking body of its local school district and has the responsibility under state law of formally approving expenditures. A school board member may raise concerns regarding the allocation of funds in the form of a check; however, only the board—and not an individual board member—may take official action.

2. Yes. A school board member may question and address the allocation of public school funds in the form of a check, and may do so regardless of whether payment has already been completed by an authorized subordinate.

Background

Several statutes, regulations, and case law inform our opinion. These sources generally support a school board's ability to review the actions of subordinates and to vote on disbursement of public school funds.

First, the Public School Finance Act (the Act), NMSA 1978, §§ 22-8-1 to -49 (1967, as amended through 2024), addresses the role of local school boards with respect to disbursements. In relevant part, the Act states as follows:

Except for money received for a cafeteria or for an activity fund, all money for public school purposes distributed to a school district, or collected by a county, school district or public school authorities for a school district, shall be delivered to and kept by a county treasurer or a board of finance of a school district in funds approved by the division. Disbursements from these funds shall only be made for matured debts by voucher and warrants or checks of the local school board.

Section 22-8-37 (emphasis added). The plain language of this provision makes clear that each school board oversees disbursements made from the fund dedicated to that particular school district—whether by voucher, warrants, or "checks of the local school board."

Second, each school board's oversight role over its respective school district's funds is further reflected in the New Mexico Public Education Department's administrative rules, which state that a school board, through a formal board resolution, may authorize the school district's superintendent to approve vouchers for payment prior to a board meeting. See 6.20.2.14(H) NMAC. Notably, however, these rules also provide that "[a] summary listing of the vouchers and any additional information prescribed by the local board shall be presented at the next regular board meeting for formal approval and entry in the minutes." Id. (emphasis added). The regulations additionally state that "school districts shall account for financial transactions and develop and maintain their budgets in accordance with the Public School Code, GAAP, and department procedures . . . ." 6.20.2.8(A) NMAC. Further, "[s]chool districts shall develop, establish and maintain an effective organizational structure . . . ." 6.20.2.12 NMAC. This organizational structure is intended to create a "system of checks and balances which separates incompatible activities to preclude absolute control by any individual or unit and provides for supervision by higher levels of management and for the monitoring of overall school district activities." Id.

Third, the Public Education Department's Manual of Procedures for Cash Controls further explains that, although vouchers should be presented to the school board prior to the issuance of checks, a school board may authorize a superintendent to approve pending vouchers for several reasons, including the timely payment of vendor invoices. See Manual of Procedures, PSAB Supplement 7, Cash Controls.[1] This regulatory scheme enables necessary operational expenditures to occur in a timely and flexible manner considering that school boards generally only meet once per month. However, the school board is still the ultimate authority for expenditures of public school funds. The superintendent exercises the delegated authority of the school board when deciding to pay vouchers prior to a school board meeting.

Fourth, looking more broadly at the Public School Code (the Code), NMSA 1978, §§ 22-2-1 to -35-5 (except Article 5A) (1967, as amended through 2024), we note that school boards are specifically authorized to "review and approve the annual school district budget," as well as "adopt rules pertaining to the administration of all powers or duties of the local school board." Section 22-5-4(C), (K) (2005). The Code does not further define a school board's power to "review and approve" to include individual budgetary items.

Fifth, the New Mexico Court of Appeals has recognized that school boards are defined by the Code as the "policy-setting body" of the school district. Alarcon v. Albuquerque Pub. Sch. Bd. of Educ., 2018-NMCA-021, ¶¶ 62-68 (generally explaining that amendments to the Code allocating certain responsibilities to a superintendent should not be interpreted as an abrogation of the school board's authority as the policy-setting body of the school district); see also Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, ¶¶ 16-19, 120 N.M. 97 (describing the "significant political and financial autonomy" of local school boards but decided under prior law).

Lastly, Section 22-5-13 requires mandatory training of school board members to explain their roles in relation to policies, procedures, finance, and budget, as well as the statutory duties of each elected official. The school board handbook is maintained by the Public Education Department and states that "[a]s trustees, school board members are charged with seeing that the schools are well managed, tax dollars are wisely spent, and the investment and interests of the public are protected." See New Mexico School Boards Association, School Board Member Handbook (Handbook), Ch. II, Sec. E (2012).[2]

Analysis

1. School boards are authorized and obligated under New Mexico law to formally approve expenditures, whether in the form of a check or otherwise.

We first address the role of a school board member in approving the allocation of funds in the form of a check when a board member has concerns about the spending. At the outset, we note that a school board member has no authority individually; rather, the law vests authority in the school board as a whole. "[W]here a duty is intrusted to a board composed of different individuals, the board can act officially only as such, in convened session, with all the members or a quorum thereof present. The informal, separate and individual action of a majority of the board, . . . will not suffice to bind it." Landers v. Bd. of Educ. of Town of Hot Springs, 1941-NMSC-039, ¶ 5, 45 N.M. 446.

School boards are authorized to approve school district budget and disbursements of school district funds. See §§ 22-5-4(C), 22-8-37. Although a school board may delegate its power to approve payment of vouchers to the superintendent, the local school board is still the policymaking body of the local school district and retains the responsibility of formally approving expenditures during a subsequent open meeting, including the allocation of funds in the form of a check. The phrase "review and approve the annual school district budget" in Section 22-5-4(C) can reasonably be interpreted to demonstrate the Legislature's intent to task school boards—and by extension, school board members—with review and discussion of all financial items brought before them in an open meeting, including the approval of the allocation of funds. See also 6.20.2.14(H) NMAC (providing that "[a] summary listing of the vouchers and any additional information prescribed by the local board shall be presented at the next regular board meeting for formal approval and entry in the minutes"). We find no indication in any of the governing authority that, where an expenditure is made in the form of a check, our analysis would be any different. See § 22-8-37 (providing that disbursements may be made with "checks of the local school board").

2. A school board member may question, address, or vote against expenditures made in any form in an open meeting.

Although authority is vested in the board, individual school board members may discuss and vote to disapprove expenditures, made in any form, during school board meetings and to question, address, or vote against these items in an open meeting. The Act states that "[i]n no event shall any money be expended or debts incurred except as authorized by the . . . Act." Section 22-8-37. This provision requires a school board, acting through its members, to use its discretion to ensure compliance with both the Act and other legal restrictions on spending. The Legislature plainly intended for school boards to formally approve district expenditures.

Indeed, the discussion and formal approval of expenditures is an essential oversight duty of a school board. See, e.g., § 22-8-37; 6.20.2.14(H) NMAC. Moreover, school board members operate as trustees in their respective districts and are responsible for ensuring the schools are properly managed, tax dollars properly allocated, and the public interest is protected. Handbook, Ch. II, Sec. E. A trustee "is bound to perform all acts which are necessary for the proper execution of his trust." Trustee, BLACK'S LAW DICTIONARY (11th ed. 2019). A school board member's fiduciary duties thus require the analysis and consideration of financial matters before the board. Therefore, an individual member of a school board is entitled to discuss and raise any concerns they might have regarding an expenditure of public school funds. See generally Handbook, Ch. II, Sec. H (discussing qualities of an effective board member). A school board member may vote in that member's best judgment to approve or disapprove of an expenditure.

3. School boards should consult with their counsel before attempting to disapprove or rescind any payment already completed by an agent with actual authority.

We briefly acknowledge the practical interplay between our conclusions herein and 6.20.2.14 NMAC, which, as addressed above, allows superintendents to approve payments so long as the superintendent has authorization to do so through a prior formal resolution of the school board. Although the school board holds authority over a school district's expenditure of public school funds, the Public Education Department's promulgation of 6.20.2.14 NMAC recognizes that it may not always be practicable for a school board to approve each and every line item expenditure or otherwise manage every administrative detail of a school district's financial operations. See also § 22-5-14 (describing powers and duties of local superintendent); Alarcon, 2018-NMCA-021, ¶ 10 (describing the local superintendent as the "chief executive officer" of the local school district responsible for "day-to-day" operations).

Reconciling 6.20.2.14 NMAC and the statutes above, a disbursement made by an authorized superintendent is an exercise of the school board's authority, albeit through a subordinate agent. Thus, we caution that a school board should consult with its legal counsel about potential risks before voting to disapprove or rescind any payments that have already been completed through a properly authorized superintendent by the time of the subsequent school board meeting. For example, where a contractor's invoice has already been approved and paid by a superintendent acting with the actual authority of the school board under 6.20.2.14(H) NMAC, but the school board later wishes to rescind or reject that payment at the subsequent school board meeting, there could be risks associated with rescission of such payment. See Barron v. Evangelical Lutheran Good Samaritan Soc., 2011-NMCA-094, ¶ 16, 150 N.M. 669 (agents with actual or apparent authority may bind a principal). This cautionary note does not disturb our general conclusions set forth above.

Conclusion

Although a school board may delegate its power to approve payment of vouchers to the superintendent, the school board remains the policymaking body of the local school district and retains the responsibility under state law of formally approving expenditures during a subsequent open meeting. Accordingly, a school board member may question and address the allocation of public school funds in the form of a check, and may do so regardless of whether payment has already been completed by an authorized subordinate. If payment has not yet been completed by the authorized subordinate at the time of the subsequent school board meeting, then the school board may vote against making such payment. However, for payments that have already been completed by a properly authorized subordinate acting with the actual authority of the school board at the time of the subsequent school board meeting, best practices are that a school board consult with their counsel before attempting to disapprove or rescind any payments that may have already been completed by an agent with actual authority.

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/ Alexander W. Tucker
Alexander W. Tucker

/s/ Ellen Venegas
Ellen Venegas
Assistant Solicitors General

Footnotes

[1] Available at: https://webnew.ped.state.nm.us/wp-content/uploads/2017/12/SBFAB_Manual-of-Procedures-PSAB_PSAB7__Cash-Controls.pdf (last accessed June 5, 2024).

[2] Available at: https://www.nmsba.org/handbooks (last accessed June 5, 2024).