2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 4 - Removal of Local Officers
Section 10-4-1 - Local officers subject to removal.

Any officer of a political subdivision of the state elected by the people and any officer appointed to fill out the unexpired term of any such officer may be removed from office on any of the grounds mentioned in and according to the provisions of Sections 10-4-1 through 10-4-29 NMSA 1978.

History: Laws 1909, ch. 36, § 1; Code 1915, § 3954; C.S. 1929, § 96-105; 1941 Comp., § 10-303; 1953 Comp., § 5-3-3; 2018, ch. 79, § 82.

Cross references. — For removal of justices, judges or magistrates of any court, see N.M. Const., art. VI, § 32.

For removal of municipal officer for malfeasance in office, see 3-10-7 NMSA 1978.

For supersedeas of judgment in removal proceedings, see Rule 1-062 NMRA.

The 2018 amendment, effective July 1, 2018, added a section heading and added statutory citations; added the section heading; after "Any", deleted "county, precinct, district, city, town or village", after "officer", added "of a political subdivision of the state", after "mentioned in", deleted "this chapter", and after "according to the", deleted "provisions hereof" and added "provisions of Sections 10-4-1 through 10-4-29 NMSA 1978".

Constitutionality. — This act (Sections 10-3-1, 10-4-1 to 10-4-29 NMSA 1978) does not violate N.M. Const., art. XX, § 2. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.

Purpose of removal is not to determine whether a public officer has been a good person or a bad person in the past but only to determine whether, by reason of existing facts and circumstances, he should be removed from his present office. State v. Santillanes, 1982-NMSC-138, 99 N.M. 89, 654 P.2d 542.

Removal from office is a civil and not a criminal proceeding. State ex rel. Mitchell v. Medler, 1913-NMSC-025, 17 N.M. 644, 131 P. 976; State ex rel. Mansker v. Leib, 1915-NMSC-071, 20 N.M. 619, 151 P. 766; State v. Santillanes, 1982-NMSC-138, 99 N.M. 89, 654 P.2d 542.

Removal and suspension proceedings separate and distinct. — Proceedings for removal and that for suspension are separate and distinct, and each requires its own citation as a basis for jurisdiction, although the latter is auxiliary to the former. State ex rel. Delgado v. Leahy, 1924-NMSC-077, 30 N.M. 221, 231 P. 197.

Officer not removable for misconduct during prior term. — The terms "office" and "in office" in this section and Section 10-4-2 NMSA 1978 mean during the current term for which the officer is elected or appointed and in which the offenses charged occurred. Therefore, it is not within the province of the court to punish a public officer by allowing his removal for misconduct which may have occurred during a previous term. State v. Santillanes, 1982-NMSC-138, 99 N.M. 89, 654 P.2d 542.

Power to remove board of education member not exclusive. — Notwithstanding N.M. Const., art. XII, § 6, the school board does not have exclusive power to remove a member of the state board of education, but the court also has such power under this section. State ex rel. Hannah v. Armijo, 1933-NMSC-063, 37 N.M. 423, 24 P.2d 274.

District attorney not within purview of section. — This section does not embrace a district attorney within its purview. In 1909, when this section was passed, the district attorney was an officer appointed by the governor of the state by and with the consent of the legislature. The district attorney is not a "county, precinct, district, city, town or village officer elected by the people" under the terms of this section, even though N.M. Const., art. VI, § 24, adopted in 1911, provides for the election of district attorneys. State ex rel. Prince v. Rogers, 1953-NMSC-101, 57 N.M. 686, 262 P.2d 779.

Senator not within purview of section. — Although a state senator may have been absent from the state for more than six months, yet it rests with the senate to declare his office vacant. 1925-26 Op. Att'y Gen. No. 26-3909.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Rights of state and municipal public employees in grievance proceedings, 46 A.L.R.4th 912.

Validity under federal constitution of regulations, rules, or statutes requiring random or mass drug testing of public employees or persons whose employment is regulated by state, local, or federal government, 86 A.L.R. Fed. 420.

20 C.J.S Counties §§ 104 to 106; 62 C.J.S. Municipal Corporations § 508.