2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 4 - Removal of Local Officers
Section 10-4-2 - Causes for removal of local officers.]

The following shall be causes for removal of any officer belonging to the class mentioned in the preceding section [10-4-1 NMSA 1978]:

A. conviction of any felony or of any misdemeanor involving moral turpitude;

B. failure, neglect or refusal to discharge the duties of the office, or failure, neglect or refusal to discharge any duty devolving upon the officer by virtue of his office;

C. knowingly demanding or receiving illegal fees as such officer;

D. failure to account for money coming into his hands as such officer;

E. gross incompetency or gross negligence in discharging the duties of the office;

F. any other act or acts, which in the opinion of the court or jury amount to corruption in office or gross immorality rendering the incumbent unfit to fill the office.

History: Laws 1909, ch. 36, § 2; Code 1915, § 3955; C.S. 1929, § 96-106; 1941 Comp., § 10-304; 1953 Comp., § 5-3-4.

Cross references. — For sheriff exercising powers after removal, penalty, see 4-41-4 NMSA 1978.

For misapplication of funds received from United States forest reserves, ground for removal, see 6-11-4 NMSA 1978.

For subregistrars, removal by state registrar of vital statistics, see 24-14-7 NMSA 1978.

For failure of peace officer to investigate violations of criminal laws or cooperate in prosecution, see 29-1-1 NMSA 1978.

For conservancy district officer, removal, see 73-17-8 NMSA 1978.

Officer not removable for misconduct during prior term. — The terms "office" and "in office" in this section and Section 10-4-1 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.

Generally, as to neglect of duty. — Dismissal of a public officer for neglect of duty cannot be for honest errors in judgment or mistakes in administration. The dismissal must be for failure or neglect to do a positive duty. 1959-60 Op. Att'y Gen. No. 60-132.

Cupidity or pathological sloth. — The neglect must constitute "cupidity or pathological sloth." The mere failure to perform an act, with nothing more, does not constitute a neglect of duty. 1959-60 Op. Att'y Gen. No. 60-132.

Failure to attend meetings as neglect of duty. — The consistent, continual failure of an elected school board member to attend board meetings could be construed as a neglect of duty. The board is charged with the overall supervision of the schools of the district over which its has jurisdiction, and members thereof are certainly charged with a positive duty of such interest in the matters before the board to attend at least a part of its meetings. A complete failure on the part of a board member to take part in board affairs is a dereliction of a positive duty constituting neglect of office. 1959-60 Op. Att'y Gen. No. 60-132.

Failure of justice of peace to account for money. — A justice of the peace (now magistrate) is an officer subject to removal for failure to account for money owing the state. 1963-64 Op. Att'y Gen. No. 63-84 (rendered under former law).

Meaning of "gross incompetency". — The plain meaning of the term "gross incompetency" is a glaringly noticeable or manifest lack of physical or mental ability. 1976 Op. Att'y Gen. No. 76-24.

Requirements of nonrelated job causing conflict of duties. — If an individual is unable to adequately and efficiently perform the duties of a public position because of the requirements of other nonrelated jobs of either a public or private nature, such amounts to an inability to fill the position because of a conflict of duties, thus rendering such person subject to discharge. 1963-64 Op. Att'y Gen. No. 63-133.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees § 231 et seq.

Physical or mental disability as ground for removal, 28 A.L.R. 777.

Pendency of impeachment proceeding as affecting power of officer, 30 A.L.R. 1149.

Removal or dismissal of public officers or employees for bringing or defending an action affecting personal rights or liabilities, 74 A.L.R. 500.

Refusal of public officer to answer frankly questions asked him during an investigation as grounds for removal or discipline, 77 A.L.R. 616.

Removal of officer for collecting mileage when he had traveled at no expense to himself, 81 A.L.R. 493.

Implied power of appointing authorities to remove officer whose tenure is not prescribed by law, but who has been appointed for definite term, 91 A.L.R. 1097.

Power to remove public officer without notice and hearing, 99 A.L.R. 336.

Reversal of conviction of crime as affecting status of one removed from office because of the conviction, 106 A.L.R. 644.

Constitutional provision for removal of officer at pleasure of appointing power as applicable to office created by statute which prescribes definite term or a different method of removal, 112 A.L.R. 107.

Membership in or affiliation with religious, political, social, or criminal society or group as ground for removal of public officer, 116 A.L.R. 358.

Constitutionality and construction of statute which fixes or specifies term of office, but provides for removal without cause, 119 A.L.R. 1437.

Conviction of offense under federal law or law of another state or country as vacating accused's holding of state or local office or as ground of removal, 20 A.L.R.2d 732.

Assertion of immunity as ground for removing public officer, 44 A.L.R.2d 789.

What is an infamous crime or one involving moral turpitude constituting disqualification to hold public office, 52 A.L.R.2d 1314.

Removal of officer for misconduct during previous term, 42 A.L.R.3d 691.

Validity, construction and effect of state constitutional or statutory provision regarding nepotism in the public service, 11 A.L.R.4th 826.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 10 A.L.R.5th 139.

20 C.J.S. Counties § 105; 62 C.J.S. Municipal Corporations § 508.