2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 6 - Abandonment of Public Office or Employment
Section 10-6-5 - Definition of incompatible office; service and employment.

Any public office or service, other than service in the armed forces of the United States of America, and any private employment of the nature and extent designated in Section 10-6-3 NMSA 1978 is hereby declared to be incompatible with the tenure of public office or employment.

History: 1941 Comp., § 10-342, enacted by Laws 1943, ch. 123, § 5; 1953 Comp., § 5-3-42; Laws 1977, ch. 56, § 1; 1979, ch. 344, § 1.

Schoolteacher. — The position of schoolteacher is not an office within the meaning of this section. Amador v. N.M. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.

State board of education member and schoolteacher. — The state board of education only has jurisdiction over a schoolteacher in the instance where the teacher appeals to that board from an adverse ruling by the local board of education and if a teacher who is also a member of the state board should appeal from the action of the local board, the teacher would simply refrain from acting as a member of the board in his case just as would a member of any other trade or profession who appealed to the board of which he was a member. Amador v. N.M. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.

Physical incompatibility explained. — The test of physical incompatibility is a failure by an official for 30 consecutive days to devote his time to the usual and normal extent during ordinary working hours to the performance of the duties of his office. One cannot perform two full-time positions or one full-time position and one part-time position at the same time. Where the individual is serving in the capacity of municipal judge after his working hours as city clerk, there is no physical incompatibility of office. 1968 Op. Att'y Gen. No. 68-111.

Public school instructors and administrators are state employees within the constraints of the prohibition against serving in the legislature while receiving compensation as an employee of the state. 1988 Op. Att'y Gen. No. 88-20.

City counselor and county assessor. — An individual may hold the office of city councilor and county assessor simultaneously, as long as the duties of the two offices do not physically or functionally interfere with one another and are not otherwise incompatible. 2009 Op. Att'y Gen. No. 09-02.

Mayor and magistrate. — The office of mayor of an incorporated village and the office of justice of the peace (now magistrate) where the latter's precinct covers said village are not incompatible (opinion rendered prior to 1977 amendment of 10-6-5 NMSA 1978). 1964 Op. Att'y Gen. No. 64-73.

Judicial and law enforcement officer. — Regardless of salary, a judicial officer may never serve as a law enforcement officer in any situation where holding one office may cause some benefit to accrue to the other, or would intrude upon the disinterested and impartial disposition of civil or criminal cases in court. 1959-60 Op. Att'y Gen. No. 60-168.

Probate judge and deputy district court clerk. — A probate judge may be appointed to act as a deputy district court clerk and receive a salary therefor. 1957-58 Op. Att'y Gen. No. 57-298.

City clerk and municipal judge. — No incompatibility of office exists because of inconsistency of functions between the offices of city clerk and municipal judge. 1968 Op. Att'y Gen. No. 68-111.

Tribal council member and county commissioner. — A Native American may serve as a tribal council member and as a county commissioner at the same time, as long as his duties as tribal council member do not physically interfere with his duties as county commissioner during the ordinary working hours of that position and the functions of the two positions are not otherwise incompatible. 1990 Op. Att'y Gen. No. 90-14.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Resignation of one office as affecting eligibility to another office during term of former office, 5 A.L.R. 117, 40 A.L.R. 945.

Incompatibility of offices or positions in military service and civil service, 26 A.L.R. 142, 132 A.L.R. 254, 147 A.L.R. 1419, 148 A.L.R. 1399, 150 A.L.R. 1444.

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.

67 C.J.S. Officers and Public Employees §§ 27 to 33, 203.