2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 9 - Personnel
Section 10-9-21 - Prohibited acts.

A. No employer shall dismiss an employee for failure or refusal to pay or promise to pay any assessment, subscription or contribution to any political organization or candidate; however, nothing contained in this section shall prevent voluntary contributions to political organizations.

B. No person in the personnel office or employee in the service shall hold political office except for a non-partisan county or municipal office or be an officer of a political organization during his employment. For the purposes of the Personnel Act, being a local school board member or an elected board member of any post-secondary educational institution shall not be construed to be holding political office, and being an election official shall not be construed to be either holding political office or being an officer of a political organization. Nothing in the Personnel Act shall deny employees the right to vote as they choose or to express their opinions on political subjects and candidates.

C. Any employee who becomes a candidate for public office shall, upon filing or accepting the nomination and during the campaign, take a leave of absence. This subsection does not apply to those employees of a grant-in-aid agency whose political activities are governed by federal statute.

D. The director shall investigate any written charge by any person that this section has been violated and take whatever steps deemed necessary.

E. No person shall be refused the right of taking an examination, from appointment to a position, from promotion or from holding a position because of political or religious opinions or affiliation or because of race or color.

F. No employee or probationer shall engage in partisan political activity while on duty.

G. With respect to employees of federal grant-in-aid agencies, the applicable personnel standards, regulations and federal laws limiting activities shall apply and shall be set forth in rules promulgated by the board.

History: 1953 Comp., § 5-4-42, enacted by Laws 1961, ch. 240, § 15; 1963, ch. 200, § 6; 1967, ch. 181, § 6; 1983, ch. 81, § 1; 1991, ch. 152, § 1.

The 1991 amendment, effective June 14, 1991, inserted "except for a non-partisan county or municipal office" in the first sentence in Subsection B.

Constitutionality. — Subsection B does not violate the first amendment guarantee of freedom of speech in requiring that certain state employees not hold public office, nor does it deny equal protection by exempting some state employees from its provisions. State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.

Legislative power. — The legislature had the constitutional power under N.M. Const., art. VII, § 2B, to enact this section and to thereby provide, as a qualification or standard for continued employment by the state in a position covered by the State Personnel Act, that the employee not hold "political office." State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.

Example of political office. — The office of city councilman clearly falls within the definition of a "political office" and petitioner who held such office could properly be discharged from his classified state job under this section. State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.

Scope of prohibition in Subsection B. — The words "be an officer of a political organization" are relatively clear. The prohibition (in Subsection B) is without restriction and the legislative intent of these words applies with equal force to the highest and lowest office in a political party or organization. Since there is no restriction, all officers of the party or organization are included within the prohibition, from the state chairman to membership in the central committee or executive committee on down the line to precinct officers and division officers. 1961-62 Op. Att'y Gen. No. 61-53.

Leave of absence required when running for office. — A state employee may seek election to any county office anywhere in the state if the employee takes a leave of absence from the state job while a candidate and, if elected, the employee resigns from the state job. 1992 Op. Att'y Gen. No. 92-01.

Effect of election to public office. — Under the theory advanced by a Kentucky court, any person who is elected by the voters to a public office would be deemed holding a political office within the intent of Laws 1961, ch. 240, §§ 5 and 15 (10-9-8 NMSA 1978 and this section). This would be so even if the election were conducted along what is commonly known as nonpartisan lines rather than political party lines. The term "political office" applies to every elected public office within the state including, but not limited to state elected positions, county elected positions and municipal elected positions, even if conducted along nonpartisan lines. 1961-62 Op. Att'y Gen. No. 61-53 (rendered prior to 1963 amendment).

Effect of section on municipal election judges or clerks. — Municipal election judges or clerks are not holders of public office under the prohibition of the Personnel Act. 1961-62 Op. Att'y Gen. No. 62-37.

Candidate for delegate to constitutional convention. — A candidate for the position of delegate to the constitutional convention, which is both a temporary and occasional position, is not a candidate for "public office" and need not take a leave of absence. 1969 Op. Att'y Gen. No. 69-28.

Effect on the delegate. — The position of delegate to a constitutional convention is not a "political office" within the meaning of Subsection B or C of this section. 1969 Op. Att'y Gen. No. 69-28.

Generally, as to delegates. — There is no fundamental inconsistency between the positions of public employee covered by the State Personnel Act and that of delegate to the constitutional convention. 1969 Op. Att'y Gen. No. 69-28.

County commissioners. — County commissioners may not serve as state employees unless they are from Los Alamos County, currently the only county in the state with nonpartisan offices. County commissioners from Los Alamos may be employed in the state personnel service if the two positions are not incompatible. 1992 Op. Att'y Gen. No. 92-01.

Phrase "while on duty" as used in the Personnel Act means to be actually on the job. 1961-62 Op. Att'y Gen. No. 62-116.

When political activity permissible. — A state employee covered by the Personnel Act may engage in political activity while on annual leave, on week-ends and after working hours during the work week. 1961-62 Op. Att'y Gen. No. 62-116.

Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes unfair labor practice under state public employee relations act, 9 A.L.R.4th 20.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

Prohibiting public employee from running for elective office as violation of employee's federal constitutional rights, 44 A.L.R. Fed. 306.

Dismissal of, or other adverse personnel action relating to, public employee for political patronage reasons as violative of First Amendment, 70 A.L.R. Fed. 371.

67 C.J.S. Officers and Public Employees §§ 60, 90, 107, 128, 130, 152.