2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 6 - Abandonment of Public Office or Employment › Section 10-6-3 - [Permanent abandonment of office, what constitutes.]

Any incumbent of any public office or employment of the state of New Mexico, or of any of its departments, agencies, counties, municipalities or political subdivisions whatsoever, who shall accept any public office or employment, whether within or without the state, other than service in the armed forces of the United States of America, for which a salary or compensation is authorized, or who shall accept private employment for compensation and who by reason of such other public office or employment or private employment shall fail for a period of thirty successive days or more to devote his time to the usual and normal extent during ordinary working hours to the performance of the duties of such public office and employment, shall be deemed to have resigned from and to have permanently abandoned his public office and employment.
History:
1941 Comp., § 10-340, enacted by Laws 1943, ch. 123, § 3; 1953 Comp., § 5-3-40.
ANNOTATIONS
Factors constituting abandonment.
— It is not only the acceptance of another public office for which a salary or compensation is authorized that will automatically constitute the abandonment of the incumbent's public office; in addition, it must be found that because of such other public office the incumbent fails for 30 successive days or more to devote his time to the usual and normal extent during ordinary working hours to the performance of the duties of such public office. 1964 Op. Att'y Gen. No. 64-73.
City councilor 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.
Offices of mayor and magistrate compatible.
— 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 (rendered prior to 1977 amendment of 10-6-5 NMSA 1978. 1964 Op. Att'y Gen. No. 64-73.
School superintendent and teacher compatible.
— The office of county school superintendent is compatible with employment as a municipal schoolteacher. Such employment will result in a resignation by operation of law of the office of county school superintendent if it causes the superintendent to fail for 30 successive days to devote full time to his office. Employment as a teacher may also render the superintendent subject to removal from office if it results in the failure, neglect or refusal of the superintendent to discharge any or all of the duties devolving on him by virtue of his office. 1960 Op. Att'y Gen. No. 60-154.
Assistant superintendent and State Board of Education member.
— An assistant superintendent employed by the Santa Fe school district may also serve as an elected member of the state board of education so long as the duties of membership on the state board do not physically interfere with the duties of the assistant superintendent during the ordinary working hours of that position and the two positions are not otherwise incompatible. 1992 Op. Att'y Gen. No. 92-04.
Judge and clerk when hours do not conflict are compatible.
— 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.
Judge and county maintenance worker.
— If an incumbent could successfully perform his duties as probate judge to the usual and normal extent outside his working hours at the county maintenance department, or vice versa, the two positions would be compatible under the statutory criteria. 1989 Op. Att'y Gen. No. 89-10.
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.
Power to determine and fill vacancy.
— County commissioners have power to determine a vacancy in the office of the justice of the peace (now magistrate) to exist by reason of abandonment by the elected incumbent and to appoint another person to fill the vacancy. 1959 Op. Att'y Gen. No. 59-34.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
67 C.J.S. Officers and Public Employees § 100.