N.M. Const. art. V, § 5
The governor shall nominate and, by and with the consent of the senate, appoint all officers whose appointment or election is not otherwise provided for and may remove any officer appointed by him unless otherwise provided by law. Should a vacancy occur in any state office, except lieutenant governor and member of the legislature, the governor shall fill such office by appointment, and such appointee shall hold office until the next general election, when his successor shall be chosen for the unexpired term. (As amended November 8, 1988.)
The 1988 amendment, which was proposed by H.J.R. No. 11, § 2 (Laws 1988) and adopted at the general election held on November 8, 1988, by a vote of 224,091 for and 145,206 against substituted "unless otherwise provided by law" for "for incompetency, neglect of duty or malfeasance in office" at the end of the first sentence.
Cross references. — For vacancies in office of governor (or lieutenant governor) and succession to governorship, see N.M. Const., art. V, § 7.
For removal of state highway commissioners, see N.M. Const., art. V, § 14.
For governor's power to make interim appointments to fill vacancies in appointive offices between sessions of the legislature, see N.M. Const., art. XX, § 5.
For appointed secretaries of cabinet departments serving until final action by senate on confirmation, see 9-1-4 NMSA 1978.
For ineligibility of person whose appointment has been rejected by the senate to hold office under recess appointment, see 10-1-1 NMSA 1978.
For designation of three disaster successors to each executive office, see 12-11-5 NMSA 1978.
Comparable provisions. — Idaho Const., art. IV, § 6.
Montana Const., art. VI, § 8.
Utah Const., art. VII, § 10.
Wyoming Const., art. IV, § 7.
No conflict with Article VI, Section 32. — This section addresses the power to remove officers. N.M. Const., art. VI, § 32, addresses the power to fill a vacancy. The two powers are not mutually exclusive, and one does not negate the other. State ex rel. N.M. Judicial Standards Comm’n v. Espinosa, 2003-NMSC-017, 134 N.M. 59, 73 P.3d 197.
Staggered terms. — The use of staggered terms is not sufficient to limit the governor’s removal power under this section. While policies underlying staggered terms are important, such policies cannot override the governor’s express removal authority. State ex rel. N.M. Judicial Standards Comm’n v. Espinosa, 2003-NMSC-017, 134 N.M. 59, 73 P.3d 197.
Appointment power for legislatively created offices not inherently in governor. — The Sales Tax Act of 1934 (Laws 1934 (S.S.), ch. 7) was not unconstitutional and in violation of this section because it did not make the "seller" a collector who should be appointed by the governor, but, instead, levied the tax on the "seller" and made former tax commission the collector of the tax. State ex rel. Attorney Gen. v. Tittmann, 1938-NMSC-005, 42 N.M. 76, 75 P.2d 701.
The Drainage District Law of 1912 (73-6-1 NMSA 1978 et seq.) did not violate this section, the commissioners of drainage districts not being of the class contemplated. In re Dexter-Greenfield Drainage Dist., 1915-NMSC-097, 21 N.M. 286, 154 P. 382.
Governor has power to remove any officer appointed by him, including those appointed by and with consent of senate; he is not required to make charges, give notice or accord a hearing. State ex rel. Ulrick v. Sanchez, 1926-NMSC-060, 32 N.M. 265, 255 P. 1077; State ex rel. Duran v. Anaya, 1985-NMSC-044, 102 N.M. 609, 698 P.2d 882.
Removal of members of the public employee relations board. — The governor does not have authority under Article V, Section 5 of the constitution of New Mexico to remove members of the public employee labor relations board created by 10-7E-8 NMSA 1978. AFSCME v. Martinez, 2011-NMSC-018, 150 N.M. 132, 257 P.3d 952.
Governor may remove policy-making appointee for political reasons, without notice or hearing, and this power encompasses removal for expressions made by the appointee in contravention of the policy goals of the governor; however, a contrary rule may apply to a nonpolicy-making state employee. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976) (decided prior to 1988 amendment, which rewrote first sentence).
Governor's discretion not subject to court review. — Where an appointment is during pleasure, or for a fixed period, with a discretionary power of removal, the office may be vacated and the removal made ex parte, and because the office of governor is political, the discretion vested in the chief executive by the constitution and laws of the state respecting his official duties is not subject to control or review by the courts. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976).
Removal proceedings moot. — Removal proceedings based on conduct during a previous term are generally considered to be moot. In re Thaxton, 1968-NMSC-014, 78 N.M. 668, 437 P.2d 129.
Commission as prima facie evidence of entitlement to office. — An appointment to office by the executive is complete upon delivery of the commission. When governor appointed and commissioned plaintiff, he gave him prima facie title to the office, and the commission, when issued, must be taken at least as prima facie evidence that the person holding it is lawfully entitled to the office. Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170.
Power of legislature to create offices. — Enumeration by constitution of certain officers constituting executive department of the state does not necessarily deprive the legislature of power to create other executive officers, although it cannot abolish any of those created by the constitution. Pollack v. Montoya, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336.
Power of legislature to create offices. — Legislature may restrict membership on any legislatively created professional board to members of the profession, and may also enact a residential restriction so long as the restrictions on the terms are compatible with the elective restriction on executive officers in the constitution. 1953 Op. Att'y Gen. No. 53-5750.
Governor is under constitutional duty to submit appointments of officers to positions requiring the advice and consent of the senate at the next session of that body following the appointment. 1970 Op. Att'y Gen. No. 70-10.
Senate has constitutional duty to act on submitted appointments whenever it is next in session, in time for the governor to make a substitute appointment for anyone rejected by the senate. 1970 Op. Att'y Gen. No. 70-10.
Legislature's confirmatory power exercisable at any session. — Confirmation by the senate of appointments made by governor is not part of its legislative duties, but rather, is an administrative function given to the senate as part of the system of checks and balances, which exists whenever the senate is in session and may be exercised whether the session is a regular-long, regular-short or special one. 1970 Op. Att'y Gen. No. 70-10.
Legislature not to invade governor's prerogative. — In providing for the "consent" of the senate, it was not the intention of the constitutional draftsmen to permit the senate to instruct or otherwise assert the prerogative of the governor in making the nomination; to the contrary, the nominating authority is vested exclusively in the governor, but his appointing power is shared with the senate. 1961 Op. Att'y Gen. No. 61-17.
Commencement of appointee's term. — When a public officer is appointed while the senate is in session, the office holder can neither assume the duties nor exercise the powers of his office until the consent of the senate is given. 1961 Op. Att'y Gen. No. 61-17.
Appointment power for legislatively created offices not inherently in governor. — There would be no impediment to the legislature's placing the power of appointment for an office legislatively created in someone other than the governor, and in that event, it might also prescribe the authority to exercise the removal power and the manner of its exercise. 1958 Op. Att'y Gen. No. 58-10.
The appointments contemplated in the Oil Conservation Act (Laws 1935, ch. 72, as amended) are appointments "otherwise provided for" as those words are used in this section, and do not invade the governor's power of appointment. 1951, Op. Att'y Gen. No. 51-5397.
Conferral of appointive power on governor includes removal power. — The legislature lacks the power to restrict the governor's removal power over legislatively created offices where it has conferred the appointing power for these offices upon the governor. 1958 Op. Att'y Gen. No. 58-10.
Governor's power to remove member of real estate commission. — Since the governor may remove any person appointed by him or his predecessor, the governor can remove any member of the real estate commission at any time without notice or hearing. 1963 Op. Att'y Gen. No. 63-134.
Removal of board members. — Since no statutory method of removal was prescribed for former health and social services board, the method prescribed under this section would be the proper method for governor to proceed under. 1971 Op. Att'y Gen. No. 71-06.
Impeachment is the sole method of removal for appointed public regulation commission members. — The fact that the 2020 amendment to N.M. Const., Art. XI, § 1(E), provides that a public regulation commission (PRC) member may be removed by impeachment for accepting anything of value from a person or entity whose charges for services to the public are regulated by the commission, malfeasance, misfeasance or neglect of duty, when N.M. Const., Art. IV, § 36 already provides that all state officers shall be liable to impeachment for crimes, misdemeanors and malfeasance in office and N.M. Const., Art. V, § 5 provides that the governor has the authority to remove all appointed officers, suggests that the drafters of Art. XI, § 1(E) intended to make removal by impeachment the sole method of removal for appointed PRC members, in contrast to the alternative method of removal provided in Art. IV, § 36 and also intended to supplant any authority the governor had to remove commission members. Governor’s Authority to Remove Public Regulation Commission Members (11/15/2022), Att'y Gen. Adv. Ltr. 2022-08.
Notice and hearing unnecessary for removal. — A public official who, under the law, has a fixed term of office, and who is removable only for specified causes, can be removed without notice or a hearing upon the charges. 1967 Op. Att'y Gen. No. 67-06.
An executive termination is a nullity only where there is a failure to state the reason for removal as required; neither proof of the stated reason nor a hearing thereon is required. 1957 Op. Att'y Gen. No. 57-179 (regarding a member of the economic development commission).
No proof of changes required. — The constitution does not require that a notice and hearing be given before a removal can be made and, therefore, no proof would be necessary of the charges made by the governor. 1953 Op. Att'y Gen. No. 53-5746.
Governor's power over highway commission greatly limited. — Passage of N.M. Const., art. V, § 14, was in direct derogation of this section, and was drawn to limit, almost to the point of abolition, the governor's power over the highway commission. 1957 Op. Att'y Gen No. 57-47.
Length of term of interim appointee to elective office. — Under this section an appointee to a state office holds his office only until the next general election, and the term of office of the elected successor commences upon the date he qualifies, since he has been elected to an office to fill a vacancy. 1952 Op. Att'y Gen. No. 52-5612.
Where appointees of the governor were holding state offices after a vacancy, until the next election, and no candidates for such office were nominated or elected as their successors, they were entitled to hold office until their successors were duly qualified. 1926 Op. Att'y Gen. No. 26-3915.
Law reviews. — For article, "The Executive," see 7 Nat. Resources J. 267 (1967).
For note, "The Public Service Commission: A Legal Analysis of an Administrative System," see 3 N.M. L. Rev. 184 (1973).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Governor §§ 5 to 8; 63A Am. Jur. 2d Public Officers and Employees §§ 95, 117, 119, 120, 219, 221 to 225, 231.
Power of legislature to abolish or discontinue office, 4 A.L.R. 205, 172 A.L.R. 1366.
Physical or mental disability as ground for removal from office, 28 A.L.R. 777.
Removal for failure to answer frankly questions asked during investigation, 77 A.L.R. 616.
Removal for bringing or defending action affecting personal rights or liabilities; collecting mileage after traveling without expense as ground for removal, 81 A.L.R. 493.
Implied power of appointing authority to remove officer whose tenure is not prescribed by law, though appointed for definite term, 91 A.L.R. 1097.
Membership in or affiliation with religious, political, social or criminal society or group as ground of removal of public officer, 116 A.L.R. 358.
Power of courts or judges in respect of removal of officers, 118 A.L.R. 170.
Constitutionality and construction of statute which fixes or specifies term of office but provides for removal without cause, 119 A.L.R. 1437.
Failure of public officer or employee to pay creditors on claims not related to his office or position as ground or justification for his removal or suspension, 127 A.L.R. 495.
Induction or voluntary enlistment in military service as creating a vacancy in, or as ground for removal from, public office or employment, 154 A.L.R. 1456, 156 A.L.R. 1457, 157 A.L.R. 1456.
Validity of contract by officer with public for rendition of new or special services to be paid for in addition to regular compensation, 159 A.L.R. 606.
Vacancy in public office within constitutional or statutory provision for filling vacancy, where incumbent appointed or elected for fixed term and until successor is appointed or elected is holding over, 164 A.L.R. 1248.
Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.
Conviction of offense under federal law or law of another state or country as ground for removal from state or local office, 20 A.L.R.2d 732.
Injunction as remedy against removal of public officer, 34 A.L.R.2d 554.
Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.
Infamous crime, or one involving moral turpitude constituting disqualification to hold office, 52 A.L.R.2d 1314.
Power to appoint public officer for term commencing at or after expiration of term of appointing officer or body, 75 A.L.R.2d 1277.
Removal for misconduct during previous term of office, 42 A.L.R.3d 691.
67 C.J.S. Officers and Public Employees §§ 36, 40, 42, 117 to 126; 81A C.J.S. States §§ 84, 98, 99.