It shall hereafter be unlawful for any person elected or appointed to any public office or position under the laws of this state or by virtue of any ordinance of any municipality thereof, to employ as clerk, deputy or assistant, in such office or position, whose compensation is to be paid out of public funds, any persons related by consanguinity or affinity within the third degree to the person giving such employment, unless such employment shall first be approved by the officer, board, council or commission, whose duty it is to approve the bond of the person giving such employment; provided, that this act [10-1-10, 10-1-11 NMSA 1978] shall not apply where the compensation of such clerk, deputy or assistant shall be at the rate of $600 or less a year, nor shall it apply to persons employed as teachers in the public schools.
History: Laws 1925, ch. 50, § 1; C.S. 1929, § 96-136; 1941 Comp., § 10-110; 1953 Comp., § 5-1-10.
ANNOTATIONSElection of teacher's relative to school board. — The rule that statutes in pari materia should, as far as reasonably possible, be construed consistently supports, by reference to this section and Section 29-2-6 NMSA 1978, the conclusion that Section 22-5-6 NMSA 1978 was intended only to apply to the initial hiring of teachers and does not affect the retention of teachers when a relative within the prohibited degree of consanguinity is elected to the school board. N.M. State Bd. of Educ. v. Board of Educ., 1981-NMSC-031, 95 N.M. 588, 624 P.2d 530.
Deputy county assessor. — When salary exceeds $600 per year, appointment of a deputy county assessor without approval of the board of county commissioners is void. State ex rel. Sanchez v. Stapleton, 1944-NMSC-056, 48 N.M. 463, 152 P.2d 877.
Constitutionality. — This law is not unconstitutional by reason of the fact that the title merely states "An act relating to nepotism." 1938 Op. Att'y Gen. No. 38-2030.
Legislative intent. — The legislature intended by this section to apply the civil law rule for determining the degree of relationship and under this method of computation a cousin is not within the third degree, so that a public officer may employ his cousin as a deputy or assistant. 1947 Op. Att'y Gen. No. 47-5040.
Statute normally construed strictly. — Anti-nepotism statutes, being penal in nature, are normally strictly construed. However, no statute may be construed so as to defeat the obvious intent of the legislature. 1982 Op. Att'y Gen. No. 82-08.
Section inapplicable where person hired before relative's election. — This section would not apply to a person employed prior to his relative's election to the hiring authority. 1982 Op. Att'y Gen. No. 82-08.
Brothers are related within the second degree of consanguinity. 1982 Op. Att'y Gen. No. 82-08.
Employment where members of family on school district board. — This section does not prohibit employment of a person in a nonteaching, supervisory capacity, although members of his immediate family serve on the board of the school district. 1957 Op. Att'y Gen. No. 57-201.
When teacher's spouse on school board. — There is no prohibition against the spouse of a schoolteacher being a member of the school board, but in order to prevent any possible conflict of interest, such school board member should not vote on any issue which affects his or her spouse individually as opposed to affecting all the teachers in the system as a group. 1964 Op. Att'y Gen. No. 64-71.
When husband and wife hired. — The New Mexico state racing commission may hire a husband and wife to carry on the duties of the racing commission so long as no such employee is related to the commissioner within the degree of consanguinity prohibited by this section. 1951 Op. Att'y Gen. No. 51-5424.
County commissioner's daughter in county department. — The laws on nepotism do not prohibit the employment of a daughter of county commissioner as a stenographer in the county health department of the county where the commissioner serves. 1957 Op. Att'y Gen. No. 57-224.
Sheriff's relative as deputy sheriff. — This statute would come into play should a sheriff employ as his guard the regularly employed deputy sheriff since a deputy sheriff would fall within the statutory definition of "deputy or assistant." If such a deputy were related to the sheriff within the prohibited degree it would be a violation of the law. A person temporarily employed as a guard might still be considered an assistant as defined by the statute. However, in the event of temporary employment, it is almost certain that the compensation paid to each assistant would be less than $600 a year, in which case, the prohibition would not apply. Compensation as used here is synonymous with salary and does not include traveling or other incidental expenses usually called per diem. 1961 Op. Att'y Gen. No. 61-09.
Section is not applicable to hiring of state police personnel, but Section 29-2-6 NMSA 1978, pertaining specifically to the state police, is instead controlling. 1963 Op. Att'y Gen. No. 63-114.
Prohibited appointments may be approved. — Appointments within the prohibited degree may yet be made if such appointments are approved by a board or officer whose duty it is to approve the bond of the person making the appointment. 1949 Op. Att'y Gen. No. 49-5247.
Approval of district judge's employee. — As district judges are not bonded, there is no entity from which approval of otherwise prohibited employment by the district judge may be obtained. 1979 Op. Att'y Gen. No. 79-25.
Employment by district judge of his step-daughter, as his secretary, is unlawful. 1979 Op. Att'y Gen. No. 79-25.
Municipality's council member is "elected public official". — A member of the governing body of a municipality is an "elected public officer" for purposes of the statutory prohibition against nepotism. 1982 Op. Att'y Gen. No. 82-08.
Brother of council member employable where council member abstains from voting. — The brother of a member of the governing body of a mayor-council municipality may be employed as an assistant municipal clerk if the council member abstains from voting to approve his brother's employment. 1982 Op. Att'y Gen. No. 82-08.
Assistant clerk of a municipality serves as "clerk" to the governing body for purposes of the statutory prohibition against nepotism. 1982 Op. Att'y Gen. No. 82-08.
Court reporter not clerk, deputy, etc. — An official court reporter is not a clerk, deputy or assistant as those terms are used in this section. 1976 Op. Att'y Gen. No. 76-35.
Janitor is not clerk, etc. — Since a janitor would be neither clerk, deputy or assistant to the employing authority, employment of the wife of one of the school board members by the board would not be prohibited by this section. 1952 Op. Att'y Gen. No. 52-5484.
Levelman is not clerk, etc. — This position of a "levelman" in the highway department is not such as would be included within the terminology of "clerk, deputy, or assistant" so as to be within that class of employment from which an officer is prohibited from naming any person related by consanguinity or affinity within the third degree. 1951 Op. Att'y Gen. No. 51-5448.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and effect of state constitutional or statutory provision regarding nepotism in the public service, 11 A.L.R.4th 826.
67 C.J.S. Officers and Public Employees § 23.