A. A New Mexico state police officer holding a permanent commission shall not be removed from office, demoted or suspended except for incompetence, neglect of duty, violation of a published rule of conduct, malfeasance in office or conduct unbecoming an officer, except as provided in this section. A probationary officer not holding a permanent commission may be removed from office, demoted or suspended in accordance with New Mexico state police rules.
B. The secretary may suspend an officer for disciplinary reasons for not more than thirty days in accordance with New Mexico state police rules without further review or appeal.
C. In the event an officer is removed from office, demoted or suspended for a period of more than thirty days, the secretary shall provide written notification of the grounds supporting the action to the officer. The officer may appeal the secretary's action to the commission within thirty days of the date of receipt of the secretary's written notification. The appeal process shall be public and conducted in accordance with New Mexico state police rules.
D. In the event the commission finds that there is just cause for the removal, demotion or suspension of the officer for a period in excess of thirty days, the officer may appeal the decision of the commission to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
History: 1941 Comp., § 40-211, enacted by Laws 1941, ch. 147, § 11; 1953, ch. 80, § 3; 1953 Comp., § 39-2-11; Laws 1970, ch. 5, § 1, 1977, ch. 257, § 27; 1979, ch. 202, § 22; 1987, ch. 254, § 19; 1989, ch. 204, § 23; 1998, ch. 55, § 40; 1999, ch. 265, § 42; 2006, ch. 11, § 1; 2006, ch. 12, § 1.
ANNOTATIONSCross references. — For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.
The 2006 amendment, effective February 24, 2006, provided in Subsection A that a probationary officer not holding a permanent commission may be removed from office, demoted or suspended in accordance with state police rules; deleted the provision in Subsection B, which provided that an officer holding a permanent commission had the right to have a suspension reviewed by the commission; deleted provisions in Subsection C, which provided for the filing of written charges with the commission, notice of charges to the officer, a prompt hearing by the commission, legal representation of the officer, and the making of a record of the hearing; added a provision in Subsection C that the secretary shall provide notification to the officer of the grounds supporting a removal, demotion or suspension; added a provision in Subsection C, which provided for an appeal of the secretary's action to the commission in accordance with state police rules; and provided in Subsection D for an appeal to district court if the commission finds that there is just cause for the removal, demotion or suspension.
Laws 2006, ch. 11, § 1 and Laws 2006, ch. 12, § 1 enacted identical amendments to this section. The section was set out as amended by Laws 2006, ch. 12, § 1. See 12-1-8 NMSA 1978.
The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection D.
The 1998 amendment, effective September 1, 1998, inserted "; appeal" in the section heading; added the subsection designations; in Subsection B, substituted "rules" for "regulations"; in Subsection C, deleted "so" following "person"; and rewrote Subsection D.
The 1989 amendment, effective July 1, 1989, substituted "except as provided in this section" for "and only on specific written charges filed with the commission with timely and adequate notice of the charges to the person charged and after a hearing on the charges by the commission" in the first sentence; added the present second through fifth sentences; inserted "of his own choice and at his own expense" in the sixth sentence; rewrote the ninth sentence, which formerly read: "In the event the commission recommends to the secretary that the person charged shall be removed, demoted or suspended for a period in excess of thirty days and the secretary so orders, the person may appeal from the decision of the secretary to the district court of the district in which the alleged cause or any one of the alleged causes for the proceeding arose"; substituted "commission" for "secretary" and "commission's" for "secretary's" in the next-to-last sentence; deleted "provided, however, that the chief of the New Mexico state police may suspend members of the New Mexico state police for disciplinary reasons for periods not to exceed thirty days" at the end of the present last sentence; and deleted the former last sentence, which read: "Any member holding a permanent commission thus suspended by the chief has the right to have the suspension reviewed by the commission, but no further review or appeal shall be allowed."
Incompetence includes physical inability to perform. — Incompetence includes physical inability to perform, which inclusion fits in with the pattern and purpose of the statutory plan. A termination or removal for physical unfitness is no less final than one for another form of incompetence. Tafoya v. N.M. State Police Bd., 1970-NMSC-106, 81 N.M. 710, 472 P.2d 973.
Physical inability to perform constitutes voluntary resignation not governed by section. — Request by officer injured in line of duty who had used all his sick leave for leave of absence which was improper under Rule 7, regulatory rule promulgated by state police board, issued pursuant to Section 29-2-22 NMSA 1978, and his physical inability to perform the functions of his job as a senior patrolman, constituted a voluntary resignation, not a termination governed by this section. Budagher v. N.M. State Police Bd., 1971-NMSC-077, 82 N.M. 787, 487 P.2d 489.
Officer must first pursue administrative remedy. — Police officer who was wrongfully dismissed and who claimed salary and other benefits must first pursue them administratively. Tafoya v. N.M. State Police Bd., 1970-NMSC-106, 81 N.M. 710, 472 P.2d 973.
Board (now commission) is required to meet statutory procedures when it desires to terminate officer, and if this is not done consequently the severance from service is short of statutory right. Tafoya v. N.M. State Police Bd., 1970-NMSC-106, 81 N.M. 710, 472 P.2d 973.
Doubts as to right to procedural safeguards. — Any doubt as to the right to procedural safeguards should be resolved in the officer's favor unless the right to remove at will or pleasure is clearly expressed. Tafoya v. N.M. State Police Bd., 1970-NMSC-106, 81 N.M. 710, 472 P.2d 973.
No hearing required when reduction in rank. — The procedures of advancement, not a promotion, and reduction in rank resulting from regulation providing that all ranks above captain will be appointments and not permanently enable the chief to shift key personnel to positions where their interest and ability are used to best advantage, without the necessity of a hearing by New Mexico state police board. Wimberly v. N.M. State Police Bd., 1972-NMSC-034, 83 N.M. 757, 497 P.2d 968.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Sexual misconduct or irregularity as amounting to "conduct unbecoming an officer," justifying officer's demotion or removal or suspension from duty, 9 A.L.R.4th 614.
81A C.J.S. States § 110.