Are Remote Oaths of Office Allowed?

Published for Coates' Canons on March 02, 2022.

Our sweet, innocent 2019 selves would certainly be dumbfounded right now as we approach the end of the second year of pandemic life. While the seeming eternity of COVID has allowed local governments to become familiar with remote meetings requirements, certain questions remain, including whether oaths of office may be administered and taken remotely. I’ll address that question in this blog.

Can oaths of office be administered and taken remotely?

There is no specific authority for administering or taking oaths of office remotely. The remote meetings statute, G.S. 166A-19.24, is silent on this question, as were other emergency statutes enacted during the pandemic. For example, Section 10B-25, which expired on December 31, 2021, allowed notaries to administer oaths remotely but did not specifically authorize remote oaths of office. Similarly, Section 2.23 of S.L. 2021-3 authorized remote oaths of office for attorneys under G.S. 11-11 under certain circumstances, but this section also expired in December of 2021.

Still, the remote meetings statute may provide implied authority for administering and taking oaths of office virtually within the context of a remote meeting. As we’ve come to understand all too well, Section 166A-19.24 provides explicit authority to conduct remote meetings. This explicit authority should logically imply that all actions at a remote meeting can also occur remotely. Moreover, where the legislature felt that certain actions required additional procedures in the virtual setting, it delineated those additional procedures in specific subsections. The legislature provided special notice and comment requirements for virtual public hearings in subsection (e) and additional procedural requirements for remote quasi-judicial hearings in subsection (f). The legislature’s omission of any similar subsection for oaths of office may signal that oaths of office can be administered and taken remotely at remote meetings without any additional procedural requirements.

Additionally, in allowing remote quasi-judicial hearings under certain circumstances, the legislature must have contemplated that oaths could be administered and taken remotely. Of course, oaths of office differ from those taken at quasi-judicial hearings, but there is at least some indication of legislative approval of some remote sworn statements. All in all, the remote meetings statute may be a source of implicit authority for remote oaths of office during remote meetings.

What about outside of a meeting?

Outside of a remote meeting, there does not appear to be any authority for remote oaths of office. The statutes dealing with oaths of office likely require physical presence. For example, G.S. 153A-26 references assembling at a regular meeting place and authorizes board members who are not present to take the oath at a later time. Similarly, G.S. 160A-68 directs councilmembers to take their oaths of office at an organizational meeting, which takes place notwithstanding councilmembers’ absence. When these statutes were codified in 1973, the legislature would have been referring to physical presence and absence. Taken together, the only authority for remote oaths of office likely lies implicitly in G.S. 166A-19.24 and does not extend beyond the context of a remote meeting.

Procedural issues

Even if there is implicit authority for remote oaths in G.S. 166A-19.24, certain procedural questions remain. First, may oaths of office be taken telephonically? Section G.S. 166A-19.24 authorizes teleconferences, which could implicitly authorize telephonic oaths of office as well. However, emergency notarization statute G.S. 10B-25(f) required videoconferencing for oaths and affirmations, which may express a legislative preference toward videoconferencing for remote oaths.

Second, oaths of office under the North Carolina Constitution and G.S. 11-7 must not only be taken but also signed and filed with the clerk’s office before a public official can execute any official duties. Must an official taking a remote oath of office provide the original signed copy for filing or is an electronic copy sufficient? I suspect that the original must be filed, as is the case with in-person oaths, but we don’t have clear authority on this question. If a public official mails or hand-delivers the original signed oath at a later time for filing, is the public official prohibited from executing official duties until the clerk receives and files the signed oath? Again, without explicit authority, the safe harbor approach is likely for public officials to wait to execute any official duties until their original signed oath is actually filed.

What’s the bottom line?

In the absence of specific authority, it may be best to administer oaths of office in person as much as possible. If a virtual oath of office is simply unavoidable, Section 166A-19.24 likely gives some implied authority for remote oaths to be administered and taken during a remote meeting. Outside of the context of a remote meeting, there is no authority for remote oaths of office.

If a remote oath of office is taken at a remote meeting, the public official should likely mail or hand-deliver the original signed copy to the clerk for filing. The official should not execute any public duties until the clerk has filed the original signed copy.

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