The Most Common Oaths of Office Question

Published for Coates' Canons on August 04, 2022.

Does this person need to take an oath of office? This is by far the most frequent oaths of office question I receive. My colleagues Trey Allen and David Lawrence have written excellent blogs (here and here) on this very topic. As they noted, the North Carolina Constitution and city and county statutes (G.S. 160A-61; G.S. 153A-26) require all individuals elected or appointed to public offices to take the constitutional oath in Article VI, Section 7. Moreover, Sections 11-7 and 11-11 require all those elected or appointed to “an office of trust or profit” to take a separate, additional oath. As the North Carolina Constitution and these statutes demonstrate, identifying whether a position is a public office is essential for knowing whether the person in that position must take an oath.

What positions are public offices? My colleague Fleming Bell covered this question in an earlier blog . As he notes, several factors govern whether a position is a public office. See e.g., Meyer v. Walls, 347 N.C. 97, 113 (N.C. 1997); Cline v. James Bane Home Building, LLC, 278 N.C. App. 12, 22-23 (N.C. Ct. App. 2021); Chastain v. Arndt, 253 N.C. App. 8, 16 (N.C. Ct. App. 2017). The first and perhaps most straightforward factor is whether state law or the state constitution creates the position. In other words, is there a statute or constitutional clause establishing or instituting the position? The second factor is whether the position exercises sovereign power or governmental authority. The final factor is whether the position has discretion in using that governmental power and authority. Can the position exercise significant governmental authority independently or does it serve more of an advisory role? Does the position entail significant decision-making power, or does it perform only ministerial tasks? Positions that lack substantial government authority or are only advisory are less likely to be public offices that require constitutional or statutory oaths of office. With this background in mind, let’s examine some positions that generate frequent questions. (Note: While I get questions about positions in the Human Services field, my colleague Kristi Nickodem has already written a separate blog on that topic).

Finance Directors/Officers

There is no case or statute of which I am aware that explains whether a finance director or officer must take an oath of office. Consequently, the factor-based framework applies. First, consider whether there is a statute creating this position. Section 159-24 states that local governments “shall, at all times, have a finance officer…”. With its mandatory language, this statute establishes the position of finance officer.

The second and third factors relate to sovereign authority and discretionary decision-making power. Section 159-25(a) contains several governmental powers and responsibilities that finance directors must fulfill, including managing governmental funds and overseeing receipts and deposits. None of these powers and responsibilities are merely advisory and all involve a significant exercise of independent governmental authority. Taking these factors together, the position of finance director was created by state statute and given wide discretion to exercise a variety of sovereign powers under statute. Thus, finance directors arguably are public officials that need to take both the constitutional and G.S. 11-7 oaths.

Tax Assessors/Tax Collectors

Both tax assessors and tax collectors must take a modified version of the constitutional oath pursuant to G.S. 105-295 and G.S. 105-349 respectively. Whether these individuals must also take the G.S. 11-7 oath required for offices of trust and profit is less clear. One defensible interpretation is that because Sections 105-295 and 105-349 provide a specific oath just for tax collectors and assessors, no other oath is required. On the other hand, neither of those sections acknowledge G.S. 11-7, which mandates an oath for all individuals in an office of trust or profit. If tax assessors and collectors are public officials, they could fall within the scope of G.S. 11-7.

As to whether state law creates these positions, Section 105-294 requires the appointment of a county tax assessor, while Section 105-349 requires the appointment of a city and county tax collector. Moreover, a tax assessor’s various powers and duties include employing listers, appraisers, and clerical assistants as well as having “general charge” of the listing, appraisal, and assessment of all county property. G.S. 105-296. Tax assessors’ duties are therefore not merely advisory in nature and encompass a wide swath of discretionary governmental power.

Section 105-350 describes tax collectors’ duties and responsibilities. Some of these duties suggest some amount of governmental power such as accounting for receipts of government funds. See G.S. 105-350(4-5). However, most of the tax collectors’ powers require the governing board’s approval, direction, or instruction. See. G.S. 105-350(1-3), (6-9). As a result, tax collectors seem to lack the significant discretion required under the factor-based framework.

All in all, since statute directs both tax assessors and collectors to take a specific, modified constitutional oath, that may be the only oath required of them. Practitioners looking to be extra cautious may consider administering the G.S. 11-7 oath as well to tax assessors, who appear to fit the legal requirements for a public official. Tax collectors are less likely to be public officials required to take the G.S. 11-7 oath. Although their positions are created by state law and they exercise some governmental power, their discretion in wielding this power seems significantly more limited than tax assessors.

160D Boards

Section 160D-309 requires all appointed members of 160D boards to take the constitutional oath, but do these board members also need to take the G.S. 11-7 oath? Arguably, state law does not directly create 160D boards. For example, Sections 160D-301 and -302 give local governments the power to create planning boards and boards of adjustment, but do not require them to do so. Moreover, these boards serve mostly an advisory function. While they can exercise some powers, their primary responsibilities involve making recommendations to the governing board and require seeking governing board approval. See, e.g., G.S. 160D-301(3),(5),(7); G.S. 160D-942(2),(5). Boards of Adjustment have slightly more power in that they may make decisions in Section 160D quasi-judicial matters. G.S. 160D-302. However, quasi-judicial hearings require strict procedures that substantially limit discretion in decision making. G.S. 160D-406. As a result, while there is no clear answer in statute or case law, it is unlikely that 160D board members are public officials required to take the G.S. 11-7 oath. They must take the constitutional oath as a matter of statute, not because they are public officials.

Bottom Line

As this post doubtless illustrates, there is much gray area surrounding oaths of office. When in doubt, consider that there is no disadvantage to administering an oath, even if an oath is not legally required. On the other hand, public officials who execute their official duties without taking a legally required oath may face criminal charges, a civil fine, and ejectment from office. G.S. 14-229; G.S. 128-5. As a result, if there is an argument that a position may require an oath, it may be wise to administer and take one.

When do we administer oaths if we’re on an adjusted election schedule?

When should municipalities swear in newly elected members under 2022’s adjusted election schedule? Under S.L. 2021-56, Section 1(f), “[n]otwithstanding G.S. 160A-68,” newly elected officials on this adjusted schedule can be sworn in “at any time” after the election results are certified. There are two possible interpretations of this session law.

The first is that the “[n]otwithstanding G.S. 160A-68” language dispenses with the requirement to hold an organizational meeting at all. Instead, newly elected councilmembers may be sworn in “at any time” after the election results are certified, whether an organizational meeting is held or not. The second interpretation is that the default date for the organizational meeting would not be in December, as dictated in G.S. 160A-68. Instead, the organizational meeting can be held at any time after election results are certified. This interpretation still requires swearing new members in at an organizational meeting but eliminates the December deadline and default date, which may be simply impractical given the adjusted election schedule.

Both interpretations are defensible. The advantage of holding an organizational meeting is that it allows all the new officers to take their oaths simultaneously. Additionally, since it is not entirely clear that the legislature intended to eliminate the organizational meeting requirement entirely, having an organizational meeting also ensures compliance with the spirit of G.S. 160A-68.

Are there any other positions local governments are wondering about? I’d love to hear.

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Topics - Local and State Government