When does an Arkansas Judicial Discipline and Disability Commission appointee have to take the constitutional oath of office?

Plain-English summary

Judge Joyce W. Warren, then chair of the Arkansas Judicial Discipline and Disability Commission, asked a small but important question: when do appointees to the Commission have to take the oath of office?

Attorney General Leslie Rutledge confirmed that JDDC appointees are "public officers" subject to Article 19 § 20 of the Arkansas Constitution, which requires senators, representatives, judges, executive officers, and "all other officers, both civil and military" to take a specified oath "before entering on the duties of their respective offices." Several factors classified Commissioners as officers rather than mere employees: they are formally appointed (not hired by contract), their terms (six years), expenses, and duties are all set by statute, and they serve a body that is itself "an agency of the State" per the Arkansas Supreme Court's decision in Comm'n on Judicial Discipline and Disability v. Digby (1990).

The statute creating the JDDC does not specify when the oath must be taken. The constitution itself just says "before entering on the duties" of office. The AG concluded that taking the oath at the commencement of the six-year term would satisfy both the constitutional command and the common-law rule that an appointee must qualify within a "reasonable time" of appointment. The opinion emphasized that the oath is not a mere formality: under Ark. Code Ann. § 21-2-105(d)(2)(B), only after taking the oath does an "incoming officer assume[] all the rights, privileges, and duties of his or her respective office." Until then, the appointee technically lacks the authority to act as a Commissioner.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the Article 19 § 20 oath?
A: It reads: "I, _, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of _, upon which I am now about to enter." It applies to senators, representatives, judges, executive officers, and "all other officers, both civil and military."

Q: Why are JDDC commissioners considered "public officers"?
A: The Arkansas Supreme Court has not articulated an "inflexible definition" but uses several factors. An officer "ordinarily exercises some part of the State's sovereign power" and has tenure, compensation, and duties "fixed by law." JDDC commissioners satisfy all three: they exercise the state's disciplinary authority over judges, their appointments are fixed by Ark. Code Ann. § 16-10-402, and their terms are six years.

Q: What about other state appointees, employees vs. officers?
A: The line between "officer" and "employee" matters because employees do not need to take the constitutional oath. The Arkansas Supreme Court drew this distinction in Maddox v. State (1952). The factors are formal appointment (not contract), exercise of sovereign power, statutorily fixed tenure and compensation, and statutorily defined duties. Commissioners typically meet all those tests; rank-and-file staff usually do not.

Q: Is there a statutory deadline for taking the oath?
A: For some officers, yes. Section 14-42-106(d) lets municipal councils declare vacant the office of any elected or appointed person who fails to take the oath within ten days of being notified of the appointment. Section 17-97-201(d) requires psychology board members to take the oath "[i]mmediately and before entering upon the duties of office." For JDDC commissioners, no such deadline exists. The AG concluded that "commencement of service" was the appropriate marker.

Q: What is the "reasonable time" rule?
A: It is a common-law rule, restated in 67 C.J.S. Officers § 67, that "[a]n appointee . . . must qualify for the office within the prescribed time or a reasonable time in order to become entitled to the office." For JDDC commissioners, the AG read "reasonable time" to mean the start of the six-year term, when the appointee is about to actually exercise commission authority.

Q: What happens if an appointee never takes the oath?
A: They do not technically assume the office. Under Ark. Code Ann. § 21-2-105(d)(2)(B), the rights, privileges, and duties of the office attach only when the oath is complete. An appointee acting without taking the oath could face challenges to the validity of their actions. The opinion emphasized this point to encourage timely oath-taking.

Q: Does the oath have to be administered by anyone in particular?
A: The constitutional text does not specify, and Arkansas custom allows administration by judges, notaries, or other officials authorized to administer oaths. The form is what matters: the words must be those in Article 19 § 20.

Background and statutory framework

The Arkansas Judicial Discipline and Disability Commission is a constitutionally and statutorily established body charged with investigating allegations of judicial misconduct, recommending discipline, and addressing judges' physical and mental disability. The Arkansas Supreme Court's decision in Digby confirmed the Commission's status as "an agency of the state." Members serve six-year terms (Ark. Code Ann. § 16-10-402(b)) and are eligible for one reappointment to a second full term.

Article 19 § 20's oath of office is a baseline requirement for all Arkansas public officers, not a creature of any particular statute. It exists alongside more specific statutory oaths and bonds for particular offices. When statutes are silent on timing, the constitutional command "before entering on the duties" combines with the common-law "reasonable time" rule to set the framework. The AG's pragmatic conclusion (oath at commencement of term) flows from both.

Citations and references

Constitution and statutes:

• Ark. Const. art. 19 § 20 (oath of office)
• Ark. Code Ann. § 16-10-402 (JDDC appointments and terms)
• Ark. Code Ann. § 16-10-404 (JDDC duties)
• Ark. Code Ann. § 21-2-105(d)(2)(B) (officer's assumption of rights upon completion of oath)
• Ark. Code Ann. § 14-42-106(d) (municipal officer oath deadline)
• Ark. Code Ann. § 17-97-201(d) (psychology board oath timing)

Cases:

• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (Ark. Supreme Court, distinguishing officer from employee)
• Comm'n on Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990) (Ark. Supreme Court, JDDC is state agency)

Prior AG opinions:

• Op. Att'y Gen. 93-289 (State Board of Election Commissioners are officers under § 20)
• Op. Att'y Gen. 99-173 (oath at commencement of service)
• Op. Att'y Gen. 2000-041 (notaries public oath analysis)
• Op. Att'y Gen. 2005-022 (reasonable-time rule for local public facilities boards)
• Op. Att'y Gen. 88-123 (qualification within reasonable time)
• Op. Att'y Gen. 97-101 (oath required for qualification)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-015
March 21, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Honorable Joyce W. Warren, Chair
Judicial Discipline & Disability Commission
323 Center Street, Suite 1060
Little Rock, AR 72201
Dear Judge Warren:
I am writing in response to the request sent by Marie-Bemarde Miller on behalf of
the Arkansas Judicial Discipline and Disability Commission ("Commission").
Ms. Miller asked whether a person appointed to serve on the Commission is
required to take an oath of office at the time his or her service commences.
RESPONSE
Members of the Commission are public officers constitutionally mandated to take
the oath "before entering on the duties of their respective offices."1 Although
there is no statute establishing a time within which Commission members must
take their oath after being appointed, I believe that taking the oath at the
commencement of service would satisfy the Arkansas Constitution as well as the
common-law rule requiring appointees to qualify for office within a reasonable
time of their appointment.
DISCUSSION
As your question acknowledges, all public officers must take the oath of office
specified in Article 19, Section 20 of the Arkansas Constitution. That section
reads in full:
1 Ark. Const. art. 19, § 20.
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Honorable Joyce W. Warren, Chair
Judicial Discipline & Disability Comm'n
Opinion No. 2017-015
Page 2
Senators and Representatives, and all judicial and
executive, State and county officers, and all other
officers, both civil and military, before entering on the
duties of their respective offices, shall take and
subscribe to the following oath of affirmation:
"I, , do solemnly swear (or affirm) that I
will support the Constitution of the United States and
the Constitution of the State of Arkansas, and that I
will faithfully discharge the duties of the office of
_ ____ , upon which I am now about to enter."
The Arkansas Supreme Court has "never attempted to frame an inflexible
definition" of public officer.2 Instead, it has developed factors that inform the
distinction between officers, on the one hand, and public employees who have no
constitutional duty to take an oath of office.3 An officer "ordinarily exercises
some part of the State's sovereign power," and his "tenure of office, his
compensation, and his duties are usually fixed by law."4 And an officer may hold
his position by official appointment as opposed to a contract of hire. 5
Here, members of the Commission are appointed;6 their terms of service,
expenses, and duties are all set by statute; 7 and they act on behalf of a body that is
itself an "agency of the State. "8 I have no doubt given these characteristics that
members of the Commission are officers subject to Ark. Const. art. 19, § 20.
2 Maddox v. State, 220 Ark. 762, 763-64, 249 S.W.2d 972, 972-73 (1952) (distinguishing a
public office from "mere public employment.").
3 Id. at 763-64, 249 S.W.2d at 972-73.
5 Op. Att'y Gen. 93-289 (concluding that members of the State Board of Election Commissioners
are officers for purposes of Article 19, Section 20's oath requirement.).
6 Ark. Code Ann. § 16-10-402(a) (Repl. 2010).
7 Id. at§§ 16-10-402(b, d), 16-10-404.
8 Comm'n on Judicial Discipline and Disability v. Digby, 303 Ark. 24, 26, 792 S.W.2d 594, 595
(1990) ("There is no question that the commission is an agency of the state."). Honorable Joyce W. Warren, Chair
Judicial Discipline & Disability Comm'n
Opinion No. 2017-015
Page 3
But while the statutes establishing the Commission confirm that its members are
public officers, I note that those statutes contain no oath requirement.9 It follows
that Commission members have no statutory directive to complete the oath within
a certain time period, in contrast to other public officials.10 Rather, the mandate
for Commission members to take the oath derives from the Constitution itself,
which simply states that the oath must be administered "before entering on the
duties" of office.11
In the absence of a statute establishing a specific timeframe, I believe that
appointees to the Commission should generally be sworn in at the commencement
of their terms. 12 This is certainly contemplated by the Constitution, given that the
oath includes a pledge to "faithfully discharge the duties of the office ... upon
which I am now about to enter."13 Taking the oath at the commencement of the
term of service would also bookend a "reasonable time" from the member's
appointment to the assumption of her duties.14 This comports with the common-
law rule that when a "statute makes no provision for automatic confirmation, or
rejection, of an appointee," the officer is allowed a reasonable time to take the oath
after being appointed.15 In my opinion, appointees to the Commission would
9 See Op. Att'y Gen. 2000-041 (examining statutes authorizing the Secretary of State to appoint
notaries public.).
10 See, e.g., Ark. Code Ann. § 14-42-106(d) (Repl. 2013) ("The council or aldermen shall have
the power to declare the office of any elected or appointed person vacant who shall fail to take the
oath of office or give the bond required in this section ... within ten (10) days after he or she has
been notified of his or her appointment."); Id. at§ 17-97-201(d) (Supp. 2015) ("Immediately and
before entering upon the duties of office, the members of the [Board of Examiners in Psychology]
shall take the constitutional oath of office and shall file it in the office of the Governor, who upon
receiving the oath of office shall issue to each member a certificate of appointment.").
11 Cf Op. Att'y Gen. 2000-041 (quoting Ark. Const. art. 19, § 20).
12 See Op. Att'y Gen. 99-173.
13 Ark. Const. art. 19, § 20 (emphasis added).
14 See Op. Att'y Gen. 88-123 (noting that if the "time within which an appointee must qualify [by
taking the oath] is not fixed by law, he or she must qualify within a reasonable time.") (internal
quotation omitted).
15 Op. Att'y Gen. 2005-022 (noting the lack of statutes governing the confirmation of appointees
to local public facilities boards.); accord 67 C.J.S. Officers § 67 (2016) ("An appointee ... must
qualify for the office within the prescribed time or a reasonable time in order to become entitled
to the office."). Honorable Joyce W. Warren, Chair
Judicial Discipline & Disability Comm'n
Opinion No. 2017-015
Page 4
satisfy Article 19, Section 20 (and act consistent with the reasonable-time rule) by
taking the oath of office immediately before their six-year term of service begins.16
I emphasize that in order to be qualified, Commission appointees must take the
oath of office pursuant to Ark. Const., art. 19, § 20.17 Indeed, it is only when the
oath is complete that the "incoming officer assumes all the rights, privileges, and
duties of his or her respective office."18 Taking the oath at the time the
appointee's term commences would ensure she was fully qualified prior to acting
as a Commission member. And it would meet the appointee's constitutional
obligation to swear or affirm the oath "before entering on the duties" of her
office.19
Sincerely,
~~~
LESLIE RUTL~D~
Attorney General
cc: Marie-Bernard Miller
Commission Counsel
16 See Ark. Code Ann. § 16-10-402(b) (stating that a "commission member shall serve for a term
of six (6) years and shall be eligible for reappointment to a second full term."); Judicial Discipline
and Disability Comm'n Rule l(C) (Amend. 2008) ("Commission members and alternates shall
serve for terms of six (6) years and shall be eligible for reappointment to second full terms.").
17 See Op. Att'y Gen. 97-101.
18 Ark. Code Ann.§ 21-2-105(d)(2)(B) (Repl. 2016).
19 Ark. Const. art. 19, § 20.