Does an appointed city council member have to file a duplicate oath of office the same way that a state officer commissioned by the Governor does?
Plain-English summary
State Representative Clint Penzo asked whether an appointed city council member must execute and file a duplicate oath of office in the same way state officers do when commissioned by the Governor under A.C.A. § 21-2-101 et seq.
The AG said no.
Three sources of the oath requirement:
1. Ark. Const. art. 19, § 20 prescribes the oath text and requires it of "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."
2. A.C.A. § 14-42-106(a) directs that "all officers elected or appointed in any municipal corporation shall take the oath or affirmation prescribed for officers by the Arkansas Constitution."
3. A.C.A. § 14-42-106(d) provides that the council members may declare the office vacant if an elected or appointed person fails to take the oath within ten days of January 1 (for elected officers) or within ten days after notification of appointment.
The constitution does not address filing the oath. The municipal statute does not impose a duplicate-filing requirement. Compare with A.C.A. § 7-4-102(b), which requires county election board members to file the oath with the county clerk and the clerk to forward a duplicate to the Secretary of State. That kind of mandatory duplicate-filing language is absent from § 14-42-106.
So a city council appointee must (1) take the constitutional oath and (2) take it within ten days of notification of appointment, but is not required to execute and file a duplicate oath of office in the manner of state officers commissioned by the Governor.
The opinion is short and procedural. It does not address what local practice may add (a city ordinance could in principle require additional filings) or what the city clerk's record-keeping should look like.
What this means for you
City clerks recording oaths of office
The minimum statutory requirement is documentation that the appointee took the constitutional oath within ten days. Best practice:
- Have the appointee execute a written oath document at the swearing-in.
- Date and witness it.
- Retain the original in your municipal records.
- Provide a copy to the appointee and to other relevant officials (mayor, city council secretary).
A "duplicate" filing in the sense of A.C.A. § 7-4-102(b) (sending a copy to a state official) is not required for city council appointees. But a robust local record-keeping practice is recommended for audit purposes.
Newly appointed city council members
Take the oath within ten days of notification of your appointment to avoid the vacancy declaration option in § 14-42-106(d). You do not need to file a duplicate oath in any state or county filing, but document the swearing-in with the city clerk for your records.
City attorneys advising on municipal procedures
When a city council faces a question about a member's standing because of an oath issue, check three things:
1. Did the member take the constitutionally-prescribed oath? (Look for executed document, witness signatures, date.)
2. Was the oath taken within ten days of notification?
3. Is there any local ordinance imposing additional oath-related requirements?
If 1 and 2 are met and 3 imposes nothing extra, the standing is intact regardless of duplicate-filing concerns.
County clerks and Secretary of State staff
City council oaths typically do not flow to your offices. State officer commissions and county election board oaths do, under separate statutes. Do not expect or require duplicate city-council oaths absent a specific statutory directive.
Municipal law practitioners
The opinion is a useful precedent for clients whose city raises duplicate-filing concerns. Cite § 14-42-106(a)-(d) and the absence of a duplicate-filing requirement. Compare to § 7-4-102(b) for the contrast.
If a client's municipality has adopted local oath requirements by ordinance (additional filings, additional language, supplemental affidavits), check whether those exceed the state-law minimum. Local-state preemption rules apply.
State legislators considering oath reform
The current framework has uniform constitutional oath text and a ten-day taking deadline for municipal appointees, but no centralized filing requirement. If you want centralized records of municipal oaths (e.g., for transparency or audit), an amendment to § 14-42-106 would be the path. Be aware that adding centralized filing creates administrative burden on city clerks and a recipient (probably the county clerk or a state office).
Common questions
What is the text of the Arkansas oath of office?
"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." (Ark. Const. art. 19, § 20.)
Does an elected city council member have to file a duplicate oath?
No. The same answer applies to elected and appointed city council members under § 14-42-106. The oath itself is required; no duplicate filing.
What is the ten-day rule?
Under § 14-42-106(d), the council may declare the office vacant if the elected officer fails to take the oath within ten days of the first day of January after the election, or if the appointee fails to take the oath within ten days after notification of appointment.
What happens if the office is declared vacant for failure to take the oath?
The vacancy is filled by the procedure for filling vacancies in that office (typically by council appointment in cities of the first class under A.C.A. § 14-43-412). The vacancy declaration is a matter for the council's action.
What about state officers commissioned by the Governor?
A.C.A. § 21-2-101 et seq. governs the commission process for certain state officers. That statutory scheme includes documentation and filing requirements specific to state officers, separate from city council appointees.
What about county election board members?
A.C.A. § 7-4-102(b) requires the oath to be filed with the county clerk, who forwards a duplicate to the Secretary of State. This is an explicit duplicate-filing requirement for that specific office, not city council members.
Can a city ordinance require additional oath formalities?
Possibly, within the limits of state law. A city may legislate on municipal affairs that do not conflict with state law (Ark. Code Ann. § 14-55-101). An ordinance requiring additional filings to support local record-keeping would likely be within municipal authority. An ordinance changing the oath text would not.
Background and statutory framework
Constitutional and statutory framework:
- Ark. Const. art. 19, § 20: oath text and requirement for "all officers, both civil and military, before entering on the duties of their respective offices."
- A.C.A. § 14-42-106(a): municipal officers shall take the constitutional oath.
- A.C.A. § 14-42-106(d): ten-day taking requirement; vacancy declaration option for failure.
Comparison statutes (which DO require duplicate filing):
- A.C.A. § 7-4-102(b): county election board members file with county clerk; clerk forwards duplicate to Secretary of State.
- A.C.A. § 21-2-101 et seq.: state officer commission framework.
Prior AG opinion:
- Op. Att'y Gen. 2013-017 (cited regarding the vacancy declaration procedure).
Citations
- Ark. Const. art. 19, § 20 (oath text and requirement)
- A.C.A. § 14-42-106(a), (d) (municipal officer oath, ten-day rule, vacancy declaration)
- A.C.A. § 7-4-102(b) (county election board duplicate-filing rule)
- A.C.A. § 21-2-101 et seq. (state officer commissions)
- Ark. Att'y Gen. Op. 2013-017
Source
Original opinion text
Opinion No. 2022-038
December 20, 2022
The Honorable Clint Penzo
State Representative
P.O. Box 7988
Springdale, AR 72762
Dear Representative Penzo:
This is in response to your request for an opinion on the following question:
Does Ark. Code Ann. § 14-42-106, or any other applicable statute, require an appointed member of the city council to execute and file a duplicate oath of office in the same fashion as a state officer who is commissioned by the Governor per Ark. Code Ann. § 21-2-101 et seq.?
RESPONSE
No. The Arkansas Code contains no provision directing a city council member to execute and file a duplicate oath of office.
DISCUSSION
The requirement of an oath of office derives from Article 19, section 20 of the Arkansas Constitution, which provides that:
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 Code mandates that city officers take this constitutionally prescribed oath. And failure to take the oath within a statutorily prescribed time period may result in the office being declared vacant. But the Constitution does not address the filing of the oath. And there is no provision in the Arkansas Code directing a city council member to execute and file a duplicate oath of office.
The answer to your question, therefore, is "no."
Sincerely,
LESLIE RUTLEDGE
Attorney General