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

Representative Clint Penzo asked whether an appointed city council member must execute and file a duplicate oath of office in the same fashion as an officer commissioned by the Governor. The AG answered no: “The Arkansas Code contains no provision directing a city council member to execute and file a duplicate oath of office.”

That answer does not excuse the oath itself. Arkansas Constitution art. 19, § 20 prescribes the oath for officers before they enter their duties. Ark. Code Ann. § 14-42-106(a), quoted in footnote 1, requires elected and appointed municipal officers to take it. Footnote 2 quotes § 14-42-106(d): the council may declare an appointee's office vacant if the person fails to take the oath or give the required bond within ten days after notice of appointment. For an elected officer, the quoted statute measures ten days from January 1 after the election.

The AG distinguished taking the oath from filing a duplicate. Footnote 3 compares the municipal statute, which has no duplicate-oath requirement, with the statute for county election board members, which expressly requires the county clerk to forward a duplicate oath to the Secretary of State. Footnote 2 also cites Opinion 2013-017 on the vacancy provision.

What this means for you

If you have been appointed to a city council

Take the constitutional oath before entering your duties and within ten days after you are notified of the appointment. The AG found no Arkansas Code requirement that you execute and file a second copy. Keep a record of when you took the oath so the city can distinguish compliance with the oath requirement from the separate duplicate-filing question.

If you administer city oaths

Check that the appointee took the required oath on time. A missing duplicate filing alone is not a failure under the provision the AG reviewed. The opinion does not prescribe a city filing system or decide the effect of a local procedure; it answers the state-law duplicate-oath question.

If your council is considering a vacancy

The cited statute gives council members power to declare a vacancy when an elected or appointed person fails to take the oath or give the required bond within the stated time. The opinion does not say a vacancy occurs automatically, and it does not address any particular council member's compliance.

Common questions

Q: Does an appointed city council member have to file two oaths?
A: The AG said the Arkansas Code requires no duplicate oath filing for a city council member. The member still must take the constitutional oath.

Q: How soon must an appointee take the oath?
A: Footnote 2 quotes the municipal statute's ten-day period after notification of appointment. It also describes the council's power to declare a vacancy for failure to take the oath or give the required bond in time.

Q: Is the office automatically vacant if the oath is late?
A: The statute quoted by the AG says council members “shall have the power to declare” the office vacant. The opinion does not make a vacancy finding for any particular person.

Q: Why does the county election-board rule differ?
A: The statute quoted in footnote 3 expressly directs the county clerk to forward a duplicate oath for newly selected county election board members. The AG found no comparable direction for city council members.

Q: Did the AG decide what a city clerk must keep on file?
A: No. The opinion addresses whether state law requires a city council member to execute and file a duplicate oath. It does not set out a local recordkeeping procedure.

Background and statutory framework

The opinion relies on the constitutional oath in Ark. Const. art. 19, § 20 and on Ark. Code Ann. § 14-42-106(a), which requires municipal officers to take it. Footnote 2 quotes § 14-42-106(d) on the council's vacancy-declaration power and cites Op. Att'y Gen. 2013-017. Footnote 3 compares the municipal statute with Ark. Code Ann. § 7-4-102(b), which expressly requires a duplicate oath for county election board members.

The question mentioned Ark. Code Ann. § 21-2-101 et seq. as a comparison with officers commissioned by the Governor. The AG did not analyze that commission process; her conclusion concerns the absence of a duplicate-oath requirement for city council members.

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

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

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

1 Ark. Code Ann. § 14-42-106(a) (Supp. 2021) ("All officers elected or appointed in any municipal corporation shall take the oath or affirmation prescribed for officers by the Arkansas Constitution.").

2 Id. at § 14-42-106(d) ("The council members 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 of the first day of January after his or her election or within ten (10) days after he or she has been notified of his or her appointment."). See also Op. Att'y Gen. 2013-017.

3 Compare Ark. Code Ann. § 14-42-106 (containing no duplicate oath requirement) with Ark. Code Ann. § 7-4-102(b) (Supp. 2021) (requiring the county clerk to notify newly selected county election board members of the oath requirement and providing that "[t]he oath shall be filed in the office of the county clerk and the county clerk shall forward a duplicate to the Secretary of State.").