Do the administrative and investigative assistants a district attorney can hire under G.S. 7A-68 and 7A-69 have to take an oath of office, or are they just employees?

Plain-English summary

Herbert F. Pierce, district attorney for the Fifteen-A Prosecutorial District, asked whether the administrative and investigative assistants his office could hire under G.S. 7A-68 and G.S. 7A-69 needed to take an oath of office as public officials.

The 1981 AG framed the question as a test of public officer status. Under North Carolina case law, a public officer is "one charged with duties involving the exercise of some portion of the sovereign power of the State." The test does not turn on how the person was hired or what title they hold; it turns on the nature of their duties.

The AG read G.S. 7A-68 and 7A-69 carefully and found no statutorily assigned sovereign duties. The administrative assistant's job, as the statute lays it out, is to help the DA prepare cases for trial and to expedite the criminal court docket, and the assistant need not even be an attorney. Investigative assistants gather and develop information for prosecution. Neither role, as defined, requires the holder to exercise the sovereign power that defines a public officer. So no oath is required by the statute itself.

But the AG added a "however" with teeth. A DA can assign any portion of the office's duties to staff, including duties that do involve sovereign power. If the DA delegates such duties to an administrative or investigative assistant, that assistant becomes a public officer in fact (regardless of the statutory job description) and an oath is required under Article VI, Sec. 7 of the North Carolina Constitution and G.S. 128-5.

So the answer is conditional: default is no oath; presence of an oath depends on what the DA actually delegates. A district attorney who wants clarity should think about whether any assigned task crosses into sovereign-power territory before letting the staff member begin.

Currency note

This opinion was issued in 1981. 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. The North Carolina prosecutorial system has been reorganized multiple times since 1981, and the categories and titles of DA staff have changed. The general principle from the opinion (oath of office tracks sovereign-power exercise, not job title) likely survives, but specific position references should be verified against current law.

Historical context: what the AG concluded

The opinion sits inside a fairly old line of North Carolina cases on what makes someone a public officer. The pivotal definition comes from Sansom v. Johnson, 39 N.C. App. 682, and is repeated across North Carolina decisional law (and digested in Strong's N.C. Index 3d under Public Officers). The definition is functional: sovereign-power exercise, not job title.

The AG paired that definition with State v. Hord, which made the same point about police officers: "It is not the method by which a policeman becomes a member of the police force of a municipality that determines his status but the nature and extent of his duties and responsibilities with which he is charged under the law." Applied to DA staff, the doctrine says the entrance into the office (statutory hiring authority) does not determine officer status; the substantive duties do.

The opinion then read the relevant statutes. G.S. 7A-68 authorized the administrative assistant; G.S. 7A-69 authorized the investigative assistant. Both statutes were silent on oath. The AG read that silence as legislative intent not to create a public office. The legislature knew how to require an oath when it wanted to. The absence of an oath requirement in the statute that created the position is meaningful.

The DA-delegation caveat is the most useful piece of the opinion. The AG did not say "the statute settles the question forever." It said the statute settles the default. The DA retains the ability to assign sovereign-power duties to staff, and any assistant who receives such duties becomes a public officer regardless of statutory job description, with an oath requirement attaching automatically. That makes the inquiry duty-by-duty, not title-by-title.

The cited statutes for the oath itself (Article VI, Sec. 7 of the North Carolina Constitution and G.S. 128-5) are the general loyalty-and-duties oath framework for North Carolina officeholders. State v. Smith, 145 N.C. 477, is the older case the AG paired with those statutes for the proposition that oath obligation attaches with public officer status.

Background and statutory framework

The North Carolina prosecutorial system, codified in Chapter 7A, organizes the State's criminal prosecution into prosecutorial districts. Each district has an elected district attorney (G.S. 7A-60) who supervises the prosecution of criminal cases in the district. The DA is a public officer, no question.

G.S. 7A-63 authorizes assistant district attorneys, who are also lawyers and who actually try cases. Their function involves the exercise of sovereign prosecutorial power, so they are public officers and take an oath.

G.S. 7A-68 and 7A-69 created a separate category of non-lawyer support staff. The administrative assistant under 7A-68 was the office manager and docket coordinator. The investigative assistant under 7A-69 was the prosecutorial investigator. The legislature created these positions because case preparation, docket management, and pre-trial investigation were eating into the time of the lawyers; staff support let the lawyers focus on courtroom work.

The "public officer" doctrine in North Carolina law turns on the exercise of sovereign power. Sovereign power includes things like making official decisions on behalf of the State, exercising discretionary authority that binds the State, or carrying out duties that the public requires the State to perform. Routine support work (typing pleadings, scheduling, gathering evidence under direction) does not exercise sovereign power. Discretionary prosecutorial decisions do.

The oath requirement in Article VI, Sec. 7 is the constitutional anchor. Every public officer of the State takes the oath. G.S. 128-5 is the implementing statute that fleshes out the form and administration of the oath.

Common questions

What would be an example of a sovereign-power duty a DA might delegate to an investigative assistant?

The opinion does not give an explicit list, but plausible examples include: making decisions to swear out warrants, exercising independent judgment about which leads to pursue with State resources, or representing the State's position in negotiations with witnesses or defense counsel. Anything that involves the assistant making an independent decision that binds the State or exercises State authority would arguably cross the line.

What would be an example of a duty that stays on the non-officer side?

Researching cases, preparing summaries for the DA's review, drafting documents under attorney direction, coordinating witness scheduling, maintaining files, conducting routine investigation steps under the DA's direction without independent judgment. The hallmark is that the DA retains the decision-making authority.

Does the oath requirement matter beyond just the ceremony?

Yes. Public officer status carries other consequences: residency requirements, certain disqualifications (felony convictions), bond requirements in some cases, civil liability standards (sovereign immunity may apply to acts within the scope of officer duties), and possibly differing rules for removal from office.

Can a DA insulate the office by formally stating the assistant has no sovereign duties?

A formal statement helps but is not dispositive. The test is the nature and extent of the duties actually performed. A DA could avoid the oath question entirely by keeping assistants squarely in support roles. The opinion gives DAs the framework to do that intentionally.

Why was the question asked in the first place?

The Fifteen-A Prosecutorial District presumably had a practical question about hiring and onboarding. Did the new assistant need to take an oath at the courthouse, get bonded, do all the things a public officer does? The AG answer let the DA save those steps unless and until the assigned duties required them.

Source

• Landing page: https://ncdoj.gov/opinions/administrative-and-investigatorial-assistants-to-the-district-attorney/

Citations

• G.S. 7A-68
• G.S. 7A-69
• G.S. 7A-63
• G.S. 128-5
• Article VI, Sec. 7, North Carolina Constitution
• Sansom v. Johnson, 39 N.C. App. 682
• State v. Hord, 264 N.C. at 155
• State v. Smith, 145 N.C. 477

Original opinion text

Requested By: Herbert F. Pierce Fifteen-A Prosecutorial District

Question: Are administrative and investigatorial assistants to the district attorney appointed pursuant to G.S. 7A-68 and 7A-69 required to take an oath of office as public officials?

Conclusion: No, unless the district attorney assigns such duties the performance of which would involve the exercise of sovereign authority of the State.

The North Carolina Supreme Court has defined public officer as one charged with duties involving the exercise of some portion of the sovereign power of the State. See: Sansom v. Johnson, 39 N.C. App. 682; Strong's N.C. Index 3d, Public Officers, Section 1.

In State v. Hord, 264 N.C. at 155, our Supreme Court stated: "It is not the method by which a policeman becomes a member of the police force of a municipality that determines his status but the nature and extent of his duties and responsibilities with which he is charged under the law."

Neither G.S. 7A-68 nor G.S. 7A-69 appears to convey any specific duties involving the sovereign power of the State. The administrative assistant clearly has the duty to assist the District Attorney in preparing cases for trial and in expediting the criminal court docket. The assistant need not be an attorney. He is required to assist in such other duties as the District Attorney may assign. Clearly the statute contemplates administrative duties different from those of the assistant district attorneys authorized in G.S. 7A-63. The statute does not refer to an office or an oath of office. Thus, apparently the legislature did not intend to create a public office in either G.S. 7A-68 or G.S. 69.

However, if the District Attorney should assign duties of his office to the administrative assistant or the investigatorial assistant which involve the exercise by these assistants of some of the sovereign authority of the State, then the oath would be required. Article VI, Sec. 7, North Carolina Constitution; G.S. 128-5; See: State v. Smith, 145 N.C. 477.

Rufus L. Edmisten
Attorney General

James F. Bullock
Senior Deputy Attorney General