Do Local Health Directors Need to Take an Oath of Office?

Spoiler alert: yes! Local health directors are appointed public officials who must take an oath of office. But what makes a local health director a public official? And which oath of office should they take? Let’s discuss.

The Local Health Director: An Appointed Public Official

North Carolina law requires individuals who are “appointed to a county office” or “appointed to hold any office of trust […] in the State” to take an oath of office.[1] In North Carolina, the local health director for a county or district health department is appointed by the local board of health following consultation with the board of county commissioners (BOCC).[2] If the local board of health fails to appoint a local health director within 60 days of the health director position becoming vacant, then the State Health Director may appoint someone to fill the role until the local board of health makes an appointment.[3] If a county is served by a consolidated human services agency (CHSA), then the local health director is appointed by the consolidated human services (CHS) director (with the county manager’s approval).[4] No matter how you slice it, the position of local health director is an appointed one.

Is a local health director a public official who holds an “office of trust?” The answer is yes. According to criteria established by our state’s courts, a public official is someone who: (1) is in a position that is created by the North Carolina constitution or North Carolina’s statutes; (2) exercises some type of sovereign power (meaning the person has ultimate oversight and decision-making authority over a certain area); and (3) exercises discretion in wielding that power.[5] In 2004, the North Carolina Court of Appeals assessed the local health director position against these criteria and concluded that a local health director is a public official.[6]

When Should the Oath of Office be Taken?

An appointed public official- including a local health director- should take the oath of office before they begin exercising the powers of their office. In fact, acting as a public official before taking the required oath of office is a criminal offense (although prosecutions are rare) and may result in a fine and ejectment from office.[7] In the event that a local health director was delayed in taking their oath of office, the local health director’s actions taken pre-oath are not necessarily invalid thanks to the “de facto officer doctrine.” For more information about this doctrine and its applicability, please see this 2010 bulletin by David M. Lawrence.

Who May Administer the Oath of Office?

A list of individuals who are authorized to administer the oath of office can be found at G.S. 11-7.1 and includes:

• A justice, judge, magistrate, clerk, assistant clerk, or deputy clerk of the General Court of Justice, a retired justice, judge, or clerk of the General Court of Justice, or any member of the federal judiciary
• The Secretary of State
• A notary public
• A register of deeds
• A mayor of any city, town, or incorporated village or the chair of the BOCC
• A member of the House of Representatives or Senate of the General Assembly
• The clerk of any county, city, town, or incorporated village

Under G.S. 11-8, a deputy of any of the individuals listed above may also administer an oath of office.  An oath of office must be “subscribed,” which means that the oath-taker must swear or affirm the oath and then sign a written copy of the oath. There is no law requiring that a local health director take the oath of office in public or at an official meeting of a public body (such as a meeting of the board of health).

Which Oath of Office Should the Local Health Director Take?

There are two North Carolina laws that may apply to a local health director taking an oath of office: G.S. 153A-26 (referencing the oath of office set forth in Article VI, Section 7 of the North Carolina Constitution) and G.S. 11-7. The oath prescribed by G.S. 153A-26 is required for “[e]ach person elected by the people or appointed to a county office” (emphasis added). The oath in G.S. 11-7 must be taken by “[e]very member of the General Assembly and every person elected or appointed to hold any office of trust or profit in the State […].” The language of the two oaths is similar, but not identical. So which oath should a local health director take? It depends on the type of local public health agency that the director leads.

Local Health Director of a County Health Department

The local health director of a county health department is clearly a person appointed to “a county office”- which means that this type of health director should take the oath required by G.S. 153A-26 and found in Article VI, Section 7 of the North Carolina Constitution. The statute requires that a signed, written copy of the oath be filed with the clerk of the BOCC.

But wait… isn’t the local health director also a person appointed to an “office of trust or profit in the State?” And does that mean that the local health director should take the oath in G.S. 11-7 in addition to the oath required by G.S. 153A-26? My former colleague, Trey Allen, tackled this issue in a 2017 Coates’ Canons blog post. As Trey explains, recent decisions from the North Carolina Supreme Court and Court of Appeals suggest that our courts would be unlikely to find that a local health director who successfully took the oath required by G.S. 153A-26, but not the oath in G.S. 11-7, is disqualified for office. Nevertheless, for local health directors who prefer to err on the side of caution, there appears to be no harm in taking both oaths of office. If both oaths are taken, they should both be filed with the clerk for the BOCC.[8]

Local Health Director of a District Health Department

A district health department is a single local public health agency that serves two or more counties.[9] State law defines a district health department as a “public authority”- a type of special-purpose local government that is established to carry out a specific function (such as the delivery of public health services) and that operates on a multi-county basis.[10] Consequently, the position of local health director for a district health department is not a “county office.” This means that the local health director for a district health department should take the oath of office in G.S. 11-7 that is required for persons “appointed to hold any office of trust or profit in the State,” but does not need to take the oath of office for county officials in G.S. 153A-26.

G.S. 11-7 does not specify where a written, signed copy of the oath should be filed; however, G.S. 14-229, the statute that establishes criminal penalties for failing to properly take an oath of office, clearly requires that all oaths of office be filed somewhere. Although there are no statutory instructions for filing the oath found in G.S. 11-7, the record retention and disposition schedules established by the North Carolina Department of Natural and Cultural Resources (DNCR) offer some guidance.

The record retention and disposition schedule developed for local health departments does not address oaths of office, specifically, but does state that the schedule for local health departments should be “used in concert with the current Local Government Agencies General Records Retention and Disposition Schedule to provide full records management guidance.”[11] The general records retention and disposition schedule instructs local government agencies to file copies of oaths of office with the municipal clerk, the clerk of the BOCC, or the clerk to the agency’s governing board.[12] Local boards of health, which are the governing boards for local health departments, do not have clerks (or at least do not have clerk positions that are established and required by law). Therefore, filing the local health director’s oath of office with the clerk of the BOCC is the most reasonable option. To avoid confusion or controversy, it would be prudent for a copy of the local health director’s signed oath to be filed with the clerk for the BOCC for each of the counties served by the district health department.

Local Health Director in a CHSA

A CHSA is led by a CHS director, who is appointed by the county manager with the advice and consent of the CHS board. If the CHS director does not meet the statutory requirements for serving as a health director (found at G.S. 130A-40), then the CHS director must appoint someone else (with the county manager’s approval) who does meet those requirements.[13] What does this mean for a CHS director and local health director in a CHSA? Do they both need to take an oath of office? My colleague Kristi Nickodem delved into this question in a recent blog post. When the CHS director and CHSA local health director roles are assessed against the “public official” criteria established by our courts (and discussed earlier in this post), it seems likely that both are “public official” positions. As a result, people appointed to these positions should take an oath of office before beginning their official duties and wielding any powers assigned to them. For more in-depth analysis on this topic, please read Kristi’s blog post.

As appointed county officials, the CHS director and local health director in a CHSA should take the oath of office found in Article VI, Section 7 of the North Carolina Constitution as required by G.S. 153A-26. Just like a local health director for a county health department, a local health director in a CHSA could elect to take the oath of office set forth in G.S. 11-7 in addition to the oath required specifically for county officials. Copies of the signed oath(s) of office should be filed with the clerk for the BOCC.[14]

Additional Resources

There are many public officials working in various fields across North Carolina who must take an oath of office. As a result, the School of Government has published numerous resources addressing issues related to oaths of office. Links to a selection of these resources are included below.

• “Who Is Required to Take an Oath of Office in the Human Services Field?” by Krisi Nickodem (2022).
• “The Most Common Oaths of Office Question” by Kristina Wilson (2022).
• “One Oath or Two? What is THE Oath of Office?” by Trey Allen (2017).
• “The Law of De Facto Officers” by David M. Lawrence (2010).

Notes

[1] See G.S. 153A-26 (“Each person […] appointed to a county office […]) and G.S. 11-7 (“every person […] appointed to hold any office of trust or profit in the State […]”).

[2] G.S. 130A-40(a).

[3] G.S. 130A-40(d).

[4] G.S. 153A-77(e)(9).

[5] See Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999).

[6] See Satorre v. New Hanover County Board of Commissioners, 165 N.C. App. 173, 179, 598 S.E.2d 142, 146 (2004).

[7] G.S. 14-229 (making action before taking an oath of office a misdemeanor and grounds for ejectment from office); G.S. 128-5 (establishing a $500 penalty and ejectment from office).

[8] G.S. 153A-26 states that the oath prescribed by this statute must be filed with the clerk of the BOCC. G.S. 11-7 does not specify where this oath should be filed, although G.S. 14-229 clearly requires that all oaths of office be filed somewhere. As explained in the subsection of this blog post titled “Local Health Director of a District Health Department,” when the oath in G.S. 11-7 is taken, a copy of the oath should be filed with the clerk of the BOCC in accordance with the record retention schedule for local government agencies that is developed by DNCR.

[9] G.S. 130A-36(a)

[10] Id. For more on public authorities, please see this Coates’ Canons blog post by my colleague Kara Millonzi, “Special Purpose Governments and Public Authorities.”

[11] DNCR, “Local Health Departments Records Retention and Disposition Schedule,” pg. 3, available at: https://archives.ncdcr.gov/government/local-government-agencies/local-health-departments-schedule.

[12] DNCR, “Local Government Agencies General Records Retention and Disposition Schedule,” Item 6.20 at pg. 73, available at: https://archives.ncdcr.gov/government/local-government-agencies/general-records-schedule-local-government-agencies.

[13] G.S. 153A-77(e)

[14] See footnote 8 for additional information.

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