I’ve recently received several questions regarding who must take an oath of office in the human services field. Some of the answers to these questions are straightforward. North Carolina courts have determined that the director of a county department of social services (“DSS”) is a public official. See Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 236 (1990). Likewise, a local health director is also considered to be a public official. See Satorre v. New Hanover Cty. Bd. of Comm’rs, 165 N.C. App. 173, 179, 598 S.E.2d 142, 146 (2004). As public officeholders, these agency directors are required to take an oath of office under G.S. 11-7, G.S. 11-11, and G.S. 153A-26 (“Each person elected by the people or appointed to a county office shall, before entering upon the duties of the office, take and subscribe the oath of office prescribed in Article VI, Sec. 7 of the Constitution”).

What about a consolidated human services director, or a DSS director or health director within a consolidated human services agency (“CHSA”)? Are those individuals required to take an oath of office? The answers to those questions are a bit more complicated. Read on to learn more…

Background on the Oath of Office Requirement

Each person elected or appointed to a county office in North Carolina must, before undertaking the duties of the office, swear (or affirm) and sign the oath of office prescribed in Article VI, Sec. 7 of the North Carolina Constitution. See G.S. 153A-26. Likewise, G.S. 11-7 requires that “every person elected or appointed to hold any office of trust or profit in the State” must take and subscribe an oath or affirmation. For more information on the language of the oath a public officeholder must take, please read this blog post by Trey Allen. This leads to the question: which positions are public offices? For more information on that topic, I recommend reading this blog post by former School of Government faculty member Fleming Bell.

Are Consolidated Human Services Directors Public Officials?

The position of consolidated human services director is a relatively new one for most of North Carolina. Through changes enacted by a law passed in 2012 (S.L. 2012-126), all North Carolina counties with a county manager now have the option to consolidate human services functions (including public health and social services) into a single county agency under the direct control of a consolidated human services (“CHS”) director. G.S. 153A-77(b). Prior to 2012, this option to create a CHSA was only available to counties with a population of over 425,000 people.

Because this position is so new and so few people have held it to date, there is currently no case law examining the question of whether the CHS director is a public official. However, as noted above, there is case law establishing that local health directors and DSS directors are public officials. A CHS director acquires almost all the powers and duties of a local health director and a DSS director, subject to a few exceptions set forth in the statutes. G.S. 153A-77(e). Subject to the consent of the county manager, the CHS director can choose to hire or select individuals who will lead public health functions and DSS functions within the CHSA (a “public health director” and a “DSS director”) and delegate some of the statutory powers and duties associated with those positions back to those individuals. Alternatively, the CHS director can retain and exercise some or all those powers and duties herself. At a minimum, the CHS director is statutorily required to appoint an individual who meets the statutory requirements of a local health director found in G.S. 130A-40(a) if the CHS director does not already meet these requirements. For more information on this topic, please read my colleague Jill Moore’s blog post on delegating local health director powers and duties.

North Carolina courts look to three different factors to determine whether someone is a public official:

1. A public office is a position created by the constitution or statutes;
2. A public official exercises a portion of the sovereign power; and
3. A public official exercises discretion (whereas public employees perform ministerial duties).

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

These factors are analyzed by North Carolina courts when determining whether an individual qualifies for “public official immunity” in the context of litigation, but may also be instructive in determining when a position is a “public office” for purposes of the oath of office requirement.

Let’s examine how the role of the CHS director aligns with this three-part test:

1. The CHS director is a position created by statute (G.S. 153A-77(e)).
2. The CHS director clearly exercises a portion of the sovereign power, just like the DSS director and local health director. The CHS director arguably exercises a more substantial portion of the sovereign power than a traditional DSS director or local health director, given that the CHS director assumes almost all of the powers and duties of both The CHS director can delegate the powers of a local health director or a DSS director to different individuals within the CHSA, but that does not change the fact that the powers are vested in the CHS director and the ability to delegate (or revoke the delegation) of those powers resides with the CHS director. These are significant legal powers that will, in certain cases, involve the authority to make enforceable decisions regarding people’s liberty and property. In his blog post on this topic, Fleming Bell notes that having significant legal power to make enforceable decisions concerning people’s life, liberty, or property is a good indicator that a position is a “public office.”
3. The CHS director has tremendous discretion in how to exercise and delegate the director’s powers and duties. That discretion is somewhat limited by the fact that the county manager must consent to the CHS director’s hiring decisions, but that does not change the fact that the CHS director exercises significant discretion over important decisions and duties in all other aspects of the director’s role.

Looking at these factors together, it appears prudent for counties to treat the position of CHS director as a public office that is subject to the oath of office requirement.

Are DSS Directors or Health Directors Within a CHSA Public Officials?

As described above, a CHS director can choose to delegate some of the director’s powers and duties to staff members. In some counties, the CHS director was formerly a DSS director or local health director prior to agency consolidation and continues to retain that role after assuming leadership of the CHSA. In other counties, the CHSA director appoints both a DSS director and a public health director, who both report to the CHSA director and handle the day-to-day management of their respective divisions.

It is a bit trickier to determine whether an oath of office is required for these directors who work underneath the CHS director. The authority and discretion of these positions could theoretically be constrained by the CHS director in a way that it would not be constrained for a DSS director or a local public health director who run traditional (non-consolidated) county agencies. Moreover, the delegation of powers and duties to these directors may look different across different CHSAs. For example, a CHS director could choose to (i) fully delegate all powers and duties related to social services to a single person (the DSS director), (ii) retain some powers related to social services but delegate others, or (iii) delegate social services powers across multiple employees.

To the extent that a CHS director and county manager decide to have a DSS director and/or a public health director who exercise most or all of the statutory powers and duties of those respective positions, it would be sensible for those directors to also take the oath of office. While these positions in a CHSA context may look a bit different from traditional DSS director or local health director roles, arguably, these are still positions that are created by statute. The North Carolina Court of Appeals has stated that “a position is considered ‘created by statute’ when ‘the officer’s position has a clear statutory basis or the officer has been delegated a statutory duty by a person or organization created by statute’ or the Constitution.” Leonard v. Bell, 254 N.C. App. 694, 699, 803 S.E.2d 445, 449 (2017) (internal citations and quotation marks omitted).

In the CHSA context, the CHS director (a position created by statute) may delegate statutory social services duties to a DSS director and statutory public health duties to a public health director within the CHSA. These directors would then be exercising a portion of the sovereign power (similar, though not identical to, traditional DSS and local health directors) and in most cases would exercise substantial discretion in the use of that power. On balance, these factors all indicate that these directors within the CHSA would also be considered public officeholders.

What’s the Risk of Not Taking the Oath of Office?

If an official who is required to take the oath fails to do so, there can be serious consequences. It is a misdemeanor to enter upon the duties of a public office without first taking, subscribing, and filing “the oath of office prescribed.” G.S. 14-229. Additionally, an officeholder who fails to take the oath of office may incur a $500 penalty and ejectment from office.  G.S. 128-5.

Finally, whether or not an individual has taken an oath of office is a factor that is considered in determining whether that person qualifies for “public official immunity” in the event of a lawsuit. The oath is not a dispositive factor in the analysis. This means that taking the oath of office does not automatically provide a cloak of immunity to an individual who takes it, nor is taking the oath absolutely required for an individual to qualify for public official immunity. However, it is a factor that will weigh in favor of determining that public official immunity applies to a particular individual. See Baker v. Smith, 224 N.C. App. 423, 433, 737 S.E.2d 144, 151 (2012).