Do appointees to the Arkansas Judicial Ethics Advisory Committee have to take the constitutional oath of office before they start serving?

Plain-English summary

The Judicial Discipline & Disability Commission asked AG Leslie Rutledge whether members of the Judicial Ethics Advisory Committee, the body that issues advisory opinions on the Arkansas Code of Judicial Conduct, were required to take the constitutional oath of office before beginning service. The AG's answer was no.

Article 19, § 20 of the Arkansas Constitution requires "all officers" to take an oath before entering on the duties of their office. The threshold question is whether a particular position is a "public officer" or just public employment. Arkansas case law had not drawn a precise line, but the Arkansas Supreme Court treated investment of "sovereign powers" as the most important indicator of public office, and treated advisory bodies whose work is non-binding as something else.

The Ethics Advisory Committee failed both tests. Its members did not act on behalf of a constitutional officer, did not administer state funds, did not enter contracts on the State's behalf, and did not receive a formal commission or post a bond. Their work product was, by rule, "advisory in nature only" and not "binding on the Judicial Discipline & Disability Commission or the Supreme Court." Because no statute mandated an oath for Committee members and they were not constitutional officers, the AG concluded no oath was required.

Currency note

This opinion was issued in 2017. 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.

Historical context: the public-officer test in Arkansas

Arkansas courts had long resisted a single rule for distinguishing officers from employees. Martindale v. Honey (1976) collected the relevant indicia: investment of sovereign authority, fixed tenure, fixed compensation, fixed duties, formal commission, and the giving of a bond. No single factor was conclusive. Maddox v. State (1952) had earlier described public office in terms of the "sovereign powers" required to perform the duty, while public employment was defined principally by the "contract of hire."

By the time of this opinion, sovereign power had become "one of the more important, if not the most important, criteria of public office" (Martindale, quoting earlier authority). State Board of Workforce Education v. King (1999) read sovereign power as "the authority of the State to act," and added that an officer's duties "usually are not advisory, but rather [are] that of a direct decision-maker." Positions that had been categorized as public offices included deputy prosecuting attorneys, members of the Board of Workforce Education, members of the Capitol Arts and Grounds Commission, and chairs of county boards of election commissioners.

Common questions

What is the Judicial Ethics Advisory Committee?

The Committee was created by rule of the Judicial Discipline & Disability Commission to give advisory opinions to elected officials, judicial officers, and candidates for judicial office about whether an "intended, future course of conduct" would comply with the Arkansas Code of Judicial Conduct. Committee membership consisted of up to two retired justices or judges and one member of the Arkansas Bar who had never been a publicly elected judicial officer. By rule, no individual could serve simultaneously on the Committee and on the Commission.

Why does the sovereign-power test matter?

Because Article 19, § 20's oath requirement is keyed to "officers." If a position does not exercise the State's sovereign authority and is not making binding decisions on behalf of the State, Arkansas courts have generally treated it as employment rather than office. That distinction also matters under Arkansas's Freedom of Information Act, which contrasts a "governing body" with a "purely advisory body that does not include members of the larger governing body to which it reports" (citing Op. Att'y Gen. 2003-170).

What about Commission members? Do they take the oath?

The AG's earlier Op. Att'y Gen. 2017-015 had addressed the Commission itself, which sits in a different posture. The Commission has authority to act, not just advise. Committee members, by contrast, are confined to addressing intended future conduct and cannot analyze past conduct or pure questions of law. The structural separation between the two bodies (no overlapping membership) reinforced the conclusion that Committee appointees do not themselves qualify as office holders.

Could the legislature change this?

Yes. Some statutory regimes already require oaths from positions the constitution would not. Ark. Code Ann. § 15-71-102(c) requires Oil and Gas Commission members to "qualify by taking an oath of office." If the General Assembly enacted a similar provision for the Ethics Advisory Committee, that statute, not Article 19 § 20, would govern. As of the opinion's issuance, no such statute existed for the Committee.

Citations

• Ark. Const. art. 19, § 20 (oath of office)
• Ark. Code Ann. § 15-71-102(c) (Oil and Gas Commission oath, by way of contrast)
• Ark. Code Ann. § 16-10-401 et seq. (Judicial Discipline and Disability Commission)
• Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976) (multi-factor public-officer test)
• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (sovereign power as a necessary feature)
• State Bd. of Workforce Educ. & Career Opportunities v. King, 336 Ark. 409, 985 S.W.2d 731 (1999) (advisory vs. decision-making role)
• Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607 (1954)
• Middleton v. Miller County, 134 Ark. 514, 204 S.W. 421 (1918)
• Op. Att'y Gen. 2017-015 (Judicial Discipline and Disability Commission oath)
• Op. Att'y Gen. 2011-034 (county election commission chair likely a public officer)
• Op. Att'y Gen. 2003-170 (FOIA's distinction between governing and advisory bodies)
• Op. Att'y Gen. 2003-138 (legislator's MLK Commission post not a civil office)

Source

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

Original opinion text

Opinion No. 2017-044
May 22, 2017

The Honorable Joyce W. Warren, Chair
Judicial Discipline & Disability Commission
323 Center Street, Suite 1060
Little Rock, AR 72201

Dear Judge Warren:

I am writing to provide an opinion as to whether members of the Judicial Ethics Advisory Committee are "public officers" who must take an oath of office. The current opinion request refers to Op. Att'y Gen. 2017-015, which addressed the necessity of administering oaths to members of the Judicial Discipline and Disability Commission. Marie-Bernarde Miller, on behalf of the Commission, asks if appointees to the Ethics Advisory Committee are likewise constitutionally required to take oaths of office at the time their service commences.

RESPONSE

Appointees to the Ethics Advisory Committee need not take oaths of office, in my opinion, because Committee members are not "public officers" subject to Ark. Const. art. 19, § 20. The Arkansas Supreme Court applies a multi-factored test to evaluate whether an individual is a public officer. This task tends to be fact-dependent, and the Court has "refrained from framing an inflexible definition or drawing a precise line" with respect to which positions qualify as public offices. However, a public officer invariably "exercises some part of the State's sovereign power." And an officer's duties usually are not "advisory, but rather [are] that of a direct decision-maker." The rules establishing the Ethics Advisory Committee and those governing its procedures demonstrate (1) that members of the Committee are not granted sovereign authority during their terms of service, and (2) that members provide non-binding guidance to certain members of the bench and bar. For these and the reasons discussed below, I do not believe members of the Ethics Advisory Committee are public officers. Therefore, in my opinion, Committee appointees are not required to take the oath of office set out in Ark. Const. art. 19, § 20.

DISCUSSION

Question 1: Under Ark. Const. art. 19, § 20, are members of the Judicial Ethics Advisory Committee "public officers" who must take the oath of office at the time their service commences?

Ark. Const. art. 19, § 20 obligates "judicial and executive, State and county officers, and all other officers, ... before entering on the duties of their respective offices, [to] take and subscribe to" the oath of office. Public servants may also be required to take an oath by statute, but members of the Judicial Discipline and Disability Commission have no such statutory duty. Neither does Arkansas statute require an oath from members of the Judicial Ethics Advisory Committee. As a result, the need for appointees to the Ethics Advisory Committee to take an oath would arise, if at all, solely from the Constitution.

The constitutional oath requirement presupposes that individuals are "officers," a designation that itself depends on the nature of the appointed or elected position. Essentially, Arkansas law contrasts public office with public employment. The former includes "sovereign powers [as] a necessary requisite," whereas the latter is defined primarily by the "contract[] of hire." In addition to exercising the sovereign power of the State, a public officer's "tenure of office, his compensation, and his duties are usually fixed by law." Other properties tipping the balance toward public office are "receipt of a formal commission and the giving of a bond" in connection with assuming the duties of the position. "[N]o single factor is ever conclusive" when determining whether a position qualifies as a public office, but public employment is notable "in that some or all of these characteristics are lacking."

Litigation concerning the officer/employee distinction has cemented sovereign power as a characteristic of public office. The Arkansas Supreme Court stated that "investment of sovereign powers in the incumbent is one of the more important, if not the most important, criteria of public office." Indeed, the Court has adopted a definition of "civil office" as "a grant and possession of the sovereign power." Positions that "regularly exercise some of the State's sovereign power" are therefore considered public offices: among them deputy prosecuting attorneys, members of the Board of Workforce Education, and members of the Capitol Arts and Grounds Commission.

Case law has also recognized that public officers are imbued with decision-making power, not simply the ability to advise. In holding that the Capitol Arts and Grounds Commission was a body of public officers, for example, the Court "d[id] not see the commission's function as being merely advisory, but rather that of a direct decision-maker with enormous influence over the physical plant of the Capitol Building and its grounds as well as future expansion." Prior Attorney General opinions echo this reasoning, and distinguish public office from public employment in terms of the power to issue binding decisions. Thus, the chair of a county board of election commissioners was likely a public officer because he "exercise[d] decision-making authority, at the very least in determining when Board meetings will be held."

Applying these criteria, I believe individuals appointed to the Judicial Ethics Advisory Committee are akin to public employees with no constitutional duty to take oaths of office prior to beginning their terms of service. Members of the Committee do not, most importantly, appear to exercise any aspect of the State's sovereign power. Committee members are not authorized to act on behalf of a constitutional officer, or as deputies for a public official; they cannot administer the State's funds, nor can they enter into contracts on the State's behalf. Rather, the Committee was formed in order to provide guidance to "elected officials, judicial officers and candidates for judicial office seeking opinions concerning the compliance of an intended, future course of conduct with the Arkansas Code of Judicial Conduct." And in addition to lacking attributes of sovereign authority, members of the Committee do not receive a formal commission or give a bond in connection with their appointment. These traits are inconsistent with those that the Arkansas Supreme Court has recognized in public officials subject to the oath-taking requirement.

Moreover, it is self-evident that the Committee is an advisory body without authority to make final decisions. Committee members are confined to addressing "intended, future course[s] of conduct" in response to opinion requests; the opinions rendered must not analyze "issues of law nor ... the ethical propriety of past or present conduct." And though compliance is evidence of a good-faith attempt to follow the Arkansas Code of Judicial Conduct, the Committee's opinions are expressly "advisory in nature only," and not "binding on the Judicial Discipline & Disability Commission or the Supreme Court."

Finally, I note that membership on the Committee and the Judicial Discipline and Disability Commission does not overlap; no individual "shall serve simultaneously on the Judicial Ethics Advisory Committee and the Judicial Discipline & Disability Commission." Given that members of the Commission are undoubtedly public officers, the fact that the Commission and Committee have separate membership bolsters the conclusion that Committee appointees do not themselves qualify as office holders. Instead, the Committee is an "advisory body that does not include members of the larger governing body to which it reports."

Because members of the Judicial Ethics Advisory Committee are not "officers" under Ark. Const. art. 19, § 20, Committee appointees are not constitutionally obligated to take oaths of office. The Judicial Ethics Advisory Committee does not exercise the State's sovereign power; it issues non-binding opinions about future courses of conduct. For these reasons (and since there is no statute mandating an oath for Committee members), I believe that appointees to the Committee are not required to take oaths of office at the time their service commences.

Sincerely,
LESLIE RUTLEDGE
Attorney General