Can a Kentucky mayor or council member take the oath of office over video?

Plain-English summary

With many newly elected officials set to take office on January 1, 2021 during the COVID-19 public health emergency, the Kentucky League of Cities asked whether mayors and members of city legislative bodies could take their required oath of office by virtual means (such as a video call) rather than in person. Both the Kentucky Constitution (Section 228) and KRS 62.010 require certain officials to take an oath before entering office, but neither says how the oath must be administered.

The Attorney General concluded the oath may be administered either in person or virtually. The opinion's reasoning was straightforward: the statute is silent on the manner of administration, and the office is not free to add an in-person requirement the legislature did not include. The opinion drew an inference from a related statute: when the General Assembly wanted to require in-person administration, it said so expressly, as it did for notaries public in KRS 423.390(4). The absence of such language in KRS 62.010 suggested the opposite treatment. The opinion also pointed to the Kentucky Supreme Court's own recent practice, noting that Chief Justice Minton had been administered the oath virtually by Zoom and had in turn sworn in a newly elected Court of Appeals judge over the Supreme Court's YouTube channel.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Ky. Const. § 228 and KRS 62.010(2) require an oath of office, and KRS 62.020 sets out who may administer it and how certifications are filed or retained, with KRS 83A.180 allowing a mayor to administer the oath for any city officer. None of these provisions states whether the oath must be taken in person. Applying the principle that "the text is the law" (Owen v. University of Kentucky) and that the office is not at liberty to add or subtract statutory requirements (Beckham v. Bd. of Educ. of Jefferson Cty.; Gateway Construction Co. v. Wallbaum), the opinion concluded the silence permitted virtual administration. It reinforced that reading with the negative-implication canon from Fox v. Grayson, contrasting KRS 62.010 with KRS 423.390(4), which expressly requires notaries to appear in person. The opinion noted the Kentucky Supreme Court had recently administered oaths virtually during the pandemic.

Citations and references

Constitution and statutes:

• Ky. Const. § 228; KRS 62.010 (incl. (2)); KRS 62.020; KRS 83A.180; KRS 423.390(4)

Cases:

• Owen v. University of Kentucky, 486 S.W.3d 266 (Ky. 2016)
• Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575 (Ky. 1994)
• Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. App. 1962)
• Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-17.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 14, 2020
OAG 20-17
Subject: Whether mayors and members of city legislative bodies may take the oath of office required by KRS 62.010 by virtual means.
Requested by: Troy Rudder, Mayor of the City of London, President, Kentucky League of Cities; and J.D. Chaney, Executive Director, Kentucky League of Cities
Written by: Carmine G. Iaccarino, Heather L. Becker, Assistant Attorneys General
Syllabus: The oath of office required by KRS 62.010 may be administered in-person or by virtual means.

Opinion of the Attorney General

Many newly elected officials will take office on January 1, 2021, during a public health emergency. Both the Kentucky Constitution and KRS 62.010 require certain public officials to take the oath of office prior to entering office. See Ky. Const. § 228 (requiring the oath of office for all officers and attorneys); KRS 62.010(2) (requiring administration of the official oath to any "person elected to an office"). But no provision dictates whether the oath must be taken in person or through other means. For the reasons that follow, it is the Attorney General's opinion that the oath of office may be administered by virtual means.

KRS 62.020 contains specific provisions outlining who may administer the oath and the circumstances under which oath certifications must be filed or retained. See also KRS 83A.180 (providing that a mayor may administer oath for any city officer). Despite its many provisions, the text of KRS 62.010 does not expressly address how the oath may be administered—whether in-person or by virtual means. Of course, "[t]he text is the law." Owen v. University of Kentucky, 486 S.W.3d 266, 272 (Ky. 2016). But here, the text is silent. And this Office is "not at liberty to add or subtract" a requirement that the oath be administered only in person if not so stated in the statute. Cf. Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 577 (Ky. 1994) (citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. App. 1962).

Because the text does not prohibit it, the oath of office required by KRS 62.010, may be administered by virtual means. This conclusion is further bolstered by the fact that when the General Assembly omits a requirement in one place, but includes it in another, the omission enforces the "affirmative inference that that which is omitted must be intended to have opposite and contrary treatment." Fox v. Grayson, 317 S.W.3d 1, 9 (Ky. 2010). In KRS 423.390(4), the General Assembly requires that notaries public must "appear in person to take an oath of office . . . before the county clerk listed in the commission application." This suggests that if the General Assembly wanted to insist on in-person administration of the oath, it could have done so.

Finally, the Attorney General's conclusion is further bolstered by the Supreme Court of Kentucky's recent conduct in administering the oath of office. Specifically, Chief Justice Minton was administered the oath of office by virtual means when he was sworn into his fourth term as Chief Justice of the Supreme Court of Kentucky by Deputy Chief Justice Lisabeth T. Hughes using Zoom.[1] Similarly, Chief Justice Minton administered the oath of office by virtual means when he swore in newly-elected Court of Appeals Judge J. Christopher McNeill using the Supreme Court's YouTube channel.[2]

For all of these reasons, it is the Attorney General's opinion that the oath of office required by KRS 62.010 may be administered in-person or by virtual means.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Heather L. Becker
Assistant Attorneys General

[1] For posterity's sake, Zoom's 2019 SEC FORM 10-K describes it as a "video-first communications platform that delivers happiness and fundamentally changes how people interact. We connect people through frictionless video, phone, chat, and content sharing and enable face-to-face video experiences for thousands of people in a single meeting across disparate devices and locations." As the health pandemic continued through 2020, Zoom and similar options such as Microsoft Teams, Skype, WebEx, and others largely replaced in-person meetings in many facets of life and the workplace.
[2] See Bench and Bar Magazine, July/August 2020, at pp. 56, 58, available at https://tinyurl.com/ybs5lsah (last visited Dec. 14, 2020).