Taking the Oath of Office During a Pandemic
This time of year, MRSC typically runs a series of post-election blog posts including Post-Election Odds and Ends; Bonds, Oaths and Taking Office (2017) and The Oath of Office for Local Elected Officials (2019). As this is not a typical year, we must consider how the pandemic prevents us from going about our normal business and how we can still accomplish what is necessary so local governments can continue to serve their constituents.
The COVID-19 pandemic has forced us to creatively rethink how we live, work, and play. It has drastically altered how we observe holidays and ceremonial events. Post-election, we must add another event that has both legal and ceremonial aspects — the taking of the oath of office.
RCW 29A.04.133 requires that before the winner of an election or an appointee to a vacancy can take office, they must take and subscribe an oath or affirmation:
that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefor.
Many local elected officials take their oath and complete the necessary paperwork at the last regularly scheduled meeting of the ending term of the body or at the first regularly scheduled meeting of the new term of the body, although the statute does allow the oath to be taken up to 10 days before the start of the term. RCW 29A.60.280(3).
Questions to Consider
Below are some issues to consider when deciding how to administer the oath of office in light of the pandemic.
How should local governing bodies administer and certify the oath if they are not meeting in person due to the pandemic?
One option is to separate the legal aspects of the oath of office from the ceremonial aspects. Legally, there is no requirement that the oath be administered orally or with any additional witnesses, but it does need to be in writing so it can be subscribed and certified. For elected officials in cities, towns, and counties, the oath must be filed with the county auditor. Oaths of office for special purposes districts should be kept in the official records of the district.
Can the oath be legally administered and certified fully remote?
Technically, RCW 29A.04.133 does not explicitly state that the oath must be taken in the physical presence of another person. Other statutes and court rules refer to oaths and sworn testimony being performed “before a person authorized to administer oaths.” See, for example RCW 46.20.091(2) and Wa. CR 28. There is also a new statute for remote electronic records notary public that does not appear to apply to the administration of oaths. RCW 42.45.280. All of these imply that the oath is being taken in the physical presence of another person, but there is no such language in RCW 29A.04.133.
This creates the possibility that the oath can be administered via phone or video conference. At most RCW 29A.04.133 requires the oath taker to “subscribe” an oath and the oath administrator to “certify” the oath. The dictionary definition of “subscribe” includes to “append one’s signature” and the definition of “certify” includes “to vouch for in writing.” This creates an expectation that both parties will eventually sign the document that gets filed. But if the oath administrator is comfortable “vouching” for the fact that the oath was subscribed to by the person taking it even if the administrator “certifies” the written oath at a later date, this may meet the requirements of the statute.
I think it noteworthy that Governor Jay Inslee and the Chief Justice of the Washington Supreme Court have taken action in response to the pandemic to suspend the explicit physical presence requirement for the administration of oaths in RCW 46.20.091 and in court rules, but have not found it necessary to take action as regards oaths of office — implying that there is no such physical requirement needing to be suspended.
Local rules may require the oath to be taken in the physical presence of the person administering it and, of course, your agency attorney should sign-off on whether a fully remote administration of the oath is acceptable.
Can the oath be administered in-person and still comply with COVID-19 prohibitions and safety precautions?
Because taking the oath is a legal prerequisite to taking office, I would argue that administering the oath is an essential activity of the government, and so, it is exempt from any gathering restrictions imposed by the governor or a health official. Therefore, there should be no prohibition on the oath taker briefly meeting with the oath administrator so long as appropriate precautions are followed, such as wearing masks, meeting out of doors if possible, meeting for less than 10 minutes, not sharing pens, using hand sanitizer for any exchange of documents, and maintaining social distancing. RCW 29A.60.280(3) allows officials to take the oath up to 10 days prior to the start of the term, so this should give folks time to schedule the brief meeting to get the legal paperwork out of the way. Given the increasing spread of the coronavirus, both parties should carefully weigh the risks of physically meeting and neither should be forced to physically meet if they are not comfortable doing so.
What about a ceremonial oath?
I fully support trying to find ways to mark important milestones and formally taking office is certainly one that should be celebrated. Taking the oath of office should have more weight to it than simply completing paperwork. In these times, this may mean conducting a ceremonial swearing-in at the first meeting of the year, even if it is fully remote. Since there is no limitation on who conducts a ceremonial oath (as opposed to the legal oath), someone special can be selected to perform the oath. And perhaps when in-person meetings can occur again, the entire body can ceremonially “renew” their oaths as their first official in-person act as a body.
If your jurisdiction has found a creative way to administer the legal oath and also celebrate the ceremonial act, please share it with me at firstname.lastname@example.org.
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