Elected officials and municipal management staff are sometimes surprised to learn that an oath of office is required not only for elected officials and police officers but also for all "municipal officers."
I do solemnly swear (or affirm) that I am duly qualified, according to the constitution of this state, to exercise the duties of the office to which I have been elected (appointed), and that I will, to the best of my ability, discharge the duties thereof, and preserve, protect, and defend the constitution of this state and of the United States. So help me God.
The South Carolina Constitution reads, "…officers of the State and its political subdivisions, before entering upon the duties of their respective offices, shall take and subscribe the oath of office as prescribed in Section 5…" of Article VI of the constitution, which is listed below.
In addition to the oath prescribed by the constitution, mayors and councilmembers must take a second oath of office (Section 5-15-150):
As mayor (councilmember) of the municipality of _____________, I will equally, fairly, and impartially, to the best of my ability and skill, exercise the trust reposed in me, and I will use my best endeavors to preserve the peace and carry into effect according to law the purposes for which I have been elected. So help me God.
But administering an oath may get complicated because the language in the constitution, "take and subscribe the oath of office," fails to provide clear guidance on the procedure to administer an oath.
The Municipal Association recommends that a judge or notary public read the oath in the presence of the official taking the oath. The municipal official should verbally acknowledge acceptance of the oath and sign and date a written copy of it. The signed oath should be notarized and filed as a permanent record of the municipality.
Requiring an official to repeat the oath or conducting the swearing in at a public meeting or a ceremony may be part of an optional practice, but it is not required unless directed by local ordinance or rules of procedure.
Another point of confusion may arise from the question of who should take an oath. The term "municipal officers" includes elected officials in addition to a number of non-elected officials. South Carolina courts and attorney general opinions rely on the following criteria to determine the existence of a public office:
- the position is created by statute or ordinance;
- the position’s duties involve some portion of the exercise of the state’s sovereign power, including the exercise of discretionary powers; and
- the position and the duties associated with it are of an ongoing, continuing nature and not occasional or intermittent.
A public office may exist if these elements are present. If not, the position should be considered one of public employment. Positions previously determined to be public offices include mayor or councilmember,
This list may not be all-inclusive for all munipalities.
Newly elected officials and board or commission members should take the required oath or oaths before performing any official duties. For other municipal officers, the oath should be administered on or before their first day of employment. Failing to administer an oath to a municipal official could result in the invalidation of actions they have taken. If in doubt as to whether a position is an officer or an employee, it is always better to err on the side of caution and administer an oath.