February 4, 1981 Courts; District Attorneys, Public Office; Oath of Office; Administrative and Investigatorial Assistants to the District Attorney. G.S. 7A-68; G.S. 7A-69.
Subject:
Requested By: Herbert F. Pierce Fifteen-A Prosecutorial District
Question: Are administrative and investigatorial assistants to the district attorney appointed pursuant to
G.S. 7A-68 and 7A-69 required to take an oath of office as public officials?
Conclusion: No, unless the district attorney assigns such duties the performance of which would involve the exercise of sovereign authority of the State.
The North Carolina Supreme Court has defined public officer as one charged with duties involving the exercise of some portion of the sovereign power of the State. See: Sansom v. Johnson, 39 N.C. App. 682; Strong’s N.C. Index 3d, Public Officers, Section 1.
In State v. Hord, 264 N.C. at 155, our Supreme Court stated: "It is not the method by which a policeman becomes a member of the police force of a municipality that determines his status but the nature and extent of his duties and responsibilities with which he is charged under the law."
Neither G.S. 7A-68 nor G.S. 7A-69 appears to convey any specific duties involving the sovereign power of the State. The administrative assistant clearly has the duty to assist the District Attorney in preparing cases for trial and in expediting the criminal court docket. The assistant need not be an attorney. He is required to assist in such other duties as the District Attorney may assign. Clearly the statute contemplates administrative duties different from those of the assistant district attorneys authorized in G.S. 7A-63. The statute does not refer to an office or an oath of office. Thus, apparently the legislature did not intend to create a public office in either G.S. 7A-68 or
G.S. 69.
However, if the District Attorney should assign duties of his office to the administrative assistant or the investigatorial assistant which involve the exercise by these assistants of some of the sovereign authority of the State, then the oath would be required. Article VI, Sec. 7, North Carolina Constitution; G.S. 128-5; See: State v. Smith, 145 N.C. 477.
Rufus L. Edmisten Attorney General
James F. Bullock Senior Deputy Attorney General