There have been some requests to have a frequently asked questions page on the web site. If you have a question that you would like addressed please email us below and we will try to respond in a timely manner. The question and answer will be posted on this page for future reference for MASBO members.
1. Are Clerks Required to Take an Oath of office?
From Lynda Brannon:
I am amazed! Just thought you might want to know all the responses. Lance Melton's response is at the bottom of everyone else's. For those of you new to this message, the original question was if a clerk has to take an oath of office. (original message at the bottom of this e-mail). I put the question out to 6 clerks and below are five of the responses!
a. Each year I get a "Certificate of Appointment" This form is so old it sites Sections 59-412,413,418, 4705, Revised Codes of Montana, 1947. Then there is an "Oath of Office" at the end that I sign and the County Supt. witnesses. (Glendive)
b. According to my County Superintendent, we no longer have to do the oath thing - but...... I haven't done an oath for probably 6 years (Harlowton)
c. The clerk at the Helena District has taken an oath of office for as long as we have records. I believe an oath is required.
d. Hey, if they do, I haven't. But I will still do my very best! (Hardin)
e. I say, "No." I checked with the county attorney - but in my opinion, and I'll let you know if the CA agrees with me - the district clerk is NOT a public office. They are a direct EMPLOYEE of the board of trustees. (Twin Bridges)
After all this, I requested a legal opinion from Lance Melton. It reads: "The Clerk is appointed, but not to a public office. Public office is specifically defined in the recall provisions under law as follows:
2-16-602. Definitions. As used in this part, the following definitions apply:
. . . . .
(2) "Public office" means a position of duty, trust, or authority created by the constitution or by the legislature or by a political subdivision through authority conferred by the constitution or the legislature that meets the following criteria:
(a) the position must possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public;
(b) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the constitution, the legislature, or by a political subdivision through legislative authority;
(c) the duties must be performed independently and without control of a superior power other than the law, unless the legislature has created the position and placed it under the general control of a superior office or body; and
(d) the position must have some permanency and continuity and not be only temporary or occasional.
The clerk fails to meet a number of the qualifications above, so the oath is unnecessary in my opinion. That opinion is further bolstered by an attorney general's opinion that previously held that a superintendent does not hold "public office." See, 42 A.G. Op. 50 (1988). If a superintendent, as chief administrative officer with substantial autonomy, does not meet the qualifications, the clerk does not meet them either.
