Operation Oath
Check here (104th vote) to see the Representaives that violated their Oath of Office. Each one should be removed from office for Perjury, (Title 18 U.S.C. §1621).
UNDERSTANDING THE OATH OF OFFICE
Understanding the law(s) and the requirements on the “Oath of Office”. A.k.a; the Office of Public Trust. Why it is important that we understand the required “Oath” and hold those accountable that will infringe on any of the “Bill of Rights”.
All governmental officers, Federal and State officers are only official when they are acting under Art. 6 Sec. 3 of the Constitution for the United States of Amercia.
All official Federal governmental officers are acting under color of law and color of office if they hold an office under 5 U.S.C. Sec. 3331.
Sec. 3331. Oath of office
Statute
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ''I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.'' This section does not affect other oaths required by Law.
After taking the required oath, before they enter upon the duties of their respective offices, that person is now an official (federal government). The same person that has taken the required oath is now acting under Color of Law and Color of Office.
United States Code
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 93 - PUBLIC OFFICERS AND EMPLOYEES
No Judge Oath - Judge's Decision Void
http://www.northcountrygazette.org/articles/050706VoidDecision.html
Section 1918. Disloyalty and asserting the right to strike against the Government
Whoever violates the provision of section 7311 of title 5 that an
individual may not accept or hold a position in the Government of
the United States or the government of the District of Columbia if
he -
(1) advocates the overthrow of our constitutional form of
government;
(2) is a member of an organization that he knows advocates the
overthrow of our constitutional form of government;
(3) participates in a strike, or asserts the right to strike,
against the Government of the United States or the government of
the District of Columbia; or
(4) is a member of an organization of employees of the
Government of the United States or of individuals employed by the
government of the District of Columbia that he knows asserts the
right to strike against the Government of the United States or
the government of the District of Columbia;
shall be fined under this title or imprisoned not more than one
year and a day, or both.
Check your States Constitution and Laws on the Oath of Office
In the State of NEVADA:
All governmental officers: State, City and County are only official when they are acting under THE CONSTITUTION OF THE STATE OF NEVADA: ARTICLE. 15. Sec 2.
State of Constitution for the Nevada: ARTICLE. 15. Miscellaneous Provisions. Sec 2. Oath of office.
All NEVADA officials are acting under color of law and color of office if they hold an office under The Nevada Revised Statute (NRS) 282.020.
Oath of office. Members of the legislature, and all officers, executive, judicial and ministerial, shall, before they enter upon the duties of their respective offices, take and subscribe to the following oath:
I, ................, do solemnly [solemnly] swear (or affirm) that I will support, protect and defend the constitution and government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding, and that I will well and faithfully perform all the duties of the office of ................, on which I am about to enter; (if an oath) so help me God; (if an affirmation) under the pains and penalties of perjury.
STATUE
NRS 282.020 Form of official oath. Members of the legislature and all officers, executive, judicial and ministerial, shall, before they enter upon the duties of their respective, offices, take and subscribe to the following oath:
I, ........, do solemnly swear (or affirm) that I will support, protect and defend the Constitution and Government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding, and that I will well and faithfully perform all the duties of the office of ........., on which I am about to enter; (if an oath) so help me God: (if an affirmation) under the [pains and penalties of perjury.
NRS 282.010 Oaths and official bonds of officers; when term of office begins.
NRS 282.040 Form. All official bonds required by law of officers shall be:
NRS 282.050 Bond in force during term of office: effect of subsequent law: conditions.
NRS 282.060 Bond for benefit of injured or aggrieved person; action on bond without assignment. (See NEVADA CASES). State bond trust fund act waived sovereign immuntity, constsented to suit upon offical bond. Hill v. Thomas, 70 Nev. 389, 270 P.2d 179 (1954), cited, Hardgrave v. State, 80 Nev. 74, at 76, dissenting opion at 82, 389 P.2d 249 (1964), Wilmurth v. First Judicial Dist. Court, 80 Nev. 337, 393 P.2 302 (1964)
In suites against state officers. 42 U.S.C. Sec. 1983; In suits against federal officers.
CHECK YOUR STATE CONSTITUTION.
Color of law
Color of law refers to an appearance of legal power to act but which is actually in violation. For example, a police officer who mistakenly arrests another without probable cause may have been acting under the color of law.
42 U.S.C. Section 1983. Civil action for deprivation of rights:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Title 42, United States Code, Sec. 1983 (History: R.S. Sec. 1979 derived from act Apr. 20, 1871, ch. 22, Sec. 1, 17 Stat. 13. "An Act to Enforce the Provisions of the Fourteenth Amendment."
42 U.S.C. Section 1985. Conspiracy to interfere with civil rights:
(1) Preventing officer performing duties If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;
(2) Obstructing justice; intimidating party, witness, or juror If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Title 42, United States Code, Sec. 1985. [History: R.S. Sec. 1980 derived from acts July 31, 1861, ch. 33, 12 Stat. 284; Apr. 20, 1871, ch. 22, Sec. 2, 17 Stat. 13 "An Act to Enforce the Provisions of the Fourteenth Amendment." Section was formerly classified to section 47 of Title 8, Aliens and Nationality.]
This statute, enacted to aid in "'the preservation of human liberty and human rights'" Owen v. City of Independence, 445 US 622, 636 (1980), reflects a congressional judgment that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees." As remedial legislation, [the Act to Enforce the Provisions of the Fourteenth Amendment] is to be construed generously to further its primary purpose.
Gomez v. Toledo, 446 US 635 (1980).
U.S.C. Title 18 Sec. 241 - 242.
"Whoever, under color of any law, ... willfully subjects any person ... to the deprivation of any rights ... protected by the Constitution or laws of the United States ... shall be fined ... or imprisoned not more than one year, or both."
Color of office
Color of office refers to an act usually committed by a public official under the appearance of authority, but which exceeds such authority. An act committed under color of office is sometimes required to prove malfeasance in office.
Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted no, to do.
Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).
An official (from the Latin Officialis, person - or object - related to an officium, v., since the Romans the staff of a high office bearer such as a governor) is, in the primary sense, someone who holds an office (i.e. function, mandate, regardless whether it carries a working space with it) in an organisation, of any kind, but participating in the exercise of authority (either his own or that of his superior and/or employer, public or legally private). An elected official is a person who is an official by virtue of an election; officials may also be appointed, ex officio (i.e. by virtue of another office, often in a specified capacity, such as presiding, advisory, secretary), cooptated, or sometimes hereditary.
Malice (legal term)
Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Express malice occurs when a party gives notice of the intention to commit a crime. Implied malice occurs when, in the course of nefarious or unlawful doings, a party causes the death of another party or does harm to another. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case.
In many kinds of cases, malice must be found to exist in order to convict (for example malice aforethought is an element of the crime of murder in many jurisdictions). In civil law cases, a finding of malice allows for the award of greater damages, or for punitive damages. The legal concept of malice is most common in Anglo-American law, and in legal systems derived from the English common law system.
In English civil law (being the law of England and Wales), relevant case law in negligence and misfeasance in a public office includes Dunlop v. Woollahra Municipal Council [1982] A.C. 158; Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; Jones v Swansea City Council [1990] 1 WLR 1453; Three Rivers District Council and Others v Governor and Company of The Bank of England [2000][1] and Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] 2 QB 335 in which Steyn LJ. found that malice could be made out if the acts were done with an actual intention to cause injury. Malice could be shown if the acts were done in the knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause injury. Malice would also exist if the acts were done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. These elements, with respect, are consistent with the views of the majority albeit that some of those views were expressed tentatively having regard to the basis upon which the case before them was presented.
In English criminal law on mens rea (Latin for "guilty mind"}, R v. Cunningham (1957) 2 AER 412 was the pivotal case in establishing both that the test for "maliciously" was subjective rather than objective, and that malice was inevitably linked to recklessness. In that case, a man released gas from the mains into adjoining houses while attempting to steal money from the pay-meter:
In any statutory definition of a crime, malice must be taken ... as requiring either:
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
Lord Diplock confirmed the relationship to recklessness in R v Mowatt (1968) 1 QB 421:
In the offence under section 20 Offences Against The Person Act 1861, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person … It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.
In the United States, the Malice Standard was set in the Supreme Court case of New York Times Co. v. Sullivan, allowing free reporting of the civil liberties campaign. The Malice Standard decides whether press reports can be considered defamation or libel.
Treason
For other uses, see Treason (disambiguation).
"Traitor" redirects here. For other uses, see Traitor (disambiguation)
In law, treason is the crime of disloyalty to one's nation or state. A person who betrays the nation of their citizenship and/or reneges on an oath of loyalty and in some way willfully cooperates with an enemy, is considered to be a traitor. Oran's Dictionary of the Law (1983) defines treason as: "...[a]...citizen's actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation]." In many nations, it is also often considered treason to attempt or conspire to overthrow the government, even if no foreign country is aided or involved by such an endeavour.
Traitor may also mean a person who betrays (or is accused of betraying) their own political party, family, friends, ethnic group, religion, social class, or other group to which they may belong. Often, such accusations are controversial and disputed, as the person may not identify with the group of which they are a member, or may otherwise disagree with the group leaders making the charge. See, for example, race traitor.
Infringed / Infringement
A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract or right.
Bill of Rights
n. the first ten amendments to the federal Constitution demanded by several states in return for ratifying the Constitution, since the failure to protect these rights was a glaring omission in the Constitution as adopted in convention in 1787. Adopted and ratified in 1791, the Bill of Rights are: First: Prohibits laws establishing a religion (separation of church and state), and bans laws which would restrict freedom of religion, speech, press (now interpreted as covering all media), right to peaceably assemble and petition the government. Second: A "well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed."
EXPOSING THE TRUTH
Oath of Office
(Read Marbury v. Madison)
To Be (loyal) or not to Be (loyal)
That is the real question
We may be amateur historians, legal professors on Constitutional law, nevertheless, it makes us upset to see our government of today undermining and being disloyal to the Authors principals and intent to an central Government. All Federal and State officers swear to "support and defend the Constitution of the United states." The promise to adhere to the Constitution means to adhere to that and nothing else besides! Divided and diluted patriotism is NOT what the Authors had in mind when they prescribed the basic Oath of Office. (US Constitution., Article VI. Sec. 3. REQUIREMENT). An American public servant who trespasses outside the bounds of his/her Oath of Office is being adulterous toward their country. A restrictive activist is loyal and guards with jealous by its very nature. No one can serve two masters or be true to more the one wife. Federalist
Number 10, a thumbnail matter of this:
“The diversity in the faculties of men, form which the rights of property originates, is not less an insuperable obstacle to the uniformity of interests. The protection of these faculties is the first object of Government”. (Are required to protect and defend the Bill of Rights)
And how falsely they have been in their Oaths of Office to “support and defend the Constitution”! and The Bill of Rights. They have betrayed, mistrust and it is disloyalty. It is crime of perjury, and perjury is a statute by law. Read for yourself:
(U.S. Constitution., Article VI. Sec. 3., Oath Of Office REQUIREMENT)
The Senators and Representatives before mentioned, and Members of the several State Legislatures, and all executive and judicial officers, both of the United States, shall be bound by Oath of Affirmation, to support this constitution.
TITLE 2
CHAPTER 2
Sec. 23. Presiding officer of Senate may administer oaths
STATUTE
The presiding officer, for the time being, of the Senate of the United States, shall have power to administer all oaths and affirmations that are or may be required by the Constitution, or by law, to be taken by any Senator, officer of the Senate, witness, or other person, in respect to any matter within the jurisdiction of the Senate.
2 USC Sec. 25
TITLE 2
CHAPTER 2
Sec. 25. Oath of Speaker, Members, and Delegates
STATUTE
At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any Member of the House of Representatives to the Speaker; and by the Speaker to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; and to the Members and Delegates who afterward appear, previous to their taking their seats.
The Clerk of the House of Representatives of the Eightieth and each succeeding Congress shall cause the oath of office to be printed, furnishing two copies to each Member and Delegate who has taken the oath of office in accordance with law, which shall be subscribed in person by the Member or Delegate, who shall thereupon deliver them to the Clerk, one to be filed in the records of the House of Representatives, and the other to be recorded in the Journal of the House and in the Congressional Record; and such signed copies, or certified copies thereof, or of either of such records thereof, shall be admissible in evidence in any court of the United States, and shall be held conclusive proof of the fact that the signer duly took the oath of office in accordance with law.
2 USC Sec. 35
TITLE 2
CHAPTER 3
Sec. 35. Salaries payable monthly after taking oath
STATUTE
Each Member and Delegate, after he has taken and subscribed the required oath, is entitled to receive his salary at the end of each month. (Question; is this the only reason they take this "oath"?)
4 USC Sec. 101
TITLE 4
CHAPTER 4
Sec. 101. Oath by members of legislatures and officers
STATUTE
Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: 'I, A B, do solemnly swear that I will support the Constitution of the United States.'
5 USC Sec. 2903
TITLE 5
PART III
Subpart A
CHAPTER 29
SUBCHAPTER I
Sec. 2903. Oath; authority to administer
-STATUTE-
(a) The oath of office required by section 3331 of this title may be administered by an individual authorized by the laws of the United States or local law to administer oaths in the State, District, or territory or possession of the United States where the oath is administered.
(b) An employee of an Executive agency designated in writing by the head of the Executive agency, or the Secretary of a military department with respect to an employee of his department, may administer -
(1) the oath of office required by section 3331 of this title, incident to entrance into the executive branch; or
(2) any other oath required by law in connection with employment in the executive branch.
(c) An oath authorized or required under the laws of the United States may be administered by -
(1) the Vice President; or
(2) an individual authorized by local law to administer oaths in the State, District, or territory or possession of the United
States where the oath is administered.
*[71 U.S. 333, 334] ON the 2d of July, 1862, Congress, by 'An act to prescribe an oath of office, and for other purposes,'1 enacted:
'That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:
Prescribed oath of July, 1862. During the War between the States
* "I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to [71 U.S. 333, 335] persons engaged in armed hostility thereto; that I have neither sought nor accepted, not attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution with the United States, hostile or inimical thereto.* And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;'
'Any person who shall falsely take the said oath shall be guilty of perjury; and, on conviction, in addition to the penalties now prescribed for that offense, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.'
* Footnote, no longer prescribed in today's oath. This was the fully prescribed oath of July, 1862. See 5 U.S.C. Sec. 3331
5 U.S.C. Sec. 3331 01/06/97
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III - EMPLOYEES
Subpart B - Employment and Retention
CHAPTER 33 - EXAMINATION, SELECTION, AND PLACEMENT
SUBCHAPTER II - OATH OF OFFICE
Sec. 3331. Oath of office
Statute
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ''I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.'' This section does not affect other oaths required by law.
'Any person who shall falsely take the said oath shall be guilty of perjury; and, on conviction, in addition to the penalties now prescribed for that offense, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.'
18 U.S.C. Sec. 1621 01/26/98
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 79 - PERJURY
Sec. 1621. Perjury generally
Whoever -
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
http://en.wikipedia.org/wiki/Oath_of_office
5 U.S.C. Sec. 8312 01/26/98
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III - EMPLOYEES
Subpart G - Insurance and Annuities
CHAPTER 83 - RETIREMENT
SUBCHAPTER II - FORFEITURE OF ANNUITIES AND RETIRED PAY
Sec. 8312. Conviction of certain offenses
-STATUTE-
(a) An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311(2) and (3) of this title, if the individual -
(1) was convicted, before, on, or after September 1, 1954, of an offense named by subsection (b) of this section, to the extent provided by that subsection; or (2) was convicted, before, on, or after September 26, 1961, of an offense named by subsection (c) of this section, to the extent provided by that subsection.
The prohibition on payment of annuity or retired pay applies -
(A) with respect to the offenses named by subsection (b) of this section, to the period after the date of the conviction or after September 1, 1954, whichever is later; and
(B) with respect to the offenses named by subsection (c) of this section, to the period after the date of conviction or after September 26, 1961, whichever is later.
(b) The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 1, 1954:
(1) An offense within the purview of -
(A) section 792 (harboring or concealing persons), 793 (gathering, transmitting, or losing defense information), 794 (gathering or delivering defense information to aid foreign government), or 798 (disclosure of classified information), of chapter 37 (relating to espionage and censorship) of title 18;
(B) chapter 105 (relating to sabotage) of title 18
(C) section 2381 (treason), 2382 (misprision of treason), 2383 (rebellion or insurrection), 2384 (seditious conspiracy), 2385 (advocating overthrow of government), 2387 (activities affecting armed forces generally), 2388 (activities affecting armed forces during war), 2389 (recruiting for service against United States), or 2390 (enlistment to serve against United States), of chapter 115 (relating to treason, sedition, and subversive activities) of title 18;
(D) section 10(b)(2), (3), or (4) of the Atomic Energy Act of 1946 (60 Stat. 766, 767), as in effect August 30, 1954;
(E) section 16(a) or (b) of the Atomic Energy Act of 1946 (60 Stat. 773), as in effect before August 30, 1954, insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation; or
(F) an earlier statute on which a statute named by subparagraph (A), (B), or (C) of this paragraph (1) is based. (2) An offense within the purview of -
(A) article 104 (aiding the enemy), article 106 (spies), or article 106a (espionage) of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which article 104 or article 106, as the case may be, is based; or
(B) a current article of the Uniform Code of Military Justice (or an earlier article on which the current article is based) not named by subparagraph (A) of this paragraph (2) on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.
(3) Perjury committed under the statutes of the United States or the District of Columbia -
(A) in falsely denying the commission of an act which constitutes an offense within the purview of -
(i) a statute named by paragraph (1) of this subsection; or (ii) an article or statute named by paragraph (2) of this subsection insofar as the offense is within the purview of an article or statute named by paragraph (1) or (2) (A) of this subsection;
(B) in falsely testifying before a Federal grand jury, court of the United States, or court-martial with respect to his service as an employee in connection with a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States; or
(C) in falsely testifying before a congressional committee in connection with a matter under inquiry before the congressional committee involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.
(4) Subornation of perjury committed in connection with the false denial or false testimony of another individual as specified by paragraph (3) of this subsection.
(c) The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 26, 1961:
(1) An offense within the purview of -
(A) section 2272 (violation of specific sections) or 2273 (violation of sections generally of chapter 23 of title 42) of title 42 insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation;
(B) section 2274 (communication of restricted data), 2275 (receipt of restricted data), or 2276 (tampering with restricted data) of title 42; or
(C) section 783 (conspiracy and communication or receipt of classified information) of title 50 or section 601 of the National Security Act of 1947 (50 U.S.C. 421) (relating to intelligence identities).
(2) An offense within the purview of a current article of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which the current article is based, as the case may be, on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.
(3) Perjury committed under the statutes of the United States or the District of Columbia in falsely denying the commission of an act which constitutes an offense within the purview of a statute named by paragraph (1) of this subsection.
(4) Subornation of perjury committed in connection with the false denial of another individual as specified by paragraph (3) of this subsection.
(d)(1) For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General of the United States certifies to the agency administering the annuity or retired pay concerned -
(A) that an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions had such conduct taken place within the United States, and that such conviction is not being appealed or that final action has been taken on such appeal;
(B) that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and
(C) that such conviction occurred after the date of enactment of this subsection. (2) Any certification made pursuant to this subsection shall be subject to review by the United States Court of Claims based upon the application of the individual concerned, or his or her attorney, alleging that any of the conditions set forth in subparagraphs (FOOTNOTE 1) (A), (B), or (C) of paragraph (1), as certified by the Attorney General, have not been satisfied in his or her particular circumstances. Should the court determine that any of these conditions has not been satisfied in such case, the court shall order any annuity or retirement benefit to which the person concerned is entitled to be restored and shall order that any payments which may have been previously denied or withheld to be paid by the department or agency concerned.
Constitution for the State
of Nevada
ARTICLE. 15.
Miscellaneous Provisions.
Sec. 1. Carson City seat of government.
2. Oath of office.
3. Eligibility for public office.
4. Perpetuities; eleemosynary purposes.
5. Time of general election.
6. Number of members of legislature limited.
7. County offices at county seats.
8. Publication of general statutes and opinions of supreme court; effective date of opinions of supreme court.
9. Increase or decrease of compensation of officers whose compensation fixed by constitution.
10. Election or appointment of officers.
11. Term of office when not fixed by constitution; limitation; municipal officers and employees.
12. Certain state officers to keep offices at Carson City.
13. Census by legislature and Congress: Basis of representation in houses of legislature.
14. Election by plurality.
15. Merit system governing employment in executive branch of state government.
Section. 1. Carson City seat of government. The seat of Government shall be at Carson City, but no appropriation for the erection or purchase of Capitol buildings shall be made during the next three Years[.]
Section 2. Oath of office. Members of the legislature, and all officers, executive, judicial and ministerial, shall, before they enter upon the duties of their respective offices, take and subscribe to the following oath:
I, ................, do solemnly [solemnly] swear (or affirm) that I will support, protect and defend the constitution and government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding, and that I will well and faithfully perform all the duties of the office of ................, on which I am about to enter; (if an oath) so help me God; (if an affirmation) under the pains and penalties of perjury.
Members of county game management boards are public officers and upon appointment are required to take constitutional oath of office. AGO 352 (11-5-1954)
STATUE
NRS 282.020 Form of official oath. Members of the legislature and all officers, executive, judicial and ministerial, shall, before they enter upon the duties of their respective, offices, take and subscribe to the following oath:
I, ........, do solemnly swear (or affirm) that I will support, protect and defend the Constitution and Government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding, and that I will well and faithfully perform all the duties of the office of ........., on which I am about to enter; (if an oath) so help me God: (if an affirmation) under the [pains and penalties of perjury.
NRS 282.010 Oaths and official bonds of officers; when term of office begins.
NRS 282.040 Form. All official bonds required by law of officers shall be:
NRS 282.050 Bond in force during term of office: effect of subsequent law: conditions.
NRS 282.060 Bond for benefit of injured or aggrieved person; action on bond without assignment. (See NEVADA CASES). State bond trust fund act waived sovereign immuntity, constsented to suit upon offical bond. Hill v. Thomas, 70 Nev. 389, 270 P.2d 179 (1954), cited, Hardgrave v. State, 80 Nev. 74, at 76, dissenting opion at 82, 389 P.2d 249 (1964), Wilmurth v. First Judicial Dist. Court, 80 Nev. 337, 393 P.2 302 (1964)
PERJURY AND SUBORNATION OF PERJURY
NRS 199.120 Definition; penalties. A person, having taken a lawful oath or made affirmation in a judicial proceeding or in any other matter where, by law, an oath or affirmation is required and no other penalty is prescribed, who:
1. Willfully makes an unqualified statement of that which he does not know to be true;
2. Swears or affirms willfully and falsely in a matter material to the issue or point in question;
4. Executes an affidavit pursuant to NRS 15.010 which contains a false statement, or suborns any other person to do so; or
5. Executes an affidavit or other instrument which contains a false statement before a person authorized to administer oaths or suborns any
other person to do so, is guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.
NRS 199.130 False affidavit or complaint to effect arrest or search.
1. A person who makes, executes or signs or causes to be made, executed or signed, any false or fictitious affidavit, complaint,
deposition, or other instrument in writing before any officer or person authorized to administer oaths, for the purpose or with the intent of
securing a warrant for the arrest of any other person, or for the purpose of securing a warrant for the searching of the premises, goods, chattels or
effects, or of seizing the goods, chattels or effects, or of seizing anything in the possession of any other person, is guilty of perjury which
is a category D felony.
2. A person who commits any of the acts or offenses defined or set out in subsection 1 shall be punished as provided in NRS 193.130.
NRS 199.140 Use of fictitious name on affidavit or complaint to effect arrest or search.
1. A person who makes, executes or signs, or causes to be made, executed or signed, any affidavit, complaint or other instrument, in
writing, before any United States officer or person, or before any state officer or person, authorized to administer oaths, for the purpose or with
the intent of securing a warrant for the arrest of any other person, or for the purpose of securing a warrant for the searching of the premises, goods,
chattels or effects, or of seizing the goods, chattels or effects, or of seizing anything in the possession of any other person, and signs the same
by any other name than his or her true name, is guilty of perjury which is a category D felony.
2. A person who commits any of the acts or offenses defined or set out in subsection 1 shall be punished as provided in NRS 193.130.
NRS 199.145 Statement made in declaration under penalty of perjury. A person who, in a declaration made under penalty of perjury:
1. Makes a willful and false statement in a matter material to the issue or point in question; or
2. Willfully makes an unqualified statement of that which he does not know to be true, or who suborns another to make in such a declaration a statement of the kind described in subsection 1 or 2, is guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.
NRS 199.150 Attempt to suborn perjury. Every person who, without giving, offering or promising a bribe, shall incite or attempt to procure
another to commit perjury, or to offer any false evidence, or to withhold true testimony, though no perjury be committed or false evidence offered or
true testimony withheld, shall be guilty of a gross misdemeanor.
NRS 199.160 Procuring the execution of innocent person by perjury or subornation of perjury. A person who, by willful and corrupt perjury or
subornation of perjury, procures the conviction and execution of any innocent person is guilty of murder which is a category A felony and, upon
conviction thereof, shall be punished by imprisonment in the state prison:
1. For life without the possibility of parole;
2. For life with the possibility of parole, with eligibility for parole beginning when a minimum of 20 years has been served; or
3. For a definite term of 50 years, with eligibility for parole beginning when a minimum of 20 years has been served.
NRS 199.170 Oath and swear defined.
1. The term oath shall include an affirmation and every other mode authorized by law of attesting the truth of that which is stated.
2. A person who shall state any matter under oath shall be deemed to swear thereto.
As a nation we are used to seeing “In God We Trust” on our coins and Federal Notes (paper money). We even ask grace on the food we eat, open legislative sessions with prayer, and take solemn oaths before God! And throughout America, both old and new, runs the theme “truth equals freedom.” and we have heard “Ye shall know the Truth; and the Truth shall make you free.” Where did the equation originate if not in the Biblical text? Thomas Jefferson said that “resistance to tyranny is obedience to God.” And Lincoln phrased it, a nation under God!
I don't think that God chose us as his people, it's that we chose God. And it will mean and always will mean, so long as we remain a nation, that we Americans have taken God as a foundation for our political philosophy and for our nationalism. And that's why the last four words in the prescribed Oath of Offices says, “so help me God”!
So what can we do? Our goal is to bring our national Government back to the Authors intent. A true Republic form of Constitutional Government. This can only be done with the help of concerned citizens. We must stand together in numbers, then and only then will the national Government listen to what we have to say. “United we Stand, Divided we Fall”.
Public Servants elected to Congress must be held accountable for their actions while in office.
A true American God fearing patriot
Gary W, De Capua / President of the C.R.T.F. / N.N.
Does No mean No?
SEVER ABILITY
Webster’s Unabridged Dictionary, American Heritage Dictionary, Black’s Law Dictionary
adj. Capable of being severed or separated; separable into legally distinct rights or obligations, as a contract. --sev”er?a?bil“i?ty n.
INFRINGE
(a) --tr. 1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent. 2. Obsolete. To defeat; invalidate. --intr. To encroach on someone or something; engage in trespassing: to neglect to obey; as to infringe a law; an increased workload that infringed on his personal life. [Latin ºnfringere, to destroy : in-, intensive pref.; see IN-2 + frangere, to break; see bhreg- below.] --in?fring“er n.
NO
(b) adv. 1. Used to express refusal, denial, disbelief, emphasis, or disagreement: No, I'm not going. No, you're wrong. 2. Not at all; not by any degree. Often used with the comparative: no better; no more. 3. Not: whether or no. --no n., pl. noes (n½z). 1. A negative response; a denial or refusal: The proposal produced only noes. 2. A negative vote or voter. [Middle English, from Old English n³ : ne, not; see ne below + ³, ever; see aiw- below.] no2 (n½) adj. 1. Not any; not one; not a: No cookies are left. 2. Not at all; not close to being: He is no child. 3. Hardly any: got there in no time flat.
NOT
(c)adv. In no way; to no degree. Used to express negation, denial, refusal, or prohibition: I will not go. You may not have any.
SHALL
aux.v. past tense should (sh‹d). 1. Used before a verb in the infinitive to show: a. Something that will take place or exist in the future: We shall arrive tomorrow. b. Something, such as an order, a promise, a requirement, or an obligation: You shall leave now. He shall answer for his misdeeds. The penalty shall not exceed two years in prison. c. The will to do something or have something take place: I shall go out if I feel like it. d. Something that is inevitable: That day shall come. 2. Archaic. a. To be able to. b. To have to; must.
Severability
Nevada's Law...NRS 0.020
0.025 Use of “may,” “must,” “shall” is entitled”; explanation of flush lines.
1. Except as otherwise expressly provided in a particular statue or required by the context:
(b) “May not” or “no” abridges or removes a right, privilege or power.
(d) “shall” imposes a duty to act.
(e) “shall not” imposes a prohibition against acting.
Those who are bound by Oath of office with limited delegation of authority must obey and protect it; The Constitution for the united States of America.
A judge has no authority to act until he has taken the oath of office; until he takes the required oath his acts are a nullity, Mancus says, referring to French v. Texas (1978) 572 S.W.2d 934, 939. In that case, a search warrant issued by a judge who had not taken the required oath of office was void and evidence seized under the warrant was inadmissible. Mancus says that Brown v. State (1951) 238 S.W.2d 787, 33, the court held a judge is without authority to act until he takes the oath required by the Constitution.
Why then, does our Government undermine the framers of the Constitution, and those men who fought and lost their lives to protect this great document and country against socialistic tyrants. When Government will not uphold their Oath of office, then they wear the same cloth as those tyrants.. Our Constitution does not give our Government the authority to undermine or rewrite the Constitution for the united States of America, and the Bill of Rights. The Bill of Rights, is to guarantee our protection from capricious, rapacious, incompetent, and uncaring government.
Learn to defend your RIGHTS
This is why we need to make the Oath of Office a relevant issue
Please sign the PETITION
Repeal the GUN BAN
Wednesday, May 26, 2010
Public Officers, Beware
Public Officers, Beware
New York State Bar Journal
March/April 1997
See below for footnotes
Public Officers, Beware! No Excuses Accepted
By Carolyn H. Mann
Vetere v. Ponce, (1) emanating from the jurisdiction of the Town/Village of Harrison, has recently cast significant public opinion on § 30, Public Officers Law. (2) Although surrounded by political mischief, the case ultimately concerns the perceived right of a duly elected public official to retain his elected post, even though not in strict compliance with a qualifying section of Public Officers Law. The New York Law Journal
(3) has headlined its piece on this case (and its most curious sequence of political events) with the words, "Technical Omission Costs Official His Post." We question here whether noncompliance with this statute is properly characterized as a "technical" omission. We submit that the failure to timely file an oath of office is an important and justifiable disqualification for holding public office. Those who are hurt by the consequences of failure to strictly comply, must resignedly accept their fate because, as we intend to show, the purpose of the statute is to secure a trust rather than to punish the careless.
No Exceptions!
Briefly, § 30(1)(h) obligates a public official, whether elected or appointed, to file an oath of office, within 30 days of the commencement or notification of his term. The New York Courts have heard several cases pleading relief from a direct reading of this section, yet all pleas have been to no avail. In each and every case, the courts have read the clear and undisputed language of the statute finding no latitude to permit any exceptions. This piece brings to light the cases of the various officeholders whose positions were properly declared vacant by operation of law for noncompliance with the mandate to timely file an oath of office. We will probe why this law, with its seemingly harsh results, is set so firmly into New York Law and whether such law and its consequences should continue undisturbed.
Let us first examine the pleas of the various petitioners asking that their particular set of circumstances be judged worthy of exception when the statute clearly leaves room for none.
In 1913, in People v. Keator, (4) the relator filed his oath 17 days after commencement of his duties and in spite of the fact that the relator received the highest number of votes, the Board passed a resolution reciting the existence of a vacancy and properly proceeded to fill the vacancy by appointing another individual. The relator pleaded relief from the Board's action appointing someone other than himself, the duly elected official. The Court concluded:
Taking the constitutional oath of office being a condition precedent to relator being entitled to enter upon the duties of the office,and hence to his right to maintain an action to oust defendant and to recover possession of the office, we conclude that the relator is not entitled tosucceed in this action... It would be unfortunate, if the refusal or neglectof a person elected to such office to qualify, as required by the Constitution of the state, could deprive a town of such an officer, as the position is one of importance, and particularly so in certain contingencies.
No exceptions!
In the Matter of Comins v. County of Delaware, (5) a public officer entered upon his duties and performed them for some time only to find his position declared vacant. He pleaded before the court that his removal must be annulled for surely his service for such an extended period surely conferred rights of legitimacy to his claim to office. The court disagreed, repeated the clear words of § 30 and continued:
The fact that the Board did not earlier move to dismiss petitioner, does not, in our view,constitute an appointment of petitioner to his position. When a person appointed to office fails totimely file his oath of office, neither notice nor judicial procedure is necessary, the office is automatically vacant and may be filled by the proper appointive power. Consequently,... no hearing on charges was required in order to dismiss him from office.
No exceptions!
Perhaps the circumstances set forth in McDonough v. Murphy (6) would lead one to expect the court to annul the declaration of a vacancy. Here, two appointed members of the College Board entered upon their official duties and subsequently were officially notified of the appointments. Both filed the oath within 30 days of that official notification, but the Court allowed the vacancy to stand, stating:
. . . when by one's own actions it is clear that a person knows
of his appointment, he should not be allowed to wait indefinitely
before filing an oath of office. This interpretation is mandated
by the necessity to file an oath of office, which is intended to
be part of the requirements making an officer fully qualified to
carry out the duties of his office. . . Thus, once plaintiffs
have taken actions as official members of the board, as has been
done here, they cannot be heard to claim that they had no notice
of their appointments, for without a doubt the contrary is true.
[Emphasis added.]
No exceptions!
Neither is ignorance of the law an excuse for noncompliance with the requirement for a timely
filing, as the Court declared in Boisvert v. County of Ontario, (7) where petitioner pleaded he
was unaware of § 30 Public Officers Law. The court ruled:
The obligation imposed by the Public Officers Law statute is personal to
plaintiff, it is an act he is required to do and the office became vacant
by the mere failure to file the oath, whether or not the defendants knew or
were chargeable with notice that plaintiff had failed to file his oath, and
they are not required to make any declaration or give any notice. On his
default in filing his official oath "the appointment was vitiated and the
office * * * became vacant"
[citing Ginsberg v. City of Long Beach, 286 N.Y. 400, 36 N.E.2d 637; and also People ex rel.
Walton v. Hicks, infra].
No exceptions!
That the statute leads to an unambiguous reading is probably nowhere better stated than in
Walton v. Hicks, (8) where the Court ruled:
This statute is emphatic and unequivocal. It does not seem
possible that it can be misunderstood. In case a person appointed to office
neglects to file his official oath within 15 [now 30] days after notice of
appointment or within 15 [now 30] days after the commencement of the term of
office, the office becomes vacant ipso facto. That is all there is to it. No
judicial procedure is necessary; no notice is necessary; nothing is
necessary. The office is vacant, as much so as though the appointee were dead;
there is no incumbent, and the vacancy may be filled by the proper appointive
power. Certainly, no further explanations of § 30 were necessary. Yet,
in 1990 in response to a request, the State Board of Equalization and
Assessment (9) clarified the "emphatic and unequivocal" words of the statute:
Both the Attorney General (1976, Op. Atty. Gen. (Inf.) 336) and the State Comptroller (10 Op. State Compt. 332) have issued opinions that the failure of a public officer to file an oath is not correctable, because the statute specifically creates the vacancy without providing a remedy. The provisions of Public Officers Law § 30 creates a vacancy which the appointing authority (e.g., town board, county executive, county legislature) may fill at any time (Public Officers Law, § 38).
The appointive assessor or county director who fails to file the oath of office within 30 days is in the same position as any de facto officer; his or her actions are valid, but employment is subject to immediate termination (Williamson v. Fermaille, 31 A.D. 438, 298 N.Y.S. 2d 557 (4th Dept. 1969), aff'd 26 N.Y. 2d 731, 257 N.E. 2d 285, 309 N.Y.S. 2d 35 (1970); Vescio v. City Manager, City of Yonkers, 69 Misc. 2d 68, 389 N.Y.S. 2d 357 (Sup. Ct. Westchester Co. 1972), aff'd 41 A.D. 2d 833, 342 N.Y.S. 2d 376 (2d Dept. 1973); 1979, Op. Atty. Gen. 198). Although the failure to file the oath cannot be remedied, the Attorney General has concluded that
there is no bar to the appointment of the same individual to the same office (1978, Op. Atty. Gen. (Inf.) 833). Presumably, such reappointed official would be sure to timely file the oath the second time.
It is important to note that nowhere in the opinion is any mention or reference made to any exceptions to strict compliance with § 30; clearly the legislature intended none.
The administrative explanation of § 30 has been exhaustive and the reiteration of the statute's words frequent. Nevertheless, additional cases managed to find their way into New York courtrooms. In Lombino v. Town Board of the Town of Rye (10) petitioner claimed compliance with § 30 pleading his filing was only one day late. The Court was unimpressed and the Appellate Division stated:
The Supreme Court denied the defendants' motion for summary judgment on the ground that there is a factual issue of whether the plaintiff filed his oath of office on January 3, 1991. However, contrary to plaintiff's contention, even if he filed his oath of office on January 3, 1991, the filing was still untimely. Public Officers Law § 30 provides that an appointive office shall become vacant for failure to file an official oath "within thirty days after [the] [sic] appointment,or within thirty days after the commencement of such term." Here, the plaintiff was notified of his appointment as Assessor in November 1990, and began working on December 3, 1990. Thus, even if he filed his oath of office on January 3, 1991, the filing was more than 30 days after the notification and commencement of his term. Thus, the Town Board properlydeclared the Office of Assessor vacant.
No exceptions!
Proper Judicial Role: Declaring What the Law is, Not What it Should Be In the most recent case, Vetere v. Ponce, supra, the case which catapulted § 30 onto a red-hot front burner, petitioner sought to be excused from strict compliance with the statute by arguing first, that petitioner was not notified by the Town/Village Clerk to timely file, as required by Law, (11)claiming, in effect, ignorance of a legal duty and second, that petitioner was justifiably distracted from his duty because of the concurrent illness and death of his spouse.
Politics takes center stage here. As set forth in the decision, the Town/Village Clerk of Harrison arranged to have all the Republican elected officials report to Town Hall to sign and file the official oaths. Curiously, however, no one reminded or told petitioner, the sole Democrat on the Board, to be in attendance. On February 16, seventeen days after the expiration of the 30-day period, the Town Clerk issued a Certificate of Vacancy and declared Mr. Vetere's position vacant because of the failure to timely file his oath. The Board then proceeded, as is its right under law, to appoint another (Republican) to fill the vacancy. This action caused great public outcry, however, urging the appointee to resign. Mr. Vetere was promptly thereafter appointed to fill his own vacancy until the next annual election, at which time he would have to run to
fulfill the balance of his term.
Mr. Vetere sought to be reinstated and reclaim his original position and term and pleaded with the Court to be excused from strict compliance with § 30 due to these particular circumstances. The Court, however, found itself compelled by a clear reading of the statute and appropriate case law to find petitioner's elected position vacant indeed, stating:
Notwithstanding equitable considerations and respondent's consent to
reinstatement, the court can only direct reinstatement in the event it finds petitioner
was improperly removed as a matter of law. Whether respondents acted unfairly or
took advantage of petitioner during a period of personal crisis, therefore, is
irrelevant. If this result is harsh, as it is in this case, the remedy lies with the
Legislature.... In this case, since petitioner did not file within 30 days of
commencement of his term, the office became vacant on Feb. 1, 1996.... The
Town Board and Village Trustees were entitled, in turn, to declare a vacancy and to
fill it. (12)
The situation presented in Vetere is illustrative of the problems faced when considering how to avoid equity considerations, and is instructive. Both the Election Law and the Village Law seek to minimize potentially harsh results imposed by § 30 by requiring the Village Clerk to notify officials of the § 30 mandate. The difficulty here lies with enforcement, however. If meeting one's official duty is paramount, enforcement of a law requiring a clerk to notify others of their duty might result in the removal of said clerk for onperformance or nonfeasance. This produces a harsh result in itself, and neither does it eliminate, ameliorate or excuse the duty of the official to timely file. There are simply too many possible equity considerations to statutorily exempt some and not others. No excuses, therefore, can be deemed worthy as exceptions.
Finally, Supreme Court Justice Nicholas Colabella, who delivered the opinion in Vetere, made a truly correct observation. If § 30 can produce a popularly perceived harsh result by not permitting any exceptions to its mandate, the remedy lies not with the Court but with the Legislature. Members of the New York Bar must agree, for it is surely the proper role of the judiciary to declare what the law is, and not what it ought to be.
Since no exceptions can be accepted by the courts to relieve the demands of the "emphatic and unequivocal" language of the statute, (13) Public Officer, Beware! No excuses under New York
Law can remedy your unenviable situation.
Noncompliance is Not a "Technical Omission"
Is the law acceptable? If not, what ought it to be? Is the law too harsh in its result by not permitting exceptions to the 30-day limit for filing the qualifying oath? We know that the limit was already extended from 15 to 30 days. Should the limit be two months? Is a limit necessary at all? Why should the office become vacant by operation of law "so much so as though the appointee were dead"? (14) What is all this fuss about an oath of office not being timely filed? Is it merely a "technical" bugaboo that should be significantly eased? Or, is the demand for strict compliance rational and wise? This author believes the latter.
The New York Legislature apparently believes the taking of the oath of office to be a critical qualification for those in public office accepting the public trust. An oath, we are all aware, is a solemn promise the taking of which is described as "burdening the conscience" where something is present to distinguish between an oath and a bare assertion. (15)
An oath, and its required accompanying and distinguishing act, is what can hopefully establish trust between people. Through this device in a public setting, the people are offered some assurance that the words and actions of public officers are possibly being carefully guided by something other than the official's own set of self serving principles. The swearing-in ceremony is visual and psychologically binding; the filing is written and legally binding. Is there another act which could as simply convey a solemn promise to behave with a full measure of integrity? How else might the public accept the offer of honest public service if not with a solemn, believable offer being made, by way of oath, to create a contract with all the rights and responsibilities we assume are contained in it?
The public must be offered something which fosters confidence in the official's moral responsibility. The official's conscience must be seen to be sufficiently burdened by something to help assure that the desired devotion to the public's trust might reach broadly into the official's public relations and daily decision-making. It is this promise, this oath of office, which helps to hold a civil society together.
Certainly, it is an easy task to file an oath of office within 30 days of the commencement or notification of one's term, and no one in public administration should be statutorily charged with informing another official of his or her duties. This is more properly the job of the official and his legal counsel. The purpose of the requirement reflects wise reasoning and speaks to the act being most critical for the health of the compact among the governed and the governors and, therefore, can permit
no exception.
The "emphatic and unequivocal" language of § 30, Public Officers Law represents one of the important links in the web of our representative democracy and is on the far other side of a mere "technical" nuisance. To reiterate, Public Officer, Beware! The law as it is presently set forth is there to protect, not to punish. No excuses will save a public term of office without taking and timely filing a solemn promise to the people served.
1 New York Law Journal, April 23, 1996, p. 29, col. 6.
2 Section 30, entitled Creation of vacancies, provides, in part:
1. Every office shall be vacant upon the happening of one of the following events before the
expiration of the term thereof:...
h. His refusal or neglect to file his official oath or undertaking, if one is required, before or
within thirty days after the commencement of the term of office for which he is chosen, if an
elective office, or if an appointive office, within thirty days after notice of his appointment or
within thirty days after the commencement of such term...
Personnel on Active Duty with the Armed Forces have a 90 day limit imposed for filing, after
which time a vacancy may be declared by operation of law.
3 Cerisse Anderson, "Technical Omission Costs Official His Post," New York
Law Journal, April 22, 1996, p. 1.
4 People v. Keator, 166 App. Div. 368, 154 N.Y.S. 1007.
5 66 A.D. 2d 966, 412 N.Y.S. 2d 428.
6 92 A.D. 2d 1022, 461 N.Y.S. 2d 439.
7 89 Misc. 2d 183, 391 N.Y.S. 2d 49, aff'd 57 A.D. 2d 1051, 395 N.Y.S. 2d 617.
8 173 App. Div. 338, 158 N.Y.S. 757, aff'd 221 N.Y. 503, 116 N.E. 1069.
9 Opinion, November 19, 1990.
10 1994; 206 A.D. 2d 462, 614 N.Y.S. 2d 564, leave to appeal denied 84 N.Y.
2d 807, 621 N.Y.S. 2d 516, 645 N.E. 2d 1216.
11 Section15-128 Election Law: "The clerk of the village shall, within three days after the
election of a village officer, notify each person elected of his election, and of the date thereof,
and that, in order to qualify: he is required to file his oath of office... and that upon his
failure so to do he will be deemed to have declined the office."
12 The Court, citing the Lombino case and others, observed that the failure to file constitutes an
automatic vacancy and is not subject to a cure nunc pro tunc by a belated filing.
13 Walton v. Hicks, supra.
14 Walton v. Hicks, supra.
15 O'Reilly v. People of the State of New York, 86 N.Y. 154, 1881. Judge
Finch of the Court of
Appeals further stated:
Some form of an oath has always been required, for the double reason that
only by some unequivocal form could the sworn be distinguished from the unsworn
averment, and the sanctions of religion add their solemn and binding force to the act.
(Pandects, xii, 2; 3 Coke's Inst. 165; 1 Phil. on
Ev. 15; 1 Starkie on Ev. 23; Lord HARDWICKE, in Omychund v. Barker, 1 Atkyns, 21; Tyler
on Oaths, 15; 1 Greenleaf on Ev., §§ 328, 371; 1 Alison's
Crim. Law, 474; 3 Wharton's Am. Crim. Law, § 2205; 2 Arch. Crim. Pl., 1723.)... [T]hese
sanctions have grown elastic, and gradually accommodated themselves to differences of creed,
and varieties of belief, so that, as the Christian is sworn upon the Gospels, and invokes the
Divine help to the
truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly
affirm without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin
priest with peculiar ceremonies... The changes of form incident to the growth of nations and of
commerce have been serious, but have not dispensed with a form entirely. . . A wide scope, a
large liberty, is thus given to the form of the oath, but some form remains essential. Something
must be present to distinguish between the oath and the bare assertion. An act must be done, and
clothed in such form as to characterize and evidence it. . .
* Carolyn H. Mann was admitted to the NYS Bar in 1994, and is partner with Mann & Mann of
Port Chester. She holds a BA in Art History and went on to NYU and received a Master of
Urban Planning degree.
Return to State Bar Journal Index
Return to the NYSBA Home Page ......
Subject: Fw: OATHS-Schoharie County
THE NORTH COUNTRY GAZETTE
Box 408Chestertown, NY 12817 June 20, 2003
E. David Hallock
Schoharie County Clerk
PO Box 549 Schoharie, NY 12157
RE: FOIL REQUEST Dear Mr. Hallock:
The letter of June 19, 2003 from Karen Miller, clerk of the Schoharie County Board of Supervisors has confirmed and certified that none of the town and village court justices in the entire county of Schoharie have filed their oaths of office AND undertakings in the county clerk’s office as required by the NYS Constitution and Uniform Justice Court Act 104.
Further, it has been confirmed and certified by Ms. Miller that neither has George Bartlett III, county/surrogate and family court judge of Schoharie County, filed his undertaking in the county clerk’s office as required by Judiciary Law 184.
Further, it has been confirmed and certified by Ms. Muller that Sheriff John S. Bates Jr. has not filed an undertaking in the office of county clerk as required by law.
Therefore, I regretfully inform you that immediate vacancies exist in every town and village court in your county, in the office of sheriff and in the office of the county/surrogate and family court judge, ipso facto, for their failure to comply with the provisions of the Consolidated Laws of New York and the NYS Constitution.
I further must inform you that if your office and the offices of the town and village clerks throughout the county do not comply with the law in addressing the existing vacancies, legal action to compel compliance will be coming forthwith.
Public Officers Law 30(1)(h) prescribes that every “office SHALL (mandatory) be vacant upon the refusal or neglect of a public officer to file his official oath or undertaking before or within 30 days of the commencement of the term of office for which he is chosen”. The applicable statutes in addition to Article XIII, Section 1 of the NYS Constitution are POL 10-13, 30(1)(h); Executive Law 63, UJCA104, County Law 400-403, Town Law 25 and 30.
Tardy, belated filings are not retroactively binding, the courts have consistently held, i.e. Vetere v. Ponce (1996) Westchester County Supreme Court. The courts have also held that the failure of the county clerk to fail to give notice to the town or village justice of his failure to file his official oath and undertaking does not excuse the town or village justice for not having done so.
If any official shall neglect within the time required by law to take and file an official oath, or execute and file an official undertaking, the officer with whom or in whose office such oath and undertaking is required to be filed SHALL forthwith give notice of such neglect of an elective officer to the official board or body authorized to fill a vacancy in such office. The town clerk under Town Law 30 must give notice of the vacancy and place it on the ballot for the next election.
The Schoharie County sheriff has no legal authority to act or collect his personal compensation, and the county court, town and village courts are effectively shut down immediately until this matter is addressed and vacancies filled. No hearing or judicial proceeding is necessary to declare the ipso facto vacancies nor no notice but by this letter you have been legally placed on notice.
Any further action by these individuals will be without lawful authority and will subject both the county and the individual towns and villages in the county with serious legal liability and subject them to a class action lawsuit.
The office of sheriff is immediately vacant and has been since Jan. 1, 2002. It is required that you as county clerk immediately fulfill your duties as per POL 13 and County law 400(6) and give notice to the governor of the vacancy due to Bates having failed to qualify for office by failing to file his undertaking. POL 11, 30(1)(h), County Law 403 and Executive Law 63 as well as the NYS Constitution mandate the vacancy and that you so notify the governor of the vacancy.
I further formally advise that as per UJCA 104, POL 10, 30(1)(h), County Law 400-403, that a vacancy exists in each and every judicial office in the county.
In regard to the sheriff, statutory law is very specific that “until the sheriff shall execute and file the required undertaking he shall not perform any duties of the office nor be entitled to any compensation”.
The county had no legal authority to compensate Bates as sheriff since Jan. 1, 2002, and all monies collected must be repaid to the taxpayers. He is legally an usurper in office acting in absence of color of law. POL 13 and 30(h) requires the county clerk to forthwith give notice of the sheriff’s failure to file the undertaking and resulting vacancy of office to the governor.
County Law 400(5) mandates that upon filing in the office of the county clerk a certificate of election or appointment of any officer, together with the oath of office and official undertaking prescribed by law, the county clerk shall execute and deliver to such office a certificate saying he has qualified and is entitled to assume the duties of his office. Bates did not qualify for office and could and cannot assume the duties of sheriff nor can he be compensated.
By usurping the office even with the knowledge that no undertaking had been filed, he is not a de facto officer and therefore none of his acts while usurping in the office are legal. Ignorance of the law is no excuse.
Due to the alleged town and village justices, county court judge and sheriff having failed to comply with the Constitution, the law and having vacated their offices ipso facto, each town and village in the county as well as the county itself is subject to a class action suit from individuals having been illegally fined, illegally incarcerated and illegally arrested by the sheriff and alleged justices/judge.
In effect, the criminal justice system of Schoharie County is shut down due to its officers having failed to comply with the law. Should you have any questions relating to this matter, I would suggest you contact Kevin Crawford and counsel Jaros of the NYS Association of Towns.
I would ask that you comply with the law.
Very truly yours,
June Maxam
CC: Karen Miller, Clerkbcc
New York State Bar Journal
March/April 1997
See below for footnotes
Public Officers, Beware! No Excuses Accepted
By Carolyn H. Mann
Vetere v. Ponce, (1) emanating from the jurisdiction of the Town/Village of Harrison, has recently cast significant public opinion on § 30, Public Officers Law. (2) Although surrounded by political mischief, the case ultimately concerns the perceived right of a duly elected public official to retain his elected post, even though not in strict compliance with a qualifying section of Public Officers Law. The New York Law Journal
(3) has headlined its piece on this case (and its most curious sequence of political events) with the words, "Technical Omission Costs Official His Post." We question here whether noncompliance with this statute is properly characterized as a "technical" omission. We submit that the failure to timely file an oath of office is an important and justifiable disqualification for holding public office. Those who are hurt by the consequences of failure to strictly comply, must resignedly accept their fate because, as we intend to show, the purpose of the statute is to secure a trust rather than to punish the careless.
No Exceptions!
Briefly, § 30(1)(h) obligates a public official, whether elected or appointed, to file an oath of office, within 30 days of the commencement or notification of his term. The New York Courts have heard several cases pleading relief from a direct reading of this section, yet all pleas have been to no avail. In each and every case, the courts have read the clear and undisputed language of the statute finding no latitude to permit any exceptions. This piece brings to light the cases of the various officeholders whose positions were properly declared vacant by operation of law for noncompliance with the mandate to timely file an oath of office. We will probe why this law, with its seemingly harsh results, is set so firmly into New York Law and whether such law and its consequences should continue undisturbed.
Let us first examine the pleas of the various petitioners asking that their particular set of circumstances be judged worthy of exception when the statute clearly leaves room for none.
In 1913, in People v. Keator, (4) the relator filed his oath 17 days after commencement of his duties and in spite of the fact that the relator received the highest number of votes, the Board passed a resolution reciting the existence of a vacancy and properly proceeded to fill the vacancy by appointing another individual. The relator pleaded relief from the Board's action appointing someone other than himself, the duly elected official. The Court concluded:
Taking the constitutional oath of office being a condition precedent to relator being entitled to enter upon the duties of the office,and hence to his right to maintain an action to oust defendant and to recover possession of the office, we conclude that the relator is not entitled tosucceed in this action... It would be unfortunate, if the refusal or neglectof a person elected to such office to qualify, as required by the Constitution of the state, could deprive a town of such an officer, as the position is one of importance, and particularly so in certain contingencies.
No exceptions!
In the Matter of Comins v. County of Delaware, (5) a public officer entered upon his duties and performed them for some time only to find his position declared vacant. He pleaded before the court that his removal must be annulled for surely his service for such an extended period surely conferred rights of legitimacy to his claim to office. The court disagreed, repeated the clear words of § 30 and continued:
The fact that the Board did not earlier move to dismiss petitioner, does not, in our view,constitute an appointment of petitioner to his position. When a person appointed to office fails totimely file his oath of office, neither notice nor judicial procedure is necessary, the office is automatically vacant and may be filled by the proper appointive power. Consequently,... no hearing on charges was required in order to dismiss him from office.
No exceptions!
Perhaps the circumstances set forth in McDonough v. Murphy (6) would lead one to expect the court to annul the declaration of a vacancy. Here, two appointed members of the College Board entered upon their official duties and subsequently were officially notified of the appointments. Both filed the oath within 30 days of that official notification, but the Court allowed the vacancy to stand, stating:
. . . when by one's own actions it is clear that a person knows
of his appointment, he should not be allowed to wait indefinitely
before filing an oath of office. This interpretation is mandated
by the necessity to file an oath of office, which is intended to
be part of the requirements making an officer fully qualified to
carry out the duties of his office. . . Thus, once plaintiffs
have taken actions as official members of the board, as has been
done here, they cannot be heard to claim that they had no notice
of their appointments, for without a doubt the contrary is true.
[Emphasis added.]
No exceptions!
Neither is ignorance of the law an excuse for noncompliance with the requirement for a timely
filing, as the Court declared in Boisvert v. County of Ontario, (7) where petitioner pleaded he
was unaware of § 30 Public Officers Law. The court ruled:
The obligation imposed by the Public Officers Law statute is personal to
plaintiff, it is an act he is required to do and the office became vacant
by the mere failure to file the oath, whether or not the defendants knew or
were chargeable with notice that plaintiff had failed to file his oath, and
they are not required to make any declaration or give any notice. On his
default in filing his official oath "the appointment was vitiated and the
office * * * became vacant"
[citing Ginsberg v. City of Long Beach, 286 N.Y. 400, 36 N.E.2d 637; and also People ex rel.
Walton v. Hicks, infra].
No exceptions!
That the statute leads to an unambiguous reading is probably nowhere better stated than in
Walton v. Hicks, (8) where the Court ruled:
This statute is emphatic and unequivocal. It does not seem
possible that it can be misunderstood. In case a person appointed to office
neglects to file his official oath within 15 [now 30] days after notice of
appointment or within 15 [now 30] days after the commencement of the term of
office, the office becomes vacant ipso facto. That is all there is to it. No
judicial procedure is necessary; no notice is necessary; nothing is
necessary. The office is vacant, as much so as though the appointee were dead;
there is no incumbent, and the vacancy may be filled by the proper appointive
power. Certainly, no further explanations of § 30 were necessary. Yet,
in 1990 in response to a request, the State Board of Equalization and
Assessment (9) clarified the "emphatic and unequivocal" words of the statute:
Both the Attorney General (1976, Op. Atty. Gen. (Inf.) 336) and the State Comptroller (10 Op. State Compt. 332) have issued opinions that the failure of a public officer to file an oath is not correctable, because the statute specifically creates the vacancy without providing a remedy. The provisions of Public Officers Law § 30 creates a vacancy which the appointing authority (e.g., town board, county executive, county legislature) may fill at any time (Public Officers Law, § 38).
The appointive assessor or county director who fails to file the oath of office within 30 days is in the same position as any de facto officer; his or her actions are valid, but employment is subject to immediate termination (Williamson v. Fermaille, 31 A.D. 438, 298 N.Y.S. 2d 557 (4th Dept. 1969), aff'd 26 N.Y. 2d 731, 257 N.E. 2d 285, 309 N.Y.S. 2d 35 (1970); Vescio v. City Manager, City of Yonkers, 69 Misc. 2d 68, 389 N.Y.S. 2d 357 (Sup. Ct. Westchester Co. 1972), aff'd 41 A.D. 2d 833, 342 N.Y.S. 2d 376 (2d Dept. 1973); 1979, Op. Atty. Gen. 198). Although the failure to file the oath cannot be remedied, the Attorney General has concluded that
there is no bar to the appointment of the same individual to the same office (1978, Op. Atty. Gen. (Inf.) 833). Presumably, such reappointed official would be sure to timely file the oath the second time.
It is important to note that nowhere in the opinion is any mention or reference made to any exceptions to strict compliance with § 30; clearly the legislature intended none.
The administrative explanation of § 30 has been exhaustive and the reiteration of the statute's words frequent. Nevertheless, additional cases managed to find their way into New York courtrooms. In Lombino v. Town Board of the Town of Rye (10) petitioner claimed compliance with § 30 pleading his filing was only one day late. The Court was unimpressed and the Appellate Division stated:
The Supreme Court denied the defendants' motion for summary judgment on the ground that there is a factual issue of whether the plaintiff filed his oath of office on January 3, 1991. However, contrary to plaintiff's contention, even if he filed his oath of office on January 3, 1991, the filing was still untimely. Public Officers Law § 30 provides that an appointive office shall become vacant for failure to file an official oath "within thirty days after [the] [sic] appointment,or within thirty days after the commencement of such term." Here, the plaintiff was notified of his appointment as Assessor in November 1990, and began working on December 3, 1990. Thus, even if he filed his oath of office on January 3, 1991, the filing was more than 30 days after the notification and commencement of his term. Thus, the Town Board properlydeclared the Office of Assessor vacant.
No exceptions!
Proper Judicial Role: Declaring What the Law is, Not What it Should Be In the most recent case, Vetere v. Ponce, supra, the case which catapulted § 30 onto a red-hot front burner, petitioner sought to be excused from strict compliance with the statute by arguing first, that petitioner was not notified by the Town/Village Clerk to timely file, as required by Law, (11)claiming, in effect, ignorance of a legal duty and second, that petitioner was justifiably distracted from his duty because of the concurrent illness and death of his spouse.
Politics takes center stage here. As set forth in the decision, the Town/Village Clerk of Harrison arranged to have all the Republican elected officials report to Town Hall to sign and file the official oaths. Curiously, however, no one reminded or told petitioner, the sole Democrat on the Board, to be in attendance. On February 16, seventeen days after the expiration of the 30-day period, the Town Clerk issued a Certificate of Vacancy and declared Mr. Vetere's position vacant because of the failure to timely file his oath. The Board then proceeded, as is its right under law, to appoint another (Republican) to fill the vacancy. This action caused great public outcry, however, urging the appointee to resign. Mr. Vetere was promptly thereafter appointed to fill his own vacancy until the next annual election, at which time he would have to run to
fulfill the balance of his term.
Mr. Vetere sought to be reinstated and reclaim his original position and term and pleaded with the Court to be excused from strict compliance with § 30 due to these particular circumstances. The Court, however, found itself compelled by a clear reading of the statute and appropriate case law to find petitioner's elected position vacant indeed, stating:
Notwithstanding equitable considerations and respondent's consent to
reinstatement, the court can only direct reinstatement in the event it finds petitioner
was improperly removed as a matter of law. Whether respondents acted unfairly or
took advantage of petitioner during a period of personal crisis, therefore, is
irrelevant. If this result is harsh, as it is in this case, the remedy lies with the
Legislature.... In this case, since petitioner did not file within 30 days of
commencement of his term, the office became vacant on Feb. 1, 1996.... The
Town Board and Village Trustees were entitled, in turn, to declare a vacancy and to
fill it. (12)
The situation presented in Vetere is illustrative of the problems faced when considering how to avoid equity considerations, and is instructive. Both the Election Law and the Village Law seek to minimize potentially harsh results imposed by § 30 by requiring the Village Clerk to notify officials of the § 30 mandate. The difficulty here lies with enforcement, however. If meeting one's official duty is paramount, enforcement of a law requiring a clerk to notify others of their duty might result in the removal of said clerk for onperformance or nonfeasance. This produces a harsh result in itself, and neither does it eliminate, ameliorate or excuse the duty of the official to timely file. There are simply too many possible equity considerations to statutorily exempt some and not others. No excuses, therefore, can be deemed worthy as exceptions.
Finally, Supreme Court Justice Nicholas Colabella, who delivered the opinion in Vetere, made a truly correct observation. If § 30 can produce a popularly perceived harsh result by not permitting any exceptions to its mandate, the remedy lies not with the Court but with the Legislature. Members of the New York Bar must agree, for it is surely the proper role of the judiciary to declare what the law is, and not what it ought to be.
Since no exceptions can be accepted by the courts to relieve the demands of the "emphatic and unequivocal" language of the statute, (13) Public Officer, Beware! No excuses under New York
Law can remedy your unenviable situation.
Noncompliance is Not a "Technical Omission"
Is the law acceptable? If not, what ought it to be? Is the law too harsh in its result by not permitting exceptions to the 30-day limit for filing the qualifying oath? We know that the limit was already extended from 15 to 30 days. Should the limit be two months? Is a limit necessary at all? Why should the office become vacant by operation of law "so much so as though the appointee were dead"? (14) What is all this fuss about an oath of office not being timely filed? Is it merely a "technical" bugaboo that should be significantly eased? Or, is the demand for strict compliance rational and wise? This author believes the latter.
The New York Legislature apparently believes the taking of the oath of office to be a critical qualification for those in public office accepting the public trust. An oath, we are all aware, is a solemn promise the taking of which is described as "burdening the conscience" where something is present to distinguish between an oath and a bare assertion. (15)
An oath, and its required accompanying and distinguishing act, is what can hopefully establish trust between people. Through this device in a public setting, the people are offered some assurance that the words and actions of public officers are possibly being carefully guided by something other than the official's own set of self serving principles. The swearing-in ceremony is visual and psychologically binding; the filing is written and legally binding. Is there another act which could as simply convey a solemn promise to behave with a full measure of integrity? How else might the public accept the offer of honest public service if not with a solemn, believable offer being made, by way of oath, to create a contract with all the rights and responsibilities we assume are contained in it?
The public must be offered something which fosters confidence in the official's moral responsibility. The official's conscience must be seen to be sufficiently burdened by something to help assure that the desired devotion to the public's trust might reach broadly into the official's public relations and daily decision-making. It is this promise, this oath of office, which helps to hold a civil society together.
Certainly, it is an easy task to file an oath of office within 30 days of the commencement or notification of one's term, and no one in public administration should be statutorily charged with informing another official of his or her duties. This is more properly the job of the official and his legal counsel. The purpose of the requirement reflects wise reasoning and speaks to the act being most critical for the health of the compact among the governed and the governors and, therefore, can permit
no exception.
The "emphatic and unequivocal" language of § 30, Public Officers Law represents one of the important links in the web of our representative democracy and is on the far other side of a mere "technical" nuisance. To reiterate, Public Officer, Beware! The law as it is presently set forth is there to protect, not to punish. No excuses will save a public term of office without taking and timely filing a solemn promise to the people served.
1 New York Law Journal, April 23, 1996, p. 29, col. 6.
2 Section 30, entitled Creation of vacancies, provides, in part:
1. Every office shall be vacant upon the happening of one of the following events before the
expiration of the term thereof:...
h. His refusal or neglect to file his official oath or undertaking, if one is required, before or
within thirty days after the commencement of the term of office for which he is chosen, if an
elective office, or if an appointive office, within thirty days after notice of his appointment or
within thirty days after the commencement of such term...
Personnel on Active Duty with the Armed Forces have a 90 day limit imposed for filing, after
which time a vacancy may be declared by operation of law.
3 Cerisse Anderson, "Technical Omission Costs Official His Post," New York
Law Journal, April 22, 1996, p. 1.
4 People v. Keator, 166 App. Div. 368, 154 N.Y.S. 1007.
5 66 A.D. 2d 966, 412 N.Y.S. 2d 428.
6 92 A.D. 2d 1022, 461 N.Y.S. 2d 439.
7 89 Misc. 2d 183, 391 N.Y.S. 2d 49, aff'd 57 A.D. 2d 1051, 395 N.Y.S. 2d 617.
8 173 App. Div. 338, 158 N.Y.S. 757, aff'd 221 N.Y. 503, 116 N.E. 1069.
9 Opinion, November 19, 1990.
10 1994; 206 A.D. 2d 462, 614 N.Y.S. 2d 564, leave to appeal denied 84 N.Y.
2d 807, 621 N.Y.S. 2d 516, 645 N.E. 2d 1216.
11 Section15-128 Election Law: "The clerk of the village shall, within three days after the
election of a village officer, notify each person elected of his election, and of the date thereof,
and that, in order to qualify: he is required to file his oath of office... and that upon his
failure so to do he will be deemed to have declined the office."
12 The Court, citing the Lombino case and others, observed that the failure to file constitutes an
automatic vacancy and is not subject to a cure nunc pro tunc by a belated filing.
13 Walton v. Hicks, supra.
14 Walton v. Hicks, supra.
15 O'Reilly v. People of the State of New York, 86 N.Y. 154, 1881. Judge
Finch of the Court of
Appeals further stated:
Some form of an oath has always been required, for the double reason that
only by some unequivocal form could the sworn be distinguished from the unsworn
averment, and the sanctions of religion add their solemn and binding force to the act.
(Pandects, xii, 2; 3 Coke's Inst. 165; 1 Phil. on
Ev. 15; 1 Starkie on Ev. 23; Lord HARDWICKE, in Omychund v. Barker, 1 Atkyns, 21; Tyler
on Oaths, 15; 1 Greenleaf on Ev., §§ 328, 371; 1 Alison's
Crim. Law, 474; 3 Wharton's Am. Crim. Law, § 2205; 2 Arch. Crim. Pl., 1723.)... [T]hese
sanctions have grown elastic, and gradually accommodated themselves to differences of creed,
and varieties of belief, so that, as the Christian is sworn upon the Gospels, and invokes the
Divine help to the
truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly
affirm without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin
priest with peculiar ceremonies... The changes of form incident to the growth of nations and of
commerce have been serious, but have not dispensed with a form entirely. . . A wide scope, a
large liberty, is thus given to the form of the oath, but some form remains essential. Something
must be present to distinguish between the oath and the bare assertion. An act must be done, and
clothed in such form as to characterize and evidence it. . .
* Carolyn H. Mann was admitted to the NYS Bar in 1994, and is partner with Mann & Mann of
Port Chester. She holds a BA in Art History and went on to NYU and received a Master of
Urban Planning degree.
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Return to the NYSBA Home Page ......
Subject: Fw: OATHS-Schoharie County
THE NORTH COUNTRY GAZETTE
Box 408Chestertown, NY 12817 June 20, 2003
E. David Hallock
Schoharie County Clerk
PO Box 549 Schoharie, NY 12157
RE: FOIL REQUEST Dear Mr. Hallock:
The letter of June 19, 2003 from Karen Miller, clerk of the Schoharie County Board of Supervisors has confirmed and certified that none of the town and village court justices in the entire county of Schoharie have filed their oaths of office AND undertakings in the county clerk’s office as required by the NYS Constitution and Uniform Justice Court Act 104.
Further, it has been confirmed and certified by Ms. Miller that neither has George Bartlett III, county/surrogate and family court judge of Schoharie County, filed his undertaking in the county clerk’s office as required by Judiciary Law 184.
Further, it has been confirmed and certified by Ms. Muller that Sheriff John S. Bates Jr. has not filed an undertaking in the office of county clerk as required by law.
Therefore, I regretfully inform you that immediate vacancies exist in every town and village court in your county, in the office of sheriff and in the office of the county/surrogate and family court judge, ipso facto, for their failure to comply with the provisions of the Consolidated Laws of New York and the NYS Constitution.
I further must inform you that if your office and the offices of the town and village clerks throughout the county do not comply with the law in addressing the existing vacancies, legal action to compel compliance will be coming forthwith.
Public Officers Law 30(1)(h) prescribes that every “office SHALL (mandatory) be vacant upon the refusal or neglect of a public officer to file his official oath or undertaking before or within 30 days of the commencement of the term of office for which he is chosen”. The applicable statutes in addition to Article XIII, Section 1 of the NYS Constitution are POL 10-13, 30(1)(h); Executive Law 63, UJCA104, County Law 400-403, Town Law 25 and 30.
Tardy, belated filings are not retroactively binding, the courts have consistently held, i.e. Vetere v. Ponce (1996) Westchester County Supreme Court. The courts have also held that the failure of the county clerk to fail to give notice to the town or village justice of his failure to file his official oath and undertaking does not excuse the town or village justice for not having done so.
If any official shall neglect within the time required by law to take and file an official oath, or execute and file an official undertaking, the officer with whom or in whose office such oath and undertaking is required to be filed SHALL forthwith give notice of such neglect of an elective officer to the official board or body authorized to fill a vacancy in such office. The town clerk under Town Law 30 must give notice of the vacancy and place it on the ballot for the next election.
The Schoharie County sheriff has no legal authority to act or collect his personal compensation, and the county court, town and village courts are effectively shut down immediately until this matter is addressed and vacancies filled. No hearing or judicial proceeding is necessary to declare the ipso facto vacancies nor no notice but by this letter you have been legally placed on notice.
Any further action by these individuals will be without lawful authority and will subject both the county and the individual towns and villages in the county with serious legal liability and subject them to a class action lawsuit.
The office of sheriff is immediately vacant and has been since Jan. 1, 2002. It is required that you as county clerk immediately fulfill your duties as per POL 13 and County law 400(6) and give notice to the governor of the vacancy due to Bates having failed to qualify for office by failing to file his undertaking. POL 11, 30(1)(h), County Law 403 and Executive Law 63 as well as the NYS Constitution mandate the vacancy and that you so notify the governor of the vacancy.
I further formally advise that as per UJCA 104, POL 10, 30(1)(h), County Law 400-403, that a vacancy exists in each and every judicial office in the county.
In regard to the sheriff, statutory law is very specific that “until the sheriff shall execute and file the required undertaking he shall not perform any duties of the office nor be entitled to any compensation”.
The county had no legal authority to compensate Bates as sheriff since Jan. 1, 2002, and all monies collected must be repaid to the taxpayers. He is legally an usurper in office acting in absence of color of law. POL 13 and 30(h) requires the county clerk to forthwith give notice of the sheriff’s failure to file the undertaking and resulting vacancy of office to the governor.
County Law 400(5) mandates that upon filing in the office of the county clerk a certificate of election or appointment of any officer, together with the oath of office and official undertaking prescribed by law, the county clerk shall execute and deliver to such office a certificate saying he has qualified and is entitled to assume the duties of his office. Bates did not qualify for office and could and cannot assume the duties of sheriff nor can he be compensated.
By usurping the office even with the knowledge that no undertaking had been filed, he is not a de facto officer and therefore none of his acts while usurping in the office are legal. Ignorance of the law is no excuse.
Due to the alleged town and village justices, county court judge and sheriff having failed to comply with the Constitution, the law and having vacated their offices ipso facto, each town and village in the county as well as the county itself is subject to a class action suit from individuals having been illegally fined, illegally incarcerated and illegally arrested by the sheriff and alleged justices/judge.
In effect, the criminal justice system of Schoharie County is shut down due to its officers having failed to comply with the law. Should you have any questions relating to this matter, I would suggest you contact Kevin Crawford and counsel Jaros of the NYS Association of Towns.
I would ask that you comply with the law.
Very truly yours,
June Maxam
CC: Karen Miller, Clerkbcc
Oath Keeper Sheriff Richard Mack
No Sheriff Left Behind
Yes, that's the plan. Make sure that every sheriff in the country has received a copy of "The County Sheriff: America's Last Hope". We're not going to force them -- er, excuse me... withhold federal money from them -- but we are going to give them an opportunity to read it. With your donations, we can make it happen. When every sheriff understands his duty and functions with the support of those whom he serves, then not only will there be "no sheriff left behind" but we, the people will not be left behind!
You may donate any amount you choose to this cause... all donations are appreciated and will go towards the printing and delivery of a copy of the book to every county sheriff in America. You may specify the state or county where we should send the books. If you do so, please provide us with the addresses where we should send them.
If you purchased books yourself to give to your local sheriff, please send us an email so we can keep track.
April 2009: THERE ARE NO SHERIFFS LEFT BEHIND IN MINNESOTA! Many people have written in telling us that they have given a copy of "The County Sheriff" to their own county sheriff... and that's awesome! Every bit is appreciated, and we can only hope it will make a difference. Now here's something a little extra special: A woman in Minnesota bought a copy of the book for all 87 county Sheriffs in her state, hand-addressed them and mailed them along with an introductory letter. Click here to see her letter. UPDATE: Here are written responses from some of the sheriffs who have received the book: 1 2 3
June 2009: THERE ARE NO SHERIFFS LEFT BEHIND IN Ohio, Montana, Idaho or Arizona!
July 2009: THERE ARE NO SHERIFFS LEFT BEHIND IN Oregon!
September 2009: THERE ARE NO SHERIFFS LEFT BEHIND IN Colorado, Florida, South Dakota, California, Washington, Arkansas, Missouri, Maryland, Massachusetts or Illinois!
March 2010: WE DID IT!!! Thanks to donations from freedom-loving patriots across this great land, we have achieved our goal of NO SHERIFF LEFT BEHIND! We still have a few books left to mail, but we have received enough to pay for every sheriff in this country to have a copy. NOW, THE FOLLOW-THROUGH IS UP TO ALL OF US.
Responses from Colorado: We've received a copy of a reaffirmation of their oath of office from the sheriffs of the state of Colorado. We are proud to share it with you. Page 1 Page 2
Welcome to SheriffMack.com
Hi, I'm Richard Mack, former sheriff of Graham County, Arizona, and long-time crusader for freedom and individual rights. Right now, it is vital that we restore the Constitution as the supreme law of the land. The greatest threat we face today is not terrorists; it is our own federal government. If America is conquered or ruined it will be from within, not a foreign enemy.
In 1994 I filed a lawsuit challenging the Brady bill to stop the federal government from forcing another unfunded mandate down our throats. I won a decision at the US Supreme Court on the issue of States' rights. This suit catapulted me to national attention, with television appearances on the Donahue Show, Good Morning America, Crossfire, Nightline, CNBC, and SHOWTIME'S the AMERICAN CANDIDATE. I've been on over 500 radio talk shows nationwide, ranging from G. Gordon Liddy and Charles Goyette to Derry Brownfield and Pat Buchannan. I have traveled the country extensively and I've seen first hand the horrible side effects from politicians who have replaced our Constitution with their own political agendas and party platforms.
I lecture and give seminars on constitutional issues relating to gun control, law enforcement, States' rights, the farce, otherwise known as the drug war, and the oath of office. I have also been a consultant for lawyers, and people in general helping them with cases of unlawful arrests and police misconduct. I have stood for "the little guy" against "big brother" government.
On this site you'll find many articles and extracts from books I've written on many subjects related to maintaining our freedom as a people. I am deeply committed to the belief that government should exist to protect the freedoms of the individuals whom it serves. We must return to those principles that our country was founded upon!
The founders of our nation were afraid of one thing more than any other... government having too much power! Remember, they escaped from the tyranny of an oppressive and controlling government when they established this nation. They fought and died for it, and now we are letting these same freedoms they fought for slip away little by little, without a second thought.
Please join me in the fight to regain our rights, while the price to pay is less than death. I am committed to doing all we can peacefully to get our country back.
In order to succeed, we must first make ourselves aware of the problem. We must educate ourselves, and then we can know what action to take. One of the best and easiest solutions is to depend on local officials, especially the sheriff, to stand against federal intervention and federal criminality.
And this is the purpose of my work: I write and speak so that others will become educated and free.
What rights does the constitution actually guarantee?
Why is it important that we not allow our means of self-defense to be taken from us?
What are the dangers of giving government too much power?
What can we do to remain strong as individuals and families, so that we can remain strong as a nation?
How do we win the war on illegal drugs?
What can the sheriff do to protect us from all enemies, both foreign and domestic?
Please take a few moments to read and think about these things. It really may be a life or death situation!
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