Is a member of a school board a public officer? Most people would automatically say “yes.” What about a superintendent for the same school district? The answers might be a little more hesitant, there might be a few faint “noes” heard from the crowd. Now, what about the elementary school principal? What about the fourth-grade math teacher? What about the school nurse?
If a school nurse or a fourth-grade math teacher isn’t a public officer, what makes that position different from the position of school board trustee? Is a school board trustee a public officer in the same degree and of the same capacity as a city mayor? Is a mayor more or less of a public officer than a county constable? Attorneys are referred to as “officers of the court.” Are they somehow legally affected or bound by that appellation? Police officers get commissioned by government; does that mean the beat cop is a public official? Is there such a thing as “officer-ness?”
There are all sorts of practical reasons why people ask these questions. A superintendent is dismissed – does that affect the validity of a contract for the construction of a new gym? Does a mayor continue to accrue insurance benefits while contesting the results of a recall election?
Disputes arise over money, assignments of liability, sovereign immunity, legitimacy, real and apparent authority, and an uncountable number of other legal fights that are grounded in public law. Questions about public office and office-holding are of real and immediate importance, and the answers affect people’s lives and welfare, so it’s a good idea to come up with some kind of answer.
When the United States declared independence from Great Britain, our judges were careful to preserve an English common law corpus as the foundation for our laws; this promoted continuity in commerce and civil institutions. But we didn’t preserve the philosophical continuity of English public law.
The central crisis facing colonial lawyers during and after the Revolutionary War was to identify where laws come from. In the lands subject to the British Crown, the question was and is easy to answer – all law and all authority rests in the monarch, and is delegated by degrees to various institutions that owe their creation and continued existence to the pleasure of the hereditary ruler. To the extent that there is a body of English public law, it can be summed up almost completely as “the will of the sovereign,” softened by a few enfolding centuries of legal reform and Victorian principles of honest government.
The colonial rejoinder to English sovereignty was to assert that law derived from the will of the governed – that the people are sovereign. This seems like a perfectly workable substitution – one could imagine a post-Revolutionary War judge or lawyer mentally substituting the amorphous collective “people” whenever trying to interpret the effect of some pre-1776 case or statute.
But almost immediately after Independence, American law began to diverge from English common law traditions in more fundamental, unintended, unexamined, and unexpected ways. For political and social reasons, our public law (i.e., the laws of government organization and sovereignty) slowly became enmeshed in a labyrinth of confused policies and divided purposes. Eventually, American public law became entangled in philosophical dead ends that (in retrospect) would have been entirely avoidable if we had just stuck to the simple notion that the people are sovereign.
For reasons that I suspect have to do with early American Romanticism in philosophical fads, newly enfranchised American courts began applying principles of civil public law to questions relating to the exercise of public office and public authority.
1,200 years before the Revolution, Emperor Justinian got to put his name on one of those massively obsessive-compulsive public works that the Romans were so fond of manufacturing -namely, the Justinian Code or Codex – a sweeping compilation of a millennium of legal tradition, tidied up, indexed, and organized by topic. In the course of creating this work, its editors made distinctions between public and private law that have no parallel in the English legal tradition, and then they built massive thematic outlines to restate and pin down the relationships and parallels between all laws.
In other words, the Byzantine legal editors were looking for organizing principles of legal theory, and they had the academic firepower, money, and will to succeed at their task. Ultimately, they built beautiful self-consistent and organized crystalline hierarchies of public legal authority based on the notion of degrees of discretionary governmental authority and judgment.
So … imagine an organizational chart, with the Emperor at the very top. The Emperor exercises unlimited discretion, with the power of life and death over everyone. Just below the Emperor are a group of senior managers, who exercise slightly less discretion. Below those managers are still more managers, with narrower fields of authority.
Eventually the whole organizational chart gets revealed, and someone reviewing the chart can look up a particular praetor, or consul, or whatever, and say, “the person with that job title has the discretion to order x, y, and z, but not other things, and answers to whoever has the job title one level up, who has the authority to order t,u, and v.”
Of course, the Lex Publica was just part of the whole Codex, which was immensely useful as a document for managing public and private rights and duties. So when Western Europe fell apart politically, a lot of local strongmen just kept on referring to the Codex (maybe throwing in a few tribal laws for a little color).
Now, there’s nothing particularly democratic about either the Roman-derived continental European civil law or the English common law. And there’s nothing particularly distinct about the ends accomplished by one philosophy of law or the other; the common law and the civil law are just two different ways of organizing one’s thoughts about ordered society. Both systems are tradition-bound; both are the product of autocratic dictatorial forms of government; and in either one, policy changes are swaddled in some sort of deliberative justification that may be disconnected from the actual reason for the change. When the common law needs to change, a policy maker appeals to some perceived (and possibly infinitesimal) change in factual circumstances that justifies a new principle. When the civil law needs to change, a policy maker appeals to an intellectual reexamination and (possibly almost insubstantial) reorganization of hierarchical philosophical principles. In the end, the trains still have to run on time.
But arguably, English public common law expresses a bracingly blunt and brutal “realpolitik” about the nature of sovereign power that civil codes tend not to articulate. There is no distinction between public or private officers in English common law. A British soldier on parade, a striving Cockney who manages a fish and chips stand, Graham Norton on TV, Dame Judy Dench in the West End, the Archbishop of Canterbury, the Prime Minister, and the Lord Exchequer are all in the same position with respect to the monarch – each continues in his or her post and employment (whether that employment is private and commercial, charitable, religious, nakedly capitalistic, military, political, or in any other field of human endeavor) only at the will, sufferance, and pleasure of Queen Elizabeth II, subject to an enormous body of monarchial concessions and franchises that have been granted over the millennium. Neat organizational charts exist to categorize and organize positions of trust and discretion, but those charts exist only for convenience, and in the common law, every hierarchy could theoretically be swept away with a single blow of the headsman’s axe.
Meanwhile, in the U.S., we have clumsily grafted legalisms of title and comparative levels of discretionary authority onto an arguably incompatible larger body of court-made law. Then, to compound the problem, we have steadily and consistently neglected to examine the historical and philosophical origins of our laws, weakening any sort of claim to logical consistency in the ways that we apply public laws.
What do we mean when we say that someone is a public official? Usually, the term is used to refer to someone who is at least in the informal sense “in charge” of some governmental department or agency. One can find many examples regarding “public office” where the answer to the question seems to be a final and definitive, “who knows?” For example, see the following opinion of the Texas Attorney General (Op. Tex. Att’y Gen. GA-886 (2011)).
In response to the question “Is a notary public a public officer?”, the best answer that the State’s own legal counsel can offer is “maybe.” The opinion concludes,
Some authorities that discuss notaries and state officers indicate that notaries are not officers, others indicate that notaries are officers, and others indicate very little, if anything, about the issue. Furthermore, no Texas constitutional provision, statute, or appellate court decision has directly addressed whether a notary public is an officer for purposes of chapter 603 [of the Texas Government Code]. Accordingly, we cannot definitively determine whether or not notaries are officers under chapter 603 of the Texas Government Code.
Op. Tex. Att’y Gen. GA-886, at 2.
In the course of coming to this decision, the opinion mentions a significant test of “public officialness” used in Texas, and the court opinion that articulated that test. Per the opinion, “Texas courts have held that “‘the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.'” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).” Id., at 1.
So the test, (which is rooted in the hierarchical civil law way of looking at the public office), is dependent on whether the person holding a position is given the power to exercise sovereign functions for public benefit independently. Well, terms like “sovereign functions”, “public benefit”, and “independently” are terribly mushy and indistinct; they offer no solid ground on which to stand.
It’s not that the concepts are meaningless; but that ideas like sovereignty, public benefit, and independence of supervision all describe relative conditions. Hence we see that the legal definition of public office in Texas is fundamentally broken – if there is no way to know whether or not notaries are subject to certain laws applicable to public officers, the same might be true of other types of office as well.
This legal confusion about a fundamental element of public law (which was bad in 1955, and has only gotten worse since) is frustratingly symptomatic of even larger philosophical problems in American jurisprudence; the sort of problems that lead to miscarriages of the law such as Citizens United v. Federal Elec. Comm’n., 558 U.S. 310 (2010), and to the peculiarly wrongheaded notion that corporations are something more than just revocable franchises of the sovereign.