It is a common situation: neglecting a step in a notarization process. This can happen especially when the step may seem unimportant, particularly when dealing with one's superior. However, this is a scenario that should be avoided at all costs as it could lead to serious consequences, potentially even criminal charges.
The incident in question involved a Notary who was employed by a business owner and performed notarizations as part of her job responsibilities. The owner decided to apply for a position with a government agency and completed the necessary application, which included an attached supporting affidavit.
During a notarization, the signer or principal must be present throughout the entire procedure without exceptions. In this case, the owner provided the signed application and affidavit to the Notary-employee, who completed a jurat certificate but failed to administer an oral oath or affirmation. While it was customary in the workplace for the boss to submit documents for notarization without being physically present, this practice was incorrect.
Requirements for Notaries
Notaries are legally obligated to administer oral oaths or affirmations when executing jurats or verifications on an oath or affirmation. When a certificate states that it has been "signed and sworn to," or similar wording, the Notary must conduct an oral oath or affirmation.
There is no specific language prescribed for the oath or affirmation, but it typically involves asking the document signer: "Do you solemnly swear or affirm, under penalty of perjury, that the information in this document is accurate and true?" The signer should respond verbally with a "Yes."
Furthermore, nearly all states have statutes that define "official misconduct" for public officials, including Notaries, who fail to fulfill their official duties — this could encompass a deliberate or negligent failure to administer a required oral oath or affirmation.
The Lie and the Notary's Risk
It was revealed that the business owner had provided false information in the application. Consequently, the local prosecutor charged the owner with perjury, a felony offense for lying in the affidavit. Subsequently, the prosecutor deliberated on charging the Notary with official misconduct.
To secure her cooperation, the Notary was granted immunity and confessed to not conducting the mandatory oral oath or affirmation.
Upon being consulted by the defense counsel, I was tasked with providing an expert opinion on whether the business owner had committed perjury due to the absence of an oral oath or affirmation. I unequivocally concluded that the owner had not committed perjury since no oath or affirmation had been administered. Although the owner had lied, it was not under oath. Consequently, the owner evaded prosecution for perjury, and the Notary avoided official misconduct charges (despite her evident failure in duty).
Nonetheless, this incident had negative repercussions for both the business owner and the Notary. They faced public embarrassment due to media coverage, incurred substantial legal and expert service costs, and expended significant time on legal proceedings.
While the Notary managed to avoid criminal charges, she encountered disciplinary actions from the Notary oversight agency, which lodged an administrative complaint against her.
The Lessons
This case underscores several key points for Notaries:
Recognize when an oath or affirmation is necessary and administer it verbally.
Document in your Notary journal that an oral oath or affirmation was conducted.
Avoid taking shortcuts when performing notarizations, regardless of whether it is for a superior or anyone else.
Understand the implications of official misconduct and steer clear of it at all costs.
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