The
Executive
Department
State
House,
(617)
725-4000
By
His Excellency
MITT
ROMNEY
GOVERNOR
EXECUTIVE ORDER NO. 455 (03-13)
STANDARDS
OF CONDUCT FOR NOTARIES PUBLIC
WHEREAS, notaries public promote, serve,
and protect the public interest by acting as independent witnesses in a variety
of situations;
WHEREAS, notaries public currently lack
specific guidance as to the nature and scope of their duties;
WHEREAS, it is important to foster ethical
conduct among notaries public;
NOW, THEREFORE, I, Mitt Romney,
Governor of the Commonwealth, by virtue of the authority vested in me as
Supreme Executive Magistrate, Part 2, c. 2, § I, Art. I,
do hereby order as follows:
Section 1: Applicability.
(a) This executive order shall apply
to all notaries public, including notaries public who received their commission before the effective
date of this executive order.
(b) All notaries public who receive
their commission after the date of this Executive
Order shall immediately comply with
all of its provisions.
(c) All notaries public who received
their commissions before the date of this Executive
Order shall have 60 days to comply
with all of its provisions.
Section 2: Definitions.
As used in this executive order and
set forth in bold for ease of reference, the following
words shall
have the following meanings:
"Acknowledgment"
shall mean a notarial act in which an individual, at a single
time and
place:
(a) appears in person before the notary public and presents a
document;
(b)
is identified by the notary public through
satisfactory evidence of
identity; and
(c) indicates to the notary public that the signature on the
document was
voluntarily affixed by the individual for the purposes
stated within the
document and, if applicable, that the individual had
authority to sign in a
particular representative capacity.
" Affirmation" shall mean a notarial act, or
part thereof, that is legally equivalent
to an oath
in which an individual, at a single time and place:
(a)
appears in person before ,the notary public;
(b)
is identified by the notary public through
satisfactory evidence of
identity; and
(c)
makes a vow of truthfulness or fidelity under the
pains and penalties of
perjury without invoking a deity.
"Copy
certification" shall mean a notarial act in which a notary public:
(a) is
presented with a document:
(b) copies
or supervises the copying of the document using a photographic
or
electronic copying process;
(c) compares
the document to the copy; and
(d) determines
that the copy is accurate and complete.
"Credible
witness" means an honest, reliable, and impartial person who
personally knows an
individual appearing before a notary and takes an oath or
affirmation from the notary
to vouch for that individual's identity.
"Journal of
notarial acts" or "journal"
shall mean a permanently bound book
that creates and preserves a
chronological record of notarizations performed by a
notary public.
"Jurat" means a notarial act in which an
individual, at a single time and place:
(a) appears
in person before the notary public and presents a document;
(b) is
identified by the notary public through satisfactory evidence of
identity;
(c) signs
the document in the presence of the notary public; and
(d) takes
an oath or affirmation before the notary vouching for the
truthfulness
or accuracy of the signed document.
"Notarial
act"
and "notarization" shall
mean any act that a notary public is
empowered to perform under
this executive order.
"Notary
public" or "notary"
shall mean any person commissioned to perform
official acts pursuant to
Article IV of the Articles of Amendment of the
"Oath" shall mean a
notarial act, or part thereof, which is legally equivalent to an
affirmation, and in which an
individual, at a single time and place:
(a) appears
in person before the notary;
(b) is
identified by the notary through satisfactory evidence of identity;
and
(c) makes a
vow of truthfulness or fidelity under the pains and penalties of
perjury by
invoking a deity.
"Official
misconduct" shall mean:
(a) a
notary's performance of any act prohibited, or failure to perform any
act
mandated, by this executive order, or by any other law, in connection
with a
notarial act; or
(b) a
notary's performance of an official act in a manner found to be
negligent or against the
public interest.
"Personal
knowledge of identity" shall mean familiarity with an individual
resulting from interactions
with that individual over a period of time sufficient to
ensure beyond doubt that the individual has
the identity claimed.
"Principal" shall mean a
person whose signature is notarized, or a person taking
an oath or affirmation from the notary.
"Regular
place of work or business" shall mean a place where one spends most
of one's working or business hours.
"Satisfactory
evidence of identity" shall mean identification of an individual
based on at least one current document
issued by a federal or state government
agency bearing the photographic image of
the individual's face and signature; or
on the oath or affirmation of a
credible witness unaffected by the document or
transaction who is personally
known to the notary and who personally knows the
individual; or identification
of an individual based on the notary public's personal
knowledge of the identity
of the principal.
"Seal" shall mean a
device for affixing on a paper document an image containing
a notary public's name, commission
expiration date, and other information
relating to the notary
public's commission.
"Signature
witnessing" shall mean a notarial act in which an individual, at a
single time and place:
(a) appears in
person before the notary public and presents a document;
(b) is identified
by the notary public through satisfactory evidence of
identity; and
(c) signs the
document in the presence of the notary public.
Section 3: Qualifications of Applicants.
(a)
A person qualified for a notary public commission shall:
(1) be at least 18
years of age; and
(2) reside legally
in
(b)
In the Governor's discretion, an application may be denied based on:
(1) submission of
an official application containing a material misstatement or
omission of fact;
(2) the
applicant's felony conviction or misdemeanor conviction that resulted in a
prison sentence;
(3) the
applicant's conviction of a misdemeanor with probation or a fine, or
conviction for drunk
driving;
(4) the
applicant's admission of facts sufficient to Warrant a finding of guilt of any
crime;
(5) a finding or
admission of liability against the applicant in a civil lawsuit based
on the applicant's
deceit;
(6) revocation,
suspension, restriction, or denial of a notarial commission or
professional license by this
or any other state; or
(7) any other
reasons that, within the Governor's discretion, would make the
applicant unsuitable to
hold the commission as a notary public.
Section 4: Duration of Commission.
As
set forth in Article IV of the Articles of Amendment to the Constitution of the
Commonwealth,
a person commissioned as a notary public may perform notarial acts in
any part of the commonwealth for a term
of seven years, unless the commission is earlier
revoked or the notary
resigns.
Section 5: Scope and Description of Duties.
(a)
A notary public may perform the following notarial acts:
(1) acknowledgments;
(2) oaths and affirmations;
(3) jurats;
(4) signature witnessings;
(5) copy certifications;
(6) issuance of
summonses for witnesses as set forth in section 1 of chapter 233;
and
(7) witness the
opening of a bank safe, vault, or box as set forth in section 32 of
chapter 167.
(b)
In completing a notarial act, a notary shall sign his or her name exactly as it
appears
on the notary's commission.
(c)
A notary shall keep an official notarial seal that is the exclusive property of
the
notary, which may not be used by any other
person.
(1) A notary public shall obtain a new seal
if the notary public renews his or her
commission, receives a new
commission, or changes his or her name.
(2) The notarial seal shall include: the
notary public's name exactly as indicated
on the commission;
the words "notary public," "Commonwealth of
and a facsimile of the
great seal of the
(3) Each new notarial seal that uses ink
shall, after the date of this Executive
Order, use black
ink.
(d)
A notary shall take the acknowledgement of the signature or mark of persons
acknowledging for themselves or
in any representative capacity by using substantially the
following form:
On this ____ day of ________, 20__, before
me, the undersigned notary
public, personally
appeared _____________________(name of document
signer), proved to me
through satisfactory evidence of identification, which were
_______________________, to be the person
whose name is signed on the
preceding or attached
document, and acknowledged to me that (he) (she) signed it
voluntarily for its stated
purpose.
(as partner for ________________,
a corporation)
(as
_______________ for ______________, a corporation)
(as attorney in
fact for ___________________, the principal)
(as _____________
for ________________, (a) (the) _____________________)
___________________________(official signature and seal of notary)
My commission expires
__________________________________
(e)
A notary shall use a jurat
certificate in substantially the following form in notarizing
a signature or mark on an affidavit or
other sworn or affirmed written declaration:
On this _____ day of ____________, 2O__,
before me, the undersigned notary
public, personally
appeared ___________________________(name of document
signer), proved to me
through satisfactory evidence of identification, which were
________________________, to be the person
whose name is signed on the
preceding or attached
document, and who swore or affirmed to me that the
contents of the document
are truthful and accurate to the best of (his) (her)
knowledge and belief.
__________________ (official
signature and seal of notary)
My commission expires
___________________________
(f)
A notary shall witness a signature
in substantially the following form in notarizing a
signature or mark to confirm
that it was affixed in the notary's presence without
administration of an oath or
affirmation:
On this _____ day of ____________, 20__, before
me, the undersigned notary
public, personally
appeared __________________________(name of document.
signer), proved to me
through satisfactory evidence of identification, which were
_______________________, to be the person
whose name is signed on the
preceding or attached
document in my presence.
__________________ (official
signature and seal of notary)
My commission expires
__________________________
(g)
A notary shall certify a copy by
using substantially the following form:
On this ____ day of ____________, 20__, I
certify that the (preceding) (following)
(attached)
document is a true, exact, complete, and unaltered copy made by me of
____________________(description
of the document), presented to me by
_________________________.
_______________________ (official signature
and seal of notary)
My commission expires
_______________________________
(h)
A notary public may certify the affixation of a signature by mark on a document
presented for notarization
if:
(1) the principal
affixes the mark in the presence of the notary public and of 2
witnesses unaffected by the
document;
(2) both witnesses
sign their own names beside the mark;
(3) the notary writes
below the mark: "Mark affixed by (name of signer by mark)
in the presence of
(names and addresses of witnesses) and undersigned notary
pursuant to Executive
Order No. _____; and
(4) the notary
public notarizes the signature by mark through an
acknowledgment, jurat, or signature
witnessing.
(i) The notary public may sign the name of a principal who
is physically unable to sign or
make a mark on a document presented for
notarization if:
(1) the principal
directs the notary to do so in the presence of 2 witnesses who are
unaffected by the document;
(2) the principal
does not have a demeanor that causes the notary public to have a
reasonable doubt about
whether the principal knows the consequences of the
transaction requiring the
notarial act;
(3) in the notary
public's judgment, the principal is acting of his or her own free
will;
(4) the notary
public signs the principal's name in the presence of the principal
and the witnesses;
(5) both witnesses
sign their own names beside the signature;
(6) the notary
public writes below the signature: "Signature affixed by notary
public in the presence
of (names and addresses of principal and 2 witnesses)"; and
(7) the notary public notarizes the signature through an acknowledgment, jurat,
or signature
witnessing.
Section 6: Prohibited Acts.
(a)
A notary public shall not perform a notarial act if:
(1) the principal
is not in the notary's presence at the time of notarization;
(2) the principal
is not identified by the notary through satisfactory
evidence of
identity;
(3) the principal
has a demeanor that causes the notary public to have a reasonable
doubt about whether the
principal knows the consequences of the transaction or
document requiring the
notarial act;
(4) in the notary
public's judgment, the principal is not acting of his or her own
free will;
(5) the notary
public is a party to or is named in the document that is to be notarized;
(6) the notary
public will receive as a direct or indirect result any commission,
fee, advantage,
right, title, interest, cash, property, or other consideration
exceeding in value the fees
set forth in section 41 of chapter 262 of the General
Laws or has any financial interest in the
subject matter of the document; or
(7) the notary
public is a spouse, domestic partner, parent, guardian, child, or
sibling of the principal,
including in-law, step, or half relatives.
(b)
A notary public shall not refuse to perform a notarial act solely based on the
principal's race, advanced
age, gender, sexual orientation, religion, national origin, health,
disability, or status as a
non-client or non-customer of the notary public or the notary
public's employer.
(c)
A notary public shall not influence a person either to enter into or avoid a
transaction
involving a notarial act by
the notary public, except that the notary public may provide
advise relating to that transaction if
section 9(b) applies.
(d)
A notary public shall not execute a certificate containing information known or
believed by the notary
public to be false.
(e)
A notary public shall not affix an official signature or seal on a notarial
certificate that
is incomplete.
(f)
A notary public shall not provide or send a signed or sealed notarial
certificate to
another person with the understanding
that it will be competed or attached to a document
outside of the notary
public's presence.
(g)
A notary public shall not notarize a signature on a blank or incomplete
document.
(h)
A notary public shall not perform any official act with the intent to deceive
or
defraud.
(i) A notary public shall not claim to have powers,
qualifications, rights, or privileges that
the office of notary public does not
provide, including the power to counsel on
immigration matters.
(j)
A notary public shall not use the term "notario"
or "notario publico"
or any equivalent
non-English term in any
business card, advertisement, notice, or sign.
(k)
A notary public who is not an attorney licensed to practice law in
not conduct a real estate closing and
shall not act as a real estate closing agent.
Section 7: Limitations of Discretion.
A
notary shall perform any notarial act described in this executive order for any
person
requesting such an act who
tenders the fee set forth in section 41 of chapter 262 of the
General
Laws unless:
(a) the notary
public knows or has good reason to believe that the notarial act or
the associated
transaction is unlawful;
(b) the principal
has a demeanor that causes the notary public to have a
compelling doubt about
whether the principal knows the consequences of the
transaction or document
requiring the notarial act;
(c) the act is
prohibited by this. executive order or other
applicable law; or
(d) the number of
notarial acts requested practicably precludes completion of all
acts at once, in which
case the notary public shall arrange for later completion of
the remaining acts.
Section 8: Underlying Document.
A
notary public has neither the duty nor the authority to investigate, ascertain,
or attest to
the lawfulness, propriety, accuracy, or
truthfulness of a document or transaction
involving a notarial act.
Section 9: Prohibition Against the
Unauthorized Practice of Law.
(a)
A non-attorney notary public shall not assist another person in drafting,
completing,
selecting, or understanding
a document or transaction requiring a notarial act, rendering
legal advice, or otherwise engage in the
practice of law.
(b)
This section does not preclude a notary public who is duly qualified, trained,
or
experienced in a particular
industry or professional field from selecting, drafting,
completing, or advising on a
document or certificate related to a matter within that
industry or field.
Section 10: Advertising Disclaimer Required.
A
non-attorney notary public who advertises notarial services in a language other
than
English
shall include in the advertisement, notice, letterhead, or sign the following,
prominently displayed in the
same language the statement: "I am not an attorney and
have no authority to
give advice on immigration or other legal matters."
Section 11: Official Journal.
(a)
A notary shall keep, maintain, protect, and provide for lawful inspection a
chronological official journal of notarial acts that is a
permanently bound book with
numbered pages.
(b)
A notary public shall keep no more than one active journal at the same time.
(c)
For every notarial act, the notary public shall record in the journal at the
time of the
notarization the following:
(1) the date and
time of the notarial act;
(2) the type of
notarial act;
(3) the type,
title, or a description of the document or proceeding;
(4) the signature,
printed name, and address of each principal and witness;
(5) description of
the satisfactory evidence of identity
of each person including:
(a) a notation of the type of identification document, the
issuing agency,
its serial or
identification number, and its date of issuance or expiration;
and
(b) a notation if the notary identified the individual on the
oath or
affirmation of a credible
witness or based on the notary's personal
knowledge of the
individual;
(6) the fee, if any,
charged for the notarial act; and
(7) the address
where the notarization was performed.
(d)
A notary public shall not record a Social Security or credit card number in the
journal.
(e)
A notary public shall record in the journal the circumstances for not
completing a
notarial act.
(f)
A notary public shall record in the journal the circumstance of any request to
inspect
or copy an entry in the journal,
including the requestor's name, address, signature, and
evidence of identity. If the notary public refuses to allow
inspection, the notary public
shall record the specific reason for the
refusal.
Section 12: Inspection of the Official Journal.
(a)
In the notary public's presence, any person may inspect an entry in the official
journal of notarial acts during regular business hours, but only if:
(1) the person's
identity is demonstrated through satisfactory
evidence of
identity;
(2) the person
affixes a signature in the journal
in a separate, dated entry;
(3) the person
specifies the month, year, type of document, and name of the
person for the notarial
act or acts sought; and
(4) the person is
shown only the entry or entries specified.
(b)
If the notary public has a reasonable and explainable belief that a person
bears a
criminal or harmful intent
in requesting information from the notary public's journal, the
notary public may deny access to any entry
or entries.
(c)
The journal may be examined without restriction by a law enforcement officer in
the
course of an official investigation,
subpoenaed by court order, or surrendered at the
direction of the Governor's
Office.
(d)
Upon complying with a request under subsection (a), the notary public shall
provide a
copy of a specified entry or entries in
the journal, provided that other entries on the same
page shall be masked.
(e)
A notary public shall safeguard the journal and all other notarial records and
surrender
or destroy them only by rule of law, by
court order, or at the direction of the Governor's
Office.
(f)
When not in use, the journal shall be kept in a secure area under the exclusive
control
of the notary public, and shall not be
used by any other notary nor surrendered to an
employer upon termination
of employment.
Section 13: Duties at the End of the Commission.
When
a notary commission expires, is resigned, or is revoked, the notary shall:
(a) as soon as reasonably practicable, destroy or deface all
notary seals and stamps so that
they may not be used; and
(b)
retain the notarial journal and records for seven
years after the date of expiration,
resignation, or revocation.
Section 14: Change of Name or Address.
Within
10 days after the change of a notary public's residence, business, mailing
address,
or name, the notary shall send to the
Office of the Secretary of State a signed notice of
the change, giving both the old and new
information.
Section 15: Revocation of Commission.
A
notary public's commission may be revoked for official misconduct as defined by this
Executive
Order, or for other good cause, as determined by the Governor with the
consent of the Governor's
Council as set forth in Article XXXVII of the Articles of
Amendments to the
Given
at the Executive Chamber in
day of December in the year of our Lord
two thousand
three, and of the
of
MITT
ROMNEY, GOVERNOR
SECRETARY
OF THE COMMONWEALTH
WILLIAM
FRANCIS GALVIN
GOD SAVE THE