NE Administrative Rule (2014) Notary Law Update: NE Administrative Rule (2014)State: NebraskaSummary:Section 64-119 of the Nebraska Revised Statutes authorizes the Secretary of State to adopt and promulgate rules and regulations relating to the administration of Sections 64-101 through 64-118 of the Revised Statutes of Nebraska. Final rules were adopted on May 28, 2014 and cover matters related to the commissioning of Notaries, notarizing documents, refusal to notarize, changes in status, and investigation of Notaries. Signed: May 28, 2014Effective: May 28, 2014Chapter: N/AAffects:Creates Chapter 6 of Title 433 of the Nebraska Administrative Code Changes:Definitions Defines “applicant,” “application,” “form,” “malfeasance in office,” “Nebraska employer,” “Notarial act,” “notarial certificate or acknowledgment,” “regular place of work or business in Nebraska,” “resident,” and “Secretary.” Commissioning Clarifies that an application for renewal must be received no later than the date the commission expires, and further provides that if the expiration date falls on a weekend or holiday, the renewal must be received prior to that expiration date. Provides that if an application for renewal is received after the expiration date, the renewal will be considered an initial application. Defines “a crime involving fraud or dishonesty” – a disqualification for a Notary commission if committed within the previous 5 years – as a violation of, or a conspiracy to violate, a civil or criminal law involving fraud, dishonesty, bribery, perjury, larceny, theft, robbery, extortion, forgery, counterfeiting, embezzlement, misappropriation of property, or any other offense adversely affecting such person’s fitness to serve as a Notary. Clarifies that as applied to a crime involving fraud or dishonesty, a conviction within the last five (5) years means being convicted by a court of law within the last five (5) years from the date the application is received. Defines “resident” as it applies to the application for appointment of a resident, as an applicant who considers Nebraska his or her permanent home, or the place to which he or she intends to return after a period of absence, and provides that to meet the residency requirement the applicant must live in Nebraska for more than 6 months out of the year. Clarifies that for a non-resident to be commissioned as a Notary, the individual must reside in Colorado, Iowa, Kansas, Missouri, South Dakota, or Wyoming and maintain a regular place of work or business in Nebraska. Defines “regular place of work or business in Nebraska” as it relates to the application for appointment of a non-resident, as any place where any person is to work, is working, or customarily works, for gain or reward within the physical boundaries of Nebraska. Clarifies that if a non-resident applicant is self-employed, the applicant must include an explanation on the Evidence of Employment in Nebraska form required to be submitted by all non-resident applicants. Provides that the Notary examination is valid for two years and by applying anew the applicant may be required to take the examination again. Provides that the Notary examination shall consist of questions aimed at determining whether the applicant has the reasonably necessary knowledge, experience, and competency to engage in and perform the duties of a Notary Public, and further provides the examination will cover knowledge of the Notary Public Act, NRS 64-101-64-118, the Uniform Recognition of Acknowledgments Act, NRS 64-209-64-215, and any other relevant statutes. Clarifies that an examinee who fails the exam must wait 30 days before retaking the exam a second time. Clarifies that if a passing examination score is not use within 2 years, the applicant only has the remainder of prior opportunities to retake the examination. (Note: this appears to mean that if the applicant used two attempts to pass the examination previously, the applicant has only one time remaining to retake the examination.) Provides that the examination may be completed electronically, if authorized by the Secretary of State. Clarifies that a Notary commission is issued to an individual regardless of whether or not another business or entity paid the fees for the Notary application, bond, or seal. Changes of Status Clarifies that if a non-resident Notary is terminated form a regular place of work or business in Nebraska, the Notary must relinquish the commission by returning the commission and official seal to the Secretary of State. Provides that a Notary may change his or her signature by filing a new Initial Application for a Notary Public form. Signature, Seal and Notarizing Documents Provides that blank or incomplete documents should not be notarized. Provides that Notaries may not post- or pre-date a document. Provides that the notarial certificate or acknowledgment must be completed in its entirety, including dates, and the name of the state and county where the notarial act is performed. Clarifies that a Notary must affix a clear and legible impression of the Notary’s stamp on a notarized document. Provides that the Notary may not affix the official seal or signature over printed material or other signatures on the document. Clarifies that a Notary must obtain a new seal for each commission with the commission date for the current commission. Clarifies that a Notary should be secured by and only accessible to the Notary. Clarifies that since the signature on the Notary’s application will be used for verification, the Notary should always sign consistently with the signature on the application. Refusal to Notarize Requires a Notary to be aware of the condition of the signor, and urges special attention to be given when notarizing the signature of a minor child or persons who might not have the capability of understanding the document that they are signing. Provides that if a Notary reasonably believes the signor does not understand the document, the Notary should refuse to notarize. Prohibits a Notary from refusing to provide notarial services on the basis of race, color, national origin, religion, sex (including pregnancy), disability or marital status. Investigations of Notary Misconduct Provides that in investigating an alleged malfeasance against a Notary, the Secretary must consider the totality of the offense, facts, and circumstances in each individual case. Provides that when evaluating an alleged malfeasance to determine whether to conduct a hearing or recommend a stipulation process, the Secretary may consider a variety of factors, including, but not limited to, the following: (a) the nature and severity of the act, offense or crime under consideration; (b) the number and/or variety of current violations; (c) evidence pertaining to the requisite honesty, credibility, truthfulness, and integrity of the Notary, (d) actual or potential harm to the general public, group, individual or customer; (e) the history of complaints received by the Secretary and (f) a prior disciplinary record or warning from the Secretary. Provides that a stipulation is a voluntary agreement between the Secretary and Notary Public that will be sought in lieu of setting a hearing to simplify the discipline process and provide cost savings to the Secretary. Provides that a stipulation will include the following: (a) statement of facts; (b) acknowledgment of malfeasance; and (c) a penalty. Provides that a stipulation must be in writing and signed by the Secretary and Notary. Provides that a “total revocation” means the Notary commission is revoked and cannot ever be reinstated and provides that he following acts of malfeasance will likely result in the total revocation of a Notary commission: (a) he signor was not in the physical presence of the Notary at the time of the notarial act; (b) he signor was not personally known to the Notary or identified by the Notary through satisfactory evidence during the notarial act; (c) a Notary engaged in the unauthorized practice of law, including using the term “notario public” or any non-English equivalent term in a manner which misrepresents the authority of the Notary; (d) a Notary permitting another person to use the Notary’s official seal or official seal embosser; and (e) a Notary being convicted of a felony or crime involving fraud or dishonesty while commissioned. Provides that if a Notary commission is revoked, the commission and seal must be returned to the Secretary’s office. Provides that a “temporary revocation” means a revocation of the Notary commission for as little as one month or as long as 4 years, and provides that the following acts of malfeasance will likely result in the temporary revocation of a Notary commission: (a) notarizing a document in which the Notary has a personal interest; (b) a Notary making a materially false statement on the application; and (c) failure of the Notary to maintain the required bond. Provides that during the temporary revocation the Notary commission and seal must be returned to the Secretary’s office. Provides that an “admonishment” will be issued to a Notary and notated in the Notary’s paper and electronic file when the Secretary feels that the alleged malfeasance rises to the level of warning but not revocation, and provides that the following acts of malfeasance will likely result in an official warning to the Notary: (a) a Notary overlooks changing the county or state of the notarial document (certificate); (b) a Notary notarizes a document with blanks. Clarifies that an official admonishment will not hinder the Notary from performing their duties. Analysis:Section 64-119 authorizes the Secretary of State to adopt and promulgate rules and regulations relating to the administration of Sections 64-101 through 64-118 of the Revised Statutes of Nebraska. There are many states that have administrative rules and regulations for Notaries in addition to Notary statutes. Rules and regulations have the full force of law, just like a statute. Rules and regulations implement a statute; that is, they provide greater detail than what a statute typically does. But a rule cannot overturn a statute; in fact in Section 64-119, the statute specifically notes that any rules and regulations adopted by the Secretary may not be inconsistent with the statutes they are intended to implement. Rulemaking authority is not automatic; in order to publish rules there must usually be a statute that provides the Secretary with this authority. Rules and regulations tend to be more flexible than statutes because in order to revise a rule, the Secretary in this case simply needs to follow the administrative procedures act in revising it. There is no need to go back to the legislature to have a statute changed. In the case of Nebraska, final rules were adopted on May 28, 2014, and cover matters related to the commissioning of Notaries, notarizing documents, refusal to notarize, changes in status, and investigation of Notaries. 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