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RI Executive Order 09-08

Executive Order

State: Rhode Island
Signed: April 08, 2009

Effective: April 08, 2009

Summary

An executive order issued by Rhode Island Governor Donald Carcieri advises Notaries to follow an extensive list of best practices in the performance of their duties. While this “advisory code of conduct” does not supersede any existing law, administrative regulation or court rule, the standards will help Notaries uphold the public trust and will be considered by the Governor in the appointment, reappointment and removal of Notaries from their office.

Affects

Does not amend or replace an existing statute.

Changes

Definitions

  1. Adopts Model Notary Act definitions of “acknowledgment,” “affirmation,” “commission,” “credible witness,” “‘journal of notarial acts’ or ‘journal,’” “jurat,” “‘notarial act’ and ‘notarization,’” “‘notarial certificate’ and ‘certificate,” “‘notary public’ and ‘notary,”  “oath,” “official misconduct,” “personal appearance,” “personal knowledge of identity,” “principal,” “regular place of work or business,” “satisfactory evidence of identity” and “signature witnessing,” verbatim or in substantive form.
  2. Defines “satisfactory evidence of identity” as identification based upon: (1) at least one current document issued by a federal, state or tribal government agency with a photograph and signature, or, if the person is not a U.S. citizen, a valid passport or another government-issued document with a photograph and signature and that evidences the person’s nationality or residence; or (2) the oath or affirmation of one credible witness unaffected by the document or transaction who is personally known to the Notary and individual.

General Provisions

  1. Clarifies that the executive order does not supersede any court rule, the Rhode Island General Laws, any federal statute or any regulations adopted to implement a Rhode Island or federal statute.
  2. Advises Notaries to adhere to the “Standards of Conduct for Notaries Public in the State of Rhode Island and Providence Plantations” and that the Governor will consider the Standards in the appointment, reappointment and removal of Notaries.

Notarial Acts and Standards

  1. Permits Notaries to perform acknowledgments, oaths and affirmations, jurats, signature witnessings, copy certifications, issuance of subpoenas and deposition of witnesses. (Note: The Rhode Island General Laws also permit Notaries to perform protests, but do not list signature witnessings or copy certifications as authorized acts.)
  2. In completing a notarial act, advises a Notary to sign his or her name exactly as it appears on the official commission, write the words “Notary Public” after the signature and list the Notary’s commission expiration date and ID number.
  3. Clarifies that a Notary does not have the duty or authority to investigate, ascertain or attest to the lawfulness, propriety, accuracy or truthfulness of a document or transaction involving a notarial act.
  4. Encourages Notaries to adopt a “standard operating procedure” when performing notarial acts that will benefit the Notary in case the Notary must testify in a proceeding or trial.
  5. Permits Notaries to notarize a signature by mark by requiring: (a) the principal to affix the mark in the presence of the Notary and 2 witnesses; (b) both witnesses to sign their names beside the mark; (c) the Notary to write below the mark, “Mark affixed by (name of signer by mark) in the presence of (names and addresses of witnesses) and undersigned notary”; and (d) the Notary to notarize the signature through an acknowledgment, jurat or signature witnessing.
  6. Permits Notaries to sign the name of a principal unable to sign or make a mark by requiring: (a) the principal to direct the Notary to sign in the presence of 2 witnesses unaffected by the document; (b) the Notary to determine that the principal understands the nature of the transaction; (c) the Notary to determine the principal is signing of his or her free will; (d) the Notary to sign the principal’s name in the presence of the principal and the 2 witnesses; (e) both witnesses to sign the document; (f) the Notary to write below the Notary’s signature: “Signature affixed by Notary Public in the presence of (names and addresses of principal and 2 witnesses)”; and (g) the Notary to notarize the signature through an acknowledgment, jurat or signature witnessing.
  7. Advises Notaries to perform a notarial act for any person who pays the fee for the notarial act unless: (a) the Notary 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 to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring a notarial act; (c) the act is prohibited by other applicable law; or (d) the number of notarial acts requested practicably precludes completion of all acts at once, in which case the Notary shall arrange for later completion of the remaining acts.

Certificate of Notarial Act; Notary Seal

  1. Prescribes notarial certificates of acknowledgment, jurat, copy certification and signature witnessing but does not require the Notary to use the forms if: (a) the document contains an alternative form from another state and the document will be filed or recorded in, or governed by the laws of, the other state; and (b) if the document presented for notarization contains an express prohibition against altering the provided notarial wording appearing on the document.
  2. Urges Notaries to use a seal although not required by law and prescribes the elements to be contained in the seal.
  3. Advises Notaries to notify the Secretary of State’s office if the Notary’s seal is lost, misplaced, destroyed, broken, damaged, stolen or otherwise unworkable; and to notify the Secretary if and when the seal is recovered or replaced.

Journal of Notarial Acts

  1. Encourages Notaries to keep a journal of notarial acts as a matter of good practice and to record the following entries in the journal: (a) the date and time of the notarial act, proceeding or transaction; (b) the type of notarial act; (c) the type, title or description of the document, transaction or proceeding; (d) the signature, printed name and address of each principal and witness; (e) a description of the satisfactory evidence relied upon to identify the person, including a statement that the individual is personally known, a notation of the type of ID document, its issuing agency, its serial or identification number and date of expiration; (f) the fee charged for the notarial act; and (g) the address where the notarization was performed.
  2. Disallows Notaries to record a Social Security or credit card number in the journal and clarifies that if the identification document’s serial or identification number is a Social Security number, the Notary is to write the words “Social Security number” or the acronym “SSN.”

Prohibited Acts

  1. Advises Notaries not to perform a notarial act if: (a) the principal is not physically present before the Notary at the time of notarization; (b) the principal cannot be identified by the Notary; (c) the document presented for copy certification is a vital record, a public record or a publicly recordable document; (d) the principal has a demeanor that causes the Notary to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring a notarial act; (e) the Notary is a party to or is named in the document, except when the Notary is named in the document for the sole purpose of receiving notices relating to the document, the notary is a licensed attorney in Rhode Island and is named as an executor, trustee or fiduciary, or is an employee of an attorney who is named in the document; (f) the Notary will receive as a direct result of the notarization a commission, fee, advantage, right, title, interest, cash, property or other consideration exceeding the fees set forth in section 42-30-13 of the General Laws; however, this prohibition does not apply to attorneys or employees of an attorney; (g) the Notary is an attorney and stands to receive a legal fee for professional legal services rendered in connection with the document; and (h) the Notary is a spouse, domestic partner, parent, guardian, child or sibling of the principal, including in-law, step, or half relatives, except in cases where such persons witness a will or other legal document prepared by the Notary who is an attorney.
  2. Advises Notaries not to refuse to perform a notarial act solely based upon the principal’s race, advanced age gender, sexual orientation, religion, national origin, health or disability.
  3. Advises Notaries not to influence a person either to enter into or avoid a transaction involving a notarial act, except when the Notary is duly qualified, trained or experienced in a particular industry or professional field or the Notary knows or has good reason to believe the transaction is unlawful.
  4. States that a Notary should not execute a certificate containing information known or believed by the Notary to be false.
  5. Encourages Notaries not affix an official signature and imprint of the seal to a blank notarial certificate.
  6. States that a Notary should not provide or send a signed and sealed notarial certificate to another person with the understanding that it will be completed or attached to a document outside the Notary’s presence unless in connection with a commercial, non-consumer transaction, the Notary delivers the certificate to an attorney with the understanding that the attorney: (a) will attach the certificate to the document; (b) will hold the certificate in escrow; or (c) informs the Notary that the attorney will obtain the approval of the principal or principals before attaching the certificate.
  7. Advises Notaries against notarizing a blank or incomplete document.
  8. States that Notaries should not perform a notarial act with the intent to deceive or defraud.
  9. States a Notary should not claim to have powers, qualifications, rights or privileges that the office of Notary does not provide, including the power to counsel on immigration matters.
  10. Advises nonattorney Notaries not to assist a person who is a nonattorney in drafting, completing, selecting or understanding a document or transaction requiring a notarial act, or otherwise engaging in the unauthorized practice of law except that if the Notary is duly qualified, trained or experienced in a particular industry or professional field the Notary may render such services in connection with a document or certificate related a matter within that industry or field.

Advertising

  1. Advises Notaries not to use the term “notario” or “notario public in advertising, but to use the term “Notary Public” only.
  2. Advises Notaries who advertise in a foreign language to include in the advertisement the following statement in the foreign language: “I am not an attorney and have no authority to give advice on immigration or other legal matters.”

Status Changes

  1. Encourages Notaries to file a notice of a change of name or residence address within 10 days on a form provided by the Notary Public Section of the Rhode Island Secretary of State’s office.
  2. Encourages any Notary who ceases to be a qualified elector, a member of the Rhode Island Bar, who becomes permanently unable to perform the duties of a Notary to resign.
  3. Advises any Notary who wishes to resign to send a signed notice of resignation to the Secretary of State’s office by means providing a tangible receipt or acknowledgment, including certified mail or electronic transmission.
  4. States that upon expiration or revocation of a commission, or resignation the Notary should: (a) deface or destroy the Notary’s seal as soon as practicable; and (b) keep the journal or journals for a period of 7 years, if the Notary elected to keep a journal.
  5. States that upon the Notary’s death, the Notary’s personal representative should notify the Secretary of State’s office in writing by means providing a tangible receipt or acknowledgment, including certified mail or electronic transmission and (a) deface or destroy the Notary’s seal as soon as practicable; and (a) keep the journal or journals for a period of 7 years, if the Notary elected to keep a journal.

Penalties

  1. Clarifies that in accordance with the provisions of section 42-30-10 of the General Laws a Notary’s commission may be revoked for official misconduct or maybe removed for cause by the Governor, at his or her discretion.
  2. Clarifies that in accordance with section 42-30-10 of the General Laws a Notary’s commission may be revoked if the Notary is convicted of a felony and is incarcerated.
  3. Clarifies that in accordance with section 42-30-16 of the General Laws, a Notary who is found to have practiced fraud or deceit shall be guilty of a misdemeanor and fined not more than $1,000 or imprisoned for not more than 1 year, or both.
Analysis

On April 8, 2009, the Governor Donald Carcieri of Rhode Island issued an executive order prescribing standards of conduct for the state’s 21,000 Notaries Public. The executive order draws heavily from the Model Notary Act and the executive order issued by former Massachusetts Governor Mitt Romney in 2003-2004. Unlike the Massachusetts executive order, the Rhode Island executive order encourages or advises Notaries to notarize in accordance with the executive order, but does not require them to do so. However, the order says that these standards “will be considered by the Governor in the appointment, reappointment and removal of notaries public from their commissions,” which seems to imply that the standards are not purely optional for a Notary to follow. The executive order allows Notaries to perform two notarial acts not formally listed in the Rhode Island General Laws: copy certifications and signature witnessings. In addition, the executive order urges Notaries to use a seal and a journal, contains rigorous identification standards and contains a lengthy list of “prohibited acts.” While the executive order clearly states that it does not supersede any court rule, the Rhode Island General Laws, any federal statute or any regulations adopted to implement a Rhode Island or federal statute, Rhode Island Notaries will need help in understanding the relation between a law and best practice in general, and more specifically, how to apply the executive order to their duties when the laws of Rhode Island governing Notaries contains little or no helpful guidance. One hopes that R.I. Notaries won’t regard certain standards in the code as merely “advisory.” Some critical standards, (e.g., the signer must appear in person before the Notary) should instead be imbedded in statute or administrative rule as mandatory, and we should urge the Governor and Secretary of State to make that happen.

To read the text of the Executive Order, download the PDF below.

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