8
Nov

Deciphering some exemptions in the new notaries public law

Vermont's new notary public law, a version of the Revised Uniform Law on Notarial Acts, contains section (§) 5341, "EXEMPTIONS". It has three subsections, (a), (b), and (c). In my opinion these subsections are nearly independent, as I will explain.

Subsection (b)

I will begin with (b), because I think it's the easiest to understand.

This subsection exempts attorneys from the need to take an initial exam or continuing education. Also, complaints of violations against attorneys will be handled by the Professional Responsibility Board, which hears non-notarial complaints about attorneys already.

Subsection (c)

This subsection sets forth those exempt from paying the fee described in § 5324. The list of persons exempt is similar to the list in subdivision (a), but not all court personnel are exempt, only those designated by the Court Administrator. Another difference from subsection (a) is that justices of the peace, town clerks, and their assistants are exempt.

In my view the subsection (a) requirement that the persons are exempt only while acting within the scope of their official duties only applies within subsection (a), and that persons named in (c) but not (a) may perform any lawful notarial act for anyone any time. I read this chapter to mean that a person named in subsection (c) but not subsection (a) could charge a fee for the notarial act, in accordance with the regulations to be issued by the OPR, unless some other law forbids charging a fee.

Subsection (a)

Subsection (a) generally exempts people set forth in subdivision (2) of the subsection from "all the requirements of this chapter" (that is, CHAPTER 103. NOTARIES PUBLIC) except the requirement "to apply for a commission as set forth in section 5341 (a), (b)(1)-(3), (c), (d), and (e)", and to pay the fee set forth in §5324 [unless person qualifies for the fee exemption in subsection (c)]. However, this exemption only applies "when acting within the scope of their official duties".

The clause about applying for a commission is more interesting for what it excludes than what it includes; it includes what you would expect, like the need to fill out an application, be at least 18 years of age, and take an oath. But 5341 (b) (4) & (5) are excluded. The exclusion of (4) means the grounds to deny a commission that apply to other notaries do not apply to the notaries set forth in this subsection. The exclusion of (5) means the notaries set for in this subsection do not have to pass a test to get a commission.

An example of the effect of this subsection (in my opinion) would be a state trooper who took advantage of the exemption from taking an exam when applying for her first notary commission. This trooper would be allowed to perform notarial acts in the course of her official duties, but would not be able to notarize a permission trip so her neighbor's child could participate in a school field trip to Canada.

The persons set forth in subdivision (2) are generally in the courts, public defenders, prosecutors, or law enforcement officers. The scope of official duties set out in subdivision (3) covers the sorts of duties you would expect such persons to perform. The last clause in subdivision 3 is "(H) relates to a matter subject to Title 4, 12, 13, 15, 18, 20, 23, or 33 of the Vermont Statutes Annotated." This list omits some titles where many notarizations tend to occur, such as 17 (Elections), 27 (Property), and 32 (Taxation and Finance).

I believe this reinforces my view that the "acting within the scope of their official duties" phrase only applies to subsection (a), because the commonplace notarizations performed by some of the persons named in subsection (c), such as swearing in elected officials, taking acknowledgements on deeds, and administering oaths at property assessment hearings, are not within the scope of official duties described in subsection (a).

One might wonder what would happen if a person qualified for the exemptions in both subsections (a) and (c). Suppose the person took advantage of obtaining a commission without a fee, but elected to take the initial exam and continuing education. Would such a person be allowed to perform notarial acts outside the scope of his/her official duties? I think the case is unlikely to arise, because the Office of Professional Responsibility is designing an automated commissioning system. The system will probably not allow such a nuanced election. Hopefully the system will not be so rigid that a person in a position set forth in subsection (c) will be unable to apply for a regular commission with no exemptions, so that the person can perform a notarization outside the scope of official duties.

Followup

The Secretary of State's Office of Professional Regulation has issued a revised FAQ. It seems to me the new version of the FAQ generally agrees with my interpretation.

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