State of VermontOffice of the Secretary of State
State of VermontCONFLICTS OF INTEREST: When the Communist Party candidate for U.S. Representative appeared in the office of the Secretary of State in Montpelier in 1940, carrying his certificates for nomination, Secretary of State Rawson C. Myrick refused to accept and file them on the grounds that the oaths of the signers (that they were legal voters) had been administered by the candidate himself, who happened to be a notary public.The Vermont Supreme Court ultimately supported the decision of the Secretary of State. Schrimer v. Myrick, 111 Vt 255 (1940).
The court explained that "[a]lthough the administration of an oath is a ministerial act, it has been generally held that, whether ministerial or quasijudicial in nature, public policy forbids it to be done by one who has either a financial or a beneficial interest in the proceeding." Id. at 257.
The court included among its list of disqualifying interests the acknowledgment of a deed by one with a beneficial interest in the conveyance.
Avoid situations in which the issue of a conflict of interest may be raised. If you have any doubt about your beneficial or financial interest in a transaction to which you are being asked to exercise notarial powers, decline.
The only exception is as a stockholder in or employee of a corporation in Vermont, where the law expressly permits you as a notary public to take acknowledgments to an instrument to which a corporation is a party. 11 V.S.A. §231.
Liabilities In 1968, a California notary public notarized the signature of a woman who appeared before him with what appeared to be a valid driver's license. The signature later was challenged as a forgery and the allegation made that the woman was not the person she claimed to be.
When the notary was sued to held liable for repayment of a loan that was granted in part by relying on the forged document, the court held that a notary could be found negligent by relying solely on third party introductions or identification papers such as passports or drivers' licenses. The court focused on the need for personal knowledge of the identity of the signer by the notary.
Vermont law is not as explicit as California's, and yet there is good reason for every Vermont notary to set high standards for identification before performing notarial acts.
A notary is liable to the person involved for all damages caused by his or her official misconduct. 24 V.S.A. §446.
Vermont law does not require a bond for notaries but many states do require such a bond, and the list of claims made against those bonds is convincing evidence that creditors and others who have relied on notarization as a protection against false claims do indeed sometimes seek to hold notaries liable for their actions.
We have not heard of such suits in Vermont, but the potential for them is always present.
We recommend utmost prudence in the performance of notarial acts. Your greatest vulnerability comes from acknowledgments of signatures by signers you don't know personally.
Insist on the signer being present and signing the document in your presence. If you don't know the person to be who he or she claims to be, you have three choices. You may refuse to act. You may rely on a credible witness, who is personally known to you. Or, to be most prudent, you can insist that a credible witness personally known to you takes and signs a written oath, administered by you as a notary, that he or she personally knows the signer.
As a notary, you are then testifying to the witness's oath. This oath could be satisfied by the following language:
"I (the witness) do solemnly swear (or affirm) that I know this person (the signer) to be (place signer's name here)."You should then complete a jurat following this oath, as explained elsewhere in these pages.
Keeping a journal of your notarial acts is not required by Vermont law, as it is in many other states, but it is a good idea. Buy a notebook or journal, and enter the date, names of the parties who sign the documents, the type of document and the time, and have the signers sign their names in your book as well, for your greatest protection as a notary.
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