If you believe a notary public has acted in violation of the law, there
are several ways to contact us about the problem.
Your cooperation and information is important to help improve
notary practice and stop fraud.
Administrative Enforcement by the Secretary of State
Warnings for Incorrect Practices:
A warning is usually given and made part of the notary's
record when a notary acts incorrectly but there is no apparent intention of fraud.
For example, the Secretary of State's Office receives many
documents for authentication or filing which are not properly
notarized. Not only must the customer have the document done
over to make the correction, but the notary will be warned, and repeated
problems could result in stronger action.
Investigation and Administrative Hearing:
When a serious violation is suspected, the Secretary of State's
Office may conduct an investigation of the circumstances.
This usually follows a complaint by an injured party.
If it appears from the investigation that the notary
participated in fraud or allowed others to commit fraud, an
administrative hearing may be requested. In a hearing, a
hearing examiner is appointed to hear the charges and evidence
from the investigation and the notary has the opportunity to be
represented by legal counsel and defend the allegations.
Revocation
of a Commission:
When the hearing process is complete,
the Secretary of State reviews the record and determine whether to
take further action, and may revoke a notary commission if one of
the reasons specified in WV Code §29C-7-101 is substantiated by
the evidence at the hearing. The Governor is also authorized
to revoke a commission.
Depending on the
severity of the violation, the case may be referred to the county
prosecuting attorney for further action.
Injunction for Practicing
Law Without A License
The Attorney General may seek an injunction in circuit court
against any notary public who is not a licensed attorney who
practices law without a license. The State Bar may
intervene, or may on its own seek an injunction.
Any notary
who is not an attorney should be aware that drafting legal
documents is considered practicing law, and should reject any
requests to help prepare any agreement, will, deed or any other
legal document for signing and notarization. Also,
notaries are not authorized to prepare vehicle title
transfers.
Adding the acknowledgement or oath form
for notarization is not preparing the document itself, and the
notary has the responsibility to add that form if it is not
already present.
Civil Action for Damages
When a notary commits official misconduct as defined in WV
Code §29C-6-201, a person who is injured financially may file a
civil suit for the damages caused by that misconduct. The
law states the matter very simply:
"A notary public is liable to the persons involved for all damages proximately caused by
the notary's official misconduct." [WV
Code §29C-6-101]
When the notary is an employee and performing the
notarization in question in connection with work, and if that
notary's employer consented to the official misconduct, then the
employer is also liable under the law. [WV
Code §29C-6-102]
Criminal Penalties
Criminal misdemeanor charges may be brought against a notary
public for official misconduct. The penalty for "knowingly and willfully"
committing official misconduct is a fine of up to $5,000 and a
sentence of up to one year in jail.
For
"recklessly and negligently" committing official
misconduct, the penalty is up to a $1,000 fine.
The definition
of "official misconduct" in the law is quite broad:
"The term "official misconduct" means the wrongful exercise of
a power or the wrongful performance of a duty. The term "wrongful" as used in
the definition of official misconduct means unauthorized, unlawful, abusive, negligent,
reckless or injurious." [WV Code
§29C-6-201]
Of course, these penalties relate only to the conduct as a
notary public, and would not limit or prevent prosecution on
more serious charges of fraud or other violations.
