160-100-0610 Conduct Which Constitutes Official Misconduct The following conduct constitutes official misconduct, as defined in ORS 194.340, for purposes of refusing to issue, revoke or suspend a notary public's commission, assessing a civil penalty against a person pursuant to 194.980, or issuing an Official Warning to Cease Violation to a person pursuant to 194.985: Relating to the Notary Public Status (1) A person performed a notarial act within the state of Oregon when the person was not commissioned as a notary public or was otherwise authorized by statute. See ORS 194.990. Sanction for First Act of Misconduct: Refuse to commission or Class B Misdemeanor or both. (2) A notary public performed a notarial act in another state pursuant to the authority of the notary public's Oregon commission. See ORS 194.260. Sanction for First Act of Misconduct: Official warning. (3) A notary public performed a notarial act using a name other than the current commission name on file with the Secretary of State. See OAR 160-100-0020. Sanction for First Act of Misconduct: Official warning. (4) A notary public made a representation that the notary public had powers, qualifications, rights or privileges that the notary public did not have. See ORS 194.340. Sanction for First Act of Misconduct: $500 civil penalty. (5) A notary public failed to maintain the qualifications to be a notary public required under ORS 194.340. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission. (6) A notary public purports to be a citizen of a country other than one officially recognized by the United States Department of State. See ORS 194.350. Sanction for First Act of Misconduct: Official warning. Relating to Disqualifying Interest, Fraud, Dishonesty or Deceit (7) A notary public or notary public applicant made a substantial and material misstatement or omission of fact in an application submitted to the Secretary of State. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission or refusal to issue commission. (8) A notary public committed an act involving dishonesty, fraud or deceit with the intent to substantially benefit the notary public or another or substantially injure another. See ORS 194.350. Sanction for First Act of Misconduct: Suspension of commission for a period of 90 days and $1,000 civil penalty. (9) A notary public or notary public applicant was convicted of a felony, or of any crime involving fraud, dishonesty or deceit. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission or refusal to issue commission. (10) A notary public or a notary public applicant had a finding against, or admission of liability in any legal proceeding or disciplinary action based on the notary’s or applicant’s fraud, dishonesty or deceit. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission or refusal to issue commission. (11) A notary public was judicially determined to be liable for damages in a suit for fraud or misrepresentation or in a suit for failing to discharge fully and faithfully the duties as a notary public. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission. (12) A notary public notarized a record in which the notary public or the notary public’s spouse is a party. See ORS 194.225. Sanction for First Act of Misconduct: Official warning. (13) A notary public notarized a record in which the notary public or the notary public’s spouse has a direct beneficial interest. See ORS 194.225. Sanction for First Act of Misconduct: Official warning. (14) A notary public performed an acknowledgment of an instrument executed to or by a business entity of which the notary public was a shareholder, director, officer, employee, member or partner at the time of the notarization when the notary public was a party to the record either in an individual or representative capacity. See ORS 194.385. Sanction for First Act of Misconduct: Official warning. (15) A notary public engaged in the unauthorized practice of law. See ORS 194.350. Sanction for First Act of Misconduct: Suspension of commission for a period of 90 days and $1,000 civil penalty. Relating to Advertisement (16) A notary public used a false or misleading advertisement in which the notary public represented that the notary public had powers, qualifications, rights or privileges that the office of notary public does not have, including but not limited to the power to counsel on immigration matters. See ORS 194.350. Sanction for First Act of Misconduct: Suspension of commission for a period of 90 days and $1,000 civil penalty. (17) A notary public endorsed or promoted a product, service, contest or other offering by using the notary public's title or official stamp. See ORS 194.340. Sanction for First Act of Misconduct: $500 civil penalty. (18) A notary public, who was not licensed to practice law in the state of Oregon and who advertised in a language other than English to perform a notarial act, did not include in the advertisement the statement: "I am not an attorney licensed to practice law. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” See ORS 194.350. Sanction for First Act of Misconduct: Official warning. (19) A notary public, who was not licensed to practice law in the state of Oregon and who advertised in a language other than English to perform a notarial act, did not include in the advertisement a list of notarial fees specified in ORS 194.350. Sanction for First Act of Misconduct: Official warning. (20) A notary public, who was not licensed to practice law in the state of Oregon and who advertised in a language other than English to perform a notarial act, did not display the statement and list of notarial fees required by ORS 194.350 in a conspicuous place in the notary public's place of business. See ORS 194.350. Sanction for First Act of Misconduct: Official warning. (21) A notary public, other than an attorney licensed to practice law, used the term "notario publico" or “notario” in reference to the notary. See ORS 194.350. Sanction for First Act of Misconduct: Official warning. Relating to Proper Notification of the Secretary of State (22) A notary public did not deliver or mail to the Secretary of State a written notice of change of name within 30 days after the date the notary public's name changed. See ORS 194.340(1)(a) and OAR 160-100-0170. Sanction for First Act of Misconduct: Official warning. (23) A notary public did not deliver or mail to the Secretary of State a written notice of change of address within 30 days after the date the notary public changed the notary public's public records address or employer’s address or both. See ORS 194.340(1)(a) and OAR 160-100-0170. Sanction for First Act of Misconduct: Official warning. (24) A notary public, whose official stamp device was lost, misplaced, or stolen, did not personally deliver or mail to the Secretary of State a written notice of that fact within ten days after the date the notary public discovered that the notary public's official stamp device was lost, misplaced, or stolen. See ORS 194.340(1)(a) and OAR 160-100-0160(1). Sanction for First Act of Misconduct: Official warning. (25) A notary public who subsequently reacquired possession of a lost, misplaced or stolen official stamp device did not file with the Secretary of State a written statement of explanation within ten days after the date the notary public reacquired possession of the lost or misplaced official stamp. See ORS 194.340(1)(a) and OAR 160-100-0160. Sanction for First Act of Misconduct: Official warning. Relating to Vacancy of Office (26) A notary public whose commission was terminated because of expiration and who was not recommissioned did not arrange for the storage of his/her notarial records. See ORS 194.300 and 194.340. Sanction for First Act of Misconduct: Official warning. (27) A notary public whose commission was terminated because of expiration did not destroy the notary public's official stamp device. See ORS 194.295 and 194.340. Sanction for First Act of Misconduct: Official warning. (28) A notary public whose commission was terminated because of resignation did not arrange for the storage of his/her notarial records. See ORS 194.300 and 194.340. Sanction for First Act of Misconduct: Official warning. (29) A notary public whose commission terminated because of resignation did not destroy the notary public's official stamp device. See ORS 194.295 and 194.340. Sanction for First Act of Misconduct: Official warning. (30) A notary public whose commission terminated because of revocation did not file his/her notarial records with the Secretary of State. See ORS 194.300 and 194.340. Sanction for First Act of Misconduct: $500. (31) A notary public whose commission terminated because of revocation did not file the notary public's official stamp device with the Secretary of State. See ORS 194.295 and 194.340. Sanction for First Act of Misconduct: $500. (32) A notary public whose commission was terminated because of expiration, resignation or revocation did not file with the Secretary of State the notary public's record of protests and any other notarial records relating only to protests of commercial paper in accordance with OAR 160-100-0350 within 30 days after the date of termination. See ORS 194.340 and 194.390. Sanction for First Act of Misconduct: Official warning. Relating to Identity and Appearance (33) A notary public did not determine either from personal knowledge or from satisfactory evidence as defined in ORS 194.240 that the person acknowledging a record in the presence of the notary public was the person whose signature was on the record. See ORS 194.230 and 194.340. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days. (34) A notary public did not determine either from personal knowledge or from satisfactory evidence as defined in ORS 194.240 that the person verifying a statement by oath or affirmation in the presence of the notary public is the person whose signature was on the statement. See ORS 184.230 and 184.340. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days. (35) A notary public did not determine either from personal knowledge or from satisfactory evidence as defined in ORS 194.240 that the signature on a record was the signature of the person signing the record in the presence of the notary public and named in the record. See ORS 194.230 and 194.340. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days. (36) A notary public did not determine that the copy of a record presented to the notary public was a full, true and accurate transcription or reproduction of the record or item. See ORS 194.240 and 194.340. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days. (37) A notary public did not require the physical presence of the signer at the time of notarization of a signature executed on a record. See ORS 194.235 and 194.240. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days and/or a $500 civil penalty. Relating to Notarial Certificate (38) A notary public did not evidence a notarial act, as defined in ORS 194.215, by issuing a certificate of notarial act. See ORS 194.280 and 194.340. Sanction for First Act of Misconduct: Official warning. (39) A notary public did not include one or more of the following elements of the certificate of notarial act: the signature of the notary public, the title of the notary public, the date the notary public's commission expires, the date the notary public performed the notarial act, the venue in which the notarial act was performed, the official stamp of the notary public and the actions of the notary public sufficient to meet the requirements of the notarial act. See ORS 194.280 and 194.340. Sanction for First Act of Misconduct: Official Warning. (40) A notary public did not evidence a notarial act by a certificate of notarial act in a form permitted or prescribed by a law of the United States or of the State of Oregon or in a form designed by the notary public that describes the acts of the notary public and such acts meet all of the requisite elements of the notarial act. See ORS 194.285 and 194.340. Sanction for First Act of Misconduct: Official warning. (41) A notary public, through error or negligence, executed a notarial certificate that contained false information. See ORS 194.285 and 194.340. Sanction for First Act of Misconduct: Official Warning. (42) A notary public executed a notarial certificate that contained a statement known to the notary public to be false. See ORS 194.344. Sanction for First Act of Misconduct: Revocation of commission or refusal to issue commission. Relating to Stamp and Stamp Device (43) A notary public used an official stamp that did not conform to ORS 194.290 and OAR 160-100-0100 to perform a notarial act. See ORS 194.340. Sanction for First Act of Misconduct: Official warning. (44) A notary public used the notary public's official stamp for a purpose other than to perform a notarial act. See ORS 194.340. Sanction for First Act of Misconduct: Official warning. (45) A notary public did not use the notary public's official stamp in performing a notarial act. See ORS 194.280 and 194.340. Sanction for First Act of Misconduct: Official warning. (46) A notary public used as an official stamp device an object that was not a stamp device, or was a stamp device but the device was made of a substance that was incapable of making a legible imprint on paper or was incapable of making an imprint that could be legibly reproduced under a photographic method. See ORS 194.280 and 194.340. Sanction for First Act of Misconduct: Official warning. (47) A notary public used the notary public's official stamp device to perform a notarial act but placed the official stamp over a signature in a record to be notarized or in a notarial certificate or over any writing in a notarial certificate. See ORS 194.295, 194.340 and OAR 160-100-0110. Sanction for First Act of Misconduct: Official warning. (48) A notary public permitted another person to use the notary public's official stamp device. See ORS 194.285, 194.340 and OAR 160-100-0110. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days or $500 civil penalty or both. (49) A notary public used another notary public's official stamp device, or an object in lieu of the notary public's official stamp device, to perform a notarial act. See ORS 194.285, 194.340 and OAR 160-100-0110(7). Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days or $500 civil penalty or both. (50) A notary public used an embosser in lieu of the notary public's official stamp. See ORS 194.280, 194.340 and OAR 160-100-0130(1). Sanction for First Act of Misconduct: Official warning. Relating to Notarial Journal (51) A notary public did not provide, keep, maintain or protect a chronological journal of notarial acts performed by the notary public during the term of a commission. See ORS 194.300 and 194.340. Sanction for First Act of Misconduct: Official warning. (52) A notary public used a notarial journal that was not in the form required by section 18, chapter 219, Oregon Laws 2013. See OAR 160-100-0200 and 160-100-0210. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days or $500 civil penalty or both. (53) A notary public did not enter in a notarial journal the information about each notarial act performed by the notary public required by ORS 194.300. See ORS 194.340. Sanction for First Act of Misconduct: Official warning. (54) A notary public recorded information about multiple notarial acts performed by the notary public in a notarial journal in a manner that did not comply with the requirements of ORS 194.300. See ORS 194.340. Sanction for First Act of Misconduct: Official warning. (55) A notary public used a record of protests that did not contain the information about each certificate of dishonor issued by the notary public required by OAR 160-100-0240. See ORS 194.340 and 194.380. Sanction for First Act of Misconduct: Official warning. (56) A notary public who entered into an agreement with an employer relating to the employer's retention and disposal of the notary public's notarial records following termination of employment pursuant to ORS 194.300 did not retain a written copy of the agreement or make such available upon request of the Secretary of State. See ORS 194.340 and OAR 160-100-0360. Sanction for First Act of Misconduct: Official warning. Relating to Fees (57) A notary public charged a notary fee that was more than the maximum fee specified in ORS 194.400. See ORS 194.340. Sanction for First Act of Misconduct: $500 civil penalty. (58) A notary public who charged a fee for traveling to perform a notarial act did not explain to the person who requested the notarial act that the traveling fee was in addition to the fee to perform the notarial act or was not required by law, or did not obtain in advance the agreement of the person who requested the notarial act to the amount of the traveling fee. See ORS 194.340 and 194.400. Sanction for First Act of Misconduct: Official warning. (59) A notary public, except a notary public who filed with the Secretary of State a statement waiving the right to charge a notary fee, did not comply with the fee display requirements specified in OAR 160-100-0410. See ORS 194.340 and 194.400. Sanction for First Act of Misconduct: Official warning. Relating to Commercial Protests (60) A notary public who does not meet the qualifications of ORS 194.375 protested commercial paper, as provided in ORS 73.0505. See ORS 194.340. Sanction for First Act of Misconduct: Official Warning. (61) A notary public did not determine the identity of the negotiable instrument, that presentment was required and made, or that presentment was excused and not made and the reason why presentment was excused, that the instrument was dishonored by nonacceptance or nonpayment, or all or any combination of the above. See ORS 194.230 and 194.340. Sanction for First Act of Misconduct: Suspension of commission for a period of 30 days. (62) A notary public issued a certificate of dishonor of a negotiable instrument (also known as a protest of commercial paper as defined in ORS 73.0505(2)) but in the certificate did not identify the negotiable instrument protested, certify that due presentment was made or the reason why presentment was excused, or certify that the instrument protested was dishonored by nonacceptance or nonpayment, as required by ORS 73.0505(2). ORS 194.340 and 194.280. Sanction for First Act of Misconduct: Official warning. (63) A notary public did not keep a record of all certificates of dishonor (also known as a protest of commercial paper as defined in ORS 73.0505(2)) issued by the notary public during the term of a commission. See 194.340 and 194.380. Sanction for First Act of Misconduct: Official warning. (64) A notary public issued a certificate of dishonor of a negotiable instrument (also known as a protest of commercial paper as defined in ORS 73.0505(2)) that was owned or held for collection by a financial institution, trust company or investment company when the notary public was a party to the commercial paper in an individual capacity. ORS 194.340 and 194.375. Sanction for First Act of Misconduct: Official warning. (65) A notary public issued a certificate of dishonor (also known as a protest of commercial paper as defined in ORS 73.0505(2) of a non-commercial or other record that does not fit the definition of negotiable instrument as defined in ORS 73.0104. See ORS 194.340 and 194.375. Sanction for First Act of Misconduct: Official warning. (66) A notary public issued a certificate of dishonor (also known as a protest of commercial paper as defined in ORS 73.0505(2) in a manner not in accordance with ORS 73.0505. See ORS 194.340. Sanction for First Act of Misconduct: Official warning. Miscellaneous (67) A notary public who submits the following types of records to the Secretary of State in reply to correspondence from the Secretary of State or other government agency or seeks to initiate proceedings through the following record types: (a) Conditional Acceptance, or a similar record purporting to "conditionally accept" presentment of an official record, and demanding proof of a list of claims in order to fully accept the official record. (b) Affidavit in Support of Conditional Acceptance, or a similar record purporting to attest to the facts of a record described in section (71)(1) and signed by the same notary public who is attesting. (c) Notice of Dishonor, or a similar record purporting to give notice that a Conditional Acceptance (see section (71)(1)) has not been accepted by the government agency to which it was sent and thereby was dishonored. (d) Accepted for Value, or similar stamp or certificate purporting to accept for a disclosed or undisclosed value an official record sent to the notary public by the Secretary of State or other governmental agency. The certificate claims to establish an amount of money payable or accrued to the signor of the certificate. (e) Notice of Protest, or a similar record purporting to be a Protest of Commercial Paper that has been dishonored, when said Commercial Paper is not, in fact, a negotiable instrument under ORS Chapter 73 and subject to the laws stated therein regarding dishonor and protest. (f) Other records attempting to apply ORS Chapter 73 to non-negotiable instruments or other records not included in the scope of said chapter. (g) Other record type purporting to follow the Uniform Commercial Code (U.C.C.), and not related to an ORS Ch. 79 filing. (h) Other record type purporting to be according to ORS Ch. 79 that does not constitute filing under ORS Ch. 79.0516. See ORS 194.340. Sanction for First Act of Misconduct: Revocation of commission or refusal to issue commission. (68) A notary public engaged in any other act or omission involving any act prohibited or mandated by ORS Chapter 194, or any rule adopted by the Secretary of State, or any other law governing notarization. See ORS 194.340. Sanction for First Act of Misconduct: Official Warning. Statutory/Other Authority: ORS 194.360 Statutes/Other Implemented: ORS 194.300 & 194.340 History: CORP 2-2013, f. 8-30-13, cert. ef. 9-1-13 CORP 6-2009, f. 12-22-09, cert. ef. 1-1-10 CORP 1-2003, f. 3-14-03, cert. ef. 4-1-03 CORP 1-1993, f. 12-29-93, cert. ef. 1-1-94, Renumbered from 164-100-0610 SOS-AD 2-1990, f. 5-9-90, cert. ef. 7-1-90