6.3 Misconduct, Liability & Administrative Discipline

6.3 Misconduct, Liability & Administrative Discipline

Quick Answer: Official misconduct is defined in 5 ILCS 312/7-104. Under 7-101, a notary and the surety on the bond are liable for damages caused by official misconduct. Under 7-102, an employer is also liable if the notary was acting in the scope of employment and the employer consented to the misconduct. 7-105 makes knowing/willful official misconduct a Class A misdemeanor and reckless/negligent official misconduct a Class B misdemeanor. The Secretary of State may reprimand, suspend, or revoke under 7-108.

An Illinois notary public commission is a legal trust. When a notary fails to perform statutory duties—whether through fraud, recklessness, or negligence—Illinois law provides remedies to protect the public and compensate injured parties. Article VII of the Illinois Notary Public Act (5 ILCS 312/7-101 et seq.) governs official misconduct, administrative disciplinary proceedings, civil liability for notaries and employers, and criminal penalties.

---

Defining Official Misconduct (5 ILCS 312/7-104)

Under 5 ILCS 312/7-104, official misconduct generally means the wrongful exercise of a power or the wrongful performance of a duty and is fully defined in Section 33-3 of the Criminal Code of 2012. "Wrongful" includes unauthorized, unlawful, abusive, negligent, reckless, or injurious conduct.

Categories of Misconduct

Official misconduct falls into two main legal categories:

1. Negligent Misconduct (Failure of Due Care): Unintentional failure to follow statutory procedures. Examples include:
   • Failing to request satisfactory identification from an unfamiliar principal.
   • Omitting mandatory certificate details (such as missing venue or expiration date).
   • Failing to maintain a required notary journal entry.
2. Willful or Fraudulent Misconduct (Intentional Violation): Conscious violation of notary law for gain, convenience, or fraudulent motives. Examples include:
   • Notarizing a document when the principal is not physically or remotely present.
   • Backdating or postdating a notarization date.
   • Notarizing a signature known to be forged.
   • Charging fees far exceeding statutory caps.

---

Administrative Discipline by the Illinois Secretary of State

The Index Department of the Illinois Secretary of State regulates all Illinois notaries public. Under 5 ILCS 312/7-108, the Secretary of State can investigate complaints and impose sanctions:

Administrative Sanctions

• Written Reprimand: Official warning added to the notary's state commission record.
• Commission Suspension: Temporary invalidation of notary authority (e.g., 30 days to 1 year).
• Commission Revocation: Permanent cancellation of the commission. Revoked notaries must immediately surrender their seal and journal.
• Civil Administrative Fines: Penalties up to $5,000 per violation.

Due Process

Before suspending or revoking a commission, the Secretary of State issues written charges. The notary is entitled to an administrative hearing under the Illinois Administrative Procedure Act (5 ILCS 100/).

---

Civil Liability & Surety Bond Recovery (5 ILCS 312/7-101)

When misconduct causes financial injury to a party relying on a notarized document, the notary faces personal civil liability.

Liability of Notary and Surety

Under 5 ILCS 312/7-101, a notary public and the surety on the notary's bond are liable to the persons involved for all damages caused by the notary's official misconduct. The bonding entity must notify the Secretary of State about claim payment and circumstances.

[ Injured Party ] ---> Claims Financial Loss ---> [ Notary & Surety Bond ]
                                                       |
                                    Surety Pays Claim (up to bond limit)
                                                       |
                                    Surety Demands FULL Reimbursement from Notary!

The Official Surety Bond vs. E&O Insurance

A critical exam concept is understanding that the mandatory $5,000 surety bond (or $25,000 bond for electronic/RON notaries) is not insurance for the notary:

• Purpose of the Bond: Protects the public against financial loss.
• Subrogation Rights: If the surety pays a claim, it has a legal right of subrogation to sue the notary to recover every dollar paid out, plus legal fees.
• Errors & Omissions (E&O) Insurance: Protects the notary's personal assets against claims of negligence or mistakes.

---

Employer Civil Liability (5 ILCS 312/7-102)

Employers often pay for employee notary commissions, bonds, and seals, but cannot order improper notarizations.

Statutory Rule under 5 ILCS 312/7-102

Under 5 ILCS 312/7-102, an employer is also liable for damages caused by the notary's official misconduct if:

1. The notary was acting within the scope of employment at the time of the official misconduct; AND
2. The employer consented to the notary's official misconduct.

(Note: 5 ILCS 312/7-103 is the separate "Cause of Damages" rule—it is not essential to recovery that the misconduct be the only cause of damages.)

If a notary employee acts improperly independently without employer knowledge or consent, the employer is generally shielded from civil liability.

---

Criminal Penalties under Illinois Law

Official misconduct can also trigger criminal prosecution. The Act's primary classifications are in 5 ILCS 312/7-105:

Official-Misconduct Crimes (5 ILCS 312/7-105)

• Knowing and willful official misconduct: Class A misdemeanor.
• Reckless or negligent official misconduct: Class B misdemeanor.

Related Act provisions also create specific crimes outside the general 7-105 pair. For example, 5 ILCS 312/7-106 addresses willful impersonation of a notary, and 5 ILCS 312/3-103(d) creates separate Class A / Class 3 felony exposure for certain immigration false-information offenses (second or subsequent offense within 5 years can be a Class 3 felony). Do not treat every serious-sounding notary abuse as a 7-105 Class 3 felony—the general official-misconduct penalties are misdemeanors.

Other common Class A misdemeanor exposure under the Act's consumer-protection provisions includes advertising as "Notario Publico" or omitting required foreign-language disclaimers (5 ILCS 312/3-103).

---

Summary of Disciplinary & Liability Structure