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DEPARTMENT OF STATE

OFFICE OF THE SECRETARY OF STATE

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In the Matter of


BARRY BELL,


                                                Appellant,                                           DECISION AND ORDER

                                                                                                                   14 DOS APP 05

                        -against-


DEPARTMENT OF STATE

DIVISION OF LICENSING SERVICES,

 

                                                Respondent

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            BARRY G. BELL (hereinafter “Appellant”) appeals to the Secretary of State a decision of the Office of Administrative Hearings (“OAH”) dated January 14, 2005, which determined that the Appellant made a material misstatement in his application for renewal of his commission as a notary public, resulting in the revocation of Appellant’s commission.


ISSUE


            The issues presented in this appeal are (1) whether the Administrative Law Judge was correct in determining that Appellant made a material misstatement in his application for renewal of his commission as notary public, and (2) whether, if made, such material misstatement provides sufficient grounds for revocation.




FINDINGS OF FACT


            The following facts are relevant on this appeal:

            1. In the Matter of Barry G. Bell Footnote , an Opinion and Order dated May 21, 2001, the court stated, “Barry G. Bell has submitted an affidavit dated January 24, 2001, wherein he tenders his resignation as an attorney and counselor-at-law (citations omitted). Footnote … The Grievance Committee has informed the respondent that charges brought against him would include breach of his fiduciary duty by failing to review his attorney trust account records, thereby permitting client funds to be impaired, and failing to adequately supervise the use of such account, thereby failing to maintain the balance required on behalf of a particular client. The respondent acknowledges that he cannot successfully defend himself on the merits against such charges. Footnote … As the proffered resignation comports with all appropriate court rules, it is accepted. The respondent is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law, effective immediately. Footnote ”

            2. In July, 2001, Appellant submitted an application for renewal of his commission as a notary public. Footnote On that application, Appellant responded to the question “Since your last application, . . . has any license, commission or registration ever been denied, suspended or revoked in this state or elsewhere?” by clearly marking an X in the box next to the word “No.” Footnote Appellant then affirmed, “under the penalties of perjury, that [all statements made on the application] are true and correct” by affixing his signature to the document and submitting it to the State. Footnote Appellant’s notary public commission was subsequently renewed for a term ending September 30, 2005.

            3. On December 9, 2004 a hearing was held before Supervising Administrative Law Judge Felix Neals (“ALJ”).

            4. On January 14, 2005, the ALJ issued a decision, 68 DOS 05, finding that Appellant’s disbarment was tantamount to a revocation Footnote ; that, an essential factor in determining the applicant’s good moral character is the applicant’s truthful answer to the question, “since your last application, . . . has any license . . . ever been . . . revoked in this state or elsewhere?”; Footnote and that Appellant’s response, “No,” constituted a material misstatement. Footnote Therefore, the ALJ ordered immediate revocation of the Appellant’s commission as a notary public. Footnote


OPINION

 

            “A notary public is a public officer and the responsibilities of the Secretary of State extend to protecting the public against misconduct by notaries, the caliber of a notary and his right to remain in office [is] to be measured not only by his activities as such but also by trustworthiness and competence exhibited in other areas in which the public is concerned.” Footnote

 

            Shouldered upon the charge of notary public is the responsibility to uphold the public trust, to stand and bear witness to truthful affirmation or acknowledgment, and to contest fraudulent documentation at its inception. Incorporated within the stamp and signature of a commissioned notary is the full faith of the State and its citizenry. Notaries public are vested with the authority to certify and verify—breathing credibility and veracity into legal documents. Such authority is granted by the State upon the filing and review of an application and a showing of other necessary qualifications, such as the successful completion of testing or bar membership status, illustrating requisite character and competency. Where a false statement is submitted to the State upon application for renewal, the presumption of fidelity is fractured and inquiry begins.

            A material misstatement in an application presented to the Division of Licensing Services for a notary public commission is a false or incorrect statement of information that is an essential factor in determining the fitness of the applicant. Footnote The fitness of an applicant is impugned where, if the true facts were known: (1) such a statement would intrinsically prevent the commission because of a failure of the applicant to qualify under the provisions of Executive Law, Article 6 Footnote ; or, (2) such statement would allow the Division of Licensing Services in its discretion to (a) initiate an investigation regarding the character and fitness of the applicant, (b) request additional information necessary to continue processing the renewal application, or (c) either grant or propose to deny such commission.

            The test for material misstatement hinges on whether the false or incorrect assertion made by an applicant masked a truth, which if disclosed, could have resulted in a denial of the application. It does not require, as the Appellant contends, a deep and probing factual inquiry into the nuances of the Appellant’s disbarment for the purpose of determining the materiality or significance of checking “No” on the application form. Rather, the relevant inquiry concerns the veracity of an applicant’s statement, and the potential consequences had the truth been made known on the application in the first instance.

            The first inquiry is whether the Appellant’s response of “No” to the question “Since your last application, . . . has any license . . . ever been denied, suspended or revoked in this state or elsewhere” constituted a misstatement. Footnote The Appellant contends that his response of “No” is not a misstatement as he merely resigned from the practice of law, and therefore his license was never actually “revoked.”

            The Appellant submitted his resignation from the practice of law to the Appellate Division, Second Department Footnote , and on May 21, 2001, the Appellate Division accepted the Appellant’s resignation. Footnote The Appellant was then ordered “disbarred” and his name was ordered “stricken from the roll of attorneys and counselors-at-law.” Footnote It is beyond doubt that, prior to Appellant’s submission of his resignation, “[t]he Grievance Committee [ ] informed [him] that charges brought against him would include breach of his fiduciary duty by failing to diligently review his attorney trust account records, thereby permitting client funds to be impaired, and failing to adequately supervise the use of such account, thereby failing to maintain the balance required on behalf of a particular client.” Footnote Additionally, the Appellant, by submitting his resignation, acknowledged to the Appellate Division that “he cannot successfully defend himself on the merits against such charges.” Footnote The Appellant’s resignation avoided the time, stress and expense of participating in an arduous disbarment process rendered futile by the Appellant’s defenseless position. Appellant’s resignation did not prevent the Appellate Division from issuing the order of disbarment, revoking his license to practice law.

            Under Appellate Division, Second Department, Official Court Rules Part 691, “Resignation of Attorneys Under Investigation” Footnote , it is stated, “Upon receipt of the required affidavit, such committee shall file it with this court, which may enter an order either disbarring him or striking his name from the roll of attorneys.” Footnote The court chose to both disbar and strike the Appellant’s name from the roll of attorneys. The Appellant did not merely resign from the practice of law; he was ordered disbarred by the Appellate Division.

            Appellant also contends that disbarment is not, as the ALJ stated, “tantamount to a revocation of his license to practice law in the State of New York.” Footnote Appellant argues that disbarment is distinguishable from revocation, and therefore, that he was not in error in responding “No” to the question of whether any license of his had been “revoked” since the time of his last application. In support of this argument, Appellant’s Motion in Support of Appeal discusses at length the possibility for distinctions to be drawn between disbarment and revocation as set out in Judiciary Law § 90 and 22 N.Y.C.R.R. 691.9 of the Rules of the Appellate Division.  

            To the extent that Judiciary Law § 90 and rule 691.9 of the Rules of the Appellate Division allow for a distinction between disbarment and revocation, for purposes of requiring truthful answers on the Department’s application form, they are distinctions without a difference. Disbarment by the Appellate Division is tantamount to revocation of a law license for purposes of the Department of State’s application for renewal of a notary public commission.

            The intent of the question on the notary application form is to alert the State to any potential developments that may provide valuable and necessary insight into an applicant’s character before renewal of a commission. Additionally, where an applicant was originally commissioned as a notary by virtue of their status as an attorney or court clerk standing as proxy satisfying the State’s requirement of (1) good moral character, (2) common school education, and (3) familiarity with the duties and responsibilities of a notary public, Footnote the question and term “revoke” is relied upon to warn the State of the possible erosion of the applicant’s qualifications. In light of this intended purpose, the broad and common definition of the term “revoke,” as given by the ALJ and the Division of Licensing Services is the best and most proper interpretation of the term. An order of disbarment, effectively canceling an attorney’s license to practice law in the State of New York, certainly falls under the common usage and understanding of the term revoke. Footnote Members of the public applying for a notary commission would expect to report revocation of a license to practice law when seeking renewal. Footnote

            Appellant was aware of his May disbarment at the time of his June application submission. Appellant admits in his Motion in Support of Appeal that “[t]here is no question at the time of the renewal, he was no longer licensed to practice law.” Footnote Additionally, when asked by his counsel at hearing, “Prior to the date in July that you completed the application . . . had you been advised by the Court that your resignation had been accepted? . . . Had you received any document from the Appellate Division . . . which indicated that your right to practice law had been revoked?,” the Appellant responded “Yes” to both questions. Footnote

            The Appellant contends, that the “testimony before the Administrative Law Judge was to the effect that the [Appellant] did not think of his resignation [and disbarment] as having resulted in a revocation of his law license. . . The [Appellant] testified as to his uncertainty as to how to answer the question and as to whether his circumstance as a resigning attorney fell within the ‘revocation’ of license category.” Footnote The Appellant argues that this uncertainty cuts against the ALJ’s finding that Appellant “willfully and deliberately made a material misstatement on his application.” Footnote That argument is unpersuasive, especially considering that the Appellant answered the same question in the affirmative and attached details of his disbarment to an application for renewal of his real estate broker’s license on July 7, 2003. Footnote

            The question of willfulness does not concern what debate went on in the Appellant’s mind before marking an X in the box next to the word “No” without qualification. Willfulness also cannot be confused with malice. The question is whether the Appellant willfully made a misstatement. It is clear on these facts that when Appellant put pen to paper, stated “No” in response to the question, and signed his name in attestation that all statements were true statements, he was not coerced and did, of his own volition, make a misstatement. The fact that the Appellant may have been unsure whether or not his disbarment was tantamount to revocation and that he failed to seek even a scintilla of clarification from the Department of State on the matter prior to asserting and affirming, under penalty of perjury, that no license he held had been denied, suspended, or revoked does not color the willfulness of his affirmation, and certainly does not aid his cause on appeal. For the reasons stated above, Appellant’s response of “No” constituted a misstatement.

            The next question is whether the Appellant’s misstatement—that he did not have a license denied, suspended or revoked since his last application—was material, such that, if known, could have resulted in denial of the Appellant’s application.

            Good moral character is a prerequisite to commission as a notary public in the State of New York. Footnote Where an applicant is an “attorney and counselor at law duly admitted to practice in the State,” requisite good moral character is presumed by the State by virtue of the requirements of those positions. Footnote The Appellant’s material misstatement on his renewal application, had it gone unnoticed, would have had the effect of allowing Appellant to escape all the generally attendant inquiries into the circumstances of disbarment that accompany the State’s evaluation of the Appellant’s requisite good moral character, and may have allowed the Appellant to avoid the denial that such inquiry could have resulted in.

            A finding of material misstatement is sufficient grounds for denial of renewal of an application for commission as notary public. However, the disqualification of an applicant who makes a material false statement is discretionary. Footnote The fact that the Appellant made a material false statement does not as a matter of law mandate denial of the application.

            The Secretary of State is vested with a wide discretion in determining which actions impact upon evaluations of good moral character, and what should be deemed untrustworthy conduct. Footnote A finding of untrustworthiness in the official conduct of an applicant in one office may color the State’s determination of the applicant’s character in evaluations regarding a different office—or rather, that the hat may change, but the wearer does not.

            The burden of proving good moral character is upon the applicant, especially in cases where a material misstatement is found. Here, that burden was not met by the Appellant, and substantial evidence is in the record supporting the ALJ’s order of denial of the Appellant’s application.

            The record indicates that upon the Appellant’s resignation and disbarment, he acknowledged that he could not successfully defend himself on the merits against allegations that, as an attorney, he “breached his fiduciary duty by failing to diligently review his attorney trust account records, thereby permitting client funds to be impaired, and failing to adequately supervise the use of such account, thereby failing to maintain the balance required on behalf of a particular client.” Footnote The Appellant’s only apparent affirmative assertion of continuing good character may be read into his statement at hearing that, “there were never charges brought against me personally of any wrongdoing.” Footnote The Appellant continued, “The charges which were pending accused me of negligence in supervising certain things . . . But I voluntarily resigned.” Footnote

            The truth of the matter, however, is that the Appellant did not simply voluntarily resign. The Appellant was disbarred by the Appellate Division, after affirming that he could not successfully defend himself against the allegations of wrongfulness levied against him. Appellant contends that negligence is not a charge of personal wrongdoing. Footnote Negligence, the failure to take necessary care, among attorneys and notaries alike, however, is a personal wrongdoing—an impropriety for which the negligent individual is held accountable. Disbarment with an affirmation of negligence and a breach of fiduciary duty provides evidence of carelessness, breach of client trust, and a lack of necessary concern and attention to detail that is the sine qua non of the requisite character and competency of a notary public in the State of New York. The Appellant made no additional efforts and proffered no evidence illustrative of his continuing competency or good moral character.

            Finally, it has been argued by the Appellant that where notaries public gain their commission by virtue of their attorney status, surrender of their law license should not automatically disqualify them from continuing as a notary public. In Matter of Bell,

27 DOS APP 04, clearly stated that “[t]he Secretary of State will not apply such a categorical rule.” Footnote Where an applicant has been disbarred, both competency and trustworthiness are called into question. Thus, disbarment of an applicant creates a rebuttable presumption of untrustworthiness and incompetency, which the applicant may overcome through the provision of additional information and materials to the Department of State, or, if needed, through the provision of evidence of good character and competency at hearing. The facts of this case do not merit additional discussion or decision on this matter, as the substantial evidence on record supports a finding that the Appellant gained his notary commission by means independent and unrelated to his being licensed to practice law. Footnote




DETERMINATION


            For the foregoing reasons, the decision of the Administrative Law Judge ordering the commission of Appellant, Barry G. Bell, as notary public in the State of New York revoked is affirmed.

 


So ordered on:


 

                                                                                    ____________________________________

                                                                                                Frank P. Milano

                                                                                                First Deputy Secretary of State