Jerry Kopel

KOPEL: NOTARIES, CAR DEALERS, FORFEITURES

More regulation sought; some is approved

There are about 110,000 new and reappointed notaries public under the jurisdiction of Colorado’s Department of State. Fortunately, Senate Bill 111, which reauthorized regulation of notaries public under the Sunset Act, didn’t restore a notorious windfall profit section of the law that — when it was in force from 1981 through 1990 — allowed surety companies to take in $5.7 million and pay out $106,000.

SB 111, sponsored by Sen. Bob Bacon, D-Fort Collins, and Rep. Lois Court, D-Denver, did, however, give Secretary of State Bernie Buescher total discretion in determining whether aspiring notaries public should be required to complete a training program.

Such programs have been available but have not been statutorily demanded by the secretary of state. The Department of State offers free in-house training in addition to department-approved private training programs that were used in fiscal 2007-’08 by 1,173 notaries public. The Department of Regulatory Agency’s 2008 Sunset Review found the
training sessions “typically last two hours.”

The private programs can charge fees, and the present amended statute does not include a ceiling on such fees, although the secretary of state could mandate a fee ceiling.

Should attorneys be required to attend mandatory training programs if they wish to be notaries public? My suggestion is “yes” — as long as the training time is short and such training could be under the jurisdiction of groups such as the Bar Association.

SB 111 also strengthened disciplinary possibilities, adding suspension of appointment and letters of admonition to the current options, which have been limited to revocation or denial of appointment. Even with about
110,000 appointees, the Department of State has been able to use those previous options to pressure the resignations of only about 100 of them per year between fiscal years 2002 and 2007.

Changes in the law demand that notaries now must keep complete journals on all notary public actions, not just those affecting title to real property. Notaries public may no longer notarize photographs. The Department of State also must verify under statutory boundaries, the “lawful presence in the United States of each application for appointment.”

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The Legislature passed, and Gov. Bill Ritter signed Senate Bill 91, sponsored by Sen. Chris Romer, D-Denver, to provide more protection in the event car manufacturers or distributors go out of business, or attempt to cut down on car franchise dealer options. In this column the term “car company” replaces “manufacturer or distributor.”

In a prior column, we noted a New Yorker magazine columnist correctly observed that the most powerful players in today’s auto industry are the car dealers.

SB 91 makes it easier for car dealers to sell their businesses, offer other makes of cars or move their location. For example, if the car company fails to provide information within a short period of time, the car dealer can go ahead with a transfer to another person or company even without any paperwork from the car company.

Any incentive made available by the car company to another franchisee within the state must be available to every other same-car franchisee. If the car company has the right of first refusal on a franchise sale, the car company is liable for the attorney fees of the franchise the car dealer acquired “prior to the first refusal.”

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If House Bill 1238 had become law in 2009, you would have soon read of forfeiture funds “being used in ways that would likely embarrass HB 1238 supporters.”

HB 1238 dealt with forfeiture of property in all felony and some misdemeanor decisions. Under present law, innocent persons can get their property back and victims of the criminal acts are entitled to be reimbursed from forfeiture funds. Half of the remaining funds go to specific public safety purposes, and the other half funds detoxification and substance abuse programs.

That would have been changed under language in HB 1238 that was particularly objectionable to crime victims. Sponsor Rep. Joe Rice, D-Littleton, decided to redo HB 1238 in 2010. He plans to meet with supporters of HB 1238 who seek money for police work, and with opponents who want to continue to use the funds to help crime victims.

CRS 16-13-302 states, “generation of revenue shall not be the primary purpose of asset forfeiture,” and “no prosecutor or law enforcement officer’s employment or level of salary shall depend upon the frequency of seizures or forfeiture which such person achieves.” The same is true as to the contraband forfeiture on illegal drug convictions.

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Sometimes a missing penalty stares you in the face. That might have been why Senate Bill 35 has passed, amending a measure that hadn’t been touched by the Legislature for 21 years.

The statute is CRS 24-18-Part Two, dealing with contracts or claims by government officials while they are in a position to influence a decision that could benefit themselves. SB 35 adds a Section 206, a Class One Misdemeanor penalty for government violators. Part 2 of Article 18 of Title 24 started life as the caboose in 1988 for HB 1209 dealing with a Code of Ethics for various holders of government positions.

The ethics section gives a district attorney the ability to bring a money action against someone for breach of fiduciary duty. It does not, however, preclude the possibility of punishment with jail time. At one time as HB 1209 moved through the Legislature, it included a criminal ban on nepotism, but that was deleted before the bill became law. In Colorado, one has to make reference to the type of crime: Petty offense, CRS 18-1.3-503, or misdemeanor, section 505, or felony at section 402. I doubt the Legislature would look favorably on prison penalties for ethics violations.

Jerry Kopel served 22 years in the Colorado House.