DATE: March 31, 2020

TO: Interested Parties

FROM: Clean Energy Matters

RE: Notaries Public and Conflicts of Interest

Dear Reporters and Editors,

As you know, Kennebec County Superior Court Justice Michaela Murphy recently
issued a decision remanding a challenge of signature validity back to the Secretary
of State for further investigation. The courts gave the Secretary’s office until April
1, 2020 to determine whether opponents of the New England Clean Energy Connect
project submitted thousands of signatures that were improperly certified. Per
Justice Murphy’s ruling,​ the decision from the Secretary is due tomorrow.

A central issue brought forward deals with a section of Maine law governing
notaries. ​Maine statute makes clear that it is a conflict of interest for a
notary public to administer an oath or affirmation to a circulator of a
petition for a direct initiative if the notary public also provides services
that are not notarial acts. ​In advance of a decision from the Secretary’s Office,
we wanted to provide additional background information about this law and how it
came to existence.

If the information and evidence submitted to the Secretary of State’s Office and
filed with the Court is properly considered, opponents will have ultimately failed to
submit a sufficient number of valid signatures to warrant a referendum in
November 2020. We expect this law to be at the crux of the Secretary’s decision to
either invalidate the signatures or issue a decision that may lead to further action
by the courts.

Please feel free to reach out with any questions you might have, and we will do our
best to provide you with answers and connect you with our Executive Director, Jon
Breed, as well as our legal counsel.

Best,

Chris Glynn
Clean Energy Matters
Additional Background and Legislative History:

● In 2017, Secretary Dunlap supported legislation that added new

limitations on the activities of notaries public after unethical and
illegal behavior by paid signature gatherers associated with two
citizens’ initiative campaigns in 2016 and 2017.
● The Legislature passed a law with stronger language than initially
proposed, barring notaries public from “providing services or offering
assistance” for a campaign in which they’ve notarized petitions.
● The Secretary of State’s Office subsequently asked for the legislature
to clarify the term “providing services.”
● The legislature definitively responded by expanding the definition to
“providing any other services ​regardless of compensation to initiate
a direct initiative,” setting forth in the starkest terms possible what
other assistance a notary can provide to a signature gathering
campaign. The answer: none.

The original legislation that is the foundation of the laws governing the behavior of
notary publics in this case are LD 1271 and LD 1323 (2017). As originally drafted,
the first bill aimed to impose new requirements on the activities of notaries public
and the second gave the Secretary of State the authority to invalidate a petition if
the Secretary couldn’t verify its notarization (Secretary Dunlap’s testimony in
support of the bill can be ​read here​).

The legislation was introduced after reports of illegal and unethical behavior by
signature gatherers supporting the 2016 Casino referendum began to threaten the
integrity and legitimacy of Maine’s citizen’s initiative process. Questionable
signature campaign activity focused on Olympic Consulting, an organization owned
by former legislator Stavros Mendros. In 2016, Olympic Consulting was hired to
gather signatures for both the York County casino and the marijuana legalization
ballot initiatives. In addition to gathering these signatures, Mendros notarized the
petition sheets on which tens of thousands of these signatures appeared. In
reviewing both of these citizen’s initiatives, the Secretary of State could not
conclude that the notarial acts had been performed in the manner required by law.

The Secretary initially invalidated 17,000 of the signatures that were notarized by
Mendros for the marijuana legalization petition and 18,000 of the signatures that
were notarized by Mendros for the York County casino. (A portion of the signatures
invalidated in the marijuana petition were subsequently certified as valid, allowing
that petition to proceed to the 2016 ballot; the invalidation of the York County
casino petition was upheld by the Kennebec Superior Court).

Subsequently, the Maine Legislature’s Veterans and Legal Affairs Committee

combined aspects of both bills and reported out an amended version of LD 1323.
The new language regarding notaries public prohibited them from notarizing a
petition if they were employed or compensated by a petition organization for
non-notarial acts, or serving in a leadership capacity for a ballot question
committee that was supporting the effort to gather signatures (903-D):

1. C
​ ertain notaries public and others. A notary public or other person
authorized by law to administer oaths or affirmations generally is not
authorized to administer an oath or affirmation to the circulator of a petition
under section 902 if the notary public or other generally authorized person
is:
A. If employed or compensated by a petition organization for any purpose
other than notarial acts;
B. B. If providing services or offering assistance to a ballot question
committee established to influence the ballot measure for which the
petitions are being circulated or employed by or receiving
compensation from such a ballot question committee for any purpose
other than notarial acts; or
C. C. If a treasurer, principal officer, primary fundraiser or primary
decision maker to a ballot question committee established to influence
the ballot measure for which petitions are being circulated.'

After administering the oath to the circulator, the notary public or other
authorized person must sign the notarial certificate on the petition while in
the presence of the circulator. After the petition is signed and verified in this
manner, the petition must be submitted to the registrar for certification in
accordance with the Constitution of Maine

This bill passed both chambers without a roll call and became ​Public Law 2017
Chapter 277​.

The following year the Secretary of State submitted an omnibus bill, ​LD 1726​, that
would have removed the words ‘or offering assistance’ from the new language of
903-D adopted the year before. Deputy Secretary of State Julie Flynn provided
testimony specific to that proposed change and also posed the question—and gave
her interpretation —of what ‘providing services’ meant in the existing statute. The
following is an excerpt of her testimony (note the highlighted text):

Section 19 (line 24 of page 6) strikes the phrase “or offering assistance” that
the Legislature enacted last session regarding restricted activities of a notary
public who is notarizing initiative or referendum petitions. Since this section
of law became effective on November 1, 2017, we already have received
numerous questions from current petition groups as to the meaning of these
words. We have had difficulty advising petitioners since the term is not
defined in the law and is overly broad and vague. We believe that
enforcement of the provision will likewise be difficult. Beyond this proposed
change, we now also recommend that paragraph B (lines 24 to 27 on page 6)
should be further amended to reference political action committees as well as
ballot question committees. ​Finally, we are wondering if the phrase
“providing services” is sufficiently clear. ls it the Legislature’s intent that a
 notary public who is a volunteer (i.e., unpaid) providing notarial services to a
ballot question committee (or PAC if the Legislature decides to add this
reference) can provide no other services to the effort, such as alphabetizing
petitions by town, delivering notarized petitions to the municipalities for
verification of the signers, helping to organize the forms for submission to
the state, etc.

The Committee issued a divided report along party lines, but ​not over this issue.
(The dispute was related to the ability of political organizations to gather signatures
or $5 clean elections contributions at local polling locations on election day). Both
reports had the language about notaries that is now ratified as ​903-E​. The bill died
between the Houses in April 2018.

Sometime before LD 1726 died, an after-deadline bill was introduced, LD 1865.

That became PL 2017 c 418., which repealed 903-D and replaced it with 903-E.
That bill also added the amendment to the conflict of interest statute for notaries in
Title 4 c 19.

The Legislature definitively responded to Deputy Secretary of State Julie Flynn’s

question as to what it meant by ‘providing services.’ It meant anything and
everything, hence the expansion of the definition to “providing any other services
regardless of compensation to initiate a direct initiative.”

Indeed, the prior law codified in 903-D regarding what notaries and what notary
conduct was prohibited attempted to draw some distinction between persons who
were paid versus persons who were unpaid or, alternatively, persons who were in
positions of authority within the campaign to collect signatures versus those who
were not. The prior law also attempted to segregate behavior that was under the
auspices of a ballot question committee versus behavior that was independent of
such a committee.

In repealing 903-D and ratifying 903-E, the Legislature meant to simplify

and set forth in the starkest terms possible what other assistance a notary
can provide to a signature gathering campaign. The answer: none.