Overview
LCD did not retain notarized “Commissioner Oaths” from the audit period, either in MassCourts or in hardcopy files. Because of the pandemic, processes were changed to allow the partition commissioners to email session clerks their signed and notarized “Commissioner Oaths.” Session clerks were to upload the oaths to MassCourts. Eleven “Commissioner Oaths” were not uploaded to MassCourts or retained in LCD’s hardcopy files.
Without retaining “Commissioner Oaths” in MassCourts or hardcopy files, LCD cannot be sure partition commissioner appointments are legally binding.
Authoritative Guidance
LCD uses MassCourts to store all court records electronically for all of its cases and considers MassCourts public documentation. The MassCourts website states,
The case information contained within this web site is generated from computerized records maintained by the Massachusetts Trial Court and is deemed to be public information.
The public has no access to case information unless LCD uploads it to MassCourts.
Section 12 of Chapter 241 of the General Laws states,
The commissioners, before entering upon their duties, shall be sworn to execute the warrant faithfully and impartially, and a certificate of the oath shall be made on the warrant by the person administering it.
Section iiC(11)(12) of LCD’s “Standing Order 3-20: Supplement to Emergency Measures in Response to Coronavirus Outbreak” states,
For all filings submitted by email, the signed original of the filing must thereafter be sent to the Land Court by mail (or courier delivery) with a notation that the filing was previously submitted by email (with the presiding Judge’s authorization).
According to “Part 3: Case Related Papers” within the Trial Court record retention schedule,
The Clerk shall retain [“Commissioner Oaths”] for 6 years from the date of original recording before they may be erased or destroyed.
Rule 5 within Trial Court Rule XIV states that for civil cases, the docket of a specific case is “a publicly available court record [that] shall be made remotely accessible to the public.” This rule applies because the “Commissioner Oaths” are considered part of public case files.
Reasons for Issue
This issue occurred during the 2019 coronavirus emergency (March 2020 through the rest of our audit period). During this time, LCD and other Trial Court departments were under emergency orders (which are still in effect) that limited access to court buildings, reduced the number of courtroom staff members, enabled cases to be heard remotely, and allowed online filings via email. LCD officials told us that the limited number of staff members working in rotation and the lack of necessary remote work tools, such as virtual private network access, led to lapses in uploading of documentation to MassCourts. LCD had not updated its policies and procedures to address the emergency orders.
Recommendation
LCD should amend its policies and procedures to ensure that “Commissioner Oaths” are maintained in its hardcopy files and uploaded to MassCourts.
Auditee’s Response
The Commissioners are appointed by Order and attached to each Order is the Commissioner Oath.
The test cases determined that some oaths were not docketed and/or uploaded to the MassCourts docket. Two factors contributed to this clerical error:
(a) the COVID-19 Pandemic, and
(b) the personnel change of four of the seven session clerks during the audited period. Within the Court's individual case assignment system, the individual session clerk assigned to each judge is tasked with case calendaring and docketing. The personnel transitions disrupted their following up on the requirement of filing the oath with the court.
To address this issue, the Assistant Clerk sent a reminder email to all session clerks of their responsibility to ensure that the oath is attached to the Appointment Order and tracked for completion, return, docketing and uploading to MassCourts. In addition, when the Office Manager confirms the commissioner appointment on the county lists, she sends a reminder to the session clerk for the oath to be tracked.
Auditor’s Reply
Based on its response, LCD is taking steps to address this issue.
| Date published: | March 31, 2022 |
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