Official misconduct

Malfeasance in office, or official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. Malfeasance in office is often grounds for a for cause removal of an elected official by statute or recall election.

An exact definition of malfeasance in office is difficult. Many highly regarded secondary sources compete over the elements. This confusion extends to the courts where no single consensus definition of malfeasance in office has arisen. In part, this can be attributed to the relatively few reported cases involving malfeasance in office.

United States

The West Virginia Supreme Court of Appeals summarized a number of the definitions of malfeasance in office applied by various appellate courts in the United States.

Template:Cquote

The court then went on to use yet another definition, "malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance."

Nevertheless a few "elements" can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties.

In addition, jurisdictions differ greatly over whether intent or knowledge is necessary. As noted above, many courts will find malfeasance in office where there is "ignorance, inattention, or malice", which implies no intent or knowledge is required.

English Law

Under English law, misconduct (or misfeasance) in public office is an offence at common law.[1]

The offence carries a maximum sentence of life imprisonment. It is confined to those who are public office holders, and is committed when the office holder acts (or neglects to act) in a way that constitutes a breach of the duties of that office.[2]

The Crown Prosecution Service guidelines on this offence[1] say that the elements of the offence are when:

  1. A public officer acting as such.
  2. Willfully neglects to perform his duty and/or willfully misconducts himself.
  3. To such a degree as to amount to an abuse of the public's trust in the office holder.[3]
  4. Without reasonable excuse or justification.

The similarly named malfeasance (or misfeasance) in public office is a tort. In the House of Lords judgement on the BCCI Malfeasance Case it was held that this had 3 essential elements:[4]

  1. The defendant must be a public officer
  2. The defendant must have been exercising his power as a public officer
  3. The defendant is either exercising targeted malice or exceeding his powers

"Misconduct in public office" is often but inaccurately rendered as "misconduct in A public office", which would mean something different.

See also

Notes and references

This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.
 
Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.
 
By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.