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From Wikipedia, the free encyclopedia

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 relative paucity of reported cases involving malfeasance in office.

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.

Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do.

Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).

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 malfeasance in public office is also a tort. In the House of Lords judgement on the BCCI Malfeasance Case it was held that this had 3 essential elements[1]:

  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.

The journalist Sally Murrer was arrested and charged with aiding and abetting malfeasance in public office because she had allegedly been receiving information from a police source. The case was thrown out by a judge.[2]

The Crown Prosecution Service guidelines on this offence[3] say that the elements of the offence are when:

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

See also

Notes & References

  1. ^ House of Lords judgements on Three Rivers District Council and Others v. Governor and Company of The Bank of England
  2. ^ In light of Sally Murrer’s case, Damian Green's arrest was absurd The Times December 1, 2008
  3. ^ CPS Guidelines on Misconduct In Public Office
  4. ^ In the decision not to prosecute Damien Green the Director of Public Prosecutions formulated this as "the breach must have been such a serious departure from acceptable standards as to constitute a criminal offence; and to such a degree as to amount to an abuse of the public's trust in the public official;" citing the Court of Appeal in the case of Attorney General's Reference No.3 of 2003 [2004] EWCA Crim 868

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