Malfeasance in office

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 just cause removal of an elected official by statute or recall election.

An exact definition of malfeasance (or misfeasance (British)) in office is difficult: many highly regarded secondary sources (such as books and commentaries) compete over its established elements based on reported cases. This confusion has arisen from the courts where no single consensus definition has arisen from the relatively few reported appeal-level cases involving malfeasance in office.

England and Wales

Under English law, misconduct (or misfeasance) in public office is an offence at common law which dates back to the 13th century.[1][2]

The offence carries a maximum penalty 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.[3]

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. Wilfully neglects to perform ones duty and/or wilfully misconducts oneself.
  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.

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 three essential elements:[5]

  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 has a different meaning.

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.

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.

See also

Notes and references

  1. Crown Prosecution Service - Guidelines on Misconduct In Public Office
  2. "Nick Clegg says journalists tried for paying public officials should have clearer public interest defence in law". PressGazette. 30 March 2015. Retrieved 31 March 2015.
  3. "Misconduct in Public Office".
  4. In the decision not to prosecute Damian 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
  5. House of Lords judgements Archived 2006-03-13 at the Wayback Machine on Three Rivers District Council and Others v. The Governor and Company of The Bank of England
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