|Scales of justice|
|Part of the common law series|
|Element (criminal law)|
|Actus reus · Mens rea|
Causation · Concurrence
|Scope of criminal liability|
|Complicity · Corporate · Vicarious|
|Attempt · Conspiracy · Solicitation|
|Offence against the person|
|Assault · Battery|
False imprisonment · Kidnapping
Mayhem · Sexual assault
|Crimes against property|
|Arson · Blackmail · Burglary|
Embezzlement · Extortion
False pretenses · Larceny
Receiving stolen property
Robbery · Theft
|Crimes against justice|
|Compounding · Misprision|
Obstruction · Perjury
Malfeasance in office
Perverting the course of justice
|Defenses to liability|
|Defense of self|
Defence of property
Consent · Diminished responsibility
Duress · Entrapment
Ignorantia juris non excusat
Infancy · Insanity
Justification · Mistake (of law)
Necessity · Loss of Control (Provocation)
|Other common law areas|
|Contracts · Evidence · Property|
Torts · Wills, trusts and estates
|Criminal justice · Law|
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.
|“||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.
- A public officer acting as such.
- Wilfully neglects to perform his duty and/or wilfully misconducts himself.
- To such a degree as to amount to an abuse of the public's trust in the office holder.
- Without reasonable excuse or justification.
- The defendant must be a public officer
- The defendant must have been exercising his power as a public officer
- The defendant is either exercising targeted malice or exceeding his powers.
Notes and references
- Crown Prosecution Service - Guidelines on Misconduct In Public Office
- 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  EWCA Crim 868
- House of Lords judgements on Three Rivers District Council and Others v. Governor and Company of The Bank of England