Malfeasance in office
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 source
s 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
.
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.
, misconduct (or misfeasance) in public office is an offence at common law.
The Crown Prosecution Service
guidelines on this offence say that the elements of the offence are when:
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:
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or recall election
Recall election
A recall election is a procedure by which voters can remove an elected official from office through a direct vote before his or her term has ended...
.
An exact definition of malfeasance
Malfeasance
The expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English law with reference to the discharge of public obligations existing by common law, custom or statute.-Definition and relevant rules of law:...
in office is difficult. Many highly regarded secondary source
Secondary source
In scholarship, a secondary source is a document or recording that relates or discusses information originally presented elsewhere. A secondary source contrasts with a primary source, which is an original source of the information being discussed; a primary source can be a person with direct...
s 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
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
Ignorance
Ignorance is a state of being uninformed . The word ignorant is an adjective describing a person in the state of being unaware and is often used as an insult...
, inattention, or malice
Malice
Malice may refer to:* Malice , a legal term describing the intent to harm* Jerry Tuite , American professional wrestler also known by the ring name Malice-Entertainment:...
, 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
Political power
Political power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
, 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
Color (law)
In U.S. law, the term color of denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors the law to the circumstance, yet said apparently legal action contravenes the law....
. 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
Knowledge
Knowledge is a familiarity with someone or something unknown, which can include information, facts, descriptions, or skills acquired through experience or education. It can refer to the theoretical or practical understanding of a subject...
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 lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, misconduct (or misfeasance) in public office is an offence at common law.
The Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
guidelines on this offence say that the elements of the offence are when:
- 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 similarly named malfeasance (or misfeasance) in public office
Misfeasance in public office
Misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused his power...
is a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. In the House of Lords judgement on the BCCI
Bank of Credit and Commerce International
The Bank of Credit and Commerce International was a major international bank founded in 1972 by Agha Hasan Abedi, a Pakistani financier. The Bank was registered in Luxembourg with head offices in Karachi and London. Within a decade BCCI touched its peak...
Malfeasance Case it was held that this had 3 essential elements:
- 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.