View source for Malfeasance in office

{{Short description|Legal term for abuse of the power of an office}}
{{Globalize|date=February 2011}}
{{Criminal law}}

'''Malfeasance in office''' is any unlawful conduct that is often grounds for a [[Just cause (employment law)|just cause]] removal of an elected official by [[statute]] or [[recall election]], or even additionally a [[crime]].<ref>{{Cite web|title=2011 Louisiana Laws :: Revised Statutes :: TITLE 14 — Criminal law :: RS 14:134 — Malfeasance in office|url=https://law.justia.com/codes/louisiana/2011/rs/title14/rs14-134/|website=Justia Law|access-date=2020-05-25}}</ref>{{Citation needed|date=June 2009}} Malfeasance in office contrasts with [[Misfeasance in public office|"misfeasance in office]]", which is the commission of a ''lawful'' act, done in an official capacity, that improperly causes harm; and "nonfeasance in office", which is the failure to perform an official duty.

An exact definition of [[malfeasance]] in office is difficult: many highly regarded [[secondary source]]s (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 [[reporter (law)|reported]] appeal-level cases involving malfeasance in office.

==England and Wales==
Under [[English law]], '''misconduct''' '''in public office''' is a criminal offence at [[common law]] that dates back to the 13th century.<ref name="CPS"/><ref name=Origin>{{cite web |url= http://www.pressgazette.co.uk/nick-clegg-says-journalists-tried-paying-public-officials-should-have-clearer-public-interest |title= Nick Clegg says journalists tried for paying public officials should have clearer public interest defence in law |work=Press Gazette |date=30 March 2015 |access-date=31 March 2015}}</ref>

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. Case law has established a broad definition of "public office holder" for this purpose that does not depend on the person holding a formal "office" as such, nor on being paid out of the public purse, though a government employee is more likely to be found to fall into the definition.<ref name="CPS">{{Cite web|url=https://www.cps.gov.uk/legal-guidance/misconduct-public-office/|title=Misconduct in Public Office|type=legal guidance|publisher=Crown Prosecution Service|access-date=31 August 2024}}</ref>  <!-- prev.URL: http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/ Internet Archives shows redirects to the new URL started over 6 years ago... -->

The [[Crown Prosecution Service]] guidelines<ref name="CPS" /> on this offence set out the components of the offence as summarised by the Court of Appeal:<ref>{{Cite BAILII|litigants=Attorney General's Reference No. 3 of 2003|court=EWCA|division=Crim|year=2004|num=868|parallelcite=[2005] QB 73, [2004] 3 WLR 451, [2005] 4 All ER 303, [2004] 2 Cr App Rep 23, [2004] 2 Cr App R 23|date=7 April 2004}}</ref>
# a public officer acting as such
# wilfully neglects to perform their duty and/or wilfully misconducts themself
# to such a degree as to amount to an abuse of the public's trust in the office holder<ref>In [http://www.cps.gov.uk/news/articles/decision_on_prosecution_-_mr_christopher_galley_and_mr_damian_green_mp/ the decision not to prosecute] {{Webarchive|url=https://web.archive.org/web/20160303172613/http://www.cps.gov.uk/news/articles/decision_on_prosecution_-_mr_christopher_galley_and_mr_damian_green_mp/ |date=2016-03-03 }} [[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.</ref>
# without reasonable excuse or justification.
Those deemed public officers include civil servants, magistrates, judges, elected politicians (such as MPs and councillors), prison staff, police officers (including [[Police community support officer|police community support officers]] and ''some'' police staff), but not (according to a 2014 case)<ref>{{Cite BAILII|litigants=R v Mitchell|court=EWCA|division=Crim|year=2014|num=318|parallelcite=[2014] 2 Cr App R 2|date=12 February 2014}}</ref> NHS staff such as paramedics or ambulance staff.<ref>{{cite book |title=Blackstone's Criminal Practice 2024 |date=2023 |publisher=Oxford University Press |isbn=9780198892489 |editor1=David Ormerod |edition=34 |at=B15.27 |editor2=David Perry}}</ref> Someone can be acting as a public officer even if their employer is a private company delivering a public service.<ref>{{Cite BAILII|litigants=R v Cosford & Others|court=EWCA|division=Crim|year=2013|num=466|para=37|parallelcite=[2014] QB 81, [2014] 1 QB 81, [2013] 3 WLR 1064, [2013] 3 All ER 649, [2013] 2 Cr App R 8, [2013] WLR(D) 147|date=16 April 2013}}</ref> The public officer must be "acting as such"—the power they are misusing must arise from their public office.<ref>{{Cite BAILII|litigants=Johnson v Westminster Magistrates' Court|link=Ball v Johnson|court=EWHC|division=Admin|year=2019|num=1709|parallelcite=[2019] WLR 6238, [2019] 1 WLR 6238, [2020] 2 All ER 271, [2019] WLR(D) 391, [2019] 2 Cr App R 30, [2020] Crim LR 458, [2019] ACD 94|date=3 July 2019}}</ref>

A similar statutory offence exists under section 26 of the [[Criminal Justice and Courts Act 2015]] for those who improperly or corruptly use the powers or privileges they have as police officers.<ref name="CPS" />

The similarly-named '''[[misfeasance in public office]]''' is a [[tort]].<ref>{{Cite journal |last=Murphy |first=John |date=2012-03-01 |title=Misfeasance in a Public Office: A Tort Law Misfit? |url=https://academic.oup.com/ojls/article-lookup/doi/10.1093/ojls/gqr018 |journal=Oxford Journal of Legal Studies |volume=32 |issue=1 |pages=51–75 |doi=10.1093/ojls/gqr018 |issn=1464-3820 |access-date=2024-10-08|url-access=subscription }}</ref><ref>{{Cite book |last1=Jackson |first1=Rupert M. |title=Jackson & Powell on Professional Liability |last2=Powell |first2=John L. |date=2022 |publisher=Sweet & Maxwell |isbn=978-0-414-09040-8 |edition=9 |series=The Common Law Library |location=London |at=15-035}}</ref> In the [[House of Lords]] judgement in the [[Bank of Credit and Commerce International|''BCCI'']] case, it was held that this had three essential elements:<ref>[http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000518/rivers-1.htm House of Lords judgements] {{webarchive|url=https://web.archive.org/web/20060313092450/http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000518/rivers-1.htm |date=2006-03-13 }} on ''[[Three Rivers District Council]] and Others v The Governor and Company of The [[Bank of England]]''</ref>
# 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.

===Potential reform===
In December 2020, the [[Law Commission (England and Wales)|Law Commission]] issued a report recommending the common law offence of misconduct in public office be abolished, and replaced with two new statutory offences; one of 'corruption in public office' and another of 'breach of duty in public office'.<ref>{{cite report |author= |author-link= |date=4 December 2020 |title=Misconduct in public office |url=https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2020/12/Misconduct-in-public-office-WEB11.pdf |publisher=[[Law Commission (England and Wales)|Law Commission]] |page=10 |isbn=978-1-5286-2279-0 |docket= |access-date=21 September 2024 |quote=}}</ref> As of 2024, the [[Government of the United Kingdom|government]] has not issued a response to the report.<ref>{{cite web |url=https://lawcom.gov.uk/project/misconduct-in-public-office/ |title=Misconduct in Public Office |website=lawcom.gov.uk |publisher=[[Law Commission (England and Wales)|Law Commission]] |access-date=21 September 2024 |quote=It is now time for the Government to review and consider the recommendations in our final report. We await an interim response.}}</ref>

==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]].

{{blockquote|text=Malfeasance has been defined by [[appellate court]]s 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.|source=''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 (law)|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 [[Political power|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 (law)|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 (law)|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==
* [[Abuse of power]]
* [[Graft (politics)|Graft]]
* [[Misfeasance]]
* [[Political corruption]]

==Notes and references==
<references/>

{{Types of crime}}
{{Authority control}}

{{DEFAULTSORT:Malfeasance In Office}}
[[Category:Misconduct]]
[[Category:Public law]]
[[Category:Crimes]]
[[Category:Common law offences in England and Wales]]