Malfeasance in office
The examples and perspective in this article may not represent a worldwide view of the subject. (February 2011) |
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Malfeasance in office is any unlawful conduct that is often grounds for a just cause removal of an elected official by statute or recall election, or even additionally a crime.[1][citation needed] Malfeasance in office contrasts with "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
England and Wales
Under English law, misconduct in public office is a criminal offence at common law that dates back to the 13th century.[2][3]
The offence carries a maximum penalty of
The Crown Prosecution Service guidelines on this offence[2] say that the elements of the offence are when:
- 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[4]
- without reasonable excuse or justification.
The similarly-named misfeasance in public office is a tort. In the House of Lords judgement on the BCCI case, it was held that this had three essential elements:[5]
- 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.
United States
The
Malfeasance has been defined by
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
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
See also
Notes and references
- ^ "2011 Louisiana Laws :: Revised Statutes :: TITLE 14 — Criminal law :: RS 14:134 — Malfeasance in office". Justia Law. Retrieved 2020-05-25.
- ^ a b c "Misconduct in Public Office" (legal guidance). Crown Prosecution Service. Retrieved 6 November 2022.
- ^ "Nick Clegg says journalists tried for paying public officials should have clearer public interest defence in law". Press Gazette. 30 March 2015. Retrieved 31 March 2015.
- Court of Appealin the case of Attorney General's Reference No. 3 of 2003 [2004] EWCA Crim 868.
- Three Rivers District Council and Others v The Governor and Company of The Bank of England