Malfeasance in office


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. 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 malfeasance in office is difficult: many highly regarded secondary sources 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 'in public office is a criminal offence at common law that dates back to the 13th century.
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 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.
The Crown Prosecution Service guidelines on this offence set out the components of the offence as summarised by the Court of Appeal:
  1. a public officer acting as such
  2. wilfully neglects to perform their duty and/or wilfully misconducts themself
  3. 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.
Those deemed public officers include civil servants, magistrates, judges, elected politicians, prison staff, police officers, but not NHS staff such as paramedics or ambulance staff. Someone can be acting as a public officer even if their employer is a private company delivering a public service. The public officer must be "acting as such"—the power they are misusing must arise from their public office.
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.
The similarly-named misfeasance in public office' is a tort. In the House of Lords judgement in the BCCI case, it was held that this had three essential elements:
  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.

    Potential reform

In December 2020, the 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'. As of 2024, the government has not issued a response to the report. The Public Office Bill 2024-26 will, if passed, abolish the common law offence and replace it with two statutory offences of "seriously improper acts" and "failing to prevent death or serious injury".

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.
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.