official misconduct

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Official misconduct generally refers to the misconduct of an official in relation to his or her duty as a public servant.

In New York, official misconduct is a class A misdemeanor. New York Penal Law Article 195 states that:

"A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:

1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or
2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office."

The New York penal code defines a public servant as: "any public officer or employee of the state or of any political subdivisions thereof, or of any governmental instrumentality within the state; or, any person exercising the functions of any such public officer or employee." The Penal code also defines benefit as: any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.” Therefore, for the purposes of official misconduct, benefit encompasses more than just monetary or political gains. Because the culprit must know that his or her conduct is unauthorized, honest mistakes and judgement calls do not fall under official misconduct.

In finding official misconduct, New York courts require two mens rea elements: (1) the intent to obtain benefit or deprive another of a benefit and (2) that the defendant knowingly acted or refrained from acting. For example, a commanding officer is guilty of official misconduct when he uses his authority to override investigation protocols in order to protect his own reputation.


In California, official misconduct is sometimes referred to as "misconduct in office" or "willful misconduct." The charge is generally used to remove an official from his or her position and the misconduct can be an act that, by itself, is not a crime. Therefore, a finding of willful misconduct does not require a showing of criminal intent, just that the misconduct was performed willingly. California courts have held that misconduct in office includes any willful malfeasance, misfeasance, or nonfeasance.

[Last updated in July of 2020 by the Wex Definitions Team]