official misconduct
Official misconduct generally refers to the unethical behavior of an official in relation to their duty as a public servant.
In New York State, 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 State 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.”
For the purposes of official misconduct, a “benefit” encompasses more than just monetary or political gains. Because the offender must be aware that their conduct is unauthorized, honest mistakes and poor judgment usually do not fall under the crime of official misconduct in New York.
In finding official misconduct, New York courts require two mens rea elements:
- The intent to obtain a benefit or deprive another of a benefit, and
- The defendant knowingly acted or refrained from acting.
For example, in the case People v. Yaguchi, 62 Misc.3d 1054 (2019), an NYPD Officer was found guilty of official misconduct when he used his authority to override investigation protocols in an attempt 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 their position, and misconduct can be an unethical act that is not a crime. Therefore, the finding of willful misconduct does not require a showing of criminal intent, just that the misconduct was performed willingly. In the case of People v. Mullin, 197 Cal. App. 2d 479 (1961) the Court held that misconduct in office includes any willful malfeasance, misfeasance, or nonfeasance.
[Last reviewed in July of 2026 by the Wex Definitions Team]
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