What is the Common Law Crime of Misconduct in Office?

With all the press about Detroit Mayor Kwame Kilpatrick being charged with misconduct in office (among numerous other felony counts, clients and friends have called and emailed to ask me:

What, exactly, is the common law offense of misconduct in office, and what must the prosecutor prove in order to receive a guilty verdict?

Common law, unlike legislative law, is law that is handed down from numerous previously decided court cases. Therefore, since we can't look at the Michigan Consolidated Laws to find out what the crime is, we have to see what the court says. Luckily for us, there is a Michigan case that talks specifically about it.

The most recent case on the question of criminal official misconduct in Michigan is People v. Perkins, decided in 2003 by the Michigan Supreme Court. In that case, the Court laid out what must be proved in order for a person to be found criminally responsible for misconduct in office:

The person must, in fact, be a public official (not just someone pretending to be one).

Additionally, the prosecutor must prove that the person committed:

1. Malfeasance (an act which is wrongful in and of itself, something illegal); or

2. Misfeasance (doing something that may be lawful but it is done in a wrongful manner, such as exceeding public powers, acting in a malicious manner while in public office, or negligently exercising the duties of the public office); or

3. Nonfeasance (failing to do your job as a public officer).

If it is nonfeasance, the prosecutor must also prove that the failure to perform official duties was willful (voluntary and intentional, not negligent or accidental).

Finally, the prosecutor must also show that the corrupt behavior resulted from or directly affected the performance of his official duties. This is also known as acting under the “color of office.”

What it means is that just because someone is a public official and does “wrong” things doesn’t necessarily mean they are committing misconduct in office. There must be a connection between the wrongful, or corrupt, behavior and the official position the person holds.

1. That the person charged is a public officer, and

2. That the person committed malfeasance, misfeasance or nonfeasance. If malfeasance or misfeasance, that the behavior was done with a sense of depravity, perversion or taint. If nonfeasance, that the person willfully neglected their duties in office, and

3. That the person acted under the color of office while doing the behavior in question.

The question is, in the case of Mayor Kilpatrick, will Prosecutor Kym Worthy be able to prove all these elements? What do you think?

Read more about misconduct in office, the full text of People v. Perkins here.

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