What counts as 'malfeasance in office' that lets a Maryland county remove a planning commission member?

Plain-English summary

The Carroll County Attorney asked the Attorney General what "malfeasance in office" meant under the state law letting a local legislative body remove a planning commission member, and specifically whether removal on that ground required proof that the member committed a crime. The request arose out of a dispute involving a specific Carroll County planning commissioner, though the opinion addressed the legal standard in general terms rather than that particular case.

The opinion concluded that "malfeasance in office" did not require a criminal conviction. Surveying case law on the closely related term "misconduct in office," the opinion defined malfeasance as willful wrongdoing by a public official that had a direct connection to the performance of official duties and was serious enough to substantially affect the public interest, distinguishing it from honest mistakes, technical rule violations, or misconduct unconnected to the official's public role. The wrongdoing did not need to rise to the level of a crime, but it did need to relate to how the official carried out (or abused) the duties of the office.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or standard mentioned here.

Common questions

Did a 1997 Maryland opinion say a planning commission member could only be removed for a crime?
No. The opinion concluded that "malfeasance in office" under Article 66B, § 3.02(a) did not require the member's conduct to be a crime; it required willful wrongdoing directly connected to the official's duties that substantially affected the public interest.

Did the opinion say a planning commission member could be removed for a simple mistake?
No. The opinion distinguished malfeasance from an honest "mere error of judgment" or an inconsequential technical violation, and concluded that removal required conduct serious enough, and connected enough to the office, to affect the public interest.

Did the opinion say misconduct in a commissioner's private life could count as malfeasance in office?
Generally no. The opinion concluded that the wrongdoing had to have a direct relation to the performance of official duties, and that conduct unrelated to the office, even if criminal, would not by itself amount to "malfeasance in office" under this removal standard.

Background and statutory framework

At the time of this opinion, Article 66B, § 3.01(a) of the Maryland Code let counties and municipalities create planning commissions, and § 3.02(a) allowed a local legislative body to remove a commission member, after a public hearing, for "inefficiency, neglect of duty, or malfeasance in office." The statute did not define "malfeasance in office," and Maryland case law had not construed the term directly, so the opinion drew on Maryland and out-of-state case law interpreting the closely related term "misconduct in office," which courts had often treated as interchangeable with malfeasance.

The opinion explained that removal statutes like this one exist to protect the public and the integrity of the office, not to punish the officeholder, and so courts generally require two things: that the conduct be serious rather than a technical or inconsequential violation, and that it relate directly to the performance of official duties rather than the person's private conduct. The opinion cited Resetar v. State Board of Education as an example of misconduct (a teacher's use of a racial epithet) serious enough to bear on fitness for the position even without any criminal charge, and contrasted it with cases finding that conduct unconnected to an official's duties, even criminal conduct, did not qualify.

Citations and references

Statutes:
- Article 66B, § 3.02(a), authorizing removal of a planning commission member for inefficiency, neglect of duty, or malfeasance in office
- Article 66B, § 3.01(a), authorizing counties and municipalities to create planning commissions

Cases:
- State v. Carter, 200 Md. 255, 262, 89 A.2d 586 (1952), defining "malfeasance" generally as doing an act a person ought not do at all
- Resetar v. State Board of Educ., 284 Md. 537, 561, 399 A.2d 225 (1979), holding a teacher's use of a racial epithet was "misconduct in office" bearing on fitness to teach
- Duncan v. State, 282 Md. 385, 387, 384 A.2d 456 (1978), on "misconduct in office" as corrupt behavior in the exercise of official duties
- Chester v. State, 32 Md. App. 593, 603, 363 A.2d 605 (1976), an example of misconduct in office through demanding political contributions from subordinates, and on the "mere error of judgment" standard

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1997/82oag117.pdf

Original opinion text

Gen. 117 117

                   PUBLIC OFFICERS

ZONING AND PLANNING ) STANDARDS FOR REMOVAL OF
PLANNING COMMISSION MEMBER FOR "MALFEASANCE IN
OFFICE"

                        June 9, 1997

George A. Lahey, Esquire
Carroll County Attorney

 You have requested our opinion on the meaning of

"malfeasance in office," as used in Article 66B, § 3.02(a) of the
Maryland Code. In particular, you ask whether a planning
commission member may be removed on this basis only if the
member commits a crime.1

  Our opinion is as follows: "Malfeasance in office" describes

wrongful conduct of a public official with a direct relation to the
performance of official duties that substantially affects the public
interest. The wrongful conduct need not constitute a violation of the
criminal law in order to meet this standard.

                               I

       Planning Commission Removal Provision

  Counties and municipalities have authority under Article 66B,

§ 3.01(a) to create planning commissions. These commissions
consist of either five or seven members, appointed by the local
legislative body for five-year terms.

 1
   Your question arises from a controversy involving a particular

planning commission member in Carroll County. The question comes to
us, however, in its general form, and we should not be understood to be
addressing the specific circumstances of that controversy.

  Article 66B, § 3.02(a) provides the basis for removal of

planning commission members: "After a public hearing, members
may be removed by the local legislative body for inefficiency,
neglect of duty, or malfeasance in office." Since its enactment in
Chapter 599 of the Laws of Maryland 1933, this provision
essentially has remained the same. Generally, where the power of
removal is limited to specific reasons, the removal authority may not
remove for any cause not so specified. Macaluso v. West, 352
N.E.2d 382, 385 (Ill. App. 1976). See Stanley v. Jones, 2 So. 2d 45,
51 (La. 1941) (removal was limited to "misconduct in office" and
defendant could not be removed for misconduct not connected with
the office).

  The General Assembly has not defined the term "malfeasance

in office" in § 3.02 (or elsewhere in statute, as far as we are aware).
Its decision not to define the term implies an intention that the words
be given their ordinary and natural import. Board of Trustees v.
Hughes, 340 Md. 1, 7, 664 A.2d 1250 (1995). See also Williams v.
State, 329 Md. 1, 15, 616 A.2d 1279 (1992) (words should be given
their ordinary and popularly understood meaning absent contrary
legislative intention).

                              II

          Removal for "Malfeasance in Office"

A. Purpose of Removal Statutes

  The object of removal statutes is not to punish the offending

officer, but to protect and preserve the office and to free the public
of an unfit officer. State v. Schroeder, 430 P.2d 304, 314 (Kan.
1967); Raltston v. Showalter, 370 P.2d 408, 412 (Kan. 1962). See
State v. Jones, 407 P.2d 571, 572 (Utah 1965) (objective of removal
from office statutes is to provide a method of removing from office
a public official who betrays his trust in office). The rationale
behind such statutes is the public's interest in ensuring that those
holding public office are fit. State v. Schroeder, 430 P.2d at 314.
See also Edwards v. Civil Service Comm'n, 287 N.W. 285, 288
(Iowa 1939) (the public has a right to have as public officers persons
of character, judgment, and discretion).

B. General Meaning of "Malfeasance"

  "Malfeasance" is the doing of an act that the person ought not

to do at all. State v. Carter, 200 Md. 255, 262, 89 A.2d 586 (1952).
When an act of this nature is perpetrated by an officer in the exercise
of the duties of his or her office, or while acting under color of
office, it becomes "malfeasance in office." Rollin M. Perkins and
Ronald N. Boyce, Criminal Law 540 (3d ed. 1982). At common
law, "malfeasance in office" was a misdemeanor. Hitzelberger v.
State, 174 Md. 152, 160, 197 A.2d 605 (1938). 2

  As noted in Part I above, Article 66B does not define

"malfeasance in office" or specify the conduct that constitutes
"malfeasance in office." Nor does Maryland case law construe the
term. The term "misconduct in office," however, has been held to
be broad enough to embrace any willful "malfeasance in office."
Stanley v. Jones, 2 So. 2d 45, 57 (La. 1941); Duncan v. State, 282
Md. 385, 387, 384 A.2d 456 (1978). The terms are often used
synonymously. See Chester v. State, 32 Md. App. 593, 603, 363
A.2d 605 (1976); Coffey v. Superior Court, 82 P. 75, 76 (Cal. 1905).
Accordingly, we think it likely that the Maryland courts would
construe "malfeasance in office" in harmony with their prior
interpretations of "misconduct in office."

  The Court of Appeals has generally defined "misconduct in

office" as "[a]ny unlawful behavior by a public officer in relation to
the duties of his office, willful in character." Resetar v. State Board
of Educ., 284 Md. 537, 561, 399 A.2d 225, cert. denied, 444 U.S.
838 (1979) (quoting Employment Security Board v. LeCates, 218
Md. 202, 208, 145 A.2d 840 (1958)). See also Duncan v. State, 282
Md. at 387 ("misconduct in office" is corrupt behavior by a public
officer in the exercise of his duties of his office or while acting
under color of his office).

  2
    In Maryland, "malfeasance in office" continues to be a common

law crime. Prosecution of the crime, however, is governed by statute. See
§ 5-106(f)(3) of the Courts and Judicial Proceedings Article (prosecution
for the commission of or the attempt to commit a criminal malfeasance
shall be instituted within two years after the offense was committed).

C. Seriousness Threshold

  Public officials should not be dismissed simply because they

do not achieve perfection in every minute detail of bureaucratic
operation and should not be threatened with dismissal for honest
mistakes. In re Shoaf, 88 A.2d 871, 873 (Pa. 1952). A "mere error
of judgment" is not punishable as malfeasance or misconduct in
office. Chester v. State, 32 Md. App. at 606 (citation omitted).
Therefore, an initial inquiry must be made into the seriousness of the
official's conduct. The reason for removal must be one restricted to
conduct of a substantial nature directly affecting the rights and
interests of the public. 67 C.J.S. Officers § 120 (1978).

  Not every technical violation of a statute or of an official duty

will justify a removal. Bateman v. State, 14 N.E.2d 1007, 1011
(Ind. 1938) (an officer should not be removed from office for
inconsequential matters). Instead, there must be a willful intent to
do wrong. "The courts have prevented the common law crime of
misconduct in office from becoming a means for oppressive
prosecutions premised upon vague moral principles by making
willfulness an element of the crime. Willfulness ... means, in the
context of malfeasance arising out of the breach of duty of public
concern, an evil purpose or mental culpability." 4 Eugene
McQuillin, Municipal Corporations § 12.237 (3d ed. 1992).

  Serious misconduct that falls short of the commission of a

crime but that relates to an official's duties may be grounds for
removal under a civil removal statute. Broyles v. State, 341 S.W.2d
724, 727 (Tenn. 1960). See also Jenner v. Board of Trustees of
Village of East Troy, 389 F. Supp. 430, 431 (D. Wis. 1974) (cause
sufficient to justify removal may exist where conduct affects
administration of office even though conduct may not constitute
violation of any law). Resetar and several of the other cases
discussed in Part IID below illustrate the application of this general
rule.

D. Relation to Duties of Office

 Once it is established that the conduct is serious, a

determination must be made whether the conduct relates to the
public official's duties. Discussing Utah's removal statute, the Utah
Supreme Court stated that the words "in office" in the phrase
"malfeasance in office" indicate that the offense committed by the

public official must be in connection with official duties. State v.
Jones, 407 P.2d at 573. See also People v. Hale, 42 Cal. Rptr. 533,
538 (Cal. App. 1965) ("misconduct in office" includes only
wrongful acts in performance of the duties of office); Williams v.
City of Dover, 543 A.2d 919, 921-22 (N.H. 1988) ("malfeasance"
sufficient to warrant a public employee's removal from office must
have direct relation to and connection with performance of official
duties); State v. Begyn, 167 A.2d 161, 168 (N.J. Super. 1961)
("misconduct in office" includes misbehavior by officer in exercise
of duties of his or her office or while acting under color of his or her
office); 67 C.J.S. Officers § 121 (1978) (the misconduct must be "in"
office and not at any other time).

  The requirement that the act or conduct relate to the duties of

the public office is to ensure that an official is not removed for
"malfeasance in office" when the alleged wrongful act occurred
while the officer was acting in a private capacity as opposed to his
or her capacity as a public officer. See Madsen v. Brown, 701 P.2d
1086, 1091 (Utah 1985). "The conduct which will warrant removal
of an officer must be such as affect his performance of his duties as
an officer and not as such affects his character as a private
individual." Clark v. Weeks, 414 F. Supp. 703, 708 (N.D. Ill. 1976).
See also Stanley v. Jones, 2 So. 2d 45, 51 (La. 1941) (misconduct
sufficient to justify a removal must be misconduct in the conduct of
office, and not merely personal misbehavior). Accord, State v.
Jones, 407 P.2d at 573-74. But see Attorney General v. Tufts, 131
N.E. 573, 575 (Mass. 1921) (wrongs committed outside of district
attorney's official duties, including those acts committed as private
citizen, could be considered in determining his fitness to hold public
office).

  An act or conduct unrelated to the public official's duties, even

if it is a violation of the criminal law, does not amount to
"malfeasance in office." In Williams v. Dover, 543 A.2d 919 (N.H.
1988), for example, a member of the planning board, on behalf of his
employer, installed a driveway and performed other construction on
his employer's property without obtaining permits. While the
planning board member's conduct may have been criminal, it did not
directly relate to performance of his duties as planning board
member. 543 A.2d at 922. See also Wilson v. Council of City of
Highland Park, 278 N.W. 778 (Mich. 1938) (municipal councilman
could not be removed from office for "misconduct in office" solely
on ground that he was a member of a secret society of a political

nature, because membership in the organization did not relate to his
duties).3

  "Malfeasance in office" is not limited, however, to breaches of

the specifically defined duties of office:

             There is a range of conduct that can occur
        while an officer is acting under color of office,
        but outside any specified official duty as
        defined by statute or ordinance that
        sufficiently relates to the duties of office so as
        to taint the office itself or establish that a
        particular officer is unfit to retain the public
        trust. The range of conduct is included in the
        c o m m o n l y u n d e r s to o d m e a n i n g o f
        malfeasance in office.

Madsen v. Brown, 701 P.2d at 1091. Thus, the question whether the
alleged misconduct occurred while the public official was acting in
the public, as opposed to the private, is to be decided by the trier of
facts based on the evidence, not merely on the evidence as to the
specific duties as created by statute or ordinance. Id. See also
McQuillan, Municipal Corporations § 12.237.

  One Maryland case, Chester v. State, reflects an example of

misconduct in office by a form of blatant corruption. A clerk of
court demanded political contributions from subordinates, on pain
of discharge if they failed to pay up. 32 Md. App. at 609-10.
Misconduct or malfeasance in office need not involve official
corruption, however; it can also take the form of a gross failure to
meet expected standards of behavior in the office.

  In Resetar v. State Board of Education, the Court of Appeals

held that a teacher's use of a racial epithet in referring to a student,
within the hearing of other students and teachers, was "misconduct
in office." 284 Md. at 562. Opining that the teacher's conduct
must bear upon his fitness to teach, the Court stated that the State

  3
    If a removal statute provides for removal for commission of a

crime, violation of the law would be sufficient for removal even if the
criminal conduct did not relate to the official's duties. 67 C.J.S. Officers
§ 125.

Board of Education could properly conclude that the remark of the
teacher might undermine his future classroom performance and
overall impact on his students. 284 Md. at 561. Thus, the teacher's
conduct related to his duties. Id. Likewise, in Daugherty v. Ellis, 97
S.E.2d 33 (W.Va. 1956), a county commissioner sold property that
was held by the county court for the benefit of the county and its
citizens. Concluding that the county commissioner committed
"malfeasance in office," the West Virginia Supreme Court said:

       It was the plain duty of the defendant, as a
       commissioner of the county court and ... the
       representative of the people of the county, to
       exercise due diligence and reasonable care to
       protect and preserve the property held by the
       county court against loss and injury and to
       safeguard the rights of the county and its
       citizens and inhabitants in such property. The
       defendant failed to perform this duty, but
       instead violated it by attempting to make final
       disposition of the livestock without authority
       at a price which was substantially less than the
       value of only a part of it.

97 S.E. 2d at 42. Other examples include Robbins v.
Commonwealth, 22 S.W.2d 440 (Ky. 1929) (issuance of a warrant
of arrest by a judge knowing that there was no ground for warrant);
People v. Peck, 138 N.Y. 386 (N.Y. 1893) (removal and destruction
of official records); Baldwin v. State, 11 Ohio St. 681 (1860)
(substitution of a false subpoena for a true one); and Madsen v.
Brown, 701 P.2d 1086 (Utah 1985) (participation by mayor in the
killing of four dogs and removal of carcasses from his property).

                             III

                        Conclusion

  In summary, it is our opinion that removal for "malfeasance in

office" under Article 66B, § 3.02(a) requires that the actions or
conduct of the planning commission member have a direct relation
to the performance of official duties and be of a substantial nature

directly affecting the public interest, albeit not necessarily a violation
of the criminal law.4

                                  J. Joseph Curran, Jr.
                                  Attorney General

                                  Kimberly Smith Ward
                                  Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

  4
    This conclusion addresses only the removal of a public officer for

malfeasance or misconduct in office. We are not addressing other issues
(for example, the grounds for removing a public employee).