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).