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Malfeasance in office is any unlawful conduct that is often grounds for ajust cause removal of an elected official bystatute orrecall election, or even additionally acrime.^[1] Malfeasance in office contrasts with"misfeasance in office", which is the commission of alawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office", which is the failure to perform an official duty.

An exact definition ofmalfeasance in office is difficult: many highly regardedsecondary sources (such as books and commentaries) compete over its established elements based on reported cases. This confusion has arisen from thecourts where no single consensus definition has arisen from the relatively fewreported appeal-level cases involving malfeasance in office.

UnderEnglish law,misconductin public office is a criminal offence atcommon law that dates back to the 13th century.^[2][3]

The offence carries a maximum penalty oflife imprisonment. It is confined to those who arepublic office holders, and is committed when the office holder acts (or neglects to act) in a way that constitutes a breach of the duties of that office. Case law has established a broad definition of "public office holder" for this purpose that does not depend on the person holding a formal "office" as such, nor on being paid out of the public purse, though a government employee is more likely to be found to fall into the definition.^[2]

TheCrown Prosecution Service guidelines^[2] on this offence set out the components of the offence as summarised by the Court of Appeal:^[4]

1. a public officer acting as such
2. wilfully neglects to perform their duty and/or wilfully misconducts themself
3. to such a degree as to amount to an abuse of the public's trust in the office holder^[5]
4. without reasonable excuse or justification.

Those deemed public officers include civil servants, magistrates, judges, elected politicians (such as MPs and councillors), prison staff, police officers (includingpolice community support officers andsome police staff), but not (according to a 2014 case)^[6] NHS staff such as paramedics or ambulance staff.^[7] Someone can be acting as a public officer even if their employer is a private company delivering a public service.^[8] The public officer must be "acting as such"—the power they are misusing must arise from their public office.^[9]

A similar statutory offence exists under section 26 of theCriminal Justice and Courts Act 2015 for those who improperly or corruptly use the powers or privileges they have as police officers.^[2]

The similarly-namedmisfeasance in public office is atort.^[10][11] In theHouse of Lords judgement in theBCCI case, it was held that this had three essential elements:^[12]

1. The defendant must be a public officer;
2. The defendant must have been exercising his power as a public officer;
3. The defendant is either exercising targeted malice or exceeding his powers.

In December 2020, theLaw Commission issued a report recommending the common law offence of misconduct in public office be abolished, and replaced with two new statutory offences; one of 'corruption in public office' and another of 'breach of duty in public office'.^[13] As of 2024, thegovernment has not issued a response to the report.^[14] The Public Office (Accountability) Bill 2024–26, givenfirst reading in the Commons on 16 September 2025, will, if passed, abolish the common law offence and replace it with two statutory offences of "seriously improper acts" and "failing to prevent death or serious injury".^[15]

TheWest Virginia Supreme Court of Appeals summarized a number of the definitions of malfeasance in office applied by various appellate courts in theUnited States.

Malfeasance has been defined byappellate courts in other jurisdictions as awrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant oflaw; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do.

The court then went on to use yet another definition, "malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, throughignorance, inattention, ormalice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses theirpowers, they are guilty of malfeasance."

Nevertheless, a few "elements" can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under thecolor of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties.

In addition, jurisdictions differ greatly over whetherintent orknowledge is necessary. As noted above, many courts will find malfeasance in office where there is "ignorance, inattention, or malice", which implies no intent or knowledge is required.

• Abuse of power
• Graft
• Misfeasance
• Political corruption

• Misconduct
• Public law
• Crimes
• Common law offences in England and Wales

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