New Jersey Criminal Defense Lawyer - How New Jersey Defines “Official Misconduct”

New Jersey law specifies that a public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another, or to injure or to deprive another of a benefit:

He commits an act relating to his office that constitutes an unauthorized exercise of his official

functions, knowing that such act is unauthorized, or knowing that he is committing such act in an unauthorized manner; OR

He knowingly refrains from performing a duty that is imposed upon him by law or that is clearly inherent in the nature of his office.

Thus in order to obtain a conviction for official misconduct, New Jersey must prove each of the following elements beyond a reasonable doubt:

1. That the accused person was a public servant at the relevant time;

2. That he committed an act relating to his office knowing that it was unauthorized, or committed the act in an unauthorized manner knowing that the manner was unauthorized, or that he knowingly refrained from performing a duty that is imposed upon him by law or that is clearly inherent in the nature of his office; and

3. That his purpose in so acting or refraining, was to benefit himself or another, or to injure or deprive another of a benefit.

We will now look more closely at each of these elements. First, New Jersey must prove beyond a reasonable doubt that the accused person was a public servant when the offense allegedly occurred. A public servant is any officer or employee of government. “ Government” includes any branch, subdivision, or agency of New Jersey, or any county or town within it.

Second, New Jersey must prove beyond a reasonable doubt that the accused person committed an act relating to his office in an unauthorized manner, or refrained from performing an act required to be performed as part of his office. The act in question must relate to the public servant's office. The commission of the act or the refraining from performing the act must constitute an unauthorized exercise of his official functions.

Criminal Defense Lawyer Official Misconduct

Soliciting a bribe is an obvious example of official misconduct. So is accepting a bribe, even though not solicited. The unauthorized pocketing of public funds constitutes official misconduct. The acts by a law enforcement officer of filing false charges, or planting false evidence, are still other examples. One example of failure to act would be the refusal of a building inspector to issue a certificate of compliance solely on account of personal animus between the official and the applicant.

The public servant must know that the act or refraining from performing the act was unauthorized, or that the act or refraining from acting was done in an unauthorized manner. For an act to be related to a public servant's office it must be connected to his official duties. An act is not considered “connected to a public servant's official duties” merely because the person who performs the act or fails to act happens to be a public servent.

An act is unauthorized if it is committed in breach of some prescribed duty of the public servant's office. This duty must be official and non-discretionary. It must be a duty imposed upon the public servant by law. Examples of such law are statute, regulation, or ordinance. It must be a duty that is clearly inherent in the nature of his office. The duty to act must be so clear that the public servant is on notice as to the standards that he must meet. The failure to act must be more than a failure to exhibit good judgment. And the State of New Jersey must prove that the accused person knew of the existence of his non-discretionary duty to act prior to the incident in question.

Not every unauthorized act committed by a public servant rises to the level of official misconduct. An unauthorized act amounts to official misconduct only if the public servant knew at the time that his conduct was unauthorized and unlawful.

As just mentioned, the State of New Jersey must prove that there was a clear duty imposed on the accused person to act or to refrain. There must have been a body of knowledge, such as applicable law, by which the accused person could determine the legality of his conduct. One cannot be convicted of official misconduct if the official duties imposed are themselves unclear. If the accused person is required to act or to refrain by statute, rule, or regulation, and fails to do so, then this element is satisfied.

The act in question, or the refraining to act, need not, in itself, constitute independent criminal behavior. That is to say, proof of an act that is itself criminal is not required to find guilt of official misconduct. By the same token, if the accused person is charged with other criminal offenses, the accused person may be found guilty of official misconduct even where he is acquitted of those other charges provided that New Jersey proves the accused person's guilt of official misconduct beyond a reasonable doubt. Thus where related criminal acts are also charged, the jury will be told to consider each charge separately, based on the evidence produced in support of that charge.

As indicated above, one of the elements of official misconduct is that the accused person committed his act, or refrained from performing a required act, knowingly. “Knowingly,” is a state of mind. New Jersey law holds that a person acts “knowingly” with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or if he is aware of a high probability of their existence. A person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. Knowledge is a condition of the mind. Therefore it cannot be seen. It can be determined only by inferences. These inferences come from considerations of the accused person's conduct, words or acts. Thus it is not necessary that the State of New Jersey produce witnesses to testify that an accused said that he had a certain state of mind when he engaged in a particular act. A jury can make inferences to find that such proof has been established beyond a reasonable doubt. This inference may arise from the nature of the accused person's acts and conduct, from all that he said and did at the particular time and place, and from all surrounding circumstances.

The third and final element that New Jersey is required to prove beyond a reasonable doubt in order to establish official misconduct is that the act or refraining to act in question was done purposely to benefit either the accused person or another, or to harm, injure or deprive another of a benefit. Benefit means a gain or advantage, or anything regarded by the beneficiary as a gain or advantage. This would include but not be limited to financial gain to any other person or entity in whose welfare the accused person is interested.

Police brutality can also constitute Official Misconduct

Harm means loss, disadvantage, or injury, or anything so regarded by the person affected. This would include loss, disadvantage, or injury to any other person or entity in whose welfare the accused person is interested.

We indicated above that the act to benefit or deprive of a benefit must be done purposely. Just as we defined “knowingly,” above, we now also define “purposely.” A person acts purposely with respect to the nature of his conduct or a result thereof if it is the person's conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances, or the individual believes or hopes that those circumstances exist. One acts purposely if one acts with design, with a purpose, with a particular objective, if he really means to do what he does.

“Purposely,” like “knowingly,” is a state of mind. Thus, it, too, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore the law does not require that New Jersey produce witnesses to testify that an accused said that he had a certain state of mind when he engaged in a particular act. A jury can find that such proof has been furnished beyond a reasonable doubt by inference. This inference may arise from the nature of the accused person's acts and his conduct, from all he said and did at the particular time and place, and from all the surrounding circumstances.

If New Jersey proves each element of official misconduct beyond a reasonable doubt, the jury then determines the fair market value of the benefit involved. New Jersey must prove beyond a reasonable doubt the value of the benefit involved. This determination is needed because when the value of the benefit exceeds $200.00, the severity of the offense is elevated from a third degree crime to a second degree crime. Unless New Jersey can prove that the value of the benefit exceeded $200.00, the official misconduct will be of the third degree.