Malfeasance in office, or official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. Malfeasance in office is often grounds for a for cause removal of an elected official by statute or recall election. Misfeasance in office on the other hand is management of public office or other responsibility in which there are errors and an unfortunate result through mistake or carelessness, but without evil intent and/or violation of law. This term is frequently used when a professional or public official does his job in a way that is not technically illegal, but is nevertheless mistaken or wrong Misfeasance is distinguished from "malfeasance," which is intentional conduct in violation of the law.

An exact definition of malfeasance in office is difficult. Many highly regarded secondary sources compete over the elements. This confusion extends to the courts where no single consensus definition of malfeasance in office has arisen. In part, this can be attributed to the relative paucity of reported cases involving malfeasance in office.

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

“Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful 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 of law; 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 no, to do.”
Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956)

The court then went onto 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, through ignorance, inattention, or malice, does that which he has no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses his powers, he is 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 the color of office. Finally, that that act some how interferes with the performance of official duties--though some debate remains about "whose official" duties.

In addition, jurisdictions differ greatly over whether intent or knowledge 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.

So you decide…is the Pequot Lakes Mayor or city council guilty of misfeasance or malfeasance of office? It appears they may be guilty of both. But unlike them, I will not pass judgement and let you decide…or a court decide for that matter.

One thing is clear, they are not performing their sworn duties to the citizens of Pequot Lakes and the surrounding area by trying to scare them into doing nothing about the problems with the Pequot Lakes police department. It is a shame when cities believe they and their police departments are “above the law.”

I invite all to post their stories and incidents of police abuse or misconduct at: http://www.copwatch.com . The public has a right to know. It is not illegal to post your version of an incident.

Ref. nolo.com, wikpedia, lawdog