Official Misconduct Must Somehow Relate to the Defendant’s Public Office April 4, 2010
Posted by jefhenninger in Articles.Tags: official misconduct
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Official Misconduct has become a very popular crime over the last decade. With NJ’s economy further falling into the abyss, the public will demand that public officials be prosecuted and law enforcement, always ready to make headlines, will look for utilize this statute any chance they get. With that desire however, comes over reaching. There have been several cases where the State has charged official misconduct only to have the court throw it out.
When confronted with an official misconduct charge, a defense lawyer must assume the facts are true (for now) in order to make sure that the charge is proper.
The 2009 case of State v. Kueny is a great example of what happens when the State goes too far and how to analyze these cases.
a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or
The defendant’s oath as a police officer to defend and obey the laws of New Jersey, in of itself, does not make him strictly liable for official misconduct for all crimes he may commit. The Supreme Court has stated that, although the oath of office “is a necessary condition to assumption of office, of itself it creates no particular duty, transgression of which” would be indictable. See State v. Silverstein, 41 N.J. 203, 205 (1963). Nor was there introduced into evidence any statute, Mount Laurel Police Department standard operating procedure, order, rule or regulation which prescribed that a police officer had a duty to return lost money that is discovered while the officer is off-duty, on vacation or outside of Mount Laurel. In New Jersey “‘the fundamental duty of a policeman . . . is to be on the lookout for infractions of the law and to use due diligence in discovering and reporting them.'” Ballinger v. Del. River Port Auth., 172 N.J. 586, 604 (2002) (quoting City of Asbury Park v. Dep’t of Civil Serv., 17 N.J. 419, 429 (1955) (brackets omitted)). However, as a rule “a governing body can directly exercise its police power only within its jurisdictional boundaries, absent a statute broadening those powers.” State v. Cohen, 73 N.J. 331, 342 (1977).
The jurisdiction of officers of New Jersey municipal police departments is generally limited to “within the territorial limits” of their municipalities. N.J.S.A. 40A:14-152. An exception to this rule is that a municipal police officer has “full power of arrest for any crime committed in said officer’s presence and committed anywhere within the territorial limits of the State of New Jersey.” N.J.S.A. 40A:14-152.1. See State v. White, 305 N.J. Super. 322, 327 (App. Div. 1997); State v. Montalvo, 280 N.J. Super. 377, 381 (App. Div. 1995); see also Barna v. City of Perth Amboy, 42 F.3d 809, 817 (3d Cir. 1994).
Subsection b, the “omission to act” phase of this offense, has reference to a public servant who consciously refrains from performing an official non-discretionary duty, which duty is imposed upon him by law or which is clearly inherent in the nature of his office. In addition, the public servant must know of the existence of such non-discretionary duty to act. Thus, such duty must be either one that is imposed by law, or one that is unmistakably inherent in the nature of the public servant’s office, i.e., the duty to act is so clear that the public servant is on notice as to the standards that he must meet. In other words, the failure to act must be more than a mere breach of good judgment. In the absence of a duty to act, there can be no conviction.
[II Final Report of the New Jersey Law Revision Commission, Commentary 291 (1971).]
The proposition that it is an inherent duty of every police officer to obey the law, and therefore police officers are strictly liable under
Stated differently, the misconduct must somehow relate to the wrongdoer’s public office. There must be a relationship between the misconduct and public office of the wrongdoer, and the wrongdoer must rely upon his or her status as a public official to gain a benefit or deprive another. State v. Corso, 355 N.J. Super. 518, 526 (App. Div. 2002) (off duty officer has a duty to arrest persons committing a crime in the officer’s presence; conviction upheld), certif. denied, 175 N.J. 547 (2003). See also State v. Bullock, 136 N.J. 149, 157 (1994) (suspended officer displayed State Police identification card to his victims; conduct sufficiently related to office to constitute misconduct); State v. Mason, supra, 355 N.J. Super. at 305 (dismissal of misconduct count affirmed; defendants were private citizens performing services pursuant to government contracts); Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:30-2 (collecting cases).
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