Official Misconduct

NJ Official Misconduct Law

The NJ official misconduct law is set forth at N.J.S.A. 30-2. This white collar crime statute provides, in pertinent part, 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:

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

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

The section that follows is a detailed analysis intended to provide you with a better understanding of this charge.

Elements of Offense

The State must prove, beyond reasonable doubt, that the defendant:

1. Was a public servant at the time of the illegal conduct;
2. Committed an act relating to his/her office or an unauthorized act. Alternatively, he/she knowingly refrained from performing a duty imposed by law or which is clearly inherent in the nature of his/her office; and
3. Had a purpose in acting or refraining from acting to derive a benefit either personally or for another person. Alternatively, the State may prove that the public servant’s purpose was to injure or deprive another person of some benefit.

The Defendant Must Be A Public Servant. The accused must be a public servant at the time of the alleged crime. Thus, “public servants” are the only class of individuals that can be charged with and convicted of the criminal offense of official misconduct. Public servants include any government officer or employee, including workers in any branch, subdivision, or agency of the State of New Jersey or any locality within it. This includes any public employee and also non-government workers who are performing a ‘government function.’ Police officers certainly make up a large segment of official misconduct defendants.

Second Element of Proof – Some Act Or Failure To Act Must Occur

As the second element of the charge of official misconduct, the State must prove that the defendant did one of the following:

• committed an act relating to office,
• committed the act in an unauthorized manner, or
• refrained from performing an act required as part of the public servant’s office.

How Is “Act” Defined Under New Jersey Law? The “act” in question must relate to the public servant’s office. Either committing the act or refraining from performing the act must constitute an unauthorized exercise of the public servant’s official functions.

Knowledge Of The Act. The public servant must know that committing the act or refraining from performing the act was unauthorized. Alternatively, the public servant must know that committing the act or refraining from it was done in an unauthorized manner.

How Is An Act Related To Office? For an act to be related to a public servant’s office, it must be connected to the public servant’s official duties. An act is not connected to a public servant’s official duties simply because a public servant performs the act.

Knowledge Of Duty. In addition, the State must prove that the public servant knew of the existence of the public servant’s non-discretionary duty to act before the occurrence of the act. A public servant could commit an unauthorized act that does not rise to the level of official misconduct. Only if the public servant knew at the time that the conduct was unauthorized and unlawful does it constitute the criminal offense of official misconduct in New Jersey.

As to this alleged conduct, the State must prove that there was a clear duty imposed on the public servant to act or refrain from acting as alleged. There must be some existing reference and body of knowledge, such as applicable law, by which the public servant could regulate and determine the legality of the conduct.

If the public servant’s official duties are unclear, the State of New Jersey cannot convict you of official misconduct. If any reasonable doubt exists that that public servant was required to act or to refrain from acting by statute, rule, or regulation, the defendant is not guilty of official misconduct.

Must The “Act” Be Criminal In Nature?  New Jersey law does not require that the act itself is criminal in nature. Therefore, proof of a criminal act by the State is not required to find a defendant guilty of this offense.

What Is An Unauthorized Act? An act is “unauthorized” if committed in breach of a prescribed duty of the public servant’s office. This duty must be official and non-discretionary. Some law, whether a statute, ordinance, or municipal charter, must impose this duty upon the public servant. Otherwise, the duty must be clearly inherent in the nature of the public servant’s office.

The duty to act must be sufficiently clear so that the public servant is on notice of the standards that the public servant must meet in performing the mandated duty. In effect, the failure to act must be more than a failure to exhibit good judgment.

Third Element Of Proof – Benefitted From The Conduct

Third, the State must prove beyond a reasonable doubt that the act was done purposely to benefit either the public servant or another person. Alternatively, the State may prove beyond a reasonable doubt that the act was done purposely to harm, injure or deprive another person of a benefit.

How Does New Jersey Law Define “Benefit”?  Benefit means some gain or advantage, or anything regarded by the beneficiary as a gain or advantage, including a pecuniary benefit. It also includes a benefit to any other person or entity in whose welfare the public servant has an interest.

How Does New Jersey Law Define “Harm”?Harm means loss, disadvantage, or injury to any other person or entity in whose welfare the public servant has an interest.

Grading of Charge

As a general rule, an official misconduct charge is a second-degree crime. If the benefit obtained or sought to be obtained by the public servant, or of which another is deprived or sought to be deprived, is of a value of $200 or less, the offense of official misconduct is a third-degree crime. You should also know that since both of these grades are indictable offenses, they cannot be heard in municipal court. Every case involving the criminal charge of official misconduct must therefore be heard at the Superior Court.

Penalties

The penalties for second degree official misconduct include 5-10 years in prison and a fine of up to $150,000. Third degree official misconduct is less serious but still carries the potential for up to 5 years in prison and a fine of $15,000.

There are also dire collateral consequences if someone is sentenced to official misconduct irrespective of the degree of crime involved. First and foremost, there is forfeiture of public employment. The second significant ramification is forfeiture of a public pension.

Pretrial Intervention. This diversionary program is also referred to as PTI (and Pre-trial Intervention) and allows an individual to avoid a criminal conviction altogether based on completion of a period of probation (i.e. typically one year). An individual facing a third degree offense for official misconduct is eligible for Pretrial Intervention. A second degree charge is ineligible for PTI absent prosecutor consent.

The penalties imposed at the time of sentencing for official misconduct are clearly severe. It is abundantly important that you contact an accomplished NJ official misconduct defense lawyer if you are being investigated or have been charged with this offense.

 

Examples of Official Misconduct

The list of potential examples of official misconduct scenarios is almost endless. The following are situations where official misconduct charges have arisen in reported NJ cases:

1. Misappropriation of public tax revenue for meals, entertainment, spa treatments, golf outings, and other personal activities
2. Use of excessive force by a police officer during an arrest resulting in a violation of an individual’s civil rights and/or personal injury
3. A pattern of sexual assault and contact committed by a school administrator against students
4. Fireman, police officer, correction and other law enforcement, animal control or other public official utilizing donation money for personal use (e.g. PBA donations, fire company gifts, etc.)
5. Acceptance of bribes by Mayor, board member or other public office holder
6. Accepting payments for unreported vacation-day absences and falsifying or tampering with the records
7. NJ Transit employ stealing rail tickets and selling them for personal benefit
8. Suspended police officer using his badge to pose as an active official
9. Teacher engaging in sexual relationship with a student
10. Police officer warning criminal of impeding search
11. Official utilizing on duty public employees to performing work on house, repair car, etc.
12. Payroll clerk for county inflating her salary
13. Corrections officers smuggling drugs and cell phones into the jail for payment
14. Police misconduct of any nature committed while on the clock

There are a slew of other ways that can result someone being charged with official misconduct in NJ. Our New Jersey criminal defense team has the skill to defend whatever variety of 2C:30-2 offense you are facing.

Our New Jersey Official Misconduct Attorneys Are Here To Help

It is crucial that you contact an attorney who is skilled in defending NJ official misconduct charges like the members of the defense team at Marshall Criminal Defense. Don’t make the mistake of appearing for questioning or submitting to an interrogation without speaking to a lawyer.

The lawyers at Marshall Criminal Defense have represented many citizens in New Jersey who have been accused of official misconduct. If you are facing an official misconduct offense, call our office to learn more about how our firm can formulate a defense strategy to help achieve the best possible result for your criminal matter. Call (877) 534-7338 or contact Marshall Criminal Defense today for a free consultation.

Our firm, Marshall Criminal Defense, has offices throughout NJ to serve you, including in Freehold, Jersey City, Edison, New Brunswick, Toms River, Elizabeth, Morristown, Hackensack, Trenton, Camden, Mount Holly and elsewhere in the state. 

Frequently Asked Questions In Official Misconduct Cases