Gen. 117 117

1

 Your question arises from a controversy involving a particular

planning commission member in Carroll County. The question comes to

us, however, in its general form, and we should not be understood to be

addressing the specific circumstances of that controversy.

PUBLIC OFFICERS

ZONING AND PLANNING ) STANDARDS FOR REMOVAL OF

PLANNING COMMISSION MEMBER FOR “MALFEASANCE IN

OFFICE”

June 9, 1997

George A. Lahey, Esquire

Carroll County Attorney

You have requested our opinion on the meaning of

“malfeasance in office,” as used in Article 66B, §3.02(a) of the

Maryland Code. In particular, you ask whether a planning

commission member may be removed on this basis only if the

member commits a crime.1

Our opinion is as follows: “Malfeasance in office” describes

wrongful conduct of a public official with a direct relation to the

performance of official duties that substantially affects the public

interest. The wrongful conduct need not constitute a violation of the

criminal law in order to meet this standard. 

I

Planning Commission Removal Provision 

Counties and municipalities have authority under Article 66B,

§3.01(a) to create planning commissions. These commissions

consist of either five or seven members, appointed by the local

legislative body for five-year terms. 
118 [82 Op. Att’y

Article 66B, §3.02(a) provides the basis for removal of

planning commission members: “After a public hearing, members

may be removed by the local legislative body for inefficiency,

neglect of duty, or malfeasance in office.” Since its enactment in

Chapter 599 of the Laws of Maryland 1933, this provision

essentially has remained the same. Generally, where the power of

removal is limited to specific reasons, the removal authority may not

remove for any cause not so specified. Macaluso v. West, 352

N.E.2d 382, 385 (Ill. App. 1976). See Stanley v. Jones, 2 So. 2d 45,

51 (La. 1941) (removal was limited to “misconduct in office” and

defendant could not be removed for misconduct not connected with

the office).

The General Assembly has not defined the term “malfeasance

in office” in §3.02 (or elsewhere in statute, as far as we are aware).

Its decision not to define the term implies an intention that the words

be given their ordinary and natural import. Board of Trustees v.

Hughes, 340 Md. 1, 7, 664 A.2d 1250 (1995). See also Williams v.

State, 329 Md. 1, 15, 616 A.2d 1279 (1992) (words should be given

their ordinary and popularly understood meaning absent contrary

legislative intention).

II

Removal for “Malfeasance in Office”

A. Purpose of Removal Statutes

The object of removal statutes is not to punish the offending

officer, but to protect and preserve the office and to free the public

of an unfit officer. State v. Schroeder, 430 P.2d 304, 314 (Kan.

1967); Raltston v. Showalter, 370 P.2d 408, 412 (Kan. 1962). See

State v. Jones, 407 P.2d 571, 572 (Utah 1965) (objective of removal

from office statutes is to provide a method of removing from office

a public official who betrays his trust in office). The rationale

behind such statutes is the public’s interest in ensuring that those

holding public office are fit. State v. Schroeder, 430 P.2d at 314.

See also Edwards v. Civil Service Comm’n, 287 N.W. 285, 288

(Iowa 1939) (the public has a right to have as public officers persons

of character, judgment, and discretion). 
Gen. 117 119

2

 In Maryland, “malfeasance in office” continues to be a common

law crime. Prosecution of the crime, however, is governed by statute. See

 §5-106(f)(3) of the Courts and Judicial Proceedings Article (prosecution

for the commission of or the attempt to commit a criminal malfeasance

shall be instituted within two years after the offense was committed). 

B. General Meaning of “Malfeasance”

“Malfeasance” is the doing of an act that the person ought not

to do at all. State v. Carter, 200 Md. 255, 262, 89 A.2d 586 (1952).

When an act of this nature is perpetrated by an officer in the exercise

of the duties of his or her office, or while acting under color of

office, it becomes “malfeasance in office.” Rollin M. Perkins and

Ronald N. Boyce, Criminal Law 540 (3d ed. 1982). At common

law, “malfeasance in office” was a misdemeanor. Hitzelberger v.

State, 174 Md. 152, 160, 197 A.2d 605 (1938).2

As noted in Part I above, Article 66B does not define

“malfeasance in office” or specify the conduct that constitutes

“malfeasance in office.” Nor does Maryland case law construe the

term. The term “misconduct in office,” however, has been held to

be broad enough to embrace any willful “malfeasance in office.”

Stanley v. Jones, 2 So. 2d 45, 57 (La. 1941); Duncan v. State, 282

Md. 385, 387, 384 A.2d 456 (1978). The terms are often used

synonymously. See Chester v. State, 32 Md. App. 593, 603, 363

A.2d 605 (1976); Coffey v. Superior Court, 82 P. 75, 76 (Cal. 1905).

Accordingly, we think it likely that the Maryland courts would

construe “malfeasance in office” in harmony with their prior

interpretations of “misconduct in office.” 

The Court of Appeals has generally defined “misconduct in

office” as “[a]ny unlawful behavior by a public officer in relation to

the duties of his office, willful in character.” Resetar v. State Board

of Educ., 284 Md. 537, 561, 399 A.2d 225, cert. denied, 444 U.S.

838 (1979) (quoting Employment Security Board v. LeCates, 218

Md. 202, 208, 145 A.2d 840 (1958)). See also Duncan v. State, 282

Md. at 387 (“misconduct in office” is corrupt behavior by a public

officer in the exercise of his duties of his office or while acting

under color of his office). 
120 [82 Op. Att’y

C. Seriousness Threshold 

Public officials should not be dismissed simply because they

do not achieve perfection in every minute detail of bureaucratic

operation and should not be threatened with dismissal for honest

mistakes. In re Shoaf, 88 A.2d 871, 873 (Pa. 1952). A “mere error

of judgment” is not punishable as malfeasance or misconduct in

office. Chester v. State, 32 Md. App. at 606 (citation omitted).

Therefore, an initial inquiry must be made into the seriousness of the

official’s conduct. The reason for removal must be one restricted to

conduct of a substantial nature directly affecting the rights and

interests of the public. 67 C.J.S. Officers §120 (1978). 

Not every technical violation of a statute or of an official duty

will justify a removal. Bateman v. State, 14 N.E.2d 1007, 1011

(Ind. 1938) (an officer should not be removed from office for

inconsequential matters). Instead, there must be a willful intent to

do wrong. “The courts have prevented the common law crime of

misconduct in office from becoming a means for oppressive

prosecutions premised upon vague moral principles by making

willfulness an element of the crime. Willfulness ... means, in the

context of malfeasance arising out of the breach of duty of public

concern, an evil purpose or mental culpability.” 4 Eugene

McQuillin, Municipal Corporations §12.237 (3d ed. 1992).

Serious misconduct that falls short of the commission of a

crime but that relates to an official’s duties may be grounds for

removal under a civil removal statute. Broyles v. State, 341 S.W.2d

724, 727 (Tenn. 1960). See also Jenner v. Board of Trustees of

Village of East Troy, 389 F. Supp. 430, 431 (D. Wis. 1974) (cause

sufficient to justify removal may exist where conduct affects

administration of office even though conduct may not constitute

violation of any law). Resetar and several of the other cases

discussed in Part IID below illustrate the application of this general

rule.

D. Relation to Duties of Office

Once it is established that the conduct is serious, a

determination must be made whether the conduct relates to the

public official’s duties. Discussing Utah’s removal statute, the Utah

Supreme Court stated that the words “in office” in the phrase

“malfeasance in office” indicate that the offense committed by the
Gen. 117 121

 public official must be in connection with official duties. State v.

Jones, 407 P.2d at 573. See also People v. Hale, 42 Cal. Rptr. 533,

538 (Cal. App. 1965) (“misconduct in office” includes only

wrongful acts in performance of the duties of office); Williams v.

City of Dover, 543 A.2d 919, 921-22 (N.H. 1988) (“malfeasance”

sufficient to warrant a public employee’s removal from office must

have direct relation to and connection with performance of official

duties); State v. Begyn, 167 A.2d 161, 168 (N.J. Super. 1961)

(“misconduct in office” includes misbehavior by officer in exercise

of duties of his or her office or while acting under color of his or her

office); 67 C.J.S. Officers §121 (1978) (the misconduct must be “in”

office and not at any other time).

The requirement that the act or conduct relate to the duties of

the public office is to ensure that an official is not removed for

“malfeasance in office” when the alleged wrongful act occurred

while the officer was acting in a private capacity as opposed to his

or her capacity as a public officer. See Madsen v. Brown, 701 P.2d

1086, 1091 (Utah 1985). “The conduct which will warrant removal

of an officer must be such as affect his performance of his duties as

an officer and not as such affects his character as a private

individual.” Clark v. Weeks, 414 F. Supp. 703, 708 (N.D. Ill. 1976).

See also Stanley v. Jones, 2 So. 2d 45, 51 (La. 1941) (misconduct

sufficient to justify a removal must be misconduct in the conduct of

office, and not merely personal misbehavior). Accord, State v.

Jones, 407 P.2d at 573-74. But see Attorney General v. Tufts, 131

N.E. 573, 575 (Mass. 1921) (wrongs committed outside of district

attorney’s official duties, including those acts committed as private

citizen, could be considered in determining his fitness to hold public

office).

An act or conduct unrelated to the public official’s duties, even

if it is a violation of the criminal law, does not amount to

“malfeasance in office.” In Williams v. Dover, 543 A.2d 919 (N.H.

1988), for example, a member of the planning board, on behalf of his

employer, installed a driveway and performed other construction on

his employer’s property without obtaining permits. While the

planning board member’s conduct may have been criminal, it did not

directly relate to performance of his duties as planning board

member. 543 A.2d at 922. See also Wilson v. Council of City of

Highland Park, 278 N.W. 778 (Mich. 1938) (municipal councilman

could not be removed from office for “misconduct in office” solely

on ground that he was a member of a secret society of a political
122 [82 Op. Att’y

3

 If a removal statute provides for removal for commission of a

crime, violation of the law would be sufficient for removal even if the

criminal conduct did not relate to the official’s duties. 67 C.J.S. Officers

§125.

nature, because membership in the organization did not relate to his

duties).3

“Malfeasance in office” is not limited, however, to breaches of

the specifically defined duties of office:

There is a range of conduct that can occur

while an officer is acting under color of office,

but outside any specified official duty as

defined by statute or ordinance that

sufficiently relates to the duties of office so as

to taint the office itself or establish that a

particular officer is unfit to retain the public

trust. The range of conduct is included in the

commonly understood meaning of

malfeasance in office.

Madsen v. Brown, 701 P.2d at 1091. Thus, the question whether the

alleged misconduct occurred while the public official was acting in

the public, as opposed to the private, is to be decided by the trier of

facts based on the evidence, not merely on the evidence as to the

specific duties as created by statute or ordinance. Id. See also

McQuillan, Municipal Corporations §12.237.

One Maryland case, Chester v. State, reflects an example of

misconduct in office by a form of blatant corruption. A clerk of

court demanded political contributions from subordinates, on pain

of discharge if they failed to pay up. 32 Md. App. at 609-10.

Misconduct or malfeasance in office need not involve official

corruption, however; it can also take the form of a gross failure to

meet expected standards of behavior in the office.

In Resetar v. State Board of Education, the Court of Appeals

held that a teacher’s use of a racial epithet in referring to a student,

within the hearing of other students and teachers, was “misconduct

in office.” 284 Md. at 562. Opining that the teacher’s conduct

must bear upon his fitness to teach, the Court stated that the State
Gen. 117 123

Board of Education could properly conclude that the remark of the

teacher might undermine his future classroom performance and

overall impact on his students. 284 Md. at 561. Thus, the teacher’s

conduct related to his duties. Id. Likewise, in Daugherty v. Ellis, 97

S.E.2d 33 (W.Va. 1956), a county commissioner sold property that

was held by the county court for the benefit of the county and its

citizens. Concluding that the county commissioner committed

“malfeasance in office,” the West Virginia Supreme Court said:

It was the plain duty of the defendant, as a

commissioner of the county court and ... the

representative of the people of the county, to

exercise due diligence and reasonable care to

protect and preserve the property held by the

county court against loss and injury and to

safeguard the rights of the county and its

citizens and inhabitants in such property. The

defendant failed to perform this duty, but

instead violated it by attempting to make final

disposition of the livestock without authority

at a price which was substantially less than the

value of only a part of it.

97 S.E. 2d at 42. Other examples include Robbins v.

Commonwealth, 22 S.W.2d 440 (Ky. 1929) (issuance of a warrant

of arrest by a judge knowing that there was no ground for warrant);

People v. Peck, 138 N.Y. 386 (N.Y. 1893) (removal and destruction

of official records); Baldwin v. State, 11 Ohio St. 681 (1860)

(substitution of a false subpoena for a true one); and Madsen v.

Brown, 701 P.2d 1086 (Utah 1985) (participation by mayor in the

killing of four dogs and removal of carcasses from his property). 

III

Conclusion

In summary, it is our opinion that removal for “malfeasance in

office” under Article 66B, §3.02(a) requires that the actions or

conduct of the planning commission member have a direct relation

to the performance of official duties and be of a substantial nature
124 [82 Op. Att’y

4

 This conclusion addresses only the removal of a public officer for

malfeasance or misconduct in office. We are not addressing other issues

(for example, the grounds for removing a public employee).

directly affecting the public interest, albeit not necessarily a violation

of the criminal law.4

J. Joseph Curran, Jr.

Attorney General

Kimberly Smith Ward

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice