Malfeasance is a broad term that describes conduct that is inherently wrong or unlawful. It is most commonly used in reference to actions by public officials or employees who have failed to perform the duties required of them by statute. This description of corruption or misconduct may be used in both civil and criminal legal actions. To explore this concept, consider the following malfeasance definition.

Definition of Malfeasance


  1. The commission, by a public official, of an act that is harmful, legally unjustifiable, or contrary to law.


1690-1700     French malfaisance (“wrongdoing”)

What is Malfeasance

This legal term refers to intentionally doing something that is wrong, either legally or morally. Malfeasance is a dishonest act, an action undertaken for improper purposes, or an act that the individual knows exceeds his authority. This is not to be confused with “misfeasance,” which refers to doing something that is wrong by mistake, error, or negligence, or “nonfeasance,” which refers to a failure to act when under an obligation to do so.

Example of Malfeasance vs. Misfeasance and Nonfeasance

A school principal hires his brother-in-law as a school janitor, falsifying his employment history in order to pay him at a rate higher than normal for the entry-level position because he has experienced hard times financially since losing his previous job. Knowingly committing this dishonest act in order to obtain a higher wage for the principal’s relative is an example of malfeasance.

Had the principal simply hired his brother-in-law, being unaware of the district’s anti-nepotism statute, it would be considered misfeasance.

The purpose of the district’s anti-nepotism statute is to ensure employees are selected fairly, and that the best candidates for the job are chosen. Eliminating nepotism, which is the practice of hiring or granting favor to relatives or friends, also does away with the problems inherent in having a person in a position of authority directly supervising a relative or close friend. With that in mind, should a school district official who has become aware that the principal hired his brother-in-law against anti-nepotism policy fail to report the issue, his failure to act would be considered nonfeasance.

Defining Malfeasance in Public Office

Throughout history, some people holding public office act in ways contrary to the public good. While many of these acts amount to ignorance of some statute or regulation, other acts are intentionally done for personal gain or purpose. It is these acts that amount to malfeasance in public office. Determining just what acts may be considered actionable, or even criminal, has proven to be a challenge.

The appellate and supreme courts of a number of states have taken on the task of defining malfeasance in public office. For instance, the West Virginia Court of Appeals issued a summary of other courts’ decisions in defining malfeasance in public office:

  • A wrongful act which the individual has no legal right to do
  • Wrongful conduct which affects, interrupts, or interferes with the performance of official duty
  • An act for which the individual has no authority or warrant of law
  • An act which the person ought not to do
  • An act which is wholly wrongful and unlawful
  • An act for which the person has no authority to do, and which is positively wrong or unlawful
  • The unjust performance of some act which the person has no right, and has not been contracted to do

Elements of Malfeasance

In determining whether a public official has committed malfeasance, the courts must consider whether certain elements have been fulfilled. While every circumstance is different, the following elements generally must be present:

  1. The official has committed an affirmative act or omission – this means the official has physically taken action, or purposely decided not to act.
  2. The act must have been performed in the individual’s official capacity.
  3. The act interferes with the individual’s performance of his official duties, or with the official duties of another public official.

Malfeasance by County Clerk Refusing to Issue Marriage Licenses to Gay Couples

In defiance of the June, 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, which granted same-sex couples the right to marry, Kim Davis, the county clerk for Rowan County, Kentucky, began refusing to issue marriage licenses to any couple, in order to avoid issuing licenses to gay couples. Davis, an elected official, also refused to allow her deputy clerks to issue licenses, as they would contain her name and title.

After several civil rights lawsuits were filed against Davis, the U.S. District Court ordered Davis to carry out her public duty to issue marriage licenses to all couples. Davis asked for a stay on the ruling until she could appeal the court’s decision, though the stay was denied. Davis’ continued refusal to carry out her duties as ordered by the court, citing “God’s authority” for her non-compliance, saw her jailed on September 3, 2015 for contempt of court. The Rowan County deputy clerks issued marriage licenses to all couples while Davis was in jail.

Davis was released on September 8, and allowed to return to work on September 14, with the understanding that she would not stand in the way of the deputy clerks issuing marriage licenses. In November, Davis’ attorneys filed a motion with the appellate court asking that four of the District Court’s decisions be overturned, as a “rush to judgment” that pressured Davis to choose between her religious convictions and her job, or worse, between her religious beliefs and maintaining her freedom. The court promptly denied the motion.

While Davis returned to work, the issue of whether to charge her with malfeasance in public office remained undecided, as of the end of 2015. Kentucky law allows the district attorney to indict local officials for malfeasance in office or willful neglect in the discharge of official duties. Although technically refusal to perform required duties of office is “nonfeasance,” the laws of many states define such a defiant refusal to act as “malfeasance.”

While Chapter 522 of the Kentucky Revised Statutes provides that:

“(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.


(2) Official misconduct in the first degree is a Class A misdemeanor.”

Chapter 61 of the law defines public officials as “[c]ounty judges/executive, justices of the peace, sheriffs, coroners, surveyors, jailers, county attorneys, and constables,” failing to name clerks.

Related Legal Terms and Issues

  • Contempt of Court – A willful act of disobedience to an order of the court; deliberately being rude or disrespectful to the judge or the court.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Negligence – Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.
  • Statute – A written law passed by a legislative body.