A Look at the Crime of Official Misconduct

Anytime a person in public office, whether it be an elected official or a police officer, commits a crime, it is likely to make news.  What you may not know, is that not only will this public official have the added pressure of media attention, but they may also have a felony charge created just for people in these positions of trust.  Indiana has a crime called official misconduct. In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower take a look at official misconduct.  The Crime reads as follows:
A public servant who knowingly or intentionally:

   (1) commits an offense in the performance of the public servant’s official duties;

   (2) solicits, accepts, or agrees to accept from an appointee or employee any property other than what the public servant is authorized by law to accept as a condition of continued employment;

   (3) acquires or divests himself or herself of a pecuniary interest in any property, transaction, or enterprise or aids another person to do so based on information obtained by virtue of the public servant’s office that official action that has not been made public is contemplated; or

   (4) fails to deliver public records and property in the public servant’s custody to the public servant’s successor in office when that successor qualifies;

   commits official misconduct, a Level 6 felony.
In breaking the statute down, it is more than just a charge for the public official who commits a crime.  However, section (1)  of the statute does just that.  If a public servant is acting in the course of their duties and commits a crime while doing so, they can be convicted of official misconduct.  This is a substantial matter for the public official, because what might have been just a misdemeanor for a civilian, can now be a felony for the public servant.  In many instances, it may be the conviction of this felony that costs the public servant the job.  To prove this prong of the statute, the State must just show that they committed an offense, while in the performance of their official duties.  The later part is the part of this section that is most litigated.  At the time of the offense, was the public servant performing their official duties?
There have only been a couple of cases where the Court of Appeals have looked at the acting in the course of official duties portion of the statute.  In  Heinzman v. State, 895 N.E.2d 716, 2008 Ind. App. a welfare case manager was found guilty of sexually assaulting one of his handicapped clients.  The Court found that his conviction as to one victim on the charge of official misconduct had to be overturned as he was not acting in the performance of his official duties.  The Court noted that the defendant had been assigned to work with this family, however, his official duties with the family had ended by the time he committed the crime and thus he was not able to be convicted of official misconduct.
In contrast, in  Bell v. Bingham, 484 N.E.2d 624, 1985 Ind. App. the court looked at a case where an officer who was a “special deputy” was as an off duty security officer for a department store.  The security officer was allowing customers to steal merchandise and then agreeing to not arrest them or have them prosecuted, in return he would receive cash.  Despite that the special deputy was “off duty” the Court found that he was acting in his official duties when he allowed others to commit crimes and did not arrest them.
Section (2) of the statute is put in place so that public officials cannot accept gifts or property in return for employing people.  This part of the statute  is designed to prevent  an official from using their position of authority to essentially benefit from accepting items in return for providing a particular person with a job.
Section (3) should be called the insider knowledge provision.  This section makes it illegal for a public official to take advantage of, personally or in conjunction with another, any insider information that they have by virtue of their public position.  For example, it would be inappropriate for an INDOT official to go buy up a bunch of rural farm land that he/she knows sits in the path of a future yet released highway.  Obviously, this insider information would allow the official to buy property at market value, knowing that the future highway would greatly increase the value.  Taking advantage of such inside information would result in a filing of official misconduct under section (3).
Section (4) should be called the sore loser provision.  Basically, if an office holder loses his/her election he/she is under an obligation to turn over all property, records, papers etc. to their successor.  If the defeated official decides that he/she is going to make life hard on the new elected official by destroying or misplacing important documents or property, then they will be charged with official misconduct under section 4.
When someone is elected to office, sworn as a police officer, or working as a government official, they are entrusted with upholding their oath of office and always acting in the best interest of the people and community they serve.  When a police officer steps over his/her bounds and batters a person in their care or an elected official abuses their power and accepts a bribe, they will not only answer for the underlying offense, they will also likely face the felony of official misconduct.
Banks & Brower is a law firm located in Indianapolis with a satellite office in Noblesville and represents clients charged with crimes throughout the  State of Indiana.  If you find yourself charged with official misconduct or any other crime contact the Indianapolis Criminal Defense Attorneys at Banks & Brower, give the attorneys a call at 317-870-0019 24 hours a day.

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