The Criminal Consequences of Public Office

The Criminal Consequences of Public Office
Edward J. Kologi, Esq. - Associate Counsel to the New Jersey State League of Municipalities

Many individuals seek public office with the genuine intent of trying to effectuate positive change. Although only a small percentage of elected officials ever engage in actual criminal behavior, it is imperative that all officials remain aware of precisely what constitutes criminal conduct to ensure that they never cross over the line.

The New Jersey Criminal Code (N.J.S.A 2C:1-1 et seq.) contains a number of offenses which are specifically directed at public officials and/or employees. Although this article is not intended as an exhaustive treatment of all state law on this subject, it will hopefully provide a working knowledge of the major acts or omissions which may give rise to criminal culpability.

Official Misconduct (N.J.S.A. 2C:30-2) A public servant commits official misconduct if with a purpose to obtain a benefit for himself or herself or another (or to injure or deprive another of a benefit) he or she knowingly commits an act relating to his or her office constituting an unauthorized exercise of official functions: or knowingly refrains from performing a duty which is imposed by law and is clearly inherent in the nature of the office. The “benefit” obtained may be of minimal value. Investigation Into Hamilton T.P. Board of Education 205 N.J. Super. 248 (App. Div.1985). This also includes benefits not received by the public official but rather by a third party. State v. Schenkolewski 301 N.J.Super.115 (App. Div.), cert. den.151 N.J. Super. (1977). To violate this section, the individual must be a public servant and the act must relate to the office. State v. Bullock 136 N.J. 149 (1994).

A person who performs certain governmental functions may be guilty of an offense even though he is not a government “employee.” State v. Mason 355 N.J. Super. 296 (App. Div. 2002). See e.g. State v. Perez 185 N.J. 204 (2005), an employee of a privately owned motor vehicle agency was considered a “public servant” for the purposes of this statute.

An individual who attempts to use his office to injure or deprive another of a benefit may also be in violation of N.J.S.A. 2C:30-2. Hence, the law may criminalize political vendettas or reprisal if done with the requisite intent.

Similarly, an omission may form the basis for a charge, such as in the case where a police officer witnesses another police officer engaged in illegal activity but fails to report it or take any other necessary action. The crime of official misconduct is a second degree offense if the benefit obtained or sought is in excess of $200. If the amount is below this threshold, it is a crime of the third degree. There is a seven year statute of limitations applicable to this crime.

Speculating or Wagering on Official Action or Information N.J.S.A. 2C:30-3 Under this provision, which is largely an “insider trading” type of statute, a violation occurs if, in contemplation of official action by himself or herself or by a governmental unit with which he or she is or has been associated, or in reliance on information to which he or she has had access in an official capacity and which has not been made public, an individual (a) acquires a pecuniary interest in any property transaction or enterprise which may be affected by such information; (b) speculates or wagers on the basis of such information or official action; or (c) aids another in any of the foregoing while in or after leaving office. Clearly, what occurs in meetings of the governing body, including but not limited to documentation and information to which elected officials are privy and which the general public has not yet seen, requires confidentiality.

If, for example, the local city council is discussing the possibility of acquiring a parcel of property for redevelopment, a public official with knowledge of the discussion could not go out and directly or indirectly attempt to purchase all surrounding properties in the hope that if the municipal project moves forward, they would dramatically increase in value. Like official misconduct, a violation of this statute constitutes a crime of the second degree unless the amount involved is less than $200 in which case it is also a crime of the third degree. The statute of limitations is also seven years.

Disbursement of Money or Incurring Obligations by Public In Excess of Appropriations (N.J.S.A. 2C:30-4) This statute should be of considerable interest to all elected officials. A member of a governing body (including a Board of Education) commits a crime of the fourth degree if he or she purposely and knowingly votes for the disbursement of public monies in excess of the appropriation for that particular item; or incurs obligations in excess of the appropriation and limit of expenditure provided by law for that item. Consequently, prior to voting to expend funds, a public official must be satisfied through appropriate information or documentation that funds are in fact available for such purpose. The first section of this provision addresses voting for the disbursement of monies; the second section addresses the incurring of obligations in excess of available monies. For example, if a budget line item for tree removal services was $5,000 and a Mayor or Councilman directed the Contractor to continue to remove trees knowing that the $5,000 limit had already been reached, or voted to have the additional work performed, despite such knowledge, a violation of this section has occurred.

Deprivation of Civil Rights (N.J.S.A. 2C:30-6) This section makes it a crime for a public official purporting to act in an official capacity to deprive another individual of his or her civil rights. It requires knowledge that the conduct is unlawful and with the purpose to intimidate or discriminate against an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity through (1) unlawful arrest or detention including but not limited to motor vehicle investigative stops, searches and seizures; or (2) the denial or impeding of another’s lawful exercise or enjoyment of any right, privilege, power or immunity. This is generally a crime of the third degree unless bodily injury results or if the conduct is attendant to certain other criminal activity such as murder, manslaughter, kidnapping, or aggravated sexual assault. A finding of bodily injury will raise the crime to that of a second degree and the latter provision concerning other crimes would elevate it to a crime of the first degree.

Crime of Pattern of Official Misconduct (N.J.S.A. 2C:30-7) A person commits such an offense if he or she commits two (2) or more acts that violate the provisions of N.J.S.A. 2C:30-2, supra, or N.J.S.A. 2C:30-6. This is a separate crime of the second degree if one of the acts committed is a first or second degree crime, otherwise, it is a crime of the third degree. However, it is treated more harshly in that the presumption of non-imprisonment for third degree offenses under N.J.S.A. 2C:44-1 is expressly inapplicable to such a violation.

Bribery in Official and Political Matters (N.J.S.A. 2C:27-2) A person commits the crime of bribery if he directly or indirectly offers, confers or agrees to confer or solicits, accepts or agrees to accept a benefit as consideration for official action. The statute defines “benefit as consideration” as any benefit not authorized by law. Under the definitional provision of N.J.S.A. 2C:27-1, a “public servant” means any officer or employee of government, including legislators, judges, jurors, advisors, consultants, or other individuals performing a governmental function. See State v. Grimes 235 N.J. Super.75 (App. Div. 1989). However, a person who “merely performs services pursuant to a government contract” is not a public servant for purposes of this provision. See State v. Mason 355 N.J. Super. 296 (App. Div. 2002). Further, the term “benefit” need not be of a particular value. It would include not only pecuniary consideration but any type of reward. State v. Scirrotto 115 N.J. 38 (1989).

Threats And Other Improper Influence In Official And Political Matters (N.J.S.A. 2C:27-3) Under this provision, a person commits a crime if he or she directly or indirectly threatens unlawful harm to any person with a purpose to influence official action or the performance of an official duty. A violation does not require a threat of “harm” in an injury or damage sense, but would, for example, include a threat to disclose embarrassing information. See State v.Scirrotto, supra.

Unlawful Business Transaction Where Interest Is Involved (N.J.S.A. 2C:27-9) A public servant violates this law if, while performing his or her official functions on behalf of a governmental entity, he or she knowingly transacts any business with him or herself, a member of his or her immediate family, or a business organization in which the public servant or an immediate family member has an interest. The term “business organization” shall not include aggregate familial ownership or control of one percent or less of an interest in the capital or equity of the business organization. Further, it is not a violation if the public servant’s performance of official functions would not affect him or her, his or her family or business organization differently than such performance would affect the public generally.

Acceptance or Receipt of Unlawful Benefit by Public Servant for Official Behavior (N.J.S.A . 2C:27-10) If under color of office and in connection with any official act performed or to be performed, a public servant directly or indirectly knowingly solicits, accepts or agrees to accept any benefit for himself or another person to influence the performance of any official duty, a violation occurs. Further, the term “benefit” includes any benefit from or by reason of a contract or agreement for goods, property or services awarded by the public entity employing the public servant. There are three exceptions in the statute as to conduct not constituting a violation: (1) fees or any other benefit prescribed by law to be received by the public servant to which he or she is otherwise legally entitled and if said fees or benefits are received in the manner legally prescribed and not bartered for another benefit to influence his or her official duties; (2) gifts or other benefits conferred on account of kinship or other personal, professional or business relationship independent of the official status of the recipient if same are not bartered for another benefit to influence the performance of an official duty; (3) trivial benefits which involve no risk that the public servant would perform official duties in a biased or partial manner. For grading purposes, this section is a crime of the second degree unless the benefit solicited or accepted is of a value of $200 or less, in which case it is a crime of the third degree. Hence, an occasional lunch or even perhaps a round of golf may not be problematic; however, using a vendor’s condo in Florida on a regular basis may certainly raise problematic issues under this section.

Forfeiture of Public Office (N.J.S.A. 2C:51-2 et seq) In addition to prison terms and substantial fines, a person holding any public office, position or employment, whether elective or appointive, under the Government of New Jersey or any agency or political subdivision (including municipalities) thereof, forfeits his or her office or position if convicted of a crime or offense involving dishonesty; of the third degree or above under New Jersey or any other equivalent provision of law; or for a conviction of an offense involving or touching such office position or employment. A conviction for a violation of Federal law may be the basis for forfeiture. McCann v. Clerk of City of Jersey City 167 N.J. 311(2001): In Re: Vitacco 347 N.J. Super. 337 (App. Div 2002). It would indeed be difficult to envision a situation where any of the preceding crimes or offenses would not be deemed to “touch” upon the official position, office or employment. In defining whether an offense “touches the office,” our Courts have held that when “...the infraction casts such a shadow over the employee as to make his or her continued service appear incompatible with the traits of trustworthiness, honesty and obedience to law and order, then forfeiture is appropriate.” Moore v. Youth Correctional Institute 119 N.J. 256 (1990). In the case of a police officer, an offense may touch upon employment even if the officer is off duty and outside the territorial limits of the municipality where he or she is employed. State v. Williams 355 N.J. Super. 579 (App. Div. 2002); State v. Gismondi 353 N.J. Super. 178 (App. Div. 2002). In addition to forfeiture, any person convicted of a crime or offense involving or touching upon his or her public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this state or any of its administrative or political subdivisions. (N.J.S.A. 2C:51-2). The only potential relief from this penalty is where a conviction is based upon a disorderly or petty disorderly persons offense. In such matters, the forfeiture or disqualification may be waived by the Court upon application of the County Prosecutor or the Attorney General and for good cause shown. N.J.S.A. 2C:51-2(2)(e). Further, a person convicted of an offense under N.J.S.A. 2C:27-2, N. J.S.A. 2C:27-4, N.J.S.A. 2C:27-6, N.J.S.A. 2C:27-7, N.J.S.A. 2C:29-4, and N.J.S.A. 2C:30-2 or N.J.S.A. 2C:30-3 shall be ineligible either directly indirectly for bidding on any public contract for a period of five to ten years, depending upon the crime. This would include any business (a corporation, partnership, association or proprietorship in which the individual is a principal) which the individual owns or directly or indirectly controls five percent or more of the stock or equity interest therein.

Conclusion Public service carries with it a tremendous responsibility, as public officials and employees have long been recognized as repositories of the public trust. Consistent with this obligation, the New Jersey Legislature has enacted a comprehensive scheme of laws specifically designed to ensure compliance with this high level of responsibility. While an official who, after being elected, seeks revenge against a political opponent may simply view his or her conduct as “politics,” such conduct may very well rise to the level of a criminal violation. If a police officer closes his or her eyes to a situation which would normally require action, the line may have been crossed into official misconduct. Should a Council-member tell his or her relatives at Sunday dinner about private discussions at a Council Meeting involving potential municipal action on a project with the intent that the family members may take advantage of the information for their own pecuniary gain, the official has encroached into an area forbidden by law.

In sum, there is little room for error in terms of conduct which falls within any of the above categories. While the official may not be aware that such acts may constitute a criminal act, ignorance of the law continues to be no excuse, nor should it be. If an official has the slightest question as to whether a proposed action or course of conduct is illegal, appropriate advice from either the local public entity attorney or in appropriate cases, the County Prosecutor should be sought prior to acting. The career you save may be your own.

Edward J. Kologi, Esq. has represented public entities for 25 years and currently serves as Linden’s Municipal Attorney and as Associate Counsel to the New Jersey State League of Municipalities.

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