Misconduct in public office is a felony in Wisconsin. Our criminal defense attorneys can help.
Misconduct in public office is a criminal charge that is used when public officials engage in various illegal activities inconsistent with their responsibilities and for their own benefit. This law doesn’t apply to all individuals, but only those that qualify as “public employees” and “public officers.” A public employee is someone who performs any official function on behalf of the state or one of its subordinate governmental units and is paid from the public treasury of the state or subordinate governmental unit. An example would be a City of Milwaukee engineer. A public officer is any person that was appointed or elected according to law to discharge a public duty for the state or one of its subordinate governmental units. An example of a public officer is the governor.
How serious is misconduct in public office? This charge is a Wisconsin Class I felony, meaning the maximum penalty is 3.5 years prison. That prison sentences breaks down into 1.5 years initial confinement and 2 years extended supervision. A Class I felony is carries the shortest potential sentence, but a conviction is still incredibly serious. Individuals convicted of felonies in Wisconsin may have a more difficult time finding employment, keeping or obtaining professional licenses, and will be prohibited from possessing firearms for the remainder of their lives. The penalty is the same for both public employees and public officials.
Van Severen Law Office, S.C. is a Wisconsin criminal defense law firm that represents defendants throughout the state. Whether you’re facing this charge, a misdemeanor, or another felony, we can help. Contact us and we’ll connect you with any of our criminal defense attorneys. We’re available 24/7 at (414) 270-0202. We do not not charge potential clients for initial consultations.
What law prohibits misconduct in public office? Wis. Stat. 946.12
946.12 Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:
(1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer’s or employee’s office or employment within the time or in the manner required by law; or
(2) In the officer’s or employee’s capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer’s or employee’s lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer’s or employee’s official capacity; or
(3) Whether by act of commission or omission, in the officer’s or employee’s capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer’s or employee’s office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another; or
(4) In the officer’s or employee’s capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies; or
(5) Under color of the officer’s or employee’s office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which the officer or employee knows is greater or less than is fixed by law.
What does the statute mean?
Lawmakers have a habit of using a lot of words to describe relatively simple things. Let’s break down all of the different paragraphs of the statute and describe them in plain language.
Wis. Stat. 946.12(1) – A ministerial duty is a required task that a government official is legally required to perform in a specific, prescribed way. A ministerial duty is one that does not involve any discretion or personal judgment, and must be completed. A county clerk that issues a marriage license (when all requirements are met) has a ministerial duty, as he cannot refuse to issue the license.
Wis. Stat. 946.12(2) – Example: A sheriff’s deputy pulls you over and says “If you don’t give me $200.00 cash right now, I’ll have your car towed.” The deputy is in his car, acting as a law enforcement officer, acting in an official capacity. He does not have lawful authority to demand cash payment. He acted in excess of his authority, and could be charged.
Wis. Stat. 946.12(3) – It is misconduct in public office to use a discretionary power in a way that conflicts with official duties or violates the rights of others, for the purpose of gaining a dishonest advantage. Example: A city zoning board member’s friend applies for a permit but doesn’t meet all legal requirements. If that board member knowingly grants the permit, criminal liability attaches.
Wis. Stat. 946.12(4) – This statute applies to public employees or officials that knowingly falsify official records or documents.
Wis. Stat. 946.12(5) – It is misconduct in public office to overcharge, undercharge, or otherwise manipulate a lawful fee or payment in connection to a public official or public employee’s legal duties.
Wisconsin Criminal Jury Instruction 1730-1734 – Misconduct in public office
Jury instructions are tools used in the criminal justice system to break a criminal statute down into smaller parts. Those parts are called elements, and the government must prove each of them beyond a reasonable doubt. Jury instructions are also important for a simpler task: helping the general public to understand the law. Wisconsin Criminal Jury Instruction 1731 discusses Wis. Stat. 946.12(2), and provides the following elements:
Firstly, at the time of the alleged offense, the defendant was a public officer or public employee; and
Secondly, the defendant, in his capacity as a public officer or public employee, engaged in prohibited conduct; and
Thirdly, that conduct was in excess of the defendant’s lawful authority; and
Finally, the defendant knew that his conduct was in excess of his lawful authority.
Obviously this only discusses one version of misconduct in public office, but it’s helpful to show how these offenses break down into smaller parts.
Misconduct in public office is a felony in Wisconsin. A police officer requesting a cash payment for a traffic incident, not in accordance with the law, is one version of this crime. If you’re charged with a felony, contact Van Severen Law Office, S.C. for help.
Common strategies in criminal defense, and how we can help
An allegation of misconduct in public office is serious. Charges like this frequently attract the attention of the media. This is largely due to the fact that these cases often involve allegations that a government employee abused authority, falsified records, or accepted a bribe. Regardless of media attention or involvement by the public, prosecutors must still prove this charge beyond a reasonable doubt. There are a few different strategies that help us to counteract this.
Intent is an important element to consider. As we previously discussed, Wisconsin law requires proof that the employee or officer acted knowingly and intentionally. Importantly, if the action was a mistake, some sort of clerical error, or misunderstanding of duty, the government may not be able to satisfy this element. An argument from a strong criminal defense lawyer makes this strategy even more effective.
Analyzing the evidence in your case is obviously also important. Did the government overstep constitutional requirements during the investigation? Issues with improperly administering a suspect’s Miranda warnings, or an insufficient search warrant are two examples that could lead to suppression of the evidence against you. We regularly file pre-trial motions in court challenging illegal, unconstitutional government conduct.
Contact Van Severen Law Office, S.C. to speak with a top Wisconsin criminal defense attorney
Nobody wants to face any kind of criminal charges. Allegations can damage your career, reputation, and take away your freedom. These cases are often complex and involve significant investigation. Prosecutors must prove that the defendant knowingly acted outside of the law. But mistakes, misunderstandings, and administrative errors are not crimes, and an experienced criminal defense attorney should be able to make that clear.
At Van Severen Law Office, S.C., we recognize the high stakes in government misconduct cases. Our attorneys have defended public professionals across the state facing allegations that threatened their futures. If you’re under investigation, or have already been charged with misconduct in public office, the time to act is now. Early involvement by a skilled criminal defense attorney can mean the difference between a conviction and a dismissal.
Contact our team today at (414) 270-0202 to discuss your case with our team.
