Proceed with Caution: New Jersey and Official Misconduct
By Timothy Smith, Esq.
New Jersey has an embarrassing history of corruption among its political leaders. We have seen state senators, assembly persons, big-city mayors and other officials go to jail for their corrupt activities. As a consequence, the penalties that are mandated for the crime of official corruption are severe. A person convicted of second-degree official misconduct will face a five-year parole-ineligibility period. A person convicted of third-degree official misconduct will face a two-year parole-ineligibility period. All official misconduct is of either the second or third degree.
But these harsh punishments are required not just for corrupt high officials, who may wield enormous powers and do tremendous damage through their corrupt conduct. Rather, the statute covers the conduct of any public employee, that is, any person employed by any government agency in New Jersey. Even a public-school janitor, who may have no more official authority than deciding which classroom to mop up first, can be sent to jail for five years without the possibility of parole for a misdeed committed in connection with his or her job. Of course, police officers are also public employees and are similarly vulnerable to the statute for their work-related misconduct.
No one can disagree that public officials who betray the public should face harsh treatment. But the problem is that the official-misconduct statute is so broadly worded that its harsh sanctions are available for nearly any infraction, even a violation of a departmental rule, by an on-duty public employee. Hence, in one case, a school teacher was indicted for second-degree official misconduct because he lied to his principal about why he had taken sick days. The case was ultimately plea-bargained down to a lesser charge. In another, a Board of Education clerk who took Board documents to use in her civil suit against the Board was found guilty of official misconduct because her removal of those documents violated the Board’s internal confidentiality policies.
Police officers thus need to be aware that, subject to the charging discretion of the county prosecutor’s office, even minor disciplinary matters might result in an indictment for official misconduct.
In addition, the Appellate Division has held that a police officer’s personal use of a police car and municipal telephone constitutes official misconduct. In another case, where, admittedly, the officer deserves no sympathy, the Appellate Division held that a police officer who used the department’s telephone and internet service during business hours to further an illicit sexual relationship (with an underage girl) was guilty of official misconduct.
The Appellate Division has also ruled that on-duty consensual sex constitutes official misconduct. The court’s reasoning was that while an officer is engaged in such behavior, he is necessarily neglecting his official duties.
It goes without saying that officers should not engage in misconduct of any sort regardless of whether that misconduct might also be indictable.Nonetheless, the severe, mandated penalties for acts of official misconduct and the statute’s nearly limitless reach (a reach that, in this writer’s view, is exceedingly unfair) constitute powerful incentives to keep on the straight and narrow.