Authored Articles & Publications Nov 10, 2015

The Meaning of “Malfeasance in Office” and the Lifetime Ban to Holding Office it Carries

By Gary W. Schons

The California Attorney General concluded in a recent opinion that the City of Commerce has the right to sue a sitting city councilmember convicted of a crime to test if he has the right to hold office. The Attorney General opined that there may be question as to whether Councilmember Hugo Argumedo’s misdemeanor conviction for obstruction of justice equates to committing “malfeasance in office” and, thus, he may be banned from office

Argumedo’s conviction stemmed from accusations that he gave false testimony in a civil action brought by the former city attorney of Commerce against the City for legal fees. Argumedo’s plea agreement with the Los Angeles District Attorney required that he resign from his then council seat and not seek public office for three years. Five years later, Argumedo ran and was again elected to the City Council.

The City’s proposed quo warranto action (a legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged) testing Argumedo’s right to hold his current council position would be premised on whether he had committed “malfeasance in office” based on his misconduct – the false testimony and obstruction of justice – during his prior term, and, if so, whether and what effect that determination would have on his current term of office.

Both the California Constitution and the state Legislature mandate exclusion from public office for people convicted of certain crimes in office, including perjury and malfeasance. The Attorney General had to determine 1.) whether Argumedo’s conviction constituted “malfeasance in office” under Article VII, section 8 of the California Constitution, and 2.) whether Government Code section 1021’s provision that disqualifies a person from holding office upon conviction of the designated crimes applies only to the term during which the malfeasance was committed, or operates as a permanent disqualification.

“Malfeasance in office” in not an offense defined either in the Penal Code or elsewhere in California’s statutes. The Attorney General looked to dictionary definitions of “malfeasance” such as “[a] wrongful, unlawful, or dishonest act; esp., wrongdoing or misconduct by a public official,” then added the Constitution requirement that the malfeasance be related to the person’s occupation of a public office. Based on this threshold definition, the Attorney General concluded that Argumedo’s obstruction of justice conviction in the circumstances in which it occurred was sufficient to raise a triable issue in a quo warranto action.

The Attorney General then turned to whether Argumedo’s conviction for an act committed during, and in connection with, his prior term could apply to disqualify him from serving his current term; indeed, whether it would impose a potential lifetime ban on holding office. The Attorney General concluded that the exclusion contemplated by section 8 was not temporary, but permanent — a lifetime “disqualification” from holding office.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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