know of the existence of such non-discretionary duty to
act. Thus, such duty must be either one that is imposed
by law, or one that is unmistakably inherent in the nature
of the public servant’s office, i.e., the duty to act is so clear
that the public servant is on notice as to the standards that
he must meet.” Commentary, supra at 291.
D. Duties Imposed By Law The Breach Of Which May
Give Rise To Misconduct Charges
- Duties “Imposed by Law”
State v. Duble, 172 N.J. Super. 72 (App. Div. 1979).
A duty “which is imposed by law” must concern duties
created by statute or found in the common law. Duties
arising from administrative regulations do not suffice for
the purpose of the crime. In Duble, the defendant police
officer was convicted of neglect of official duty for having
failed to submit a written report of his investigation as
soon as practicable to his commanding officer, as required
by departmental regulation. The Appellate Division
reversed the conviction, noting that the regulation was
purely administrative in character, affecting only the
internal operation of the department and the conduct of
its members. The court held that department heads and
municipal governing bodies cannot create broad classes of
indictable offenses chargeable against public officers
merely by administrative regulations covering the most
commonplace and inoffensive forms of conduct and
agency procedure. Compare State v. Falco, 60 N.J. 570
(1972) (sustaining a police officer’s misconduct
conviction premised upon his total failure to have filed
any report); State v. Maiaoranna, 225 N.J. Super. 365
(Law Div. 1988) (distinquishing Duble in denying
motion to dismiss and finding that N.J.S.A. 2C:30-2b
criminalizes a public servant’s refusal to perform a duty
which “is clearly inherent in the nature of his office”),
aff’d 240 N.J. Super. 352 (App. Div. 1990); certif. denied,
127 N.J. 327 (1992); see also Bayonne Municipal
Investigating Committee v. Servello, 200 N.J. Super. 413,
418 (Law Div. 1984) (police officer may be guilty of
official misconduct if he fails to inform his superiors of
surveillances which he undertakes).
- Use of Public Property for Private Purposes or for
Obtaining an Unauthorized Private Gain
A public servant is obligated to utilize public
property only for public purposes, and he may be liable
for misconduct in office if he utilizes public property or
public facilities in an unauthorized manner to benefit
himself or some private cause or individual. Makwinski
v. State, 76 N.J. 87 (1986); State v. Makwinski, 133 N.J.
Super. 487 (Law Div. 1975); State v. Gleitsmann, 54 N.J.
Super. 355 (App. Div. 1959), appeal after remand, 62
N.J. Super. 15 (App. Div. 1960).An official has the duty to perform the tasks assigned
to him uninfluenced by adverse motives engendered by
requesting or accepting any gift, gratuity, or promise
under an agreement to abstain from performing the
functions of his position, or to carry them out in a manner
contrary to the public interest. For this reason, an official
may be guilty of misconduct if he solicits or accepts such
gift, gratuity, or promise, even if he subsequently refuses
to carry out the terms of the agreement. State v. Begyn, 34
N.J. 35, 51 (1961).In State v. Peterson, 189 N.J. Super. 261 (App. Div.
1981), certif. denied, 89 N.J. 413 (1982), defendant, who
was the secretary of the Newark Alcoholic Beverage
Control Board, informed an applicant for a transfer of his
liquor license that the application would be approved if
the applicant delivered three cases of vodka. When the
applicant agreed, the defendant sent a Board investigator
to pick up the vodka. The court held that these facts, if
believed by the jury, sufficed to sustain a conviction for
official misconduct.- Conflicts of Interest
A public official acts corruptly and is guilty of
misconduct in office when he has an undisclosed interest
in a venture which comes before the body of which he is
a member, and he acts in favor of that interest through the
office which he holds.State v. Schenkolweski, 301 N.J. Super. 115 (App. Div.
1997); State v. Furey, 128 N.J. Super. 12, 21 (App. Div.
1974), certif. denied, 65 N.J. 578 (1974).An official disqualified to vote on any measure, for
any reason, has a duty to observe the substance as well as
the form of his abstention. It is insufficient for him to
decline to vote while, at the same time, he works to
influence what that vote will be. State v. Schenkolewski,
301 N.J. Super. at 143 (holding that the State had
established the elements of official misconduct by
demonstrating that the defendant served in an official
capacity on the Zoning Board and was a liaison to the
Planning Board. While serving in those capacities he
could be found to have accepted for himself or another
$500,000 from a partnership seeking government
approvals from both bodies); Darell v. Governing Body of
Township of Clark, 169 N.J. Super. 127, 132 (App. Div.
1979), aff’d o.b., 82 N.J. 427 (1980).