In law, malfeasance is the deliberate commission of an act that is either illegal on its face or one the actor had no authority to perform, carried out by someone in a position of trust or official power. That is the short answer to what is malfeasance in law: not a mistake, not sloppy work, not an omission, but an intentional wrongful act. The word turns up most often in cases involving public officials who abuse their authority and corporate officers who commit fraud, and the consequences can include criminal prosecution, civil damages, removal from office, and permanent disqualification from holding a similar position again.
Three features define it. The conduct is affirmative — the person did something, rather than failing to do something. The conduct is unauthorized or outright unlawful. And the person knew, or should have known, that they had no right to do it. Strip any of those out and you are looking at a different kind of wrong.
Malfeasance, Misfeasance, and Nonfeasance
These three terms sit next to each other in the law and get confused constantly. The differences are not academic; they change what a prosecutor can charge, what a plaintiff can recover, and what defenses the wrongdoer can raise.
Malfeasance is doing something you had no right to do in the first place. A police officer who plants evidence on a suspect is committing malfeasance.1Legal Information Institute. Malfeasance
Misfeasance is doing something you were permitted to do, but doing it badly or harmfully. A police officer who makes a lawful arrest but uses excessive force in carrying it out is committing misfeasance. The underlying action was authorized; the execution was wrongful.2Department of Justice. Law Enforcement Misconduct
Nonfeasance is failing to perform an act you were legally required to perform. A lifeguard who watches a swimmer drown without attempting a rescue is committing nonfeasance. The duty existed, and no action was taken to meet it.3Legal Information Institute. Nonfeasance
Misfeasance and nonfeasance cases usually revolve around negligence. Malfeasance cases revolve around intent, and intent is what makes the legal picture so much harsher.
Why the Distinction Matters
Intent changes the available charges, the available damages, and the available defenses.
On the criminal side, deliberate wrongdoing by a public official opens doors that mere carelessness does not. Bribery of federal officials, for instance, carries up to 15 years in prison for both the person offering the bribe and the official taking it.4Office of the Law Revision Counsel. 18 USC 201 – Bribery of Public Officials and Witnesses Theft or embezzlement of $5,000 or more from a federally funded program is punishable by up to 10 years.5Office of the Law Revision Counsel. 18 USC 666 – Theft or Bribery Concerning Programs Receiving Federal Funds Where a public official deprives someone of a constitutional right while acting under color of law, the baseline penalty is up to one year, rising to 10 years if the victim suffers bodily injury and reaching life imprisonment or death if the victim dies.6Office of the Law Revision Counsel. 18 USC 242 – Deprivation of Rights Under Color of Law
Prosecutors also reach malfeasance through the honest-services fraud doctrine, which treats a scheme to deprive the public of an official’s honest services as a form of fraud and does not require any direct financial loss to the government.7Office of the Law Revision Counsel. 18 USC 1346 – Definition of Scheme or Artifice to Defraud Charged under the mail and wire fraud statutes, it carries up to 20 years, or 30 years if a financial institution is affected.8Office of the Law Revision Counsel. 18 USC 1341 – Frauds and Swindles
On the civil side, anyone whose constitutional rights were violated by someone acting under government authority can sue for damages under federal law.9Office of the Law Revision Counsel. 42 USC 1983 – Civil Action for Deprivation of Rights The main obstacle in those suits is qualified immunity, which, under Harlow v. Fitzgerald, shields officials performing discretionary functions from damages unless their conduct violated a “clearly established” right a reasonable person would have known about. That defense is designed to protect officials who make honest mistakes. It was never meant to cover “the plainly incompetent or those who knowingly violate the law.” Malfeasance, by definition, is knowing violation, so the immunity shield gets much thinner. An officer who planted evidence is not making a reasonable judgment call, and courts are far more willing to let those cases proceed to trial.
Intent also unlocks punitive damages in civil cases. Negligence usually gets you compensatory damages only; deliberate wrongdoing can draw substantial punitive awards on top. State caps vary, but most jurisdictions permit meaningful punitive recovery when the conduct is intentional.
Malfeasance in Public Office
Public-sector malfeasance is the version most people picture: an elected official taking bribes, a government employee embezzling funds, a law enforcement officer fabricating evidence. The federal criminal code attacks each of these through separate statutes, and the common thread is that the official used the authority of the office to commit an act the office never permitted.
Beyond prison and fines, officials convicted of malfeasance routinely face removal from office, forfeiture of salary, and bars on future public service. The specifics are set by jurisdiction, but the underlying principle is uniform: malfeasance in office is treated as a fundamental breach of the public trust, not a workplace infraction.
Malfeasance in the Corporate World
In the private sector, malfeasance usually means officers or directors committing intentional fraud against the company, its shareholders, or the investing public. Manipulating financial statements, embezzling corporate funds, and running bribery or kickback schemes are the standard categories.
Sarbanes-Oxley added direct personal criminal exposure at the top of the corporate ladder. A CEO or CFO who willfully certifies a financial statement knowing it does not comply with reporting requirements faces up to $5 million in fines and up to 20 years in prison.10Office of the Law Revision Counsel. 18 USC 1350 – Failure of Corporate Officers to Certify Financial Reports Knowingly destroying or altering documents to obstruct a federal investigation reaches the same 20-year ceiling. Officers and directors also owe fiduciary duties to shareholders, and intentional fraud or self-dealing breaches those duties and exposes the individual to personal civil liability for compensatory and punitive damages.
How Malfeasance Is Proved
The evidentiary standard turns on whether the case is criminal or civil. In a criminal prosecution for bribery, embezzlement, deprivation of rights, or securities fraud, the government must prove every element beyond a reasonable doubt. In a civil damages suit, the plaintiff needs only a preponderance of the evidence, meaning the claim is more likely true than not. Some states apply an intermediate clear-and-convincing standard for fraud claims or for punitive damages.
Whatever the standard, the fight is almost always over intent. The prosecutor or plaintiff has to show that the defendant acted deliberately and knew the conduct was wrong or unauthorized. A government treasurer who mistakenly overpays a vendor committed misfeasance at worst. A government treasurer who sets up a fake vendor account and routes payments to it committed malfeasance. Intent that direct is rarely admitted; it is usually built from financial records, communications, patterns of behavior, and testimony from cooperating witnesses.
Practical Examples
Concrete scenarios make the definition easier to apply:
- A government treasurer diverts tax revenue into a personal account. The act itself is illegal, and the official had no authority to redirect the funds.
- A police officer plants drugs on a suspect or writes a false incident report. The badge was used to commit an act that is categorically unlawful.
- A building inspector takes cash to approve construction that violates safety codes. Both the inspector and the person paying face criminal liability under the federal bribery statute.4Office of the Law Revision Counsel. 18 USC 201 – Bribery of Public Officials and Witnesses
- A CEO directs the accounting team to inflate revenue before an earnings report, misleading investors and regulators.10Office of the Law Revision Counsel. 18 USC 1350 – Failure of Corporate Officers to Certify Financial Reports
- A medical provider bills Medicare for procedures never performed, or pays kickbacks for patient referrals.
The common thread is an affirmative act the person had no legal right to perform. Not an accident, not carelessness, not a failure to act. A deliberate choice to do something forbidden.
Reporting Malfeasance
At the federal level, reports of government malfeasance typically go to the Office of Inspector General for the agency involved. The Department of Justice OIG, for example, takes complaints of waste, fraud, abuse, and misconduct through an online hotline.11Department of Justice. Hotline – Office of the Inspector General Most major federal agencies have their own OIG with a similar intake process, and the Office of Special Counsel handles prohibited personnel practices and whistleblower retaliation claims.
Federal employees who report malfeasance are protected by the Whistleblower Protection Act. The law bars retaliation — including termination, demotion, suspension, and reassignment — against any employee who discloses information they reasonably believe shows a violation of law, gross mismanagement, gross waste of funds, or abuse of authority.12Office of the Law Revision Counsel. 5 USC 2302 – Prohibited Personnel Practices The protection applies whether the disclosure was in writing or oral, made on or off duty, and whether or not the information had already been disclosed by someone else.13United States Congress. The Whistleblower Protection Act – A Legal Overview An employee may also refuse an order that would require breaking the law, which matters most in exactly the malfeasance context, where a superior may pressure a subordinate to participate in illegal conduct.