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Intentional Breach of Positive Statutory Duty
"corrupt intent can be shown where there is intentional or purposeful misbehavior”

MCL 750.505; MSA 28.773 -

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.

The criminal charge of misconduct in office occurs when duties imposed by law have not been properly and faithfully discharged, and is established by showing the willful violation of a prescribed duty.[Am Jur 2d, Public Officers and Employees, § 412.] … there must be established a “breach of a positive statutory duty” or “the performance of a discretionary act with an improper or corrupt motive.” Am Jur 2d, supra, § 409. People v Coutu (On Remand), 235 Mich App 695, 706-707; 599 NW2d 556 (1999), "Pursuant to the definitions, a corrupt intent can be shown where there is intentional or purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of office by an officer. See also Perkins & Boyce, supra at 542 (“It is corrupt for an officer purposely to violate the duties of his office.”). The corrupt intent needed to prove misconduct of office does not necessarily require an intent for one to profit for oneself. Thomas, supra at 461, n 6."

In order to be considered a public office, five elements are required:

  1. The position must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature;
  2. The position must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;
  3. The powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority;
  4. The duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body;
  5. The position must have some permanency and continuity, and not be only temporary or occasional.

Oath and bond requirements are also of assistance in determining whether a position is a public office.

Public Officers - position titles for purposes of misconduct in office charges may include:
CITY COMMISSION, CITY ATTORNEY, PLANNING COMMISSION, ZONING BOARD OF APPEALS, CITY MANAGER, COMMUNITY SERVICES and ECONOMIC DEVELOPMENT - DIRECTOR, BUILDING SAFETY & CODE ENFORCEMENT - BUILDING OFFICIAL, PLANNING & COMMUNITY DEVELOPMENT - DIRECTOR, when the charges arise from the performance of their duties or while acting under color of their office. Inherent duties of the position in addition to the written job description and authorizing statute are considered.

Public Duty

Common Law

Duty of Care - an obligation to dutifully and diligently perform the functions of a position.
Duty of Loyalty - those who operate as agents exercising power on behalf of others must protect the interests of those persons served above all others, including themselves.
Duty of Candor - full and open disclosure of all facts and circumstances which may impact deliberations on matters under consideration.

Statutory - Mt. Pleasant, MI

The City shall provide for the public peace and health and for the safety of persons of property within the City.

Charter Article II Sec. 8. OATH OF OFFICE.
Every elected and appointed Commissioner, before commencing official duties, shall take and subscribe to the following oath:
“I do solemnly swear (affirm) that I will support the constitutions of the United States of America and the State of Michigan and the Charter of the City of Mount Pleasant, and that I will faithfully discharge the duties of this office on behalf of all the citizens of the City to the best of my ability.”

Charter Article III Sec. 7. CITY MANAGER - DUTIES
The City Manager shall be the chief administrative official of the City, and shall be responsible to the Commission for the administration of all City affairs placed in his charge by this Charter. The City Manager shall have the following powers and duties:
(D) He-she shall see that all laws, provisions of this Charter, and acts of the Commission, subject to enforcement by him-her or by officials subject to his-her direction and supervision, are faithfully executed.

The City Attorney shall be appointed by a majority vote of the entire Commission for an indefinite term. He-she shall be the legal advisor for the city and for all City officials and departments in all matters relating to their official duties, and shall perform such other duties as the Commission may require. He-she may be removed by a majority vote of the entire Commission.

Title XV Chapter 150 § 150.17 ENFORCEMENT.
The Building Official is hereby authorized and directed to enforce the provisions of the Code.

The Building Official shall be appointed by the City Manager. It shall be the duty of the Building Official to enforce this chapter and the requirements of the Planning Commission authorized by this chapter and the provisions of any approved plan or site plan.

Inherent - Mt. Pleasant, MI

BUILDING SAFETY & CODE ENFORCEMENT - BUILDING OFFICIAL, service as secretary to the Zoning Board of Appeals
PLANNING & COMMUNITY DEVELOPMENT - DIRECTOR, service as secretary to the Planning Commission

Excerpts November 2009: Michigan Compiled Laws, Mt. Pleasant City Code