Colorado CRS § 18-8-404 defines official misconduct as a public servant abusing his or her power, or breaking a law or regulation, to obtain a personal benefit or to harm another person. Official misconduct in the first degree is a class 1 misdemeanor. The penalties include up to 364 days jail and/or a fine of up to $1,000.
18-8-404 CRS states that:
(1) A public servant commits first degree official misconduct if, with intent to obtain a benefit for the public servant or another or maliciously to cause harm to another, he or she knowingly:
(a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or
(b) Refrains from performing a duty imposed upon him by law; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.
(2) First degree official misconduct is a class 1 misdemeanor.
In this article, our Denver Colorado criminal defense lawyers will address:
- 1. What is official misconduct?
- 2. Who can be charged?
- 3. What are the penalties?
- 4. Related Offenses
In Colorado, when a public servant uses their office to obtain a benefit or harm another person, they may be guilty of official misconduct.
1. What is official misconduct?
When a public servant uses his or her position for their own benefit, they may be committing the criminal offense of “official misconduct.” Official misconduct can include obtaining a benefit for the public servant or maliciously causing harm to another. First-degree official misconduct includes:
- Committing an act relating to his or her office but constituting an unauthorized exercise of his or her official function;
- Refraining from performing a duty imposed by law; or
- Violating any statute or lawfully adopted rule or regulation relating to his or her office.1
Even if a public official is not acting for their own benefit or to harm another, they may still be committing official misconduct. Second-degree official misconduct includes knowingly, arbitrarily, and capriciously refraining from performing a duty or violating a statute or regulation.2
Examples of official misconduct may include:
- A police officer letting off a friend who was driving drunk;
- A city council member voting for a construction project in which they have an undisclosed interest; or
- A sheriff’s deputy using law enforcement computers to spy on a former partner.
2. Who can be charged?
Official misconduct applies to any public servant. A public servant includes any officer or employee of the government, including advisors, consultants, process servers, or anyone performing a governmental function.3
Public servants include Colorado state, county, city, or federal government employees, such as mayors, city clerks, judicial district court judges, Colorado Supreme Court judges, federal law judges, county sheriffs, sheriff’s deputies, attorneys with the Attorney General’s Office, district attorneys, police officers / law enforcement officers / peace officers, fire marshals, ICE officers, BLM employees, park rangers, prosecutors, state senators, health officers, process servers, public works officers, code enforcement workers, anyone holding public office, and federal agents.
CRS 18-8-404 prohibits public servants from using their office to obtain benefits for themselves.
3. What are the penalties?
Under Colorado state law, first-degree official misconduct is a class 1 misdemeanor.4 The penalties for first-degree official misconduct include up to 364 days in jail and/or a fine of up to $1,000.
Second-degree official misconduct is a petty offense.5 The penalties for second-degree official misconduct include up to 10 days in jail and/or up to $300 in fines.
Most cases resolve with a plea bargain where the defendant enters a no contest or guilty plea to the charge or a lesser charge. But every defendant has the right to take the case to trial.
Defendants may also face penalties outside of the criminal justice system, such as a revocation of their public service job and civil actions.
4. Related Offenses
4.1. Misuse of Official Information C.R.S. 18-8-402
When a public servant uses nonpublic information for their own benefit, they may be committing the crime of misuse of official information. Misuse of official information is a class 6 felony in Colorado. The penalties for misuse of official information include 12 to 18 months in prison and a fine of up to $100,000.
4.2. Bribery C.R.S. 18-8-302
Offering money or other benefits to a public official to influence their actions is criminal bribery. Offering a bribe or asking for a bribe in Colorado is a felony. The penalties for bribery of a public official include up to 12 years in prison and a fine of up to $750,000.
4.3. Abuse of Records C.R.S. 18-8-114
Abuse of records involves changing or destroying public records or entering false information into a public record. Abuse of public records is a class 2 misdemeanor. The penalties for abuse of public records in Colorado include up to 120 days in jail and/or a fine of up to $750.
4.4. Soliciting Unlawful Compensation C.R.S. 18-8-304
It is a criminal offense for a public servant to request pecuniary benefit for performing an official action knowing they are required to perform that action without compensation. Soliciting unlawful compensation per CRS 18-8-304 is a class 1 misdemeanor. Penalties include up to 364 days in jail and/or a fine of up to $1,000.
Legal References
- Colorado Revised Statute (Colo. criminal code) 18-8-404(1); see, e.g. Robert Garrison, Colorado DA pleads guilty to drug and official misconduct charges, Denver-7 ABC (Nov 2, 2020)(“Attorney General Phil Weiser, who was appointed as a special prosecutor in this case by Gov. Jared Polis, said that Lewton is being held accountable for using her position as a law enforcement official to illegally obtain opioids [controlled substances] from another person for her own use.”). Prior to March 1, 2022, official misconduct was a class 2 misdemeanor carrying 3 to 12 months in jail and a fine of up to $1,000. SB21-271.
- C.R.S. 18-8-405(1)
- C.R.S. 18-8-301(4)
- C.R.S. 18-8-404(2)
- C.R.S. 18-8-405(2). Prior to March 1, 2022, 2nd-degree official misconduct was a class 1 petty offense carrying up to 6 months of county jail time and/or $500 in fines. SB21-271.