First Degree Official Misconduct – Colorado Law – C.R.S. § 18-8-404

Colorado Revised Statute § 18-8-404 C.R.S. makes it a class 1 misdemeanor to commit first degree official misconduct. This is when a public servant knowingly abuses their power, or breaks a law or regulation, to either:

• obtain a personal benefit or
• maliciously harm someone else.

The punishment for official misconduct in the first degree is up to 364 days in jail and/or a fine of up to $1,000. You may also face termination from your public service job and related civil actions.

In this article, our Denver criminal defense lawyers will address the following key issues regarding first degree official misconduct in Colorado:

• 1. Elements of C.R.S. 18-4-404
• 2. Public Servants
• 3. Second Degree Official Misconduct
• 4. Related Offenses
• Frequently Asked Questions
• Additional Reading

1. Elements of C.R.S. 18-4-404

For you to be convicted of first degree official misconduct in Colorado, prosecutors must prove beyond a reasonable doubt the following three elements:

1. You were a public servant; and
2. You knowingly either:
   • committed an act relating to your office that constituted an unauthorized exercise of your official function, or
   • refrained from performing a duty imposed upon you by law, or
   • violated any statute or lawfully adopted rule or regulation relating to your office; and
3. You had the intent to obtain a benefit for yourself or another or maliciously to cause harm to another.
   

Examples of first degree 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.¹

2. Public Servants

For you to be convicted of first degree official misconduct in Colorado, you must have been a public servant at the time in question.

Public servants include state, county, city, or federal government employees, such as:

• mayors,
• clerks,
• judges,
• sheriffs and deputies,
• prosecutors,
• law enforcement officers,
• fire marshals,
• ICE officers,
• BLM employees,
• park rangers,
• senators and representatives,
• health officers,
• process servers,
• public works officers,
• code enforcement workers,
• federal agents,
• anyone holding public office, or
• anyone performing a governmental function such as advisors or consultants.²

C.R.S. 18-8-404 prohibits public servants from using their office to obtain benefits for themselves.

3. Second Degree Official Misconduct

In Colorado, you commit second degree official misconduct if you are a public servant and knowingly, arbitrarily, and capriciously either:

• refrain from performing a duty imposed upon you by law; or
• violate any statute or lawfully adopted rule or regulation relating to your office.

Unlike 1st degree official misconduct, 2nd degree official misconduct does not require you to intend to harm another or benefit yourself. It is simply knowingly shirking your duties.

Second-degree official misconduct is only a petty offense in Colorado. The penalties include up to 10 days in jail and/or up to $300 in fines.³

4. Related Offenses

Misuse of Official Information

A public servant in Colorado using nonpublic information for their own benefit is misuse of official information. This is a class 6 felony, carrying 12 to 18 months in prison and a fine of $1,000 to $100,000.⁴

Bribery

Offering money or other benefits to a public official to influence their actions is criminal bribery. This felony carries up to 12 years in prison and a fine of up to $750,000.⁵

Abuse of Records

Abuse of records involves changing or destroying public records or entering false information into a public record. This class 2 misdemeanor carries up to 120 days in jail and/or a fine of up to $750.⁶

Soliciting Unlawful Compensation

Soliciting unlawful compensation is when a public servant requests pecuniary benefit for performing an official action knowing they are required to perform that action without compensation. This class 1 misdemeanor carries up to 364 days in jail and/or a fine of up to $1,000.⁷

Most official misconduct cases resolve with a plea bargain rather than a trial.

Frequently Asked Questions

What is the difference between first degree and second degree official misconduct?

First degree official misconduct requires intent to either benefit yourself or harm someone else, and it is a class 1 misdemeanor with up to 364 days in jail. Second degree official misconduct does not require harmful intent – it is simply failing to do your duties knowingly and arbitrarily. It is only a petty offense with up to 10 days in jail.

Who counts as a public servant under this law?

Public servants include any government employee at the state, county, city, or federal level. This covers police officers, judges, mayors, prosecutors, park rangers, federal agents, city council members, and anyone performing governmental functions like advisors or consultants.

What happens to my job if I am convicted of official misconduct?

If convicted of first degree official misconduct, you may face termination from your public service position. You could also face related civil lawsuits in addition to the criminal penalties of up to 364 days in jail and fines up to $1,000.

Do most official misconduct cases go to trial?

No, most official misconduct cases are resolved through plea bargains rather than going to trial. This means the defendant and prosecutor negotiate a deal to avoid the uncertainty and expense of a trial.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Misconduct in a Public Office—Should it Still Be Prosecuted? – The Journal of Criminal Law. 
• Revealing Misconduct by Public Officials through Grand Jury Reports – University of Pennsylvania Law Review.
• Integrity and misconduct in public office – Political Science and Public Policy 2023.

Legal References