Colorado § 18-8-405 - Second degree official misconduct.

§ 18-8-405. Second degree official misconduct.

(1) A public servant commits second degree official misconduct if he knowingly, arbitrarily, and capriciously:

(a) Refrains from performing a duty imposed upon him by law; or

(b) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Second degree official misconduct is a petty offense.

Source: L. 71: R&RE, p. 462, § 1. C.R.S. 1963: § 40-8-405. L. 83: (1)(a) amended, p. 710, § 2, effective June 10. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3200, § 298, effective March 1, 2022.

ANNOTATION

The language "duty imposed upon him by law" is not unconstitutionally vague. People v. Beruman, 638 P.2d 789 (Colo. 1982).

But "clearly inherent" duty language in former provision was constitutionally vague. The language proscribing omissions of duty "clearly inherent in the nature of his office" was unconstitutionally vague. The vagueness present in this statutory language impermissibly infringed the constitutional safeguards of fundamental fairness and due process, and created a danger of arbitrary enforcement. People v. Beruman, 638 P.2d 789 (Colo. 1982).

Criminal responsibility based on legally imposed duty not invalidated. Since this section provides for alternative bases of liability, the first basis of criminal responsibility — refrains from performing a duty imposed by law — is not affected by the invalidity of the second basis — inherent in the nature of the office. People v. Beruman, 638 P.2d 789 (Colo. 1982).

Charge to be based on specific, mandatory duties. A charge of official misconduct must be based upon mandatory legal duties specific to a particular public office, not upon general allegations of duty. People v. Beruman, 638 P.2d 789 (Colo. 1982).

So that accused can prepare defense. An indictment under this section must set out the source of the duty imposed by law which the defendant failed to perform in addition to the specification of the facts alleged to constitute the failure of performance. It is essential that the defendant know what duties are imposed by law which have not been performed in order to allow him to prepare a defense, and further, to enable him to plead the resolution of the charge as a bar to further prosecution for the same offense. People v. Beruman, 638 P.2d 789 (Colo. 1982).

Applied in People ex rel. Losavio v. Gentry, 199 Colo. 153, 606 P.2d 57 (1980); Colo. Ethics Watch v. Coffman, Indep. Ethics Comm'n 08-01.