Montana Code Annotated

Mont. Code Ann. § 45-7-401 (2026)

Official Misconduct

✓ current as of May 2026

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TITLE 45. CRIMES

CHAPTER 7. OFFENSES AGAINST PUBLIC ADMINISTRATION

Part 4. Official Misconduct

Official Misconduct

45-7-401. Official misconduct. (1) A public servant commits the offense of official misconduct when in an official capacity the public servant commits any of the following acts:

(a) purposely or negligently fails to perform any mandatory duty as required by law or by a court of competent jurisdiction;

(b) knowingly performs an act in an official capacity that the public servant knows is forbidden by law;

(c) with the purpose to obtain a personal advantage or an advantage for another, performs an act in excess of the public servant's lawful authority;

(d) solicits or knowingly accepts for the performance of any act a fee or reward that the public servant knows is not authorized by law; or

(e) knowingly conducts a meeting of a public agency in violation of 2-3-203.

(2) A public servant convicted of the offense of official misconduct shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.

(3) The district court has exclusive jurisdiction in prosecutions under this section. Any action for official misconduct must be commenced by an information filed after leave to file has been granted by the district court or after a grand jury indictment has been found.

(4) A public servant who has been charged as provided in subsection (3) may be suspended from office without pay pending final judgment. Upon final judgment of conviction, the public servant shall permanently forfeit the public servant's office. Upon acquittal, the public servant must be reinstated in office and must receive all backpay.

(5) This section does not affect any power conferred by law to impeach or remove any public servant or any proceeding authorized by law to carry into effect an impeachment or removal.

History: En. 94-7-401 by Sec. 1, Ch. 513, L. 1973; amd. Sec. 2, Ch. 474, L. 1975; R.C.M. 1947, 94-7-401; amd. Sec. 1691, Ch. 56, L. 2009.

Notes of Decisions

Cited in 16 cases (2 in the last 5 years), 1982–2023 · leading case: State v. Conrad, 643 P.2d 239 (Mont. 1982).

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State v. Conrad, 643 P.2d 239 (Mont. 1982). · cites it 18× “It is unclear whether the 1977 legislature, in enacting its broad definition of “meeting” to include discussions as well as actions (section 2-3-202, MCA), intended to amend the criminal statute under which these commissioners were charged (section 45-7-401(lXe), MCA), to…”

Billings Gazette v. City of Billings, 2013 MT 334 (Mont. 2013). · cites it 6× “Pursuant to § 45-6-301(2)(a), MCA, a person commits the offense of theft when the person purposely or knowingly obtains, by 33 deception, control over another’s property (money paid in the form of wages) with the purpose of depriving the owner (the City) of that property.”

State v. Sullivan, 880 P.2d 829 (Mont. 1994). · cites it 4× “On November 15, 1991, the State charged Sullivan by information with five counts of felony theft, in violation of § 45-6-301(1)(b), MCA; tampering with public records or information by accountability, a felony, in violation of § 45-2-302(1) and § 45-7-208, MCA; and official…”

Foster v. Kovich, 673 P.2d 1239 (Mont. 1983). · cites it 9× “We determine, however, that the allegations here cannot fall within the meaning of “official misconduct” to be defined only as it is defined in the criminal code under section 45-7-401, MCA. Official misconduct is set forth in section 2-16-603(3) as a ground of recall.”

State v. Later, 860 P.2d 135 (Mont. 1993). · cites it 20× “In addition, the portion of the affidavit in support of the motion for leave to file the information which pertains to Count VII provided: The defendant's failure to remit to Beaverhead County the mileage fees paid to him by the Board of Crime Control for his use of a county…”

State v. Hamilton, 830 P.2d 1264 (Mont. 1992). · cites it 3× “n the information as follows: COUNT IV: OFFICIAL MISCONDUCT On or about June 29, 1987, in Hardin, Big Horn County, Montana, the Defendant committed the offense of official misconduct when, in her official capacity as Big Horn County Treasurer and with the purpose to obtain…”

People v. Feerick, 714 N.E.2d 851 (NY 1999). “…§ 5/33-3; Ind Code Ann § 35-44-1-2; Iowa Code Ann § 721.2; Kan Stat Ann § 21-3902 (a); Ky Rev Stat Ann § 522.020; Mont Code Ann § 45-7-401; Neb Rev Stat § 28-924; NH Stat Ann § 643:1; NJ Stat Ann § 2C:30-2; Ore Rev Stat §§ 162.405,162.415; Tenn Code Ann § 39-16-402; Tex…”

State v. Delaine & Malisa Fitzpat, 2012 MT 300 (Mont. 2012). “10 The District Court named the following crimes that Agent Gremaux committed in obtaining his fictitious driver’s license and patient card: “Tampering with public records or information” § 45-2-207, “False Swearing” § 45-2-202, “Official Misconduct” § 45-7-401, “Fraudulently…”

The PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. Franklin Borja CAMACHO, Defendant-Appellant, 103 F.3d 863 (9th Cir. 1996). “43 (1995); Mont.Code Ann. § 45-7-401 (1993); Neb.Rev.”

State v. Schmidt, 2005 MT 339N (Mont. 2005). · cites it 9× “¶6 On January 8, 2004, the State of Montana charged Schmidt with official misconduct, a misdemeanor as set forth in § 45-7-401, MCA. Schmidt entered a plea of not guilty.”

Darrow v. Msla Dem. Cen. Com., 2021 MT 282N (Mont. 2021). · cites it 4× “Claims against Kendall ¶18 Next, Darrow argues that Kendall is not immune from suit under § 2-9-305, MCA, because he alleged Kendall retaliated against him in violation of § 2-2-145, MCA, and committed official misconduct in violation of § 45-7-401, MCA. Darrow asserts further 8…”

Tschida v. Motl, 250 F. Supp. 3d 709 (D. Mont. 2017). · cites it 4× “Motl replied, “[tjhere’s, uh, the main consequence that befalls an official who, um, violates a mandatory duty is official misconduct,” referring to Mont. Code Ann. § 45-7-401 . Id. The interviewer asked whether that would be a civil claim, to which Commissioner Motl responded,…”

Show all 16 citing cases →

— Mont. Code Ann. § 45-7-401(1) — 1 case

Monforton v. Motl, 2020 MT 202 (Mont. 2020).

— Mont. Code Ann. § 45-7-401(1)(a) — 1 case

State v. Later, 860 P.2d 135 (Mont. 1993). “In addition, the portion of the affidavit in support of the motion for leave to file the information which pertains to Count VII provided: The defendant's failure to remit to Beaverhead County the mileage fees paid to him by the Board of Crime Control for his use of a county…”

— Mont. Code Ann. § 45-7-401(1)(b) — 1 case

Billings Gazette v. City of Billings, 2013 MT 334 (Mont. 2013). “Pursuant to § 45-6-301(2)(a), MCA, a person commits the offense of theft when the person purposely or knowingly obtains, by 33 deception, control over another’s property (money paid in the form of wages) with the purpose of depriving the owner (the City) of that property.”

— Mont. Code Ann. § 45-7-401(1)(c) — 1 case

State v. Schmidt, 2005 MT 339N (Mont. 2005). “¶6 On January 8, 2004, the State of Montana charged Schmidt with official misconduct, a misdemeanor as set forth in § 45-7-401, MCA. Schmidt entered a plea of not guilty.”

— Mont. Code Ann. § 45-7-401(4) — 2 cases

Jacobsen v. State, 1999 MT 91N (Mont. 1999).

— Mont. Code Ann. § 45-7-401(e) — 1 case

Darrow v. Msla Dem. Cen. Com., 2021 MT 282N (Mont. 2021). “Claims against Kendall ¶18 Next, Darrow argues that Kendall is not immune from suit under § 2-9-305, MCA, because he alleged Kendall retaliated against him in violation of § 2-2-145, MCA, and committed official misconduct in violation of § 45-7-401, MCA. Darrow asserts further 8…”

— Mont. Code Ann. § 45-7-401(l)(a) — 1 case

— Mont. Code Ann. § 45-7-401(l)(b) — 1 case

— Mont. Code Ann. § 45-7-401(l)(e) — 1 case

State v. Conrad, 643 P.2d 239 (Mont. 1982). “It is unclear whether the 1977 legislature, in enacting its broad definition of “meeting” to include discussions as well as actions (section 2-3-202, MCA), intended to amend the criminal statute under which these commissioners were charged (section 45-7-401(lXe), MCA), to…”

— Mont. Code Ann. § 45-7-401(lXe) — 1 case

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