‘Official’ Explanation: Defining ‘Official Capacity’ and Related ‘Color of Office’ Phrases in Bribery and Extortion Law

50 Pages Posted: 7 Jul 2010

See all articles by Steven J. Mulroy

Steven J. Mulroy

University of Memphis - Cecil C. Humphreys School of Law

Date Written: July 6, 2010

Abstract

This article explores the legal and policy issues involving the definition of “scope of public office,” “official capacity,” and similar phrases in bribery, extortion, and similar laws, with particular emphasis on Tennessee law. These laws require corrupt conduct relating to a public official’s “official capacity,” but a spate of recent cases has tested the outer bounds of this concept. The article also examines the related but distinct issue of the jurisdictional reach of noncriminal public ethics codes applicable to government officials. It argues that the majority view ties such terms narrowly to the scope of duties which the public servant is obligated to perform as part of his office, and that considerations of notice, vagueness, and general fairness support this majority view. The article makes a similar argument with respect to noncriminal ethics codes, although a broader scope of application may reasonably apply to the disclosure requirements of such codes. Finally, it advises that Tennessee local governments, ethics commissions, and courts keep such considerations in mind as they begin to interpret their newly enacted ethics codes.

After a brief introduction, Part II sets out the background for a high-profile Tennessee case raising this issue. Part III provides a general grounding in the law of bribery and extortion. Part IV explores the definition of “official capacity” for purposes of the Tennessee bribery statute and similar statutes. It argues for a narrower definition based on considerations of notice, vagueness, and fairness. Part V examines the separate issue of defendants “wearing two hats” – i.e., part-time public officials who, as part of their “day jobs,” engage in transactions related to the subject matter of their official conduct. It applies the article's analysis to another high-profile Tennessee case raising this issue. Part VI extends the analysis to state and local ethics codes, and emphasizes their usefulness in these situations. Part VII offers some concluding thoughts.

Suggested Citation

Mulroy, Steven J., ‘Official’ Explanation: Defining ‘Official Capacity’ and Related ‘Color of Office’ Phrases in Bribery and Extortion Law (July 6, 2010). University of Memphis Law Review, Vol. 38, 2008; University of Memphis Legal Studies Research Paper No. 56. Available at SSRN: https://ssrn.com/abstract=1635458

Steven J. Mulroy (Contact Author)

University of Memphis - Cecil C. Humphreys School of Law ( email )

One North Front Street
Memphis, TN 38103-2189
United States

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