[80 NJSuper Page 504] Defendants Dominic A. Lally, Michael V. Albertine, Ernest S. Arvidson, Frank N. DiRuggiero, Richard H. Drake, Nicholas S. Juliano and Arthur M. Pico,
members of the Board of Education of the Town of Belleville, Essex County, hereafter referred to as board members, were indicted on October 10, 1962, on two counts, charging each with misconduct in office. Defendants Alfonso Alverez and Felix J. McCormick were also indicted on two counts for aiding and abetting defendant board members to commit the crime of misconduct in office. All defendants have moved to dismiss the indictment, citing three principal grounds: (1) the indictment fails to charge crime; (2) the charging part of the indictment is vague and indefinite and is faulty by reason thereof; (3) the first count of the indictment is duplicitous in that it charges two separate offenses therein. Our concern is with the first and third counts of the indictment which charge the substantive offense of misconduct in office. Obviously, the disposition to be made as to the first and third counts will dictate the course to be followed as to the second and fourth which charge aiding and abetting.
The first count of the indictment charges that between the 15th day of September 1960 and the 22nd day of December 1961 the seven defendant board members were duly qualified and elected members of the Board of Education of the Town of Belleville, and, as such, were charged as such public officials with the duties to serve the public honestly, diligently, with good faith, openly and without corrupting influences. It further charges that during the mentioned period of time defendant board members did
"unlawfully, knowingly, willfully and corruptly refuse to reveal certain essential and material information, to wit:
(a) The true conditions of the subsurface soil on the proposed new Belleville High School building site, located at Passaic Avenue and Division Street, in the Town of Belleville, in the County of Essex aforesaid, more particularly, the results of the Walsh Report, dated April 28th, 1961, received by the said Board of Education, a public body, during the month of May, 1961.
to the citizens of the Town of Belleville prior to the School Board Referendum dated October 17, 1961, and prior to the School Board Referendum dated December 21, 1961, with the intent to mislead the citizens of the Town of Belleville."
The State claims that, in essence, count one of the indictment charges defendant board members with misfeasance in office, i.e. , doing an otherwise lawful act in a wrongful manner.
The third count of the indictment charges that during the period of time set forth in the first count, defendant board members, as duly qualified and elected members of the board of education, were charged with the duties to "serve the public honestly, diligently, with good faith, openly and without corrupting influences," and that during the mentioned period of time, they "unlawfully, knowingly, willfully and corruptly, refused to seek out, investigate and reveal the essential and material information" set forth in subparagraph (a) in the first count, "knowing that the said essential and material information was demanded of them by the citizens of the Town of Belleville at public meetings, and knowing they were under a duty to seek out, investigate and reveal the essential and material information as aforesaid." The State contends that the third count of the indictment, in essence, charges defendants with nonfeasance in office, i.e. , omitting to do an act which is required by the duties of office.
In dealing with the issues arising out of the contentions advanced by the parties here, I am well aware that a motion to dismiss an indictment is addressed to my discretion, and that the power of a trial court to dismiss is to be exercised only on the clearest and plainest ground, and not for some arbitrary, vague or fanciful reason. State v. Weleck , 10 N.J. 355, 364 (1952); State v. Western Union Telegraph Co. , 13 N.J. Super. 172, 204 (Cty. Ct. 1951), affirmed 12 N.J. 468 (1953). The acceptable judicial standard has been stated to be that a motion to dismiss an indictment will not be granted unless the palpable deficiency of the indictment is obviously prejudicial to the defendant in the preparation and presentation of his defense. State v. Engels , 32 N.J. Super. 1, 7 (App. Div. 1954).
Both the first and third counts characterize defendant board members' activities as knowing, willful and corrupt. Both counts charge them with the common law offense usually
referred to as misconduct in office. N.J.S. 2A:85-1. Whether the first count and the third count charge defendant board members with the specific misconduct of misfeasance and nonfeasance, respectively, I believe to be of no significance, since both misfeasance and nonfeasance are embraced by the general classification of official misconduct. Perkins, Criminal Law, p. 412 et seq. (1957). The offense of misconduct in office has been defined by Professor Perkins to be corrupt misbehavior by an officer in the exercise of the duties of his office, or while acting under the color of his office. Ibid., p. 413. See also, 1 Burdick, Law of Crime , § 272, pp. 387-8 (1946). While there has been a great deal of dispute in this State over the necessary elements of the crime of misconduct in office, compare State v. Winne , 12 N.J. 152 (1953), with State v. Williamson , 54 N.J. Super. 170, 184 (App. Div. 1959), affirmed per curiam 31 N.J. 16 (1959), and State v. Begyn , 34 N.J. 35, 50 (1961), it is clear that the willful or intentional refusal by a public officer to perform the duties of his office constitutes the element of mens rea of the offense. In the words of Professor Perkins, it is corrupt for an officer purposely to violate the duties of his office. Perkins, op. cit., p. 412.
The main thrust of defendants' assault on the indictment is not toward a failure to charge criminal intent, but rather toward the failure of the State to charge the violation of a duty, imposed upon defendant board members either by statute or by common law, arising out of the inherent nature of the office held. Thus, defendants argue, there is nothing in the law which casts upon them, as members of a board of education, the duty to reveal information of the nature complained of here, whether the same be demanded by the members of the school district or not. They claim, therefore, that since it is essential that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting breach thereof, the indictment here under consideration is palpably defective.
The State contends, on the other hand, that the charging portion of each count sets forth in clear and explicit terms the duties of the office of a member of a board of education, and, further, that each of the counts sets forth the ...