State v. Brandon Morrison(076379) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Brandon T. Morrison (A-36-15) (076379)
Argued September 27, 2016 -- Decided December 14, 2016
Albin, J., writing for a unanimous Court.
In this appeal, the Court considers whether a volunteer emergency medical technician (EMT), working for
a private, non-profit rescue squad that receives municipal funding to provide service in a township, is a “public
servant” under the official-misconduct statute, N.J.S.A. 2C:30-2(a).
In 2011, the Pemberton Rescue Squad was a private, non-profit organization that contracted with
Pemberton Township to provide back-up emergency ambulance services for that municipality. Defendant Brandon
Morrison served as a volunteer EMT on the Squad and as the Squad’s treasurer. The Lourdes Health System
supplied primary and secondary emergency medical services for the Township. As treasurer, Morrison maintained
the Squad’s checkbook but did not have authority to expend funds without the Squad’s approval.
At a Squad meeting in October 2011, the treasurer’s report revealed that the Squad’s checking account had
a significant and unexplained shortage. When challenged, Morrison admitted to making unauthorized purchases, but
claimed he did so for the benefit of the Squad. Morrison was suspended from his duties, and an investigation
revealed that he had fraudulently signed forty-two checks for expenditures totaling $20,429.79. Some of the checks
reflected potentially legitimate purchases, but an audit conducted by the Burlington County Prosecutor’s Office
revealed that Morrison made purchases using Squad funds in the amount of $5,345.82 that had no justifiable basis.
Morrison was indicted on charges of third-degree theft by deception, third-degree theft by computer, third-
degree wrongful impersonation, third-degree misapplication of entrusted property, and second-degree official
misconduct. The trial court granted Morrison’s motion to dismiss the official-misconduct charge, holding that a
volunteer EMT, who is part of a private first-aid squad that has contracted to provide services in a municipality, is
not a “public servant” under N.J.S.A. 2C:30-2(a).
The Appellate Division granted the State’s motion for leave to appeal, and a divided three-member panel
affirmed the judgment of the trial court in a per curiam opinion. The majority held that the Pemberton Rescue
Squad was not exercising a governmental function sufficient “to make it the equivalent of the government in the
Township.” The majority suggested, however, that a volunteer rescue squad that is the sole or predominant provider
of emergency medical services in a municipality may be performing a sufficiently exclusive governmental function
to make its members public servants under the official-misconduct statute. The dissenting panelist expressed the
view that, because Morrison performed a governmental function, he could be charged with official misconduct.
The Court granted the State’s motion for leave to appeal. 223 N.J. 553 (2015).
HELD: A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does
not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature
or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more
non-profit providers of publically funded emergency medical services for the municipality. Morrison did not commit
the offense of official misconduct because he was not performing a governmental function and therefore was not a
public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four
remaining counts.
1. The primary task in this appeal is to discern the meaning of “public servant,” N.J.S.A. 2C:27-1(g), in the context
of the official-misconduct statute, N.J.S.A. 2C:30-2(a). The Court reviews this question de novo, applying
traditional principles of statutory construction. (pp. 14-15)
2. The official-misconduct statute applies to “public servant[s],” N.J.S.A. 2C:30-2, and aims “to prevent the
perversion of governmental authority,” State v. Perez, 185 N.J. 204, 206 (2005). A public servant is subject to
enhanced penalties for an offense related to his official duties because those in whom a public trust is reposed are
held to a higher standard than ordinary citizens. Only “public servants” -- and their accomplices or co-conspirators
-- can be convicted of official misconduct. (pp. 15-16)
3. “‘Public servant’ means any officer or employee of government, including legislators and judges, and any person
participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not
include witnesses[.]” N.J.S.A. 2C:27-1(g). The language “any person participating . . . otherwise, in performing a
government function” is not clear. The Court has previously held that when the State or a public entity contractually
delegates to a person in the private sector the authority to enforce a State regulatory or licensing scheme and to act
as the alter ego of the government, that person is performing the duties of a public servant. Perez, supra, 185 N.J. at
207. (pp. 16-18)
4. The Court cites cases in which defendants were found to act as the alter ego of the government, such as the head
clerk of a privatized DMV who performed a governmental function in issuing State-authorized documents, as well
as the S.P.C.A. agent vested with the power to enforce all laws for the protection of animals. In contrast, ordinary
government contracts with a private entity do not convert the entity’s employees into public servants. (pp. 18-21)
5. In the present case, the government contracted with a non-profit entity to perform services or functions that are
provided in both the public and private sectors. A uniquely governmental service or function, almost by definition,
cannot be one where the private sector has traditionally occupied a substantial part of the field. Private educational
contractors, for example, are not public officials. (pp. 21-23)
6. To the extent that the definition of public servant is capable of both a broad and narrow construction, the Court
must apply the narrow one in interpreting a criminal statute. Further, due process requires that citizens be given
adequate notice of what the law proscribes. The Court’s conclusion that a function or service performed equally by
the private sector and the government is neither the exercise of uniquely governmental authority nor one exclusive to
government in any traditional sense keeps within reasonable and constitutional bounds the scope of the official-
misconduct statute. (p. 24)
7. Although only of persuasive authority, it is noteworthy that EMTs, such as defendant, are not considered state
actors for purposes of a civil-rights action under 42 U.S.C. § 1983 because emergency medical services carried out
through a voluntary rescue or ambulance squad are not deemed a “public function.” (pp. 24-26)
8. From a historical perspective, first-aid squad services have not been a traditional governmental function, much
less an exclusive one, in contrast to firefighting services. The Court declines to find that Morrison was a “public
servant” merely because volunteer EMTs are subject to state regulations and receive certain legislative benefits and
tort immunities that encourage citizens to undertake life-saving activities on behalf of the public. The Court notes
that hospital workers are subject to similar statutory regulations, yet no one would reasonably suggest that hospital
employees are public servants subject to the official-misconduct statute. (pp. 26-28)
9. The Court disagrees with the Appellate Division majority’s suggestion that “a volunteer first aid and rescue
squad that contracts with a municipality to be the sole or predominant provider of [emergency medical] services” in
that municipality may perform a sufficiently exclusive governmental function to transform its EMTs into public
servants. The happenstance of whether there are one or more non-profit providers of publically funded emergency
medical services in a municipality does not alter the equation that the EMTs are not exercising a uniquely
governmental authority or performing a function exclusive to government in any traditional sense. (p. 28)
10. Morrison did not commit the offense of official misconduct because he was not performing a governmental
function and therefore was not a public servant. (pp. 28-29)
The judgment of the Appellate Division is AFFIRMED. The matter is REMANDED to the trial court for
proceedings on the four remaining counts of the indictment.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-36 September Term 2015
076379
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRANDON T. MORRISON,
Defendant-Respondent.
Argued September 27, 2016 – Decided December 14, 2016
On appeal from the Superior Court, Appellate
Division.
Bethany L. Deal, Assistant Prosecutor,
argued the cause for appellant (Robert D.
Bernardi, Burlington County Prosecutor,
attorney).
Brenda R. Maneri argued the cause for
respondent (Sitzler & Sitzler, attorneys).
Carol M. Henderson, Assistant Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Christopher
S. Perrino, Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In this appeal, we must determine whether a volunteer
emergency medical technician (EMT), working for a private, non-
profit rescue squad that receives municipal funding to provide
service in a township, is a “public servant” under the official-
misconduct statute, N.J.S.A. 2C:30-2(a).
1
Pemberton Township contracted with the Pemberton First Aid
and Rescue Squad (Pemberton Rescue Squad) -- a private, non-
profit organization -- to provide back-up emergency medical
services for the municipality. Defendant Brandon Morrison
served as a volunteer EMT on the Pemberton Rescue Squad and as
the Squad’s treasurer. Defendant was charged with official
misconduct and other crimes for misappropriating the Squad’s
funds.
The trial court found that defendant did not meet the
statutory definition of public servant, N.J.S.A. 2C:27-1(g), an
essential element of official misconduct, because he was not
performing a governmental function as a volunteer EMT. The
trial court dismissed the official-misconduct charge, and a
panel of the Appellate Division affirmed in a split decision.
We now hold that a volunteer EMT, who works for a private,
non-profit first-aid squad that provides contractual services to
a municipality, is not performing a governmental function within
the meaning of N.J.S.A. 2C:27-1(g), and therefore is not a
public servant for purposes of the official-misconduct statute,
N.J.S.A. 2C:30-2(a). We come to that conclusion because a
private first-aid squad neither performs a service exclusively
provided by the government in any traditional sense nor
exercises authority of a uniquely governmental nature and
because a first-aid squad’s contract to provide services to a
2
governmental entity does not transform its employees into public
servants.
Accordingly, we affirm the judgment of the Appellate
Division dismissing the official-misconduct charge and remand
for proceedings on the remaining criminal charges against
defendant.
I.
A.
A Burlington County grand jury indicted defendant Brandon
Morrison on charges of third-degree theft by deception, N.J.S.A.
2C:20-4(a)–(c); third-degree theft by computer, N.J.S.A. 2C:20-
25(c); third-degree wrongful impersonation, N.J.S.A. 2C:21-
17(a)(1), (4); third-degree misapplication of entrusted
property, N.J.S.A. 2C:21-15; and second-degree official
misconduct, N.J.S.A. 2C:30-2(a).
The Honorable James W. Palmer, Jr., J.S.C., granted
defendant’s motion to dismiss the official-misconduct charge
after a review of the grand-jury hearing and other relevant
exhibits. The record before us is primarily derived from the
grand-jury testimony that led to the return of the official-
misconduct charge.
In October 2011, defendant served as a volunteer EMT with
the Pemberton Rescue Squad, which had roughly ten members.
Defendant also held volunteer and paid EMT positions in other
3
locales. The Pemberton Rescue Squad was a private, non-profit
organization that contracted with Pemberton Township to provide
back-up emergency ambulance services for that municipality.
Primary and secondary emergency medical services for the
Township were supplied through the Lourdes Health System, which
operated two ambulances, one in service twenty-four hours a day,
seven days a week, and the other Monday through Friday from 6:00
a.m. to 6:00 p.m.
The Pemberton Rescue Squad was financed through a $25,000
contract with the Township, fundraisers, and any available
federal monies. The Squad’s bylaws empowered its chief to
expend not more than $200 a month for Squad-related purposes;
expenditures exceeding that amount required approval of the
entire membership. From 2010 until October 2011, defendant
served as the Squad’s treasurer and, in that role, maintained
the Squad’s checkbook. As treasurer, defendant did not have
authority to expend funds without the Squad’s approval.
At a Squad meeting in October 2011, the treasurer’s report
revealed that the Squad’s checking account had a significant and
unexplained shortage. When challenged, defendant admitted to
making unauthorized purchases, but claimed he did so for the
benefit of the Squad. Defendant was suspended from his duties.
An investigation revealed that defendant had forged the
chief’s name on forty-two checks that accounted for expenditures
4
totaling $20,429.79. Some of the checks reflected potentially
legitimate purchases, such as payment for the Squad’s electric
bills. However, many acquisitions bore little or no
relationship to the Squad’s activities and were kept at
defendant’s residence or in his car. The questionable purchases
included firefighter gear and police-related equipment, such as
several pairs of handcuffs, a flashing dashboard light, an
expandable baton, a plastic training gun, two portable radios, a
black tactical vest, and a police shield inscribed with the
words “joint terrorism task force.” With the Squad’s funds,
defendant equipped his car with emergency lights and sirens. He
also bought a laptop and defibrillator that he stored at home.
An audit conducted by the Burlington County Prosecutor’s Office
revealed that defendant made purchases using Squad funds in the
amount of $5,345.82 that had no justifiable basis.
B.
In dismissing the official-misconduct charge, Judge Palmer
held that a volunteer EMT, who is part of a private first-aid
squad that has contracted to provide services in a municipality,
is not a “public servant” under N.J.S.A. 2C:30-2(a). A critical
factor in Judge Palmer’s decision was that Pemberton Township
did not outsource to the volunteer, non-profit Pemberton Rescue
Squad a service that was exclusively provided by the government.
He relied on the rationale in State v. Mason, 355 N.J. Super.
5
296, 300-02 (App. Div. 2002), which held that, because
government is not the exclusive provider of education, the
officers of a private, non-profit corporation educating students
at public expense were not public servants subject to the
official-misconduct statute. Likewise, Judge Palmer pointed out
that the Pemberton Rescue Squad performed a public service
similar to those provided by hospitals. Further, he reasoned
that merely because the Squad was operating pursuant to a
government contract did not mean the Squad members were
performing a governmental function transforming them into public
servants. Judge Palmer found additional support from federal
case law in which private rescue squads were not considered
state actors for constitutional-tort purposes, citing Eggleston
v. Prince Edward Volunteer Rescue Squad, Inc., 569 F. Supp. 1344
(E.D. Va. 1983), aff’d without opinion, 742 F.2d 1448 (4th Cir.
1984), and Krieger v. Bethesda-Chevy Chase Rescue Squad, 599 F.
Supp. 770 (D. Md. 1984), aff’d without opinion, 792 F.2d 139
(4th Cir. 1986).
C.
The Appellate Division granted the State’s motion for leave
to appeal. In a per curiam opinion, a divided three-member
panel affirmed the trial court’s determination that defendant
“was not a ‘public servant’ as defined by N.J.S.A. 2C:27-1(g).”
The Appellate Division majority posited two questions: whether
6
providing “first aid and rescue services [has] become a function
performed by the government” and whether the services rendered
by the Pemberton Rescue Squad were “sufficiently ‘exclusive’ in
Pemberton Township to render the Squad the equivalent of ‘the
government’ in the Township.”
The Appellate Division majority acknowledged that emergency
medical services are provided by some public entities and by
numerous public fire, police, and sheriff’s departments. The
majority also acknowledged that volunteer members of private
first-aid and rescue squads are conferred legislative privileges
and benefits, such as tort immunity, workers compensation and
public survivor benefits, and public college assistance, and
that they exercise some public authority, such as the right to
mount emergency warning lights on their vehicles and to change
the normal operation of traffic lights.
Although conceding that “governments may not have
traditionally provided [emergency medical services],” the
Appellate Division majority found noteworthy that, “over the
last several decades,” the Legislature and municipalities have
become involved in “funding, training, regulating, and directly
and indirectly providing [emergency medical services].” Despite
its conclusion that there is substantial support that “first aid
and rescue services can be a function performed by the
government,” the majority declined to answer whether those
7
services, generally, have become a governmental function.
Instead, the majority determined that defendant, as a member of
the Pemberton Rescue Squad, was not performing a governmental
function in the circumstances of this case.
Relying on State v. Perez, 185 N.J. 204, 207 (2005), the
Appellate Division majority held that the Pemberton Rescue Squad
was not exercising a governmental function sufficient “to make
it the equivalent of the government in the Township.” In making
that determination, the majority emphasized that the Pemberton
Rescue Squad was providing back-up services to another private,
non-profit entity -- Lourdes EMS (emergency medical services), a
part of the Lourdes Health System, which contracted with
Pemberton Township to deliver full-time ambulatory first-aid
coverage. The majority considered it striking that the Township
did not claim “that Lourdes EMS [was] also performing a
governmental function or that its employees [were] ‘public
servants’ under N.J.S.A. 2C:27-1(g).” The majority stressed
that in Perez, this Court distinguished the head clerk of a
private entity that had contracted to serve as a State Division
of Motor Vehicles agent, who was deemed a public servant under
the official-misconduct statute, from officers of a private,
non-profit educational institution receiving public funds, who
were not deemed public servants, citing Mason, supra, 355 N.J.
Super. at 302. In comparing educational services to emergency
8
medical services, both of which are provided by public and
private entities, the majority referenced language in Perez,
supra, 185 N.J. at 207, that “the provision of education is not
exclusive to government” to make the point that the provision of
emergency medical services is similarly not sufficiently
exclusive to government.
The Appellate Division majority nonetheless suggested that
“a volunteer first aid and rescue squad that contracts with a
municipality to be the sole or predominant provider of
[emergency medical] services, or the sole or predominant
supplement to publicly-provided [emergency medical] services”
may be performing a sufficiently exclusive governmental function
to make its members public servants under the official-
misconduct statute.
The dissenting judge disagreed with the majority’s
determination that, because the First Aid Squad was not the
exclusive provider of emergency medical services for the
Township, defendant was not a public servant. The dissent
posited that the majority had overstated the import of the
“exclusivity” language in Perez, supra, 185 N.J. at 207. The
dissent asserted that N.J.S.A. 2C:27-1(g), in defining public
servant, mentions only a “‘governmental function’ test and makes
not the slightest suggestion of an additional exclusivity
requirement.” The appropriate test, according to the dissent,
9
was “whether defendant’s responsibilities as Squad treasurer
were a ‘governmental function.’” Given the nature of the
authority conferred on defendant as the Squad’s treasurer to use
Township’s funds for the purchase of equipment benefitting the
public’s health, safety, and welfare, and given his abuse of
that authority by misappropriating those funds, the dissent
“conclude[d] that defendant is a ‘public servant’ whom our
Legislature intended to be held criminally liable for official
misconduct.”
We granted the State’s motion for leave to appeal. State
v. Morrison, 223 N.J. 553 (2015). We also granted the motion of
the Office of the Attorney General to participate as amicus
curiae.
II.
A.
The State argues that the Appellate Division majority erred
by finding that the Pemberton Rescue Squad was not performing
services that were “sufficiently exclusive” to those provided by
the government and then concluding that defendant, who served as
a volunteer EMT and the Squad’s treasurer, was not a public
servant under the official-misconduct statute. Echoing the
dissent, the State maintains that the majority’s “exclusivity”
requirement is not a part of the official-misconduct statute and
that the statute only requires a showing that defendant
10
performed a governmental function. The State asserts that
because volunteer firefighters are public servants for purposes
of the official-misconduct statute, citing State v. Quezada, 402
N.J. Super. 277, 284 (App. Div. 2008), volunteer EMTs should be
treated similarly. In support of its argument that defendant
performed a governmental function, the State points to the
comparable legislative benefits, privileges, and authority
conferred on both volunteer firefighters and volunteer EMTs; to
the similar roles such volunteers play in protecting the health,
welfare, and safety of the public; and to the fact that the
Pemberton Rescue Squad was primarily funded with public monies.
The State also stresses that, in its view, the Legislature
intended the official-misconduct statute to be construed
broadly. Last, the State contends that the Appellate Division
majority’s test, which suggests that a rescue squad that is the
exclusive (only) provider of emergency medical services in a
township may be performing a governmental function, will lead to
absurd results.
B.
Amicus the Attorney General submits that a totality-of-the-
circumstances standard should guide whether a person is
“performing a governmental function” under the official-
misconduct statute. Under that standard, the exclusivity of the
services provided would be one of a number of factors to be
11
considered. Other factors would include whether the person or
organization: (1) performs a traditional governmental function,
or a governmental regulatory, enforcement, or service function;
(2) provides a public health, safety, or welfare service; (3) is
protected from civil liability, conferred statutory benefits, or
supported by government funds; or (4) provides services pursuant
to contract. According to the Attorney General, an evaluation
of all those factors leads to the conclusion that the Pemberton
Rescue Squad was performing a governmental function and
therefore defendant was accountable for official misconduct.
The Attorney General also contends that the terms “public
servant” and “governmental function” are not ambiguous and
therefore this Court should not turn to the doctrine of lenity
as an interpretative canon to limit the scope of the official-
misconduct statute.
C.
Defendant asks this Court to affirm the Appellate Division
majority and find that a volunteer EMT, working for a privately
incorporated first-aid and rescue squad that contractually
provides services to a municipality, is not a public servant.1
Like the majority, defendant compares the services he performed
1 In his brief, defendant notes that he was just seventeen-years
old when he joined the Pemberton Rescue Squad and twenty-years
old when he became its treasurer.
12
as an EMT to those rendered by the officers of a private, non-
profit educational institution providing services to students at
public expense, citing Mason. In both instances, the government
is not the exclusive provider of education or emergency medical
services. He reasons that he cannot be characterized as a
public servant any more than the private educational officers in
Mason. Defendant further submits that the concept of
“exclusivity” as a guiding standard was advanced in Perez, where
this Court held that a private entity carrying out the duties of
a motor vehicle agency was performing a governmental function
because the private agency was “in essence, ‘the government’ for
such purposes in the [] region.”
Defendant, moreover, distinguishes Quezada, contending that
rescue squads, unlike firefighting companies, are routinely
owned and operated by private entities. Last, defendant submits
that any ambiguity in the official-misconduct statute must be
resolved in his favor because criminal statutes must give fair
notice to ordinary people of what the law proscribes.
III.
Defendant is charged with official misconduct for allegedly
misappropriating funds from the Pemberton Rescue Squad. The
issue before us is whether defendant, a volunteer EMT, who held
the position of treasurer with the Squad -- a private, non-
profit organization that contracted to provide back-up emergency
13
medical services for Pemberton Township -- was a “public
servant,” N.J.S.A. 2C:27-1(g), for purposes of the official-
misconduct statute, N.J.S.A. 2C:30-2(a).
Our primary task is one of statutory interpretation -- to
discern the meaning of “public servant,” N.J.S.A. 2C:27-1(g), in
the context of the official-misconduct statute, N.J.S.A. 2C:30-
2(a). We construe a statute de novo -– “with ‘fresh eyes’” --
owing no deference to the interpretive conclusions reached by
either the trial court or Appellate Division, unless persuaded
by their reasoning. State v. Goodwin, 224 N.J. 102, 110 (2016)
(quoting Fair Share Hous. Ctr., Inc. v. N.J. State League of
Municipalities, 207 N.J. 489, 493 n.1 (2011)).
“The goal of all statutory interpretation ‘is to give
effect to the intent of the Legislature.’” Maeker v. Ross, 219
N.J. 565, 575 (2014) (quoting Aronberg v. Tolbert, 207 N.J. 587,
597 (2011)). In doing so, “we must construe the statute
sensibly and consistent with the objectives that the Legislature
sought to achieve.” Nicholas v. Mynster, 213 N.J. 463, 480
(2013). We will not adopt an interpretation of the statutory
language that leads to an absurd result or one that is
distinctly at odds with the public-policy objectives of a
statutory scheme. Murray v. Plainfield Rescue Squad, 210 N.J.
581, 592 (2012).
14
With those principles in mind, we turn first to the words
of the statutes at issue.
IV.
Official misconduct is defined in N.J.S.A. 2C:30-2. The
statute, in pertinent part, provides:
A public servant is guilty of official
misconduct when, with purpose to obtain a
benefit for himself or another or to injure or
to deprive another of a benefit:
a. He commits an act relating to his office
but constituting an unauthorized
exercise of his official functions,
knowing that such act is unauthorized or
he is committing such act in an
unauthorized manner[.]
[N.J.S.A. 2C:30-2(a).]
Official misconduct is a crime of the second degree if the
defendant unlawfully receives or deprives another of something
of value in an amount greater than $200.00. N.J.S.A. 2C:30-2.
The purpose of the statute “is to prevent the perversion of
governmental authority.” Perez, supra, 185 N.J. at 206. A
public servant is subject to enhanced penalties for an offense
related to his official duties because those in whom a public
trust is reposed are held to a higher standard than ordinary
citizens. For example, ordinarily, a theft greater than $200
but less than $500 is punishable as a fourth-degree crime,
N.J.S.A. 2C:20-2(b)(3), and a theft greater than $500 but less
than $75,000 is punishable as a third-degree crime, N.J.S.A.
15
2C:20-2(b)(2)(a). But a public servant committing such offenses
is subject to greatly enhanced penalties. A government employee
who, in the course of his official duties, commits a fourth- or
third-degree theft is guilty of a second-degree crime, N.J.S.A.
2C:30-2, and is subject to a ten-year sentence with a mandatory
five-year parole disqualifier, N.J.S.A. 2C:43-6.5(a).
Only “public servants” -- and their accomplices or co-
conspirators -- can be convicted of official misconduct.
N.J.S.A. 2C:30-2. See generally Perez, supra, 185 N.J. 204.
Under the official-misconduct statute, “‘[p]ublic servant’ means
any officer or employee of government, including legislators and
judges, and any person participating as juror, advisor,
consultant or otherwise, in performing a governmental function,
but the term does not include witnesses.” N.J.S.A. 2C:27-1(g).
The definition of “public servant” has remained unchanged since
the adoption of the New Jersey Code of Criminal Justice in 1979,
L. 1978, c. 95, and the text comes virtually verbatim from the
Model Penal Code proposed by the American Law Institute, Model
Penal Code § 240.0(7) (Am. Law Inst., Proposed Official Draft
1962). The statute is broad in its sweep but not without
limitation.
Officers and employees of government “performing a
governmental function” are clearly acting as public servants.
See N.J.S.A. 2C:27-1(g). However, the language “any person
16
participating . . . otherwise, in performing a governmental
function” is much less clear. See ibid. The statute does not
define the phrase “performing a governmental function,” and the
legislative history of N.J.S.A. 2C:27-1(g) does not provide
insight into the drafters’ conception of that phrase. See L.
1978, c. 95. We can discern, however, certain governing
principles from our jurisprudence to better understand the
meaning of “public servant” in the context of the official-
misconduct statute.
We have held that when the State or a public entity
contractually delegates to a person in the private sector the
authority to enforce a State regulatory or licensing scheme and
to act as the alter ego of the government, that person is
performing the duties of a public servant. Perez, supra, 185
N.J. at 207. In other words, in exercising a “uniquely
governmental authority,” that person is performing a
governmental function within the intendment of N.J.S.A. 2C:27-
1(g). Ibid.
In Perez, the head clerk of the privatized North Bergen
Department of Motor Vehicles (DMV) office, which was operated by
a corporate entity pursuant to a state contract, met the
definition of “public servant” under the official-misconduct
statute. See id. at 205-08. At that time, “the North Bergen
DMV was one of numerous local motor vehicle agencies that had
17
been privatized” during the administration of Governor Christine
Todd Whitman. Id. at 205. The North Bergen DMV “was authorized
to issue motor vehicle licenses and vehicle registrations in the
name of the State of New Jersey.” Ibid. The head clerk of the
privatized North Bergen DMV was charged in a criminal scheme
that involved the issuance of fraudulent motor vehicle
documents.2 Ibid.
The privatized North Bergen DMV, to which State
governmental licensing and registration functions had been
delegated, “was, in essence, ‘the government’ for such
purposes.” Id. at 207. In determining that the North Bergen
DMV’s head clerk performed a governmental function, we stressed
that she was responsible “for the review of applications for,
and issuance of, State-authorized motor vehicle licenses,
registrations, certificates of title, and forms of
identification.” Ibid. Thus, we emphasized that the head clerk
of the privatized North Bergen DMV engaged in the “perversion of
[a] uniquely governmental authority.” Ibid. (emphasis added).
Another example of a defendant acting as the alter ego of
the government is evident in State v. Vickery, 275 N.J. Super.
2 The appeal to our Court came from defendant Luis Perez, who was
charged as an accomplice and a co-conspirator to the head clerk
on the official-misconduct charge and who claimed that the head
clerk was not a “‘public servant’ within the meaning of N.J.S.A.
2C:30-2.” Perez, supra, 185 N.J. at 205.
18
648 (Law Div. 1994). There, the Law Division held that an agent
of the Society for the Prevention of Cruelty to Animals
(S.P.C.A.) -- a corporation “formally acknowledged and
established by statute” and given the power to enforce all laws
for the protection of animals -- was a public servant for
purposes of the official-misconduct statute. Id. at 651-52. An
agent of the S.P.C.A. is conferred statutory authority to apply
for warrants and make arrests on behalf of the State, to carry a
weapon in the performance of his duties, and to wear an
exclusive badge identifying his authority -- “the mark of a
public servant.” Id. at 652-53. Because an agent of the
S.P.C.A. performs a uniquely governmental function, he is
accountable as a public servant under the official-misconduct
statute.3 See id. at 655-56.
Unlike the scenarios in Perez and Vickery, our
jurisprudence makes clear that ordinary government contracts
with a private entity do not convert the entity’s employees into
public servants. No one would reasonably suggest that a private
construction company’s road-crew workers paving a public highway
are public servants subject to the official-misconduct statute
merely because the project is government funded. Cf. State v.
3 In 2006, provisions of the S.P.C.A. statute, N.J.S.A. 4:22-1 to
-11, were repealed and replaced by N.J.S.A. 4:22-11.1 to -11.12.
The new statutory provisions confer on S.P.C.A. agents the same
enforcement powers as the old ones. L. 2005, c. 372, § 22.
19
Williams, 189 N.J. Super. 61, 67 (App. Div.) (concluding that
mere receipt of public funds did not render defendant public
servant), certif. denied, 94 N.J. 543 (1983).
For example, the Appellate Division in Williams found that
government funding of a charitable non-profit corporation, whose
purpose was to aid the poor, did not transform its defendant
executive director into a public servant for purposes of the
official-misconduct statute.4 Id. at 63. In that case, the
defendant contractually secured federal funds in an amount
exceeding $160,000 for a one-year pilot nutrition program that
allowed the hiring of fifteen full-time employees. Ibid. The
defendant was convicted of official misconduct and other
criminal offenses because, in part, he submitted false time
sheets for his employees, who were paid government monies under
false pretenses. Id. at 62, 64.
The Williams court concluded that “the mere receipt of
public funds” did not make the defendant a public officer. Id.
at 65. It reached that conclusion because a contractual
agreement between the government and third parties does not, by
itself, create an office and because the defendant had not been
delegated “a place in our governmental system to which the
continuous performance of permanent public duties has been
4 The defendant was charged under N.J.S.A. 2A:85-1, a predecessor
to our present official-misconduct statute, N.J.S.A. 2C:30-2(a).
20
assigned.” Id. at 66. The defendant in Williams was performing
a charitable function with public monies; he was not enforcing a
regulatory or licensing scheme or otherwise carrying out a
uniquely governmental function.
The present case falls into another category -- one in
which the government contracts with a non-profit entity to
perform services or functions that are provided in both the
public and private sectors. On its face, it would appear that
services and functions performed in both the public and private
sectors are not uniquely governmental in nature -- the standard
we employed in Perez to circumscribe the scope of criminalizing
non-government actors as “public servants.” In Perez, supra, we
emphasized that the privatized motor vehicle agency was, in
effect, the alter ego of government. 185 N.J. at 207.
The area in which government may operate is seemingly
boundless. A uniquely governmental service or function, almost
by definition, cannot be one where the private sector has
traditionally occupied a substantial part of the field.
That is the point made in State v. Mason, 355 N.J. Super.
296, 302-05 (App. Div. 2002), a case that we cited with approval
in Perez. Mason involved a non-profit corporation, Archway
Programs, Inc., whose education division serviced disabled
students placed by local school districts. Id. at 299. The
tuition paid by the school districts comprised much, but not
21
all, of the funding for Archway’s educational programs. Ibid.
Two of Archway’s corporate officers were indicted on charges of
official misconduct related to fraud and mismanagement of
Archway’s finances. Id. at 300. In affirming the trial court’s
dismissal of the official-misconduct charges, the Appellate
Division drew a distinction between those private contractors
who perform a regulatory function in the name of the State and
those who do not. Id. at 303-04. Writing for the appellate
panel, Judge (later Justice) Hoens observed that, historically,
public and private institutions have occupied the field of
education. Id. at 304. Judge Hoens reasoned that “the
fundamental nature of the undertaking” -- the education of
children -- is not changed when a private institution receives
funding through a public contract and that the contract does not
transform a private contractor into a public official. Id. at
304-05.
Importantly, in Perez, supra, we distinguished between the
private contractor operating the North Bergen DMV in that case
and the private educational contractor in Mason. 185 N.J. at
207. We observed that, whereas in Perez, the issuance of motor
vehicle licenses and registrations was the exercise of a
“uniquely governmental authority,” the provision of education in
Mason was “not exclusive to government.” Ibid. (emphasis
added). Perez set forth practical limiting principles to ensure
22
that the official-misconduct statute was not set loose from its
legislative moorings and did not offend notions of due process.
Nothing about the official-misconduct statute suggests that the
Legislature intended to transform employees of a private
contractor with a typical government contract into public
servants.
To the extent that the definition of public servant is
capable of both a broad and narrow construction, we are
constrained to apply the narrow one in interpreting a criminal
statute. State v. Shelley, 205 N.J. 320, 328 (2011) (“[W]e must
strictly construe the language of [a penal statute] where there
is some uncertainty as to its application.”); see also State v.
Vasquez, 129 N.J. 189, 200 (1992). Vague laws are anathema to
our Constitution because due process requires that citizens be
given adequate notice of what the law proscribes and because
persons of average intelligence should not have to guess about
the meaning of a penal statute. Cf. State v. Mortimer, 135 N.J.
517, 532 (1994), cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130
L. Ed. 2d 351 (1994).
When the private sector and the government are engaged in
performing the same function or providing the same service, then
the private sector is not exercising authority of a uniquely
governmental nature or one exclusive to government in any
traditional sense. That conclusion keeps within reasonable and
23
constitutional bounds the scope of the official-misconduct
statute.
V.
Although only of persuasive authority, it is noteworthy
that EMTs, such as defendant, are not considered state actors
for purposes of a civil-rights action under 42 U.S.C. § 1983
because emergency medical services carried out through a
voluntary rescue or ambulance squad are not deemed a “public
function.” Federal courts have held that a private entity
exercises a “public function” when it exercises “powers
traditionally [or] exclusively reserved to the State.” Jackson
v. Metro. Edison Co., 419 U.S. 345, 352, 95 S. Ct. 449, 454, 42
L. Ed. 2d 477, 485 (1974) (emphasis added).
In Groman v. Township of Manalapan, the United States Court
of Appeals for the Third Circuit concluded that a volunteer
first-aid squad that received $25,000, or more, in public funds
annually to provide coverage in a municipality was not acting
under color of state law for § 1983 purposes, even when
responding to a police dispatch. 47 F.3d 628, 638-42 (3d Cir.
1995). The Third Circuit noted “that receipt of public funds
and the performance of a function serving the public alone are
not enough to make a private entity a state actor” and that the
first-aid squad in that case was not performing an “exclusive
government function.” Id. at 640. The Third Circuit rejected
24
the argument that, because a volunteer fire department has been
held to perform an exclusive government function, it logically
follows that a volunteer first-aid squad does so as well. Id.
at 640-41.
Similarly, in Eggleston, supra, the United States District
Court for the Eastern District of Virginia held that rescue
squads did not perform a “public function,” reasoning that they
“are more akin to private functions that the State may be just
beginning to assume than to public functions that are
traditionally governmental.” 569 F. Supp. at 1351.5
We now apply the principles discussed above to the facts of
the case before us.
VI.
A.
5 See also Grogan v. Blooming Grove Volunteer Ambulance Corps,
768 F.3d 259, 265 (2d Cir. 2014) (“[I]t cannot be said that
[general ambulance] services are ‘traditionally exclusive public
function[s.]’”), cert. denied, ___ U.S. ___, 135 S. Ct. 1895,
191 L. Ed. 2d 764 (2015); Osler v. Huron Valley Ambulance Inc.,
671 F. Supp. 2d 938, 943 (E.D. Mich. 2009) (“Ambulance service
does not carry with it a badge of sovereignty. It does not
amount to a ‘power[] traditionally exclusively reserved to the
State.’”) (alteration in original) (quoting Jackson, supra, 419
U.S. at 352, 95 S. Ct. at 454, 42 L. Ed. 2d at 485); Krieger v.
Bethesda-Chevy Chase Rescue Squad, 599 F. Supp. 770, 773-74 (D.
Md. 1984) (holding that rescue squad that assisted firefighters
on the scene did not serve traditionally public function), aff’d
without opinion, 792 F.2d 139 (4th Cir. 1986).
25
EMTs commonly work for private, non-profit first-aid squads
and hospitals, but they also work for government-related
agencies. In addition, municipal governments contract with
private organizations to provide ambulance services.6 From a
historical perspective, first-aid squad services have not been a
traditional governmental function, much less an exclusive one.
Under the principles stated in Perez, a municipality’s
contracting for emergency medical services in a community
through a private, non-profit first-aid squad does not convert
the EMTs into public servants because they are not exercising
authority of a uniquely governmental nature or performing a
function exclusive to government in any traditional sense.
The conclusion we reach is not inconsistent with State v.
Quezada, supra, in which the Appellate Division held that a
volunteer firefighter was a public servant for purposes of the
official-misconduct statute. 402 N.J. Super. at 284-85. “New
Jersey law has consistently recognized that firefighting is a
public or governmental function.” Eggert v. Tuckerton Volunteer
6 “The results [of cities surveyed] showed that 39.6% (36) of the
cities report that a private company transports their patients,
followed closely by 37.4% (34) using the local fire department.
Third-service and hospital-based providers make up 23% (21) of
transport providers and include public-utility models that no
longer contract out for services.” Michael G. Ragone, Evolution
or Revolution: EMS Industry Faces Difficult Changes, 37 J.
Emergency Med. Servs., no. 2., 2012, at 34, 38.
26
Fire Co. No. 1, 938 F. Supp. 1230, 1238 (D.N.J. 1996); see also
Schwartz v. Borough of Stockton, 32 N.J. 141, 150 (1960)
(maintaining that “fire protection . . . is a governmental
function” and that “principle necessarily extends to municipal
arrangements with volunteer companies”); Vogt v. Borough of
Belmar, 14 N.J. 195, 206 (1954) (“Protection against fire is a
public governmental function.”). The panel majority of the
Appellate Division in this case contrasted emergency medical
services and firefighting services, noting that firefighting
services are “overwhelmingly provided by public fire departments
and volunteer fire companies, with only a handful of private
businesses having their own firefighting organizations.”
We decline to find that defendant was “performing a
governmental function” and therefore a “public servant” merely
because volunteer EMTs are subject to state regulations and
receive certain legislative benefits and tort immunities that
encourage citizens to undertake life-saving activities on behalf
of the public. State statutes, by various means, promote
individuals and institutions to engage in charitable activity.
Non-profit organizations, other than first-aid squads, such as
hospitals, are highly regulated, see, e.g., N.J.S.A. 26:2H-1 to
-26; receive state funding, see, e.g., N.J.S.A. 26:2H-18.58; and
benefit from tort limitations, see, e.g., N.J.S.A. 2A:53A-8; and
27
yet no one would suggest that hospital employees are public
servants subject to the official-misconduct statute.
Last, we disagree with the Appellate Division majority’s
suggestion that “a volunteer first aid and rescue squad that
contracts with a municipality to be the sole or predominant
provider of [emergency medical] services” in that municipality
may be performing a sufficiently exclusive governmental function
to transform its EMTs into public servants. By that reasoning,
defendant was saved from the designation of “public servant”
solely because the Pemberton Rescue Squad was performing back-up
services to the Lourdes EMTs, who, by municipal contract, were
providing primary services within Pemberton Township. Further,
that reasoning would lead to the absurd result that had Lourdes
been the sole provider of emergency medical services pursuant to
a municipal contract, its EMTs would be public servants for
purposes of the official-misconduct statute. The happenstance
of whether there are one or more non-profit providers of
publically funded emergency medical services in a municipality
does not alter the equation that the EMTs are not exercising a
uniquely governmental authority or performing a function
exclusive to government in any traditional sense.
B.
In summary, defendant was not an employee of Pemberton
Township. He was a member of a volunteer, non-profit first-aid
28
and rescue squad that received $25,000 pursuant to a municipal
contract to provide back-up services to the Township. The
Pemberton Rescue Squad was also funded through donation drives
and any available federal grant monies. Although defendant
allegedly committed a number of criminal offenses by
misappropriating some of the First Aid Squad’s funds in his
capacity as the Squad’s treasurer, he did not commit the offense
of official misconduct because he was not performing a
governmental function and therefore was not a public servant.
VII.
For the reasons expressed, we affirm the judgment of the
Appellate Division, which upheld the trial court’s dismissal of
the official-misconduct charge against defendant. We remand to
the trial court for proceedings on the four remaining counts of
the indictment.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
29