State v. Brandon Morrison(076379)

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