(Va), dissenting.
I am unable to reconcile the Court’s conclusion that the State must defend and indemnify employees of a county prosecutor’s office for claims brought under the Tort Claims Act with the legislative mandate that the counties must bear all expenses of operation of the prosecutors’ offices. Therefore, I respectfully dissent.
N.J.S.A. 2A:158-7 provides:
All necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to by the prosecutor and approved, under his hand, by a judge of the superior court, be paid by the county treasurer whenever the same shall be approved by the board of chosen freeholders of such county. The amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular- or emergency appropriation, unless such expenditure is specifically authorized by order of the assignment judge of the superior court for such county.
[Emphasis added.]
This statute expresses a “legislative policy that the county [shall] bear all costs and expenses ... incident to employment of county deteetives[,]” as well as other employees of a county prosecutor’s office. Dunne v. Fireman’s Fund Am. Ins. Co., 69 N.J. 244, 251-52, 353 A.2d 508 (1976).
In view of the legislative mandate that counties must bear all financial responsibility for operation of the county prosecutors’ offices, the obligation to pay for the defense and indemnification of employees of a prosecutor’s office should rest with the county unless the Tort Claims Act contains a clear and unequivocal expression of a contrary legislative intent. However, the Act does not reflect a legislative intent to treat the expenses of defending and indemnifying employees of a prosecutor’s office differently from other expenses incurred in connection with the operation of a prosecutor’s office. To the contrary, the pertinent provisions of *458the Act and the commentary to the proposed Act reflect a legislative intent to extend the State’s defense and indemnification obligations only to “traditional state employees.”
N.J.S.A. 59:10A-1 provides that “[e]xcept as provided in [N.J.S.A. 59:10A-2], the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment[,]” and N.J.S.A. 59:10-1 provides that “[i]f ... the Attorney General provides for the defense of an employee or former employee, the State shall provide indemnification for the State employee.”1 N.J.S.A. 59:1-3 defines “State” to “mean the State and any office, department, division, bureau, board, commission or agency of the State, but shall not include any such entity which is statutorily authorized to sue and be sued.” As indicated by the Attorney General’s commentary to the proposed Act, which has “the precedential weight and value of legislative history[,]” Rochinsky v. State, Dept. of Transp., 110 N.J. 399, 407 n. 4, 541 A.2d 1029 (1988):
The definition of “State” contained in [N.J.S.A] 59:1-3 was provided for the purposes of [chapter 10 of the Act dealing with indemnification] to indicate that the indemnity provided by the State should only be for and to those persons generally considered employees of the State. This definition was intended to distinguish State employees from employees of public authorities and from employees of other public entities who, as indicated by the above provision, may be indemnified within the discretion of their employer — public entity. It is not therefore the intention of the State to indemnify persons who are not traditionally considered the State’s employees....
[Report of the Attorney General’s Task Force on Sovereign, Immunity 240 (1972).]
The same restrictive definition of “State employee” applies to the Attorney General’s duty under N.J.S.A. 59:10A-1 to provide a *459defense for a state employee or former state employee sued for an act or omission within the scope of employment. See Michaels v. State of New Jersey, 968 F.Supp. 230, 234 n. 4 (D.N.J.1997) (noting that the responsibilities for defense and indemnification are “wedded together”), aff'd, 150 F.3d 257 (3d Cir.1998).
The employees of a county prosecutor’s office are not “traditionally” considered to be State employees. The State does not pay their salaries and expenses or provide them with State offices and the use of state automobiles, as it does true State law enforcement officers. Instead, all of these monetary obligations are assumed by the counties, in conformity with the mandate of N.J.S.A. 2A: 158-7. The titles of employees of a county prosecutor’s office — county prosecutor, assistant county prosecutor, county detective and county investigator — also reflect the fact that they are not “generally considered employees of the State.” All of these indicia of county employment are incompatible with the Court’s conclusion that employees of a county prosecutor’s office are State employees within the contemplation of N.J.S.A 59:10A-1 and N.J.S.A 59:10-1.2 Cf. Dunne, supra, 69 N.J. at 248-52, 353 A.2d 508.
In concluding that the State has financial responsibility for torts committed by employees of a county prosecutor’s office, the Court focuses upon the section of the Tort Claims Act that imposes vicarious liability upon public entities for the torts of their employees, rather than upon the sections that deal specifically with the defense and indemnification of State employees. Ante at 434 - 43, *460449-53, 778 A.2d at 450-56, 459-62. The section of the Act dealing with vicarious liability, N.J.S.A. 59:2-2a, provides that:
A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.
However, as the Attorney General’s commentary indicates, this section simply “adopts the general concept of vicarious liability” by making “[a] public entity ... [liable for] ... [the torts] of [its] public employee [committed] within the scope of ... employment.” Report of the Attorney General’s Task Force on Sovereign Immunity, supra, at 211. N.J.S.A. 59:2-2a does not address whether a particular “public employee” should be considered a “State” or “county” employee. N.J.S.A. 59:1-3, N.J.S.A. 59:10A-1 and N.J.S.A 59:10-1 are the only provisions that indicate which public employees the Legislature considers to be “State employees,” for whom the State bears financial responsibility under the Tort Claims Act. Therefore, the conclusion that under those provisions, employees of a county prosecutor’s office are not “State employees,” who the State must defend and indemnify for any claim under the Tort Claims Act, is equally applicable to a claim under N.J.S.A. 59:2-2a seeking to impose vicarious liability upon the State.
The Court reasons that because law enforcement is a “basic State function,” the Tort Claims Act should be construed to impose financial responsibility upon the State for the tortious actions of employees of a county prosecutor’s office in the performance of their law enforcement duties. Ante at 452, 778 A.2d at 462. However, the fact that law enforcement is a State function is not responsive to the question of whether the Legislature intended the State or county to bear financial responsibility for employees of a prosecutor’s office who are sued for alleged tortious conduct. As Judge Conford observed in Bonnet v. State, 155 N.J.Super. 520, 527, 382 A.2d 1175 (App.Div.), aff'd summarily, 78 N.J. 325, 395 A.2d 194 (1978):
In an ultimate sense, all governmental services and functions below the federal level are “state” services and functions, whether the Legislature delegates their *461administration and the funding of their costs, in whole or in part, to local political subdivisions, county or municipal. This is so because the State Legislature controls and regulates them absolutely, subject only to constitutional conditions.
See also Robinson v. Cahill, 62 N.J. 473, 502, 303 A.2d 273 (1973) (“[L]ocal government is simply an arm of the State with respect to the many State functions which the State decides shall be performed through local government.”). Thus, public education is viewed as a State function because the Constitution imposes an obligation upon the State Legislature to “provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the age of five and eighteen years.” N.J. Const. art. 8, § 4, ¶ 1. See In re Grant of Charter Sch. Application of Englewood, on Palisades Charter Sch., 164 N.J. 316, 319, 753 A.2d 687 (2000). Nevertheless, the Legislature has imposed substantial administrative and fiscal responsibilities for the performance of this State function upon local public entities. See Abbott v. Burke, 149 N.J. 145, 164-65, 693 A.2d 417 (1997); Robinson v. Cahill, supra, 62 N.J. at 496-98, 303 A.2d 273.
Similarly, the employees of a municipal police department who investigate violations of the Criminal Code perform the same State function as investigators in a county prosecutor’s office, but they remain municipal employees, for whom municipal governments bear responsibility for the payment of salaries and other necessary expenses, including any expenses incurred in defending or indemnifying police officers for claims under the Tort Claims Act. See Township of Edison v. Hyland, 156 N.J.Super. 137, 141-44, 383 A.2d 714 (App.Div.1978). By providing that the counties shall pay “[a]ll necessary expenses incurred by the prosecutor,” N.J.S.A. 2A:158-7, the Legislature has determined that even though employees of a county prosecutor’s office may be characterized as State officers or agents for some purposes, county governments should bear the same financial responsibility for the operation of the county prosecutors’ offices that municipal governments bear for the operation of municipal police departments.
*462In support of its interpretation of the Act, the Court relies upon the statement in Cashen v. Spann, 66 N.J. 541, 552, 334 A.2d 8, cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975), that “the prosecutor and the detectives are to be considered agents of the State and not the county.” However, Cashen did not involve any claim against the State. In fact, the State was not even a party to the case until it intervened before the Supreme Court. Id. at 545 n. 1, 334 A.2d 8. Moreover, Cashen involved tort claims that had accrued prior to enactment of the Tort Claims Act. Id. at 551 n. 4, 334 A.2d 8. Consequently, the issue in Cashen was solely whether the county could be held vicariously liable for alleged torts of a county prosecutor and his detectives under common law principles.
In any event, whatever precedential significance Cashen might have had with respect to this appeal was diluted by the Court’s subsequent decision in Dunne, supra, 69 N.J. 244, 353 A.2d 508, which arose out of the same alleged illegal search by county prosecutor’s office detectives as Cashen. In Dunne, the county asserted claims for the defense and indemnification of the detectives against an insurance carrier, Fireman’s Fund, which had issued a policy providing coverage for certain torts committed by “county employees.” In concluding that the detectives were county employees, who were entitled to receive a defense from the county’s insurance carrier, the Court stated:
County prosecutors’ detectives possess a hybrid status. The position has been created by the County Detectives and County Investigators Act — the title, perhaps indicative of some legislative intent, reflects their identification with the county____ The financial burdens related to the position are imposed on the county. The salary is paid by the county.... Further, all necessary expenses incurred by county detectives, such as costs of insurance, automobiles, and other necessities, must be paid by the county.
From all the foregoing it may be seen that the county-county detective relationship is that of employer-employee for certain administrative and remunerative purposes. This finding is not inconsistent with our conclusion [in Cashen ] that in preparing and executing the affidavit upon which the search warrant was based and conducting the search, [the detectives] were “agents of the State.” At the same time they were also employees of and there existed an employer-employee relationship with the County____
*463... A detective then is a county employee who carries out his functions as such for the prosecutor. The status of the plaintiffs literally satisfies the definition in the Fireman’s Fund policy. This result conforms with the legislative policy that the county bear all costs and expenses, including liability insurance premiums, incident to employment of county detectives.
[Id. at 248-52, 353 A.2d 508 (statutory citations omitted)]
Subsequent to Dunne, the Appellate Division squarely held that the State has no obligation to assume responsibility for the defense of a county prosecutor’s office detective who is joined as a defendant in an action arising out of a criminal investigation. Township of Edison, supra, 156 N.J.Super, at 144, 383 A.2d 714. In the course of its opinion the court noted:
Although a prosecutor and prosecutor’s detectives may be considered as agents of the State for some purposes (Cashen [supra, 66 N.J. at 552, 334 A.2d 8]), they are not employees of the State for certain administrative and remunerative purposes, for the financial burdens of the prosecutor’s office are imposed on the county. See Dunne [supra, 69 N.J. at 248-251, 353 A.2d 508].
[Id. at 141, 383 A.2d 714]
The Court also relies upon a federal district court decision that concluded, attempting to reconcile Cashen with Dunne, that the State is not responsible under N.J.S.A. 59:10A-1 and N.J.S.A. 59:10-1 for defending or indemnifying employees of county prosecutor’s office for torts committed in the course of their employment, but that the State might be held vicariously liable for their conduct. Michaels, supra, 968 F.Supp. at 232-38. The court noted that this result would create “a practical anomaly whereby the State could be held vicariously liable for the actions of ... the same individual whom the county must indemnify and defend[.]”3 Id. at 238 n. 12. However, the court was not called upon to *464reconcile this anomaly because the case did not involve any issue concerning the State’s vicarious liability. See id. at 237 n. 10. On appeal, the Third Circuit affirmed “[f]or substantially the reasons set out in the district court’s opinion,” based on its “predict[ion] that the Supreme Court of New Jersey would hold that under N.J.S.A. 59.-10A-1 the State is required to provide indemnification and defense for only ‘those persons “generally” and “traditionally” considered the State’s employees.’ ” Michaels, supra, 150 F.3d at 258-59.
The other Third Circuit decision relied upon by the Court, Coleman v. Kaye, 87 F.3d 1491 (3d Cir.1996), cert. denied, 519 U.S. 1084, 117 S.Ct. 754, 136 L.Ed.2d 691 (1997), involved the question whether the State or county could be liable for an act of employment discrimination committed by a prosecutor. The court concluded, without citing the Tort Claims Act, that only the county could be held liable for a county prosecutor’s personnel decisions. Id. at 1499.
In short, neither Cashen nor the federal decisions relied upon by the Court provide a definitive interpretation of the vicarious liability of public entities under N.J.S.A. 59:2-2a. Cashen was based on pre-Tort Claims Act common law, and Coleman did not involve an interpretation of the Act. Although Michaels involved an issue of a county’s vicarious liability under N.J.S.A. 59:2-2a, the court’s decision rested solely on its prediction of how the Court ultimately would decide this state law issue. See Becker v. Baron Bros., 138 N.J. 145, 165, 649 A.2d 613 (1994) (noting that the Court is “not bound by [federal court] decisions in respect of our own State law.”). Consequently, I disagree with the Court’s view that “Cashen, Coleman and Michaels establish that a county cannot be held vicariously liable for the actions of prosecutorial defendants related to the investigation and enforcement of the criminal laws of the State[.]” Ante at 452, 778 A.2d at 462. In my view, the resolution of this issue is not constrained by prior case law.
*465One of the essential rationales for imposing vicarious liability upon an employer for the torts of its employees is that the employer “is better able [than the injured party] to bear the burden of the losses resulting from such tortious acts by absorbing them as an incident of the operation of [its] enterprise.” McAndrew v. Mularchuk, 33 N.J. 172, 192, 162 A.2d 820 (1960). The mandate of N.J.S.A. 2A:158-7 that the county shall pay “[a]ll necessary expenses” incurred in the operation of the prosecutor’s office constitutes a legislative policy determination that the cost of operation of this public enterprise shall be borne by the county. Thus, a county’s liability under the doctrine of respondeat superior for any loss that may be incurred as a result of a tortious act by an employee of a prosecutor’s office, like the cost of premiums to insure against such loss, see Dunne, supra, is simply “an incident of the operation of [this] enterprise.” McAndrew, supra, 33 N.J. at 192, 162 A.2d 820. Therefore, consistent with the narrow interpretation of “State employee” reflected in N.J.S.A. 59:1-3, N.J.S.A 59:10A-1, N.J.S.A 59:10-1 and the Attorney General’s commentary to the proposed Act,, I would, conclude that employees of a county prosecutor’s office are county rather than State employees for the purpose of imposition of vicarious liability under N.J.S.A. 59:2-2a.
The Court’s conclusion that this appeal is not controlled by N.J.S.A 2A:158-7 and that the Legislature intended to impose an obligation for defense and indemnification and vicarious liability upon the State for tortious conduct of employees of a prosecutor’s office is inconsistent with long-standing administrative practice. In the nearly thirty years since enactment of the Tort Claims Act, L. 1972, c. 45, counties have routinely provided representation to employees of a county prosecutor’s office who are sued under the Tort Claims Act or Federal Civil Rights Act. See Michaels, supra, 968 F.Supp. at 235. Although counties have occasionally attempted to shift this responsibility to the State, the Appellate Division has repeatedly rejected arguments similar to the ones advanced by appellants and upheld the State’s position that employees of a prosecutor’s office are county rather than State *466employees and that the county bears the responsibility of defending them. See, e.g., Township of Edison, supra; Steele v. State, A-225-81T3 (decided Feb. 10, 1982); Ruvoldt v. County of Hudson, A-5281-80T3 (decided Feb. 10, 1982), certif. denied, 91 N.J. 226, 450 A.2d 552 (1982)4 More commonly, the counties have simply provided representation to employees of county prosecutors’ offices either directly through county counsel or the prosecutor’s office or indirectly through private counsel, without raising any issue concerning their obligation to provide such representation. See, e.g., Giuffre v. Bissell, 31 F.3d 1241, 1243 (3d Cir.1994); Davis v. Stamler, 650 F.2d 477, 478 (3d Cir.1981); Carter v. Chief of Police, 437 F.2d 413, 414 (3d Cir.1971); Muhammed v. Coburn, 535 F.Supp. 736, 737 (D.N.J.1980); Sczyrek v. County of Essex, 324 N.J.Super. 235, 236, 735 A.2d 33 (App.Div.), certif. denied, 163 N.J. 75, 747 A.2d 284 (2000); Van Engelen v. O’Leary, 323 N.J.Super. 141, 143, 732 A.2d 540 (App.Div.), certif. denied, 162 N.J. 486, 744 A.2d 1208 (1999); Seneca v. Bissell, 274 N.J.Super. 613, 615, 644 A.2d 1147 (App.Div.), certif. denied 138 N.J. 272, 649 A.2d 1291 (1994); Hayes v. County of Mercer, 217 N.J.Super. 614, 617, 526 A.2d 737 (App.Div.), certif. denied, 108 N.J. 643, 532 A.2d 226 (1987). This long-standing administrative practice is entitled to substantial weight in construing the Tort Claims Act. See New Jersey Ass’n on Correction v. Lan, 80 N.J. 199, 214-15, 403 A.2d 437 (1979).
Although the record does not indicate the number of state tort and federal civil rights claims brought against employees of county prosecutors’ offices, it may be anticipated that the Court’s decision will require the Attorney General’s office to assume responsibility for a substantial number of additional cases and impose a significant new expense upon the State. The county prosecutors’ offices employ a large number of assistant prosecutors, investigators, and *467other personnel who perform a variety of investigative and prosecutorial duties that may give rise to claims for money damages. Any such claim, including a personal injury action arising out of the alleged negligent operation of an automobile in connection with a criminal investigation or prosecution, will now presumably have to be defended by the Attorney General, and the State would then have to pay any judgment that may be entered. N.J.S.A. 59:10-1. Therefore, in the absence of a compelling showing that the long-standing administrative practice of counties providing defense and indemnification to employees of county prosecutors’ offices is contrary to existing law, I believe that any decision to shift these responsibilities to the State should be made by the Legislature.
The Court has previously recognized that the characterization of a public employee as a State agent or officer should not be determinative of an issue concerning the allocation of financial responsibility for the employee’s alleged wrongdoing. In Godfrey v. McGann, 37 N.J. 28, 179 A.2d 6 (1962), the question was whether the State or Essex County was responsible for the payment of claims arising out of the embezzlement of money by the cashier of the Essex County Probation Department. The trial court held that the Probation Department is “an arm of the state judiciary” and consequently its officials are State “servants, agents and employees.” Godfrey v. Board of Chosen Freeholders of County of Essex, 65 N.J.Super. 213, 214-15, 167 A.2d 221 (Law Div.1961). On that basis, the trial court concluded that the State should bear responsibility for reimbursement of the money embezzled by the cashier.
However, the Court held that the allocation of this financial responsibility should not turn on whether employees of a county probation department are characterized as “State” or “county” agents, but rather on whether the Legislature intended the State or county to be responsible for expenses incurred as a result of the cashier’s wrongdoing.
*468The county is an agency of the State to administer state power and authority. One of the county’s principal roles is to help provide for the operation of the state judicial system within its borders. Accordingly, the taxpayers of the county bear a proper share of the cost of administering the judicial system within the county. The allocation of expenses to be paid by the taxpayers of the whole State and those to be paid by taxpayers of a county is a matter for legislative decision.
... [T]he Legislature made each county responsible for meeting the expenses incurred in the operation of its Probation Department. N.J.S.A 2A;168-8. Therefore, at least as far as monetary support is concerned, the Probation Department is a county subdivision.
... [Probation officers and employees of the Probation Department cannot be specifically identified as county or state agents. Therefore, the label attached to individuals is of no help in solving the present issue. Hence, this case cannot turn upon whether officers and employees of the Probation Department are “state” or “county” agents. The issue framed is whether the Legislature intended the State or the county to be chargeable with the losses caused by embezzlements of such agents.
[37 N.J. at 34-36, 179 A.2d 6.]
The Court concluded, based on statutory provisions authorizing the County Board of Freeholders to investigate the accounts of Probation Department employees and imposing responsibility upon the county to pay the premium on an “honest accounting” bond “as a necessary expense” of the Probation Department, that there was a “legislative design” to impose financial responsibility for the misappropriation of funds by a member of the Probation Department upon the county. Id. at 37, 179 A.2d 6.
As in Godfrey, the question in this case is not whether employees of a county prosecutor’s office are agents or officers of the State, but rather whether the Legislature intended to treat the expenses of defending and indemnifying these officials differently than the other expenses of operation of a prosecutor’s office. The Tort Claims Act does not contain any expression of such a legislative intent. To the contrary, the provisions of the Act governing the State’s defense and indemnification obligations and the Attorney General’s commentary on the proposed Act clearly reflect a legislative intent to limit these obligations to traditional state employees. Furthermore, in the nearly thirty years since enactment of the Tort Claims Act, the State and counties have *469followed this view of the legislative intent, and the State has never been required to provide defense and indemnification or been held vicariously liable for the tortious conduct of an employee of a prosecutor’s office. The Court has not demonstrated any basis for departing from this long-standing administrative practice.
Accordingly, I would affirm the orders of the trial court dismissing appellants’ defense and indemnification claims against the State.
For reversal and remandment — Justices STEIN, COLEMAN, LONG and Judge PRESSLER (t/a) — i.
For affirmance — Judge SKILLMAN (t/a) — 1.
I note that the State construes these statutory provisions as extending to certain claims for money damages brought against State employees pursuant to the Federal Civil Rights Act, 42 U.S.C.A. § 1983. See In re Petition for Review of Opinion 552 of Advisory Comm. on Prof'l Ethics, 102 N.J. 194, 200, 507 A.2d 233 (1986).
Because there is no indication that the Legislature intended employees of a county prosecutor's office to be treated as “State employees" who are entitled to have the State provide a defense and indemnification for tort claims, there is no basis for the Court's conclusion that the Tort Claims Act was “intended to supersede” the mandate of N.J.S.A. 2A:158-7 that counties shall be responsible for all necessary expenses incurred in connection with the operation of a prosecutor's office as it relates to the expense of defense and indemnification. Ante at 443, 778 A.2d at 456 (quoting Chasin v. Montclair State Univ., 159 N.J. 418, 425, 732 A.2d 457 (1999)).
The anomaly referred to by the district court derives from the fact that because vicarious tort liability is secondary, the State would be entitled to indemnification from any employee whose tortious conduct resulted in the imposition of liability upon the State pursuant to N.J.S.A. 59:2-2a. See Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 80, 159 A.2d 97 (1960). Thus, under the analysis in Michaels, the State could seek indemnification from an employee of a county prosecutor's office for any vicarious liability incurred by the State as a result of that employee’s conduct and, assuming a county indemnifies its employees for their torts, the employee could then seek indemnification from the county for this liability.
I cite the unreported opinions in Steele and Ruvoldt not as precedent, see R. 1:36-3, but rather as part of the historical foundation for the prevailing understanding that the county bears responsibility for providing representation to employees of a county prosecutor's office.