Opinion
DOCKET NO. A-0170-14T2
07-24-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. BRANDON T. MORRISON, Defendant-Respondent.
Bethany L. Deal, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief). Brenda R. Maneri, argued the cause for respondent (Sitzler & Sitzler, attorneys; Ms. Maneri, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-06-0725. Bethany L. Deal, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief). Brenda R. Maneri, argued the cause for respondent (Sitzler & Sitzler, attorneys; Ms. Maneri, on the brief). PER CURIAM
The State appeals the dismissal of a count charging defendant Brandon T. Morrison with official misconduct by a public servant under N.J.S.A. 2C:30-2(a). The trial court found he was not a "public servant" as defined by N.J.S.A. 2C:27-1(g). We affirm.
I.
The following facts alleged by the State are contained in the grand jury testimony and exhibits.
The victim in this case is the former Pemberton First Aid and Rescue Squad, Inc. (Squad). The Squad was a volunteer, non-profit organization. Its constitution stated its purpose was to provide voluntary emergency medical service (EMS) twenty-four hours a day, seven days a week, "for the people of the contracting township(s) and surrounding areas." The Squad provided EMS for Pemberton Township and received $25,000 per year in funding from the Township. The rest of the Squad's funding was from the "boot drive" and other fundraisers, and from any applicable federal funding.
The State's brief also refers to the Squad as the Pemberton First Aid and Emergency Squad. The indictment refers to the Squad as the Pemberton Twp. Emergency Services Squad. The Squad is no longer operating.
The Squad's bylaws limited its monthly expenditures to $200 per month by the chief. Expenditures larger than $200 had to be approved by the entire ten-person Squad.
In 2007, defendant, an emergency medical technician (EMT), began volunteering at the Squad. He was appointed treasurer of the Squad in February or March 2011. He was suspended in October 2011 following allegations he made unauthorized use of Squad funds. An investigation revealed he forged the chief's signature on forty-two checks totaling $20,429.79.
Defendant wrote checks to himself. He also made purchases for items not needed by the Squad, using its bank account without its authorization or knowledge to obtain a benefit for himself. He bought police and firefighter items unrelated to the Squad's mission, including a training gun, handcuffs, an expandable baton, as well as a police shield, badge, and patch all labelled "joint terrorism task force." He purchased other items including a laptop, defibrillator, deputy chief's badge, portable radios, and emergency red and blue flashing lights for his personal vehicle, which he used to respond to calls outside of Pemberton Township. Defendant also had some items shipped directly to his residence. When confronted, he turned over some items, but others were found during searches of his residence and vehicle. The unrecovered loss was $5,345.82.
A Burlington County grand jury indicted defendant with 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 official misconduct count alleged that defendant used his position as treasurer of the Squad to misappropriate monies from the Squad for his own personal use and to satisfy personal expenses.
Defendant moved to dismiss the official misconduct count on two grounds. First, he complained the prosecutor who presented the case to the grand jury mistakenly referred to him as a firefighter until a witness correctly stated defendant was an EMT. Second, defendant argued he was not a "public servant" for purposes of N.J.S.A. 2C:30-2(a).
The trial court found that the prosecutor's later-corrected reference to defendant as a firefighter was not a deliberate misstatement. However, the court found defendant was not a public servant, and granted his motion to dismiss the official misconduct count in a July 17, 2014 order. We granted the State leave to appeal.
In his appellate brief, defendant attempts to challenge the court's ruling on the prosecutorial misstatement, but he did not seek leave to cross-appeal, so that issue is not before us.
II.
"A court 'should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.'" State v. Saavedra, ___ N.J. ___, ___ (2015)(slip op. at 18)(quoting State v. Morrison, 188 N.J. 2, 12 (2006)). "The court should evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." Morrison, supra, 188 N.J. at 13. "[T]he evidence need not be sufficient to sustain a conviction." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984).
"A judge's discretion to dismiss an indictment should not be exercised except on the clearest and plainest ground and an indictment should stand unless it is palpably defective." State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010)(internal quotation marks omitted). "A trial court's exercise of this discretionary power will not be disturbed on appeal unless it has been clearly abused." Saavedra, supra, slip op. at 16 (internal quotation marks omitted). "However, if a trial court's discretionary decision is based upon a misconception of the law, a reviewing court owes that decision no particular deference." Lyons, supra, 417 N.J. Super. at 258. In that situation, we must "decide the controversy in the proper light of the applicable law." Ibid.
The State contends that defendant, as a volunteer EMT and treasurer of the Squad, was a "public servant" within the meaning of N.J.S.A. 2C:30-2(a) and N.J.S.A. 2C:27-1(g). That is "a question of law" subject to our de novo review. See State v. Quezada, 402 N.J. Super. 277, 283 (App. Div. 2008). We must hew to that standard of review.
The "Official Misconduct" statute, N.J.S.A. 2C:30-2, provides in pertinent part:
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[.]
"The statute's purpose plainly is to prevent the perversion of governmental authority." Perez, supra, 185 N.J. at 206. "In furtherance of that end, the term 'public servant' is defined broadly for purposes of misconduct in office, as well as for other offenses against public administration, to encompass individuals who are authorized to perform a governmental function, irrespective of whether they hold a position of public employment." Ibid. Under the definitional 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) (emphasis added). "Construing that expansive statutory language, our courts have applied N.J.S.A. 2C:30-2 to defendants serving in a range of official roles[.]" Saavedra, supra, slip op. at 20-21 (citing Perez, Quezada, and other cases).
"One does not escape the statute's reach merely because one is not an employee of government." Perez, supra, 185 N.J. at 206. In Perez, our Supreme Court held that, even though a local motor vehicle agency had been privatized and its head clerk was not employed by the State, she was a "public servant" under N.J.S.A. 2C:30-2. Id. at 205-07. The head clerk exercised public authority by issuing State-authorized driver's licenses, identification cards, and motor vehicle documents, which she was convicted of conspiring to issue fraudulently. Ibid. The Court affirmed, holding that her "perversion of the uniquely governmental authority that she wielded is what the official misconduct statute is designed to prevent." Id. at 207.
The State relies primarily on Quezada. Quezada, an unpaid volunteer firefighter with the Prospect Park Volunteer Fire Department, was prosecuted under N.J.S.A. 2C:30-2(a). Quezada, supra, 402 N.J. Super. at 281-83. We held "an unpaid volunteer firefighter can be a 'public servant'" because he was "'participating . . . in performing a governmental function.'" Id. at 283-84 (quoting N.J.S.A. 2C:27-1(g)). We concluded that "'[f]irefighting' is clearly a 'governmental function,' as part of government's primary role is to protect the health, welfare and safety of the public, even if performed or assisted by volunteers of the community-at least in some organized or officially recognized form." Id. at 284. Similarly, volunteer first aid and rescue squads are organized and officially recognized, and help to protect the health, welfare and safety of the public.
To support our conclusion in Quezada, we cited statutes and case law treating volunteer fire companies and their members as public actors for purposes of tort immunity, workers' compensation, and actions under 42 U.S.C.A. § 1983. Ibid. (citing, e.g., N.J.S.A. 2A:53A-13). Two of those criteria apply equally to volunteer first aid and rescue squads and their members.
First, in N.J.S.A. 2A:53A-13, the Legislature provided tort immunity not only for a volunteer fire company's members providing fire extinguishing services, but also to its members providing "emergency public first aid and rescue services." Ibid. The Legislature has similarly provided tort immunity to the provision of "emergency public first aid and rescue services" by a "member of a volunteer first aid, rescue or emergency squad," N.J.S.A. 2A:53A-12, and by a "volunteer fire company or volunteer first aid, rescue or emergency squad" itself, N.J.S.A. 2A:53A-13.1. See, e.g., Kuchera v. Jersey Shore Family Health Ctr., 221 N.J. 239, 247 n.3 (2015). Based on these provisions, we have held a volunteer first aid squad is a "public entity" subject to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 326-27 (App. Div. 2004); Pallister v. Spotswood First Aid Squad, 355 N.J. Super. 278, 279-82 (App. Div. 2002).
See also N.J.S.A. 30:4-27.7 (providing immunity for "a member of a first aid, ambulance, rescue squad or fire department, whether paid or volunteer," who transports the mentally ill).
Second, the Legislature provided workers' compensation for injury in the line of duty not only for "each and every member of a volunteer fire company doing public fire duty" but "also each and every active volunteer, first aid or rescue squad worker" who is "doing public first aid or rescue duty." N.J.S.A. 34:15-43; see N.J.S.A. 34:15-7.3, N.J.S.A. 34:15-74 to -76. Such a squad worker
shall be deemed to be doing public first aid or rescue duty under the control or supervision of any such commission, council, governing body, board of fire commissioners or fire district within the meaning of thisHere, it is undisputed that the Squad received contributions from Pemberton Township.
section if such control or supervision is provided for by statute, or if the first aid or rescue squad of which he is a member or authorized worker receives or is eligible to receive contributions from, or a substantial part of its expenses or equipment are paid for by, the municipality[.]
[N.J.S.A. 34:15-43.]
On the other hand, federal courts have found volunteer first aid and rescue squads do not act "under color of" state law under 42 U.S.C.A. § 1983. See, e.g., Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 265 (2d Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1895, 191 L. Ed. 2d 764 (2015). The federal courts have rejected the "contention that a volunteer first aid squad would be deemed to perform an exclusive government function merely because a volunteer fire department had been held to perform one." Groman v. Twp. of Manalapan, 47 F.3d 628, 641 (3d Cir. 1995); see Grogan, supra, 768 F.3d at 267.
However, the federal courts must apply the stringent "'public function' test," which is met only if a private entity is exercising "powers that are 'traditionally the exclusive prerogative of the State.'" Grogan, supra, 768 F.3d at 264 (emphasis added) (quoting Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S. Ct. 2777, 2786, 73 L. Ed. 2d 534, 547 (1982)) (internal quotation marks omitted); see Groman, supra, 47 F.3d at 640. Thus, the seminal federal case found rescue squads were not public agencies, even though "the State may be just beginning to assume" their functions, because those functions were not "traditionally governmental." Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 F. Supp. 1344, 1351 (E.D. Va. 1983), aff'd, 742 F.2d 1448 (4th Cir. 1984). By requiring the activity be "traditionally" a governmental function, the federal test is more demanding than New Jersey's standard, which simply looks to whether the person is "performing a governmental function." N.J.S.A. 2C:27-1(g); see Perez, supra, 185 N.J. at 207. Accordingly, we do not find the federal test dispositive, although whether a function has been traditionally performed by the government is relevant.
Defendant also cites an unpublished trial court opinion stating that an emergency rescue squad is not a public agency under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. However, we do not find OPRA case law to be persuasive in determining whether the Squad serves a governmental function. OPRA's definition of a "'public agency'" "does not set forth a governmental-function test," but rather looks to whether the body is an "'instrumentality within or created by a political subdivision.'" Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 503-04 (2011) (quoting N.J.S.A. 47:1A-1.1); see Paff v. N.J. State Firemen's Ass'n, 431 N.J. Super. 278, 289 (App. Div. 2013) (noting that "proof of governmental function is not necessary to qualify an entity as a public agency").
Defendant relies primarily on State v. Mason, 355 N.J. Super. 296 (App. Div. 2002). That case involved "whether the officers of a private, non-profit corporation that provides educational programs for handicapped students placed there at public expense are public servants or whether they are merely government contractors." Id. at 300. We offered three reasons why they were not public servants.
First, in Mason we drew "a distinction between one who merely performs an act or service limited by contract and one who performs a regulatory function or enforces regulations in the name of the State. Only the latter fall within our definition of public servants." Id. at 303-04. In Quezada, we recognized Mason's ruling that an "actor need not be a government employee so long as he performs a governmental regulatory or enforcement function." Quezada, supra, 402 N.J. Super. at 283-84. Nonetheless, we held that a volunteer firefighter was a "public servant," not because he performed a governmental regulatory or enforcement function, but because "'[f]irefighting' is clearly a 'governmental function.'" Ibid. Thus, performing a governmental regulatory or enforcement function is not the only way to be a public servant, although it is clearly one way to do so.
See Perez, supra, 185 N.J. at 206-07 (citing Bevacqua v. Renna, 213 N.J. Super. 554 (App. Div. 1986) (finding a private person, licensed as a construction code official and working for a private agency, held "public office" under N.J.S.A. 2C:51-2(c) based on his statutorily-granted regulatory duties), and State v. Vickery, 275 N.J. Super. 648 (Law Div. 1994) (holding a member of the S.P.C.A., a private charitable organization, was a "public servant" because of the statutorily-authorized transfer of regulatory powers)).
Second, in Mason, supra, we emphasized there was "a difference between public acts and public contracts," that the non-profit corporation's services "are limited by contract and governed by the terms of those contracts," and that such corporations "remain private entities providing a service for a fee and governed by contracts subject to annual renewal." 355 N.J. Super. at 302, 304. We noted we had "previously drawn a distinction between one who is a public official or government officer and one who merely performs services pursuant to a government contract, holding that only the former can appropriately be charged with official misconduct." Id. at 301 (citing State v. Williams, 189 N.J. Super. 61, 66 (App. Div.) (finding the director of a private charity with a government contract was not a "public officer" under former N.J.S.A. 2A:85-1), certif. denied, 94 N.J. 543 (1983)).
However, in Perez, supra, the Supreme Court subsequently held the head clerk's "employment with a private entity that had a contract to serve as a State DMV agent did not insulate her from a charge of official misconduct." 185 N.J. at 207. The Court found that by "broadly" defining "'public servant'" in N.J.S.A. 2C:27-1(g), "[t]he Legislature clearly was endeavoring to include within the term those individuals who, through a contractual delegation of responsibility, are empowered to exercise public authority." Id. at 206-07. Thus, the Court found the proper question was "whether the person holding the position of Head Clerk . . . carried out a governmental function." Id. at 207. After Perez, we similarly ruled "a private citizen performing 'a governmental function' can commit official misconduct" in providing volunteer firefighting, Quezada, supra, 402 N.J. Super. at 284, even though that service is provided pursuant to a contract, N.J.S.A. 40A:14-68(a) (providing that municipalities "may contract with a volunteer fire company or companies in such municipality, for purposes of extinguishing fires").
Third, we noted in Mason that "[m]any alternatives to public schooling are both available and acceptable substitutes for parents and their children, including home schooling, private schools and parochial schools. The government does not, therefore, exclusively provide education for our children." Mason, supra, 355 N.J. Super. at 302. In Perez, the Supreme Court found the head clerk's situation "distinguishable from State v. Mason, which found that a private educational contractor's status was ambiguous at best in respect of the execution of a public function because the provision of education is not exclusive to government." Perez, supra, 185 N.J. at 207 (citation omitted). The Court in Perez noted that the head clerk's privatized motor vehicle agency exercised "uniquely governmental authority" and "was, in essence, 'the government' for such purposes in the [] region." Ibid.
Thus, Perez distinguished rather than overruled Mason, and did so based on whether a private party was performing a function "exclusive to government" or "uniquely governmental." Ibid. Thus, we must consider the effect of the Supreme Court's exclusivity distinction, which goes to whether a function is "governmental" in nature. Such a distinction prevents the "governmentalizing" of all private persons or entities who provide services the government also provides, such as the private schools discussed in Mason.
However, to require total exclusivity would be contrary to the Legislature's broad definition of "public servant" in N.J.S.A. 2C:27-1(g) to include private individuals "who are authorized to perform a governmental function," even though they do not "hold a position of public employment." Perez, supra, 185 N.J. at 207. Requiring total exclusivity would also be inconsistent with the results in Perez, Quezada, and other cases which have found N.J.S.A. 2C:27-1(g) encompasses private individuals who work or volunteer for private entities providing a governmental function.
The Supreme Court's per curiam opinion in Perez, supra, did not precisely define the necessary degree of exclusivity. However, the Court clearly found it sufficient if the private entity performing the function is "in essence, 'the government' for such purposes in the [] region." 185 N.J. at 207.
Hence, under N.J.S.A. 2C:27-1(g), Perez, Quezada, and Mason, we must consider two questions. First, has providing first aid and rescue services become a function performed by the government? Second, was the provision of that function by the Squad sufficiently "exclusive" in Pemberton Township to render the Squad the equivalent of "the government" in the Township? Perez, supra, 185 N.J. at 207.
In considering the first question, we look to the enactments of our Legislature. See, e.g., Quezada, supra, 402 N.J. Super. at 284. The Legislature has found that "[t]he life saving medical services provided by first aid, rescue or ambulance squad members . . . have proven to be vitally important to the health, safety, and welfare of injured persons in this State." N.J.S.A. 27:5F-13.1. The Legislature has also found that "[v]olunteer emergency service organizations, such as fire companies, ambulance services and rescue squads, protect the lives and property of the citizens of New Jersey." N.J.S.A. 52:27D-361(a). Again, in Quezada, we found firefighting to be a "'governmental function'" because "part of government's primary role is to protect the health, welfare and safety of the public, even if performed or assisted by volunteers of the community - at least in some organized or officially recognized form." Quezada, supra, 402 N.J. Super. at 284.
The New Jersey Highway Traffic Safety Act of 1987 (Act), N.J.S.A. 27:5F-18 to -35, found "that the toll of deaths and injuries resulting from highway accidents is a matter of State concern," and that "a Statewide highway traffic safety program under the guidance and direction of the Governor will provide [a] needed mechanism to coordinate State and local efforts in the struggle to reduce highway deaths and injuries." N.J.S.A. 27:5F-19. The Act requires the New Jersey Highway Traffic Safety Program to provide a "training program for members of volunteer first aid, rescue and ambulance squads." N.J.S.A. 27:5F-22; see N.J.S.A. 27:5F-20(f). The Act requires such squads to train their members and notify the political subdivision, which must certify the squad's members and equipment each year "as being qualified for emergency medical service programs." N.J.S.A. 27:5F-27. The State's Office of Highway Traffic Safety must make a periodic review of the "training programs of first aid, rescue and ambulance squads, to insure they comply with the standards, guidelines, rules and regulations provided for by this act." N.J.S.A. 27:5F-29(c)(9). The Act allows the Governor to accept applications from such squads for grant money to implement EMS programs. N.J.S.A. 27:5F-26.
The Legislature has imposed other obligations on volunteer first aid, ambulance, or rescue squads. It requires such squads, like police departments and public and volunteer fire companies, to provide assistance to other municipalities when requested by another squad or by "the mayor or chief executive officer of any municipality." N.J.S.A. 26:2K-60; see N.J.S.A. 40A:14-26, -156. Mutual aid may also be provided by agreement and provide for municipal payment and reimbursement for damage and injury. N.J.S.A. 26:2K-61.
As discussed above, our Legislature has provided tort immunity and workers' compensation for volunteer first aid and rescue squads and their members, just as for volunteer fire companies and their members. Moreover, the Legislature has treated equally volunteer first aid and rescue squads and volunteer fire companies for a wide variety of public purposes, including publicly paid insurance, N.J.S.A. 40A:10-2; conveyance of public land, e.g., N.J.S.A. 18A:20-9 and N.J.S.A. 40A:12-21(a); public loans for modernization, N.J.S.A. 52:27D-361 to -365; public procurement, N.J.S.A. 52:25-16.2; public snow removal, e.g., N.J.S.A. 40:48-9.10; compensatory time off for "serving the municipality," N.J.S.A. 40A:9-160.1; public college assistance, e.g., N.J.S.A. 18A:71-78.1 and N.J.S.A. 18A:71B-23; public length of service award program, N.J.S.A. 40A:14-183 to -94.1; public survivor benefits, N.J.S.A. 43:12-28.1; protection from assault, N.J.S.A. 2C:12-1(b)(6); exemption from jury duty, N.J.S.A. 2B:20-10(d)-(e); and flying the State House flag at half-staff for death in the line of duty, N.J.S.A. 52:3-12.
The Legislature also permits members of volunteer first aid and rescue squads to exercise some public authority, which is an indicia of a public servant. See Perez, supra, 185 N.J. at 206-07; Mason, supra, 355 N.J. Super. at 302-03; see Vickery, supra, 275 N.J. Super. at 655 (stating that "the definition of public servant would apply any time that an individual exercises governmental authority"). Volunteer emergency first aid squad members, like police officers and volunteer firefighters, may use traffic control preemption devices to change the normal operation of traffic lights. N.J.S.A. 2C:40-24. Squad members, like volunteer firefighters, may mount and operate emergency warning lights on their motor vehicles. N.J.S.A. 39:3-54.7(a)(1), -54.11. The drivers of non-emergency vehicles upon any highway must yield the right of way to squad members' vehicles in the same manner as to authorized emergency vehicles such as police cars, firetrucks, and ambulances. N.J.S.A. 39:3-54.12; see also N.J.S.A. 39:1-1. The chief of the squad, like a volunteer fire chief, may also mount and operate a red emergency warning light and a siren. N.J.S.A. 39:3-54.15.
Finally, volunteer first aid and rescue squads can be partially, and in this case largely, funded by the public. The Legislature has provided that "[a]ny county or municipality may make a voluntary contribution of not more than $70,000 annually to any duly incorporated first aid and emergency or volunteer ambulance or rescue squad association[.]" N.J.S.A. 40:5-2. Moreover, the "county or municipality may appropriate such additional sums as it may deem necessary for the purchase of first aid, ambulance, rescue or other emergency vehicles, equipment, supplies and materials for use by these associations," with the title and control of the funds remaining with the county or municipality. Ibid. This resembles the Legislature's treatment of volunteer fire companies. A municipality may make "up to a total appropriation of $ 90,000.00 annually" to a volunteer fire company, and also to provide publicly-paid and -owned equipment. N.J.S.A. 40A:14-34; see N.J.S.A. 40A:14-33, -35.
"In addition, if any such [first aid and rescue] associations experience extraordinary need, the county or municipality may contribute an additional amount of not more than $35,000.00 annually; provided, however, that the need for such additional funds is established by the association." Ibid. "Whenever the total annual county or municipal contribution to an association exceeds $70,000," the association must provide an audit of its financial records, "certify[ing] to the governing body of the county or municipality that such records are being maintained in accordance with sound accounting principles." Ibid.
Thus, there are many similarities in the Legislature's treatment of volunteer first aid and rescue squads and volunteer fire companies. However, there also are some differences. In particular, the statute that permits volunteer fire companies to contract with municipalities also declares that "[t]he members of any such company shall be under the supervision and control of said municipality and in performing fire duty shall be deemed to be exercising a governmental function[.]" N.J.S.A. 40A:14-68(a). That declaration is powerful evidence of the accuracy of the outcome in Quezada. However, Quezada did not cite or rely on N.J.S.A. 40A:14-68. Rather, we found that members of volunteer fire companies were public servants because they helped the government fulfill its primary role to protect the health, welfare, and safety of the public, and because in return the government gave them benefits, including tort immunity and workers' compensation. Quezada, supra, 402 N.J. Super. at 284. Control by a public entity of a private entity is an indicia that its members are public servants, but such control is not a prerequisite.
Moreover, some public entities perform first aid and rescue services. The New Jersey Department of Health's Office of Emergency Services (OES) has compiled a list of all EMS agencies in the State. That OES list indicates that EMS is provided by numerous public fire, police, and sheriff's departments. The New Jersey Department of Community Affairs (DCA) has compiled an extensive list of all fire departments in the State. That DCA list indicates EMS is provided by numerous "career," "volunteer," and "combination" fire departments. See In re Hruska, 375 N.J. Super. 202, 204-05, 209 (App. Div. 2005) (a "career" fire department includes only paid career civil servants, and a "combination" fire department contains both career and volunteer members). The DCA list suggests that some of those fire departments and fire companies provide such services directly, and others provide it through associated first aid and rescue squads. See N.J.S.A. 2A:53A-13 (providing tort immunity for EMS performed by a member of a volunteer fire company or by a member of a first aid or rescue squad created within a volunteer fire company). Performance of EMS by members of public entities, and members of volunteer fire companies regarded as public entities under Quezada, is another indication that it is a function performed by the government.
N.J. Dep't. of Health, New Jersey EMS Agencies, (last revised Dec. 9, 2014), available at http://www.nj.gov/health/ems/documents/ems_agencies_by_county.pdf.
N.J. Dep't. of Cmty. Affairs: Div. of Fire Safety, Fire Code Enforcement Directory, available at http://www.state.nj.us/dca/divisions/dfs/pdf/fire_code_enforcement_directory.pdf (last visited June 10, 2015). --------
Thus, there is substantial support for concluding that first aid and rescue services can be a function performed by the government. Although state and local governments may not have traditionally provided EMS, the actions of the Legislature and municipalities over the last several decades have put them in the position of funding, training, regulating, and directly and indirectly providing EMS in some municipalities. We ultimately need not resolve that first question, however, because we find the second question dispositive of the outcome here.
The second question we must consider is whether the performance of the alleged governmental function by the Squad was sufficiently "exclusive" to make it the equivalent of the government in the Township. See Perez, supra, 185 N.J. at 207. The following facts were asserted by defendant, not disputed by the State, and adopted by the trial court. Pemberton Township primarily contracted for EMS from Lourdes Emergency Medical Services (Lourdes EMS), part of the Lourdes Health System. Lourdes EMS provided one dedicated ambulance at all times and a second ambulance Monday through Friday from 6:00 a.m. to 6:00 p.m. The Squad had a contract to provide emergency services solely as the "back up to the Lourdes EMS." This information shows that the Squad's performance of the EMS function was not sufficiently exclusive to make it "in essence, 'the government' for such purposes in" Pemberton Township, Perez, supra, 185 N.J. at 207, and thus to make defendant a "[p]ublic servant" under N.J.S.A. 2C:27-1(g).
Moreover, the fact that Lourdes EMS is the predominant provider of EMS services in Pemberton Township is further grounds to find insufficient exclusivity here. It is undisputed Lourdes EMS is a private entity. No claim is made to us that Lourdes EMS is also performing a governmental function or that its employees are "public servants" under N.J.S.A. 2C:27-1(g). Moreover, it appears from the OES list that, like education, EMS services are provided by many private entities, from large private hospitals like the Lourdes Health System to small private ambulance firms. By contrast, the DCA list shows 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. Where undisputedly private entities play a substantial role in performing the function, care should be taken to avoid "governmentalizing" all those who perform the function.
Finally, "as a penal statute, we must strictly construe the language of [N.J.S.A. 2C:30-2(a)] where there is some uncertainty as to its application." State v. Shelley, 205 N.J. 320, 328 (2011). "The doctrine of lenity, a corollary to the doctrine of strict construction, dictates that when ambiguities 'cannot be resolved by either the statute's text or extrinsic aids,' a criminal statute must be interpreted in favor of the defendant." Id. at 324. This is necessary to provide the public "clear and fair notice of the statute's reach." Id. at 330.
There may be situations where a volunteer first aid and rescue squad contracts with a municipality to be the sole or predominant provider of EMS services in the municipality, or the sole or predominant supplement to publicly-provided EMS services. In those situations, it may be that the volunteer first aid and rescue squad is performing a function provided by government with sufficient exclusivity to be, "in essence, 'the government' for such purposes in the [] region." Perez, supra, 185 N.J. at 207. This is not such a situation.
Accordingly, even viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, we agree with the trial court that the State failed to present "some evidence" of this element of the crime to make out a prima facie case. See Morrison, supra, 188 N.J. at 12.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION GUADAGNO, J.A.D., dissenting.
I agree with my colleagues in the majority that there is substantial support for concluding that first aid and rescue services can be a governmental function. Their extensive and comprehensive analysis establishes conclusively that the Pemberton First Aid and Rescue Squad was indeed performing a governmental function. Yet, they balk at reaching that conclusion because the Squad was not the exclusive provider of first aid services in Pemberton. While exclusivity may be a factor to be considered, I do not view it as a preclusive one. Because I believe that defendant's alleged misappropriation of the Squad's public funds would constitute official misconduct, I respectfully dissent.
Defendant is charged with using his authority as treasurer of the Squad to forge his chief's signature and purchase over $20,000 in equipment for his personal use. This purloined amount is roughly eighty percent of the Squad's yearly public funding from Pemberton Township. The Legislature unquestionably intended conduct of this nature to fall within of the prohibitions of the official misconduct statute.
In discerning the intent of the Legislature, we begin with the plain language of the statute, which must be construed in accordance with its ordinary and common-sense meaning. Saccone v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014). We resort to extrinsic guides only if the statute's otherwise unambiguous language creates an ambiguity in its application. Ibid.
To be convicted of official misconduct, defendant must be a "public servant" who committed "an act relating to his office" constituting "an unauthorized exercise of his official functions," knowing that it was unauthorized or committed in an unauthorized manner, and intending "to obtain a benefit for himself or another or to injure or to deprive another of a benefit." N.J.S.A. 2C:30-2(a). "The statute's purpose plainly is to prevent the perversion of governmental authority." Perez, ante, 185 N.J. at 206.
In the accompanying definitional provision, the Legislature expressly defined "public servant" to include "any person . . . performing a governmental function." N.J.S.A. 2C:27-1(g). The official misconduct statute has consistently been applied to persons who perform "uniquely governmental" functions, even if employed by private companies. In Perez, the Court found that a privately employed Division of Motor Vehicles clerk was a "public servant" because she exercised "uniquely governmental authority" in her clerk role by issuing driver's licenses and the like to the public. Perez, ante, 185 N.J. at 207. In Quezada, we found that an unpaid, volunteer firefighter was a "public servant" because firefighting itself "is clearly a 'governmental function,' as part of [the] government's primary role is to protect the health, welfare and safety of the public[.]" Quezada, ante, 402 N.J. Super. at 284. Recently, our Supreme Court cited Perez and Quezada in reaffirming the legislative intent to broadly define the term "public servant" in construing the official misconduct statute. Saavedra, ante, ___ N.J. at ___ (slip op. at 30).
My colleagues in the majority agree that Perez and Quezada support the conclusion that first aid workers are "public servants" due to their public function. See ante at ___ (slip op. at 5-23). They also recognize the Legislature's intent to treat first aid workers as public employees by providing EMS with immunity for tortious acts committed, and compensation for injuries sustained, on the job. Id. at 8-10.
The majority relies on Perez in concluding that the public-servant determination must be subjected to a two-pronged inquiry, where the first prong is the "governmental function" test and the second is "exclusivity." Ante at ___ (slip op. at 15). However, the plain statutory language provides only for the "governmental function" test and makes not the slightest suggestion of an additional exclusivity requirement. See N.J.S.A. 2C:27-1(g), 2C:30-2. Although Perez distinguishes Mason and limits its exclusivity holding to the facts of that case, the majority focuses on one passing comment in Perez to construct its exclusivity requirement: that the North Bergen DMV was "'the government' for such purposes in the North Bergen region." Perez, ante, 185 N.J. at 207. However, the Perez Court's focus was properly on the nature of the defendant's governmental authority over the public, not on the exclusivity of that authority:
The Legislature clearly was endeavoring to include within the term those individuals who, through a contractual delegation of responsibility, are empowered to exercise public authority. [Defendant] exercised such power when she caused to issue, directly or through the clerks she supervised, State-authorized motor vehicle licenses as well as vehicle title and registration documents. Indeed, at oral argument there appeared to be no dispute about the trial court's finding that [defendant's] official job duties included responsibility for the review of applications for, and issuance of, State-authorized motor vehicle licenses, registrations, certificates of title, and forms of identification. [Defendant], as Head Clerk, supervised and performed those State governmental licensing and registration functions at the North Bergen DMV, which was, in essence, "the government" for such purposes in the North Bergen region. We conclude that there is no reasonable basis for contending that there was ambiguity about the governmental nature of the authority wielded by [defendant] as a result of her position as Head Clerk.
[Ibid. (emphasis supplied).]
The majority holds that defendant is not a public servant because Pemberton Township has a contract with another first aid servicer, Lourdes EMS, such that the Squad is not the exclusive provider for the Township. This conclusion goes far beyond the appropriate test of whether defendant's responsibilities as Squad treasurer were a "governmental function" and is inconsistent with the legislatively-mandated, broad construction of the statute.
Considering that defendant's governmentally-vested authority was to purchase necessary equipment for the Township EMS; that such authority provides for the health, safety, and welfare of the public at large; and that defendant is charged with misappropriating funds provided by the Pemberton taxpayers for his personal benefit, I conclude that defendant is a "public servant" whom our Legislature intended be held criminally liable for official misconduct. Defendant's "perversion of the uniquely governmental authority that [he] wielded is what the official misconduct statute is designed to prevent." Ibid.
Accordingly, I dissent. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION