Volunteer Emergency Medical Technician is Not a “Public Servant” for Purposes of the Official Misconduct Statute

State v. Morrison, 227 N.J. 295 (2016).  In today’s unanimous opinion by Justice Albin, the issue was whether a volunteer emergency medical technician (“EMT”) is a “public servant” who can be charged with official misconduct under N.J.S.A. 2C:30-2(a).  This was one of a number of criminal charges that defendant faced in connection with alleged misappropriation of funds that belonged to the Pemberton Rescue Squad.  Defendant was a member of the Squad, as well as its Treasurer.  The Squad, a private non-profit organization, contracted with Pemberton Township to provide backup emergency ambulance service.

Defendant moved to dismiss the official misconduct charge.  The Law Division granted that motion.  The State obtained leave to appeal, and the Appellate Division affirmed in a 2-1 ruling.  In turn, the Supreme Court granted leave to appeal.  Today, the Court affirmed the decisions below.

Justice Albin observed that de novo review, or what he called “fresh eyes,” applied to the issue of statutory interpretation that the case presented.  The goal, he noted, is to give effect to legislative intent and to avoid results that are absurd or “distinctly at odds with the public-policy objectives of a statutory scheme.”

“Public servant” is defined in the statute as “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 not witnesses.  But the statute does not define “performing a governmental function.”  Justice Albin thus had to canvass a number of prior cases, and address different scenarios in which the relationship of private and public varied, in order  to determine whether that phrase covered an EMT such as defendant.

Ultimately, the Court found no indication that the Legislature “intended to transform employees of a private contractor with a typical government contract into public servants.”  More generally, where the actor’s activity is one that is not “uniquely” or “exclusively” a governmental authority, as here, where both government and private contractors provide EMT services, a person performing that role is not a “public servant.”  Justice Albin also invoked the principle that penal statutes whose meaning is uncertain must be strictly construed.

Finally, Justice Albin referred to cases under the Civil Rights Act, 42 U.S.C. §1983.  He noted that many cases have concluded that EMT’s are not “state actors” under that statute “because emergency medical services carried out through a voluntary rescue or ambulance squad are not deemed a ‘public function,'” since such activities are not “exclusively reserved to the State.”  Though those decisions were “only of persuasive authority,” they buttressed the Court’s conclusion.

The State had relied on State v. Quezada, 402 N.J. Super. 277 (App. Div. 2008).  There, a volunteer firefighter was found to be a public servant for purposes of the official misconduct statute.  Justice Albin distinguished that case based on the fact that “New Jersey law has consistently recognized that firefighting is a public or governmental function.”  In contrast, EMT services are not such a governmental function.

Nor was it sufficient that EMT’s “are subject to state regulation and receive certain legislative benefits and tort immunities.”  Other organizations, such as hospitals, are also highly regulated and benefit from tort limitations, but no one would suggest that hospital employees are covered by the official misconduct statute.

The case was remanded for further proceedings on the remaining counts against defendant.  Those counts included two theft counts, wrongful impersonation, and misapplication of entrusted property.