In the case of State v. Brandon T. Morrison, decided on December 14, 2016, the New Jersey Supreme Court considered 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). Writing for a unanimous Court, Justin Albin held that Morrison was not a public servant under the statute.
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. It is strange that Judges Smonelli and Leone would issue a per curiam opinion in a case in which Judge Guadagno issued a dissenting opinion. By definition, “per curiam” opinions are supposed to involve such a straightforward application of the law and obvious conclusion that there is no need for an individual judge’s analysis. Here, the conclusion was not obvious since one judge disagreed with the other two.
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.