The New Jersey Supreme Court granted the State’s motion for leave to appeal and held that 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 publicly 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 affirmed the judgment of the Appellate Division and remanded for proceedings on the four remaining counts.
The Court held that its 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.
The official-misconduct statute applies to “public servants,” N.J.S.A. 2C:30-2, and aims “to prevent the perversion of governmental authority.” 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.
“‘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. It is interesting that jurors can be charged with official misconduct, a much more serious offense than the “contempt” charge that is often contemplated but very rarely handed out as a consequence of juror misconduct.
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.
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