In the present case, the government contracted with a non-profit entity to perform services or functions that are provided in both the public and private sectors. A uniquely governmental service or function, almost by definition, cannot be one where the private sector has traditionally occupied a substantial part of the field. Private educational contractors, for example, are not public officials.
To the extent that the definition of public servant is capable of both a broad and narrow construction, the Court must apply the narrow one in interpreting a criminal statute. Further, due process requires that citizens be given adequate notice of what the law proscribes. The Court’s conclusion that a function or service performed equally by the private sector and the government is neither the exercise of uniquely governmental authority nor one exclusive to government in any traditional sense keeps within reasonable and constitutional bounds the scope of the official-misconduct statute.
Although only of persuasive authority, it is noteworthy that EMTs, such as defendant, are not considered state actors for purposes of a civil-rights action under 42 U.S.C. § 1983 because emergency medical services carried out through a voluntary rescue or ambulance squad are not deemed a “public function.”
From a historical perspective, first-aid squad services have not been a traditional governmental function, much less an exclusive one, in contrast to firefighting services. The Court declines to find that Morrison was a “public servant” merely because volunteer EMTs are subject to state regulations and receive certain legislative benefits and tort immunities that encourage citizens to undertake life-saving activities on behalf of the public. The Court notes that hospital workers are subject to similar statutory regulations, yet no one would reasonably suggest that hospital employees are public servants subject to the official-misconduct statute.
The Court disagrees with the Appellate Division majority’s suggestion that “a volunteer first aid and rescue squad that contracts with a municipality to be the sole or predominant provider of [emergency medical] services” in that municipality may perform a sufficiently exclusive governmental function to transform its EMTs into public servants. The happenstance of whether there are one or more non-profit providers of publically funded emergency medical services in a municipality does not alter the equation that the EMTs are not exercising a uniquely governmental authority or performing a function exclusive to government in any traditional sense. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant.
