State v. Morrison

• Decision Date: 14 December 2016
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Brandon T. MORRISON, Defendant–Respondent.
• Court: New Jersey Supreme Court

227 N.J. 295
151 A.3d 561

STATE of New Jersey, Plaintiff–Appellant,
v.
Brandon T. MORRISON, Defendant–Respondent.

Supreme Court of New Jersey.

Argued September 27, 2016
Decided December 14, 2016

Bethany L. Deal, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney).

Brenda R. Maneri argued the cause for respondent (Sitzler & Sitzler, attorneys).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiaeAttorney General of New Jersey (Christopher S. Perrino, Attorney General, attorney).

JUSTICE ALBIN delivered the opinion of the Court.

227 N.J. 299

In this appeal, we must determine whether a volunteer emergency medical technician (EMT), working for a private, nonprofit 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).

Pemberton Township contracted with the Pemberton First Aid and Rescue Squad (Pemberton Rescue Squad)—a private, nonprofit organization—to provide back-up emergency medical services for the municipality. Defendant Brandon Morrison served as a volunteer EMT on the Pemberton Rescue Squad and as the

227 N.J. 300

Squad's treasurer. Defendant was charged with official misconduct and other crimes for misappropriating the Squad's funds.

The trial court found that defendant did not meet the statutory definition of public servant, N.J.S.A. 2C:27–1(g), an essential element of official misconduct, because he was not performing a governmental function as a volunteer EMT. The trial court dismissed the official-misconduct charge, and a panel of the Appellate Division affirmed in a split decision.

151 A.3d 564

We now hold that a volunteer EMT, who works for a private, non-profit first-aid squad that provides contractual services to a municipality, is not performing a governmental function within the meaning of N.J.S.A. 2C:27–1(g), and therefore is not a public servant for purposes of the official-misconduct statute, N.J.S.A. 2C:30–2(a). We come to that conclusion because a private first-aid squad neither performs a service exclusively provided by the government in any traditional sense nor exercises authority of a uniquely governmental nature and because a first-aid squad's contract to provide services to a governmental entity does not transform its employees into public servants.

Accordingly, we affirm the judgment of the Appellate Division dismissing the official-misconduct charge and remand for proceedings on the remaining criminal charges against defendant.

I.

A.

A Burlington County grand jury indicted defendant Brandon Morrison on charges of 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).

227 N.J. 301

The Honorable James W. Palmer, Jr., J.S.C., granted defendant's motion to dismiss the official-misconduct charge after a review of the grand-jury hearing and other relevant exhibits. The record before us is primarily derived from the grand-jury testimony that led to the return of the official-misconduct charge.

In October 2011, defendant served as a volunteer EMT with the Pemberton Rescue Squad, which had roughly ten members. Defendant also held volunteer and paid EMT positions in other locales. 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. Primary and secondary emergency medical services for the Township were supplied through the Lourdes Health System, which operated two ambulances, one in service twenty-four hours a day, seven days a week, and the other Monday through Friday from 6:00 a.m. to 6:00 p.m.

The Pemberton Rescue Squad was financed through a $25,000 contract with the Township, fundraisers, and any available federal monies. The Squad's bylaws empowered its chief to expend not more than $200 a month for Squad-related purposes; expenditures exceeding that amount required approval of the entire membership. From 2010 until October 2011, defendant served as the Squad's treasurer and, in that role, maintained the Squad's checkbook. As treasurer, defendant 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, defendant admitted to making unauthorized purchases, but claimed he did so for the benefit of the Squad. Defendant was suspended from his duties.

An investigation revealed that defendant had forged the chief's name on forty-two checks that accounted for expenditures totaling $20,429.79. Some of the checks reflected potentially legitimate purchases, such as payment for the Squad's electric bills. However, many acquisitions bore little or no relationship to the Squad's

151 A.3d 565

227 N.J. 302

activities and were kept at defendant's residence or in his car. The questionable purchases included firefighter gear and police-related equipment, such as several pairs of handcuffs, a flashing dashboard light, an expandable baton, a plastic training gun, two portable radios, a black tactical vest, and a police shield inscribed with the words "joint terrorism task force." With the Squad's funds, defendant equipped his car with emergency lights and sirens. He also bought a laptop and defibrillator that he stored at home. An audit conducted by the Burlington County Prosecutor's Office revealed that defendant made purchases using Squad funds in the amount of $5,345.82 that had no justifiable basis.

B.

In dismissing the official-misconduct charge, Judge Palmer held 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). A critical factor in Judge Palmer's decision was that Pemberton Township did not outsource to the volunteer, non-profit Pemberton Rescue Squad a service that was exclusively provided by the government. He relied on the rationale in State v. Mason , 355 N.J.Super. 296, 300–02, 810 A. 2d 88 (App. Div. 2002), which held that, because government is not the exclusive provider of education, the officers of a private, non-profit corporation educating students at public expense were not public servants subject to the official-misconduct statute. Likewise, Judge Palmer pointed out that the Pemberton Rescue Squad performed a public service similar to those provided by hospitals. Further, he reasoned that merely because the Squad was operating pursuant to a government contract did not mean the Squad members were performing a governmental function transforming them into public servants. Judge Palmer found additional support from federal case law in which private rescue squads were not considered state actors for constitutional-tort purposes, citing Eggleston v. Prince Edward Volunteer Rescue Squad, Inc. , 569 F.Supp. 1344 (E.D. Va. 1983), aff'd without

227 N.J. 303

opinion, 742 F. 2d 1448 (4th Cir. 1984), and Krieger v. Bethesda–Chevy Chase Rescue Squad , 599 F.Supp. 770 (D. Md. 1984), aff'd without opinion, 792 F. 2d 139 (4th Cir. 1986).

C.

The Appellate Division granted the State's motion for leave to appeal. In a per curiam opinion, a divided three-member panel affirmed the trial court's determination that defendant "was not a ‘public servant’ as defined by N.J.S.A. 2C:27–1(g)." The Appellate Division majority posited two questions: whether providing "first aid and rescue services [has] become a function performed by the government" and whether the services rendered by the Pemberton Rescue Squad were "sufficiently ‘exclusive’ in Pemberton Township to render the Squad the equivalent of ‘the government’ in the Township."

The Appellate Division majority acknowledged that emergency medical services are provided by some public entities and by numerous public fire, police, and sheriff's departments. The majority also acknowledged that volunteer members of private first-aid and rescue squads are conferred legislative privileges and benefits, such as tort immunity, workers compensation and public survivor benefits, and public college assistance, and that they exercise some public authority, such as the right to mount emergency warning lights on their vehicles and to change the normal operation of traffic lights.

151 A.3d 566

Although conceding that "governments may not have traditionally provided [emergency medical services]," the Appellate Division majority found noteworthy that, "over the last several decades," the Legislature and municipalities have become involved in ...