This case presents the novel question of whether a member of the Society for the Prevention of Cruelty to Animals (S.P.C.A. or Society) is a "public servant" for the purposes of the Official Misconduct statute, N.J.S.A. 2C:30-2. The issue is one of first impression in this state, and research has not revealed a case on point in any other jurisdiction.
The facts as alleged in the grand jury presentation are uncomplicated. The defendant, Fred Vickery, served as a captain in the Edison Township Fire Department, and as a member of the S.P.C.A. Together with another individual, defendant owned and managed a discount retail store known as "Groceries for Less." In 1991, defendant approached personnel at an A & P warehouse and identified himself as a captain in the Edison Fire Department and a member of the S.P.C.A. He solicited donations of salvaged pet food for the "Edison Humane Society," a fictitious organization. Testimony indicated that the A & P personnel would not have donated the merchandise had defendant not been an S.P.C.A. member.
The state contends that the items received by the defendant did not go for any legitimate S.P.C.A. purpose, but rather were offered for sale at Groceries for Less. Defendant has been charged with theft by deception and official misconduct. He moves to dismiss the charge of official misconduct on the ground that he is not a public servant, and thus does not fall within the purview of the official misconduct statute.
N.J.S.A. 2C:30-2 provides that:
A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:
a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.
The crime of official misconduct has three elements: 1) that the defendant was a public servant at the time alleged in the indictment; 2) that he committed an act relating to his office knowing that it was unauthorized; and 3) that the defendant's purpose was to benefit himself or another.
N.J.S.A. 2C:27-1(g) defines a public servant as "any officer or employee of government, . . . and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses." This is a very broad definition, and for the reasons stated below, I find that it would include S.P.C.A. members under the circumstances sub judice.
The apparent purpose of the misconduct statute is to prevent the abuse of government power for personal benefit. A relevant question for the resolution of this issue then, is whether S.P.C.A. members occupy positions carrying governmental authority, and whether the opportunity exists for abuse of that authority.
Unlike most charitable organizations, the role of the S.P.C.A. is formally acknowledged and established by statute.*fn1 N.J.S.A. 4:22-1 authorizes the incorporation of the S.P.C.A. and empowers it to enforce all laws enacted "for the protection of dumb animals." N.J.S.A. 4:22-4 provides for assistance to the S.P.C.A. by other government agencies, such as police forces, in carrying out these duties. Examination of some of the specific powers granted to the S.P.C.A. makes clear that it performs a government function.
In the course of their duty to enforce the law, S.P.C.A. members may make arrests and apply for warrants. N.J.S.A. 4:22-44(a) authorizes members of the S.P.C.A. to make arrests for violations of the laws protecting animals. Subsection (b) provides that if a violation of the law occurs in the presence of an S.P.C.A. member, he or she may make an arrest without a warrant, and bring the perpetrator before the nearest Judge or magistrate. While subsection (a) does not say so explicitly, the clear inference is that it refers to arrests made pursuant to a warrant. N.J.S.A. 4:22-50.1 reenforces this presumption. It provides for appointing a receiver for animal shelters when their owners or operators are arrested for violations of the law by an agent of the S.P.C.A., "or when the warrant is issued for the arrest."*fn2
In addition, under N.J.S.A. 4:22-47, S.P.C.A. members may enter buildings where fighting or baiting of live animals is taking place. They may arrest without warrant all persons present, take possession of all animals being used, and apply to a court for their forfeiture.*fn3 The persons authorized to act under N.J.S.A. 4:22-47 are "sheriff[s], undersheriff[s], constable[s], police ...