On appeal from the Superior Court, Law Division, Gloucester County, Indictment No. 99-11-00191-S.
Before Judges Pressler, Wallace, Jr. and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2002
Defendants James I. Mason and Sydelle Mason were charged in a four-count indictment with conspiracy, theft by deception, misconduct by corporate officials and official misconduct. The Law Division judge granted their motion to dismiss count four of the indictment, which charged them with official misconduct and the State's motion for reconsideration was denied. We granted the State leave to pursue this interlocutory appeal from the dismissal of count four. We affirm.
An indictment should only be dismissed when it is "manifestly deficient or palpably defective," State v. Hogan, 144 N.J. 216, 229 (1996), citing State v. Wein, 80 N.J. 491, 501 (1979), and then only when the grounds for the dismissal can be described as the "clearest and plainest." State v. Perry, 124 N.J. 128, 168 (1991), quoting State v. New Jersey Trade Waste Assn., 96 N.J. 8, 18-19 (1984). Moreover, where the "indictment alleges all the essential facts of the crime, the charge is sufficiently stated and the indictment should not be dismissed unless its insufficiency is 'palpable.'" State v. New Jersey Trade Waste Assn., supra, 96 N.J. at 19, quoting State v. LaFera, 35 N.J. 75, 81 (1961).
Nevertheless, "the decision whether to dismiss an indictment lies within the discretion of the trial court," State v. Hogan, supra, 144 N.J. at 229, citing State v. McCrary, 97 N.J. 132, 144 (1984), and in the absence of an abuse of that discretion, we will not disturb the determination of the trial court. Ibid., citing State v. Weleck, 10 N.J. 355, 364 (1952). Indeed, where the indictment is factually unsupported either on its face or in the grand jury proceedings, the dismissal is appropriate. See State v. Moscato, 253 N.J. Super. 253, 260 (App. Div. 1992), certif. denied, 130 N.J. 6 (1992); State v. Vasky, 218 N.J. Super. 487, 490-91 (App. Div. l987).
James Mason is the Chairman and President of the Board of Trustees and is also the Chief Executive Officer (CEO) of Archway Programs, Inc. (Archway), a non-profit corporation serving the needs of persons with certain disabilities. Archway provides a variety of services for disabled children and their families and for disabled adults, at locations in Pennsylvania and New Jersey. It provides services through its three divisions, the Early Childhood Division, the Human Services Division and the Education Division. Its programs are funded by a combination of public sources, grants, and private fund- raising efforts. Much, but not all, of the funding for the programs in its Education Division comes from tuition paid by local school districts which place handicapped students in the school operated by that division. Sydelle Mason, who is the wife of James Mason, was first a teacher and then the Executive Director of the Early Childhood Division, until September 24, 1996, when she was promoted to the position of Chief Operating Officer of Archway.
Prompted by an anonymous letter in 1995, the Department of Education (DOE) conducted an audit and then an investigation into the finances of the Education Division. The DOE contends that the investigation uncovered fraud and mismanagement in the operation of the programs in that division, including diversion of funds from that division through Archway to pay the personal obligations of the Masons and reallocation of salaries of personnel who did not work for that division to that division's budget. These charges against that budget allegedly resulted in inflated tuition rates charged to public school systems that had placed children in the Archway Educational Division. Both James Mason and Sydelle Mason were indicted in 1998 and resigned their positions thereafter.
The only issue in this interlocutory appeal is whether the Masons are public servants, for if they are, then they were appropriately charged in count four of the indictment with the crime of official misconduct and if they are not, then that count was properly dismissed. More particularly, the issue before us is whether the officers of a private, non-profit corporation that provides educational programs for handicapped students placed there at public expense are public servants or whether they are merely government contractors and thus not properly characterized as public servants.
The crime known as official misconduct is defined in N.J.S.A. 2C:30-2 as follows: 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; or b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree.
Official misconduct therefore "has three elements: (1) the defendant is a public servant, (2) who committed an act relating to his office, (3) with purpose to benefit himself or deprive another of a benefit." State v. Bullock, 136 N.J. 149, 153 (1994). A public servant is defined as "any officer or employee of government . . . and any person participating as a 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).
In general, misconduct in office or official misconduct is defined as unlawful behavior in relation to official duties by an officer entrusted with the administration of justice or who is in breach of a duty of public concern in a public office. State v. Winne, 12 N.J. 152, 176 (1953). Public office has been defined to mean "a place in a governmental system created or recognized by the law of the state which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties." State v. Williams, 189 N.J. Super. 61, 66 (App. Div.), certif. denied, 94 N.J. 543 (1983) (quoting Fredericks v. Board of Health, 82 N.J.L. 200, 201 (Sup. Ct. 1912)). We have previously drawn a distinction between one who is a public official or government officer and one who merely performs services pursuant to a government contract, holding that only the former can appropriately be charged with official misconduct. Ibid.; see also State v. Indelicato, 87 N.J. Super. 566, 569 (Law Div. 1965). A contract by its very nature is ...