An employee of the North Bergen Board of Education brought suit against the Board alleging, among other things, a violation of the Conscientious Employee Protection Act and the Law Against Discrimination.  During the course of the civil action, it was revealed that the plaintiff unlawfully possessed “hundreds” of documents owned by the Board.  The Board notified the County Prosecutor who presented the matter to the grand jury.  The plaintiff was charged with official misconduct and theft.

In State of New Jersey v. Saaverdra, (A-1449-12T4) the defendant former employee appealed the denial of her motion to dismiss the indictment against her which charged her with official misconduct and theft.  In moving to dismiss the indictment, the defendant argued that she had taken the documents for a lawful use and therefore was protected under the Supreme Court’s holding in Quinlin v. Curtiss-Wright Corp.  The Appellate Division affirmed the denial of the motion stating that Quinlin neither created a bright-line rule sanctioning an employee’s wholesale removal of documents belonging to one’s employer nor held that such removal was per se lawful.  While the trial court performed the seven-part Quinlin analysis “out of an abundance of caution”, the Appellate Division confirmed that the analysis was unnecessary in the course of the criminal matter as the Supreme Court did not intend that Quinlin act as a basis for challenging a criminal indictment.

The Appellate Division also rejected defendant’s argument that permitting the indictment to stand would have a “chilling effect” on potential LAD claims finding that the defendant had not demonstrated that the documents she took represented the “smoking gun” evidence necessary to prove her civil claims or that these documents would have otherwise been unobtainable through the ordinary course of the discovery.  In short, the Appellate Division reiterated the Supreme Court’s cautionary language that employees run a significant risk that the conduct in which they engage when misappropriating employer’s property, will not fall within the protections of Quinlin.