Posted on Friday, August 7th, 2015.
Public Employees May Face Criminal Prosecution for Stealing
Confidential Documents From Public Employers
Five years ago, the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010) held that an employee’s removal of confidential documents from his or her employer may, depending on a totality of the circumstances, constitute a protected activity under the New Jersey Law Against Discrimination (LAD). However, the Court recently clarified that the Quinlan case does not apply to public employees, who illegally remove or copy confidential documents from their public employers, either before or after filing a lawsuit against the employer. In State v. Saavedra, 2015 WL 3843764 (N.J. June 23, 2015) the Court held that the standard set forth in Quinlan does not govern criminal prosecutions of public employee misconduct.
In Saavedra, the defendant, Ms. Saavedra, was employed by the North Bergen Board of Education as a clerk. During the course of her employment, Saavedra removed three hundred and sixty seven original student files or copies of those files, without permission from her employer. In 2009, she filed a lawsuit against the Board, alleging “violations of the law and public policy,” among other things, and retaliation based on her complaints and because of her race, gender and ethnicity. Her retaliation claims against the Board were based on the Board’s conduct against her son, who was also a Board employee, and was terminated by the Board.
During discovery in the case, Saavedra’s lawyer produced the confidential student records to the Board, which was previously unaware that the records had been taken by Ms. Saavedra. The Board then turned the matter over the County Prosecutor, who subsequently filed criminal charges for official misconduct and theft by unlawful taking of public documents. Saavedra moved to dismiss the indictment against her, arguing that the prosecutor failed to present a prima facie case against her, that the criminal charges against her “contravene[d] the anti-discrimination policies of the LAD, CEPA, and the Court’s decision in Quinlan, and that it authorize[d] employers to circumvent the Quinlan balancing test by reporting an employee’s collection of documents as a theft to a prosecutor.” Id. at *5 She also argued that the official misconduct and theft statutes were constitutionally infirm for vagueness. Id.
The New Jersey Supreme Court affirmed the lower courts denial to dismiss the indictment against Saavedra. The Court first held that the state sufficiently established a prima facie case for official misconduct by a showing of evidence for the requisite four factors: (1) defendant was a “public servant” within the meaning of the statute (2) who, with the purpose to obtain a benefit or deprive another of a benefit, (3) committed an act relating to but constituting an unauthorized exercise of her office, (4) knowing that such act was unauthorized or that she was committing such act in an unauthorized manner. Id. at *7 The Court found that the state established every element, including the last one, because it had presented sufficient evidence to the grand jury that Board employees were trained and informed that the documents at issue were highly confidential and must not be tampered with. Id. at *10
The Court also distinguished Saavedra’s case from Quinlan, holding that nothing in the record suggested that Saavedra was motivated by Quinlan when she removed the student records. The Court further held that the normal discovery process would have produced any relevant materials in Saavedra’s case, including student records (assuming they were relevant) and that:
[the] Court’s decision in Quinlan did not endorse self-help as an alternative to the legal process in employment discrimination litigation. Nor did Quinlan bar prosecutions arising from an employee’s removal of documents from an employer’s files for use in a discrimination case, or otherwise address any issue of criminal law…. the Court never suggested, however, that its ruling in Quinlan extends to any question of criminal law. It expressly recognized that “employers legitimately expect [ ] that they will not be required to tolerate acts amounting to self-help or thievery.” In short, nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his or her employer’s documents for use in a discrimination case.
[Id. at *16-17]
Finally, the Court held that the due process standards are met in the official misconduct and theft by taking standards.
The Saavedra case is noteworthy because it emphasizes that public employees could still face criminal prosecution for certain conduct in the workplace, even if the employee alleges that the conduct is a protected activity under the LAD.