Q. Is a board legally obligated to notify tenants when a sex offender resides in the building? What do we do?

         —Concerned for the Community

A. “New Jersey led the nation in the fight to notify of potential dangers of sex offenders,” says attorney Eric Brophy of Diegnan & Brophy, which has offices in Morristown and Wall Township. “In fact, Megan’s Law originated in New Jersey following the death of Megan Kanka.  However, the law balances public safety against the rights of the convicted offender, and is not intended to be a blanket excuse to harass offenders.  Therefore, along with the notification regulations, the New Jersey legislature provided careful guidance on how that notification may be utilized.  While notification under N.J.S.A. 2C:7-1, et. seq. ('Megan’s Law') is important to public safety, it comes with restrictions.

“Initially, it is the duty of the chief law enforcement officer of the municipality in which the offender intends to reside to provide notice to the public as required by the Attorney General’s guidelines on such notifications.  Offender registration shall also be made available and published on a central internet registry maintained by the New Jersey State Police.  N.J.S.A. 2C:7-13.  This registry shall be made available to the public.

“However, notice and the accompanying online registry does not infer any affirmative rights to residents that live near convicted offenders.  In fact, Megan’s Law permits the use of information gleaned from notification “. . . in any manner by any person or by any public, governmental or private entity, organization or official, or any agent thereof, for any lawful purpose consistent with the enhancement of public safety.”  N.J.S.A. 2C:7-16(a).   Information may not be used “. . . for the purpose of applying for, obtaining, or denying any of the following. . . (1) health insurance; (2) insurance; (3) loans; (4) credit; (5) education, scholarships, or fellowships; (6) benefits, privileges, or services provided by any business establishment, unless for a purpose consistent with the enhancement of public safety; or (6) housing or accommodations.” N.J.S.A. 2C:7-16(c).

“Therefore, it can reasonably be argued that where an imminent threat to public safety does not exist, there is no right to disclose information regarding notification of a Megan’s Law offender where it would affect 'benefits, privileges, or services by any business establishment' or 'housing or accommodations.'  It can further be argued that common interest properties could be considered a 'business establishment' where it confers rights and benefits to its unit owners and residents.  Moreover, any interference with an offender’s 'housing or accommodations,' such as those that arise from living in a common interest property could be considered a use of information violation under Megan’s Law. 

“This is not to say that a family does not have a right to protect itself and/or its children from potential sexual offenders.  Those rights, however, are limited to discussions between and amongst family members of the same household.   In short, the fact that a sex offender lives in your neighborhood or building gives no right to broadcast that fact publicly.  Doing so may result in criminal charges against anyone that does provide such information to the public.  In short, 'Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information disclosed pursuant to this act, the Attorney General, or any county or municipal prosecutor having jurisdiction, or any person aggrieved by the misuse of that information is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of and in addition to any other remedies or procedures that may be available under other provisions of law.'  N.J.S.A. 2C:7-16(d).  

“In consideration of the current state of Megan’s Law in New Jersey, a board has neither the right nor the obligation to advise shareholders of the presence of a convicted sex offender living within the building.  In fact, disclosing such information to shareholders may result in civil and/or criminal penalties.  Notwithstanding, it is always advisable to contact board counsel to discuss each situation as not every circumstance may be included in this analysis.”