NEW BRUNSWICK, NJ—State law requires at least 60 days notice to hold an election. So for January 22's election to have been properly noticed, the board of education would have had to be give notice to the City Clerk and Middlesex County Board of Elections by November 23.
The only problem? That would be impossible because no one knew if New Brunswick's board of education would be elected or appointed until the results of a November 6 referendum were certified on November 29.
The board's secretary Richard Jannarone, who earns $186,188 as business administrator for the district, published a notice in the Home News Tribune on December 13, that was insufficient and deficient in several ways:
- It was published in December 13's newspaper, five days before the board actually met and took action to schedule the election, but was still nineteen days short of the meeting the sixty-day requirement.
- It was published with the wrong title, making it seem like there was a special "meeting" of the board instead of a special election.
- It directs interested parties to contact the County Clerk's office for more information, where they were then given misleading information about the deadline to submit petitions.
Additionally, a required notification to the city clerk's office was never received, meaning the newspaper notice was the only official way for residents to know there was an opportunity to run for school board.
Here's the full-text of that notice:
SPECIAL BOARD MEETING NOTICE
NEW BRUNSWICK BOARD OF EDUCATION
The New Brunswick Board of Education is holding a Special School Election on January 22, 2013. The election will be to select two more members of the board of education. One board member will elected to a one-year term to expire in 2014 and the other board member will be elected for a two (2) year term to expire in 2015. The election will be held from 7:00am to 9:00pm. Residents can vote at their standard polling locations. Nominating Petitions are available at the County Clerk's Office, call 732-745-4202.
When NewBrunswickToday.com first began reporting on the deeply flawed election that would send the first-ever elected members to the city's school board, County Clerk Elaine Flynn blamed Jannarone.
"He was a nervous wreck," Flynn said, adding that he struggled with the five-sentence announcement because it was his first time supervising an election.
But Flynn, an elected Democrat who makes $123,388 as the County Clerk, is not entirely blameless. Her office distributed candidate's petitions that also had an incorrect title, and more importantly, an incorrect deadline.
This deadline was initially enforced, and all four candidates who submitted timely petitions were led to believe petitions had been closed at 4pm on December 21.
Then, on Christmas Eve, as Elections Supervisor Dee Anderson began a previously scheduled vacation, Flynn and County Counsel Tom Kelso accepted two additional petitions from candidates supported by the political machine that both officials are so very active in.
But just as Flynn relied on the advice of Kelso, Jannarone and the board of education relied heavily on the advice of two different attorneys.
George Hendricks, the board's longtime attorney, struggled to answer questions about the irregularities at a February 19 board meeting, as we reported this week.
But the wild card is "special counsel" Anthony Vignuolo, a former New Brunswick judge, prosecutor, and zoning board attorney who was unexpectedly hired for a one-time $7,500 fee to advise the board of education on its transition from a mayor-appointed to elected.
In a brief phone interview, Vignuolo told NewBrunswickToday.com he was hired at the request of Schools Superintendent Richard Kaplan, who makes $235,400 annually to run the city's failing school district.
But there's not much else to go on. Vignuolo has never shown up at a board of education meeting, and unlike Kelso and Hendricks, has refused to answer questions from the public about the problems with New Brunswick's election.
When we first asked Vignuolo about the irregularities, he claimed he had no responsibility to answer to anyone except Kaplan.
"I was retained by the Superintendent. I don't work for New Brunswick Tomorrow or New Brunswick Today or whatever your company is called," he said.
Hendricks jumped to Vignuolo's defense when his work was criticized by the author of this article at a February 19 board meeting.
"His advice to us was appropriate under the statute," said Hendricks.
He continued, "Mr. Vignuolo, so you know, represents about four or five boards in this district, is a distinguished attorney in school boards and school board elections, and he gave us the best advice that he thought was available and we followed it."
According to his firm's website, Vignuolo currently represents the North Brunswick Board of Education, Middlesex County Vocational and Technical Schools, and Middlesex County Educational Services Commission.
Of those, only North Brunswick's district holds school board elections.
Vignuolo is a senior partner at a North Brunswick law firm and was admitted to practice before the United States Supreme Court in 1978.
But Hendricks doesn't fault Vignuolo for the deadline confusion. Instead, he places the blame squarely on the county government for putting out the wrong deadline and leading the public to believe the petition process was closed on December 21.
"The County Clerk messed it up saying the deadline was December 21st… The 21st was published by the county–not by the school district–and the county was wrong," said Hendricks.
"We knew the county made a mistake and I was on top of that to tell them that they were wrong, and Mr. Vignuolo told them that they were wrong… To close the petitions on Friday was legally incorrect," he said.
Kelso said that it was, in fact, Vignuolo who called him on the day of the advertised petition deadline to let him know it needed to be extended.
"I received a phone call from Anthony Vignuolo, the attorney–special counsel for the New Brunswick Board of Education on Friday the 21st, who indicated to me that the deadline of the 21st was not accurate and was contradictory to law," Kelso began.
Kelso also said the deadline should have been Christmas Eve all along, because when a deadline falls on holiday or weekend, the benefit of the doubt always extends the deadline to the next business day.
Though he may be correct about that, it's hard to imagine how he, Hendricks, and Vignuolo, three of the most highly-respected attorneys in the county, failed to catch this fundamental error until the eleventh-hour.
Vignuolo's employment with the board was approved on the evening of December 18, but Hendricks said that night that he had already been consulting with Vignuolo.
After publishing the first three parts of our series, we gave Flynn, Kelso, Jannarone, and Hendricks an opportunity to respond.
For his part, Kelso was the only one who got back to us. His secretary, Sandra Costa, sent us an official statement from the county counsel's office within hours of our request.
That statement walked back comments made by Kelso during a televised January 17 meeting of the Middlesex County Board of Chosen Freeholders.
That night, Kelso admitted that "there has to be a minimum sixty days notice for any type of election, in this case a special school board election."
He also said, "It was Friday. The deadline was extended to Monday."
But his office has now taken a surprising stance that the petition deadline was never changed at all.
Here is the full statement, with our questions in bold:
Who specifically is to blame for the New Brunswick special school board election petition filing deadline needing to be changed so late in the game?
Your characterization of the filing deadline being changed is inaccurate. No filing deadline was ever published. The County Clerk’s Office initially thought petitions could be accepted by them only through Friday, December 21, 2012. However, upon consultation with County Counsel Thomas Kelso, the County Clerk authorized the acceptance of petitions through Monday, December 24, 2012 in order to comply with the public’s right to have 10 full days for any citizen to submit a petition to seek the elected office. This legal opinion was directed to the County Clerk after consultation by Mr. Kelso with Mr. Anthony Vignuolo, special counsel to the New Brunswick School Board and after review of the laws applicable to the situation.
Why was no formal notice given of the change?
No formal notice was necessary since no formal deadline date was ever published. The County Clerk was authorized to accept any valid petition submitted by any citizen entitled to seek the elected office if submitted before the close of business on December 24, 2012 in order to allow the full 10 days allowed for such submission.
Does Mr. Kelso have a comment or response to the following three articles I have published this week?
Any reference in your stories to the special election being illegal are incorrect. The election was scheduled in full conformance with the laws governing special school board elections. Any reference in your stories to Mr. Kelso suggesting that a 60 day notice of this special election was required were misunderstood or misinterpreted.
Our final episode of "Democracy Undermined" includes the full video of Kelso's remarks on January 17, compared with his office's official criticisms of our reporting.
Since being elected in a landslide, Ronald Hush and Diana Fajardo have not returned numerous email and telephone inquiries from NewBrunswickToday.com.
They remained silent on the issue as the election irregularities were discussed at their first meeting in office.
Editor's Note: This is the fourth of a four-part series that explores New Brunswick's historic yet illegal school board election held on January 22, 2013.
Rest assured this is not the end of this story. We will continue to question our public officials about this apparent undermining of our city's democratic elections.
If you have any tips or would like to join our team, please contact us at [email protected].