In August 2011, an Elizabeth Board of Education member told two lawyers employed by the district that his wife understated their household income on an application filed that would have entitled his children to receive free and reduced-cost meals for the school year about to begin in September.
The attorneys directed school staff to remove the application and delete it from a computer used to administer the program.
As a result, that false application was not provided to state investigators who issued a subpoena for all records related to the lunch program going back to 2004.
When a third lawyer advised them to put the false application back in the school district’s files, it was too late to avoid the appearance of a cover up and now Frank Capece, 64, of Cranford, and Kirk Nelson, 48, of Roselle, are going to trial on criminal charges stemming from the incident.
The attorneys are each charged with two counts of official misconduct, conspiracy, tampering with public records or information, tampering with or fabricating physical evidence and hindering apprehension or prosecution.
In pretrial paperwork filed in Superior Court, Capece’s attorney, Robert DeGroot, argued that the defendants “had a duty to remove Donoso’s lunch application after they learned it was fraudulent.”
Failure to remove the application would have amounted to conspiracy to commit fraud, DeGroot said.
In response, state Deputy Attorney General Veronica Allende claimed Capece and Nelson removed the application from school files on Aug. 30, one week after the state had subpoenaed those records.
Nelson’s attorney, Timothy Donohue, said in legal documents that his client had Donoso’s lunch application, but he returned the application to the school based on advice from another lawyer, Michael D’Alessio, who the school board had hired to address the subpoenas.
Prosecutors counter that Nelson only acted on D’Alessio’s advice in December 2011, months after the school board had turned over records in response to the subpoena.
On a motion from defense lawyers, there will be separate trials for Capece and Nelson.
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