School Board Attorneys Indicted for Complicity in Free-Lunch-Plan Scam

, New Jersey Law Journal

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Two lawyers representing a New Jersey school board were indicted Monday on charges they covered up evidence implicating a member in a fraud on the district’s lunch program.

Frank Capece and Kirk Nelson  allegedly acted on a request from Elizabeth School Board member Juan Donoso amid a state probe into whether members and employees understated incomes to get their children into the program. The investigation led to Board President Marie Munn’s arrest on Sept. 19, 2011, on false-application charges.

Donoso allegedly told the lawyers that his wife, Olga Oviedo-Arevalo, had not accurately filled out their son’s lunch form for the 2011-12 school year and  said he wanted to pay for the meals so he did not end up like Munn.

Board lawyer Nelson, a Scotch Plains solo, and outside counsel Capece, of Garrubbo & Capece in Westfield, allegedly instructed an employee to pull the application from the files so it was not included with records turned over in response to a state police subpoena for applications filed from 2004 to 2011. Afterward, they allegedly arranged for it to be refiled, and the Donoso children’s status was switched from free to paid in the computer system.

“Rather than fulfilling their obligation as lawyers to uphold the law, Nelson and Capece allegedly obstructed a criminal investigation to satisfy their client,” Division of Criminal Justice Director Elie Honig said.

A state grand jury charged Capece and Nelson with second-degree conspiracy and official misconduct, third-degree tampering with public records and physical evidence, and fourth-degree hindering prosecution.

Both lawyers pleaded not guilty. They face five-year jail sentences without parole and could pay fines of $150,000 if convicted.

Nelson was served with a criminal complaint and summons last April, and when he showed up in court, was released on his own recognizance.

Things went a little differently with Capece. The Attorney General’s Office says that when state police detectives tried to serve him at his house, he refused to answer the door and yelled at them from a second-story window to get off his lawn, saying he would meet them at his office. But he did not show up when promised, so a warrant was issued and he was arrested at the office later, then released on $7,500 bail.

Capece referred a request for comment to his attorney, Robert DeGroot of Newark, who said Capece acted honorably and in good faith, stands by his plea and “will vigorously defend his good name, his years of public service from these charges.”

Capece’s sole involvement upon learning Donoso’s wife had inaccurately sought school lunches was to recommend withdrawal of the application, and he “did everything he could to rectify the inaccuracies,” DeGroot said.

“Instead of recognizing Mr. Capece’s good faith attempt and recommendation to withdraw the application, the State has elected to give a sinister meaning to every action,” he added, noting the records were kept by others and compliance with the subpoenas was under the control of others.

Nelson did not return a call and his lawyer, Timothy Donohue of Arleo, Donohue & Biancamano in West Orange, could not be reached.

Donoso was also indicted, charged with the same crimes as the lawyers except for conspiracy.

The indictments were handed up to Mercer County Superior Court Judge Thomas Sumners Jr., who transferred the matter to Union County.

Oviedo-Arevalo, who claimed her household income was only $13,000 when it exceeded $50,000, was charged with filing false applications but was admitted to pretrial intervention in August and paid $1,700 in restitution.

Munn has since stepped down as board president and her trial is scheduled for Jan. 27.

Capece, Perth Amboy’s city attorney  from 2005 to 2008, was a Corporation Law Revision Commission member from 1978 to 1982, and served on the Supreme Court Committee on Professional Corporations in 1981.

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