Judge rules BOE winner can retain her seat

BLOOMFIELD, NJ — A judge in Newark has decided not to void the candidacy or force the removal of a newly elected Bloomfield Board of Education member whose proof of residency had been challenged.

In court papers issued Monday, May 8, Office of Administrative Law Judge Leslie Celentano said that although a significant question remains as to whether BOE member Gladys Rivera was domiciled in Bloomfield for the requisite one year prior to running for office in Nov. 2016, she did not believe that Shane Berger, who petitioned the court to hear his challenge, sufficiently proved otherwise.

Three three-year BOE seats were contested in November 2016 and Berger, an incumbent, was a candidate seeking his third consecutive term. Rivera was an unknown prior to the election who stayed out of the public eye and did not campaign. Nonetheless, she captured a seat with 4,258 votes. Berger came in fourth, out of the running, with 2,670 votes.

At the hearing, Berger was represented by Ciro Spina III; Rivera was represented by James Key.

Celentano said that, as a threshold matter, Rivera must have met the necessary residency requirement to be permitted to run for office by the County Board of Elections. But Celentano said the question was not a matter of a person’s residency but where they are domiciled.

“It is well-settled that a person can have more than one residency but only one domicile,” she said. “The domicile of a person is where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning, and from which he has no present intention of moving.”

Celentano heard testimony from 11 witnesses on Feb. 7, 2017, including the director of a detective agency hired by Berger, a Bloomfield Police lieutenant, Rivera, her finance, and Berger.

The witnesses offered a number of addresses in Elizabeth where Rivera had lived, or addresses in Elizabeth and Bloomfield where she was receiving her mail. To this was added the dates when she changed her voter registration and driver’s license, or was seen moving furniture into an Ampere Parkway apartment — the address on her candidate’s petition — or moved into that apartment to be with her finance.

Celentano said the basis for Berger’s challenge was threefold: that Rivera did not receive bills or any other mail at the Ampere Parkway address; that she was registered to vote in Elizabeth until March or April 2016; and that she changed the address on her driver’s license in April 2016.

But Celentano said Rivera presented credible testimony that she did not receive mail at her Ampere Parkway address because she thought someone was tampering with it. Celentano also said the date when a person changes their voter registration or driver’s license does not prove where they are domiciled and Berger’s attempt to prove otherwise was insufficient.

Citing case law, Celentano said that a person’s address will be presumed to be where they allege it to be unless proved otherwise.

Celentano said her decision may be adopted, modified or rejected within 45 days by the commissioner of the department of education “who by law is authorized to make the final decision in this matter.”

In a telephone interview, Berger said he was disappointed but happy the proceeding were over.

“I’m very proud of the job Ciro Spina did, especially during cross-examination,” Berger said. “I wish Gladys Rivera and the board of education all the luck in the world. It’s time to move on.”

In a brief telephone interview, Key said, “Justice was served.”