ORANGE, NJ — Orange City Council may be going back to court against Mayor Dwayne Warren and the Orange Board of Education regarding whether the city should switch from a Type 1 public school district with a Board of Education appointed by the mayor to a Type 2 district, where voters directly elect who they want to serve on the board.
The Orange City Council majority recently voted against a revised resolution proposed by at large Councilwoman Donna K. Williams at the meeting on Thursday, July 6. It would have restarted the referendum process, eventually leading to another public question on whether or not to change from a Type 1 district to a Type 2 district. City Council used a recent legal opinion from city attorney Eric Pennington’s office to justify its decision. Orange Board of Education special attorney Stephen Edelstein, who successfully argued the current appointed board’s case against switching from a Type 1 district to a Type 2 district and convinced Superior Court Judge Tom Vena to overturn the results of the public question regarding the change that appeared on the presidential election ballot on Nov. 8, 2016, agreed with Pennington and the council majority.
But now former Zoning Board member and 2016 mayoral candidate Janice Morrell and others in Orange said they have proof that Pennington was wrong and the city can go ahead with the plan to change from a Type 1 district to a Type 2 district.
“Read Page 21 of Vena’s ruling,” said Morrell on Thursday, Aug. 17. “Vena clearly states that another election could be held in November 2017, contrary to that which Pennington and Edelstein stated at the council meeting.”
On Page 21 of Vena’s ruling, he states that granting the “injunctive relief” Edelstein asked for would not “undercut the will of the voters.” He went on to state: “Rather, in accordance with the right to vote indeed being sacred, it merely seeks to confirm the voters’ will in a way that is fair to all parties involved.”
“Fairness is best ensured by transparency and the referendum in question was not transparent as written,” said Vena in his ruling. “Moreover, the notion that voters will be burdened by a revised referendum being placed on the November 2017 ballot is far-fetched, at best. It is one additional consideration to be voted upon in an annual election. With respect to the appropriateness of judicial intervention, the court is satisfied that the lack of information in the referendum interfered with a knowledgeable expression of popular will, so as to warrant judicial action under Wene.”
Vena’s ruling seems to undercut the legal theory behind the legal opinion that Pennington and Edelstein’s used to sway the council at its meeting on Thursday, July 6. The recent opinion cited was contained in a letter from Pennington’s office to Williams and other council members informing them that, according to the legal interpretation of existing state law by one of the lawyers in his office, presumably attorney Gracia Montilus, Orange residents have to wait for years before they can try to change from a Type 1 to a Type 2 district again, because they already tried to do it and failed when Vena overturned the results of Public Question No. 1 from the 2016 presidential election ballot, which automatically voided the results of the Orange Board of Education’s special election on Tuesday, March 28, that sought to elect two new school board members for the first time ever in Orange, in order to increase the number of board members from seven to nine, to comply with the requirements of a Type 2 district.
Edelstein said the four-year ban didn’t come from Vena’s ruling on Thursday, April 13; it comes from state law in the form of 18-A-9-5.
“It doesn’t matter that the outcome of the election was voided, because the fact of the matter is that the legislative history of this statute is that it is a financial statute,” said Edelstein on Thursday, July 6. “It attacks the evil of having a repetitive cost for the same election. There is no question in my mind, none, and I gather, although it has never been shared with me, that it sounds like the corporation counsel comes out in the same place on this, that it would be flatly unlawful for this council to place this on the ballot a second time within four years. It would create an unnecessary cost to the school district of more than $40,000, because the cost of elections never go down; they only go up. And since there was a criticism by the court of the lack of public education about the referendum, I’m sure that there would be additional costs there as well. So I’m here to implore you, on behalf of the school district, not to turn this into ‘Groundhog Day.’ Let’s not do this again. There is a time and place that this referendum can be heard, but this is not the time. Four years from November 2016 is the time.”
Williams and her former Home Team running mate, current at large Councilman Christopher Jackson, however, disagreed with Pennington’s office’s legal opinion. They said they believed that, when Vena overturned the results of Public Question No. 1 on the 2016 presidential election ballot and voided the Orange Board of Education’s special election on Tuesday, March 28, what he really intended was for the city to go back and start the effort to change from a Type 1 district to a Type 2 district all over from scratch, with a new referendum that remedied all of the deficiencies with the original referendum question and its accompanying explanation that Edelstein had pointed out in his brief, seeking an injunction from the court to stop the change with which the judge ultimately agreed.
But according to Page 21 of Vena’s ruling, he didn’t say Orange couldn’t do another referendum in time for the upcoming general election on Tuesday, Nov. 7.
Orange still at issue regarding elected vs. appointed BOE added by Chris Sykes on
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