By Ron Leir
Observer Correspondent
KEARNY –
On Nov. 6 Deborah Lowry was celebrating her first-time election to the Kearny Board of Education (KBOE), collecting the second highest vote total among 10 candidates vying for three open seats.
Now, however, Lowry’s fighting for the right to take her seat when the board reorganizes on Jan. 3, 2013.
That’s because board attorney David Rubin has concluded that Lowry, a newly retired educational administrator, “is presently barred from service on the board” based on his interpretation of a state school law (N.J.S.A. 18A:12-2) which says that “[n]o member of any member of any board of education shall be interested directly or indirectly in any contract with … the board[.]”
In a 5-4 vote, the KBOE voted to authorize Rubin to file an application with the state Commissioner of Education for an “expedited ruling” as to whether Lowry should be declared ineligible to serve. Rubin said that by law, a school board cannot unseat a trustee.
At stake here is the balance of power on a clearly fractious school board: If Lowry manages to take her seat in January, the four trustees now in the “minority” bloc will gain a fifth ally and become the new “majority.”
In a Nov. 17 memo to the board, Rubin said it’s his opinion that Lowry can’t serve “in light of an ongoing multi-year payout for accumulated unused sick days” that she’s legally due to receive from the board – a total of $114,710 payable in five equal installments starting in July 2011 for 160 unused sick days.
Rubin advised the board he based his conclusion on a 2008 case, Saxton v. Luthman, in which the state Commissioner of Education applied the law to a Toms River school employee “who ran for the school board while he was collecting accumulated sick pay as part of a retirement package.” The Toms River school board challenged the employee’s right to run because of a disqualifying “contract” with the board and the Commissioner sided with the board, Rubin noted.
If the Commissioner rules that the seat should vacated, then, according to Rubin, the vacant seat “doesn’t go automatically to the next highest vote-getter” (who happens to be Daniel Esteves, a nephew of Kearny Mayor Alberto Santos). Instead, Rubin said, state law provides that the vacancy be filled by a majority vote of the newly reorganized board or, if the board can’t agree, by the Executive County Superintendent.
Lowry, who attended the Nov. 19 board meeting, presented a letter to the board in which she contended that the Toms River case differs from her situation because “… I do not have an individual agreement with the Kearny Board of Education, as was the case [in Toms River] …. My payments are under a collective bargaining agreement between the Union and the Kearny Board of Education.”
That argument aside, however, Lowry said the alleged conflict could be “cured” if the KBOE either paid her remaining balance of sick leave — $68,826 – “in one lump sum prior to the January 2013 reorganization meeting…” or deferred those payments “until the end of my three-year term ….”
The board took her proposal under advisement.
Asked her reaction to these developments, Lowry told The Observer: “I’m upset, obviously. … I would like to work with them to solve it but the ball’s in their court.”
Lowry said she was “very taken aback” by the board majority’s move to challenge her being seated. “If there’s an opportunity to cure this ‘conflict’ and they want to do what’s right, fine. I’d like to get it right, too. … I’d like to put this behind me and start working for the betterment of the children in this district.”
Another potentially complicating factor in the Lowry equation is the fact that only the machine votes were counted in the Nov. 6 KBOE contest. Because of Hurricane Sandy’s disruptions throughout the state, Gov. Chris Christie extended the time to tabulate all votes in the November balloting, including absentee, provisional and military ballots.
A tally released on election night by the Kearny Town Clerk’s office showed Lowry with 1,843 votes, Cecilia Lindenfelser (third highest finisher) with 1,830 and Daniel Esteves with 1,765. Esteves has asked the county Board of Elections for a “recheck” of the machine totals. A recount can’t be done until all the other ballots have been counted. It remains to be seen whether a final count will affect the outcome of the KBOE election.
A PSE&G employee, Esteves said he ran for the school board because as someone hoping, one day, to “start a family” with children attending Kearny schools, he’d like to be in a position to exercise some control over a board that “has done a lot of foolish spending, such as the purchase of the property on Linden Avenue (for a future board headquarters and two basement classrooms). I don’t think there was a critical need to buy it.” Stay tuned, folks.
