With less than two weeks until voters go to the polls on Nov. 7, whether City of Orange voters will get to choose an elected school board as opposed to an appointed one is once again in the hands of the courts.

Last November, voters in a public referendum overwhelmingly favored being able to choose their own school board members rather than having them picked by the Mayor, which is the current system. But a state court judge set aside the result, finding they were not provided with sufficient information to understand the ramifications of the change.

On Oct. 20, it looked like they would get another opportunity to decide the issue when that same judge, Thomas Vena of Essex County Superior Court, rebuffed the school board’s effort to block a re-vote.

Since then, however, the school board has obtained leave to file an emergent appeal of that decision.

The Orange School District is one of a small minority of classified as Type I. That means the mayor appoints the school board and school budgets are prepared by a Board of School Estimate, also appointed, and approved by the City Council in the form of an ordinance.

In contrast, Type II school districts require that school boards be elected and that school budgets and borrowing be approved in a public referendum and there is no Board of School Estimate. The vast majority of districts fall into this category.

According to data from the state Department Board of Education website, as of May 2017, New Jersey had 600 public school districts, of which 16 were Type I and 539 were Type II. Most of the rest were vocational (21) or educational services commission/jointure commission (13) schools.

In July 2016, the Orange City Council passed a resolution calling for a referendum on whether the district should switch to Type II, to be held at the next general election, last November.

About 77% of Orange voters voted in favor of the change. Reclassifying from a Type I to a Type II district required adding two more members, who were chosen in a special election on March 28, bringing the board size to nine.

The Board of Education tried unsuccessfully to block that special election. But subsequently, on April 13, it convinced Vena to void the 2016 referendum and, consequently, the special election as well.

Vena held that the ballot question did not clearly convey the ramifications of reclassification and that the interpretative statement merely regurgitated the inadequate question. He also noted that the City did not obtain legal guidance in formulating the language that appeared on the ballot.

The question presented to voters in 2016 was “Shall the Board of Education of the City of Orange Township be changed from a board that is appointed by the Mayor, to a board that is elected by the residents of Orange, effective immediately, with the first school board election to be held during the November 2017 general election.” The accompanying interpretive statement read, “Presently the Mayor appoints members to serve on the City’s Board of Education. If changed to a board of elected members, the residents will have more control over who serves on the board of education.”

Vena agreed with the school board that voters also should have been specifically informed that, if the referendum passed: Orange would change from a Type I to a Type II District; the appointed Board of Estimate, which controls school budgets, would be eliminated and thus any future borrowing by the reclassified Type II district would have to be approved by public referendum; and such borrowing would be based on the credit of the school district rather than that of the City. Voters were likewise not told that the size of the board would increase from seven to nine members and that the first school board election would be a special one in March 2017, rather than the general November election.

Vena also noted that in December 2016, the Orange City Council approved $2.5 million in borrowing for capital improvements to existing schools and to open a new STEM academy, an action that the City was at that point no longer authorized to take in light of the reclassification but should have been put to a public vote as required for Type II school districts. Vena commented that without the $2.5 million, the quality of the school facilities would suffer, layoffs might occur and the STEM academy might not open.

New Jersey Appleseed Executive Director Renée Steinhagen represents the Committee for an Elected School Board, a group of concerned Orange residents who believe that the school board should be directly chosen by the public. In July, after the Council voted down a proposal to repeat the referendum this fall,  they utilized the initiative and referendum process to make sure that the voters of give got another chance to decide if they wanted reclassification.

With just a couple of weeks before the deadline, they gathered hundreds of signatures and in August, presented the petition to the Orange Municipal  Clerk, so that they could be certified and the referendum could be sent to the Essex County Clerk for inclusion on the November ballot.

Steinhagen, with the assistance of Committee member Tyrone Jon Tarver, drafted a revised question, asking “Shall the City of Orange Township School District be reclassified from a Type I School District, with members of the Board of Education appointed by the Mayor, to a Type II School District, with Board of Education members elected by the registered voters, pursuant to N.J.S.A. 18A:9-4.”

And the expanded interpretative statement explains: “If approved, the change from a Type I School District to a Type II School District would mean that voters would elect members to the Orange Board of Education. If approved, the size of the Board of Education would increase from seven to nine members, with the Special Election for the two additional members to take place in January of 2018. If approved, it will also eliminate the existing Board of School Estimate and require that decisions regarding Annual School Budgets and the issuance of Bonds to fund capital improvements, based upon the credit of the School District, not the City, to be submitted to the voters of the City of Orange Township for approval. If approved, there will also be other minor technical changes required that are not set forth herein.”

On Sept. 15, in an attempt to keep the question off the ballot, the Board of Education filed an Order to Show Cause with Temporary Restraints. Vena declined to impose those restraints pending a hearing on the motion.

The motion, argued on Oct. 20, was denied. The Committee’s cross-motion to dismiss, also argued that day, was granted.

The school board tried to block a revote based on state law that prohibits a public referendum on reclassifying a particular school district from being held more often than every five years. The board contended that because the issue was on the 2016 ballot, it could not appear again until 2021.

Vena, however, agreed with the Committee’s position that the mere appearance of a question on the ballot did not trigger the frequency restriction if the results of that election were later declared null and void and thus had no legal or binding effect.  The waiting period kicks in after an election is held and “since the previous election was rendered meaningless, it was not actually held,” wrote Vena.

Applying the restriction in this instance would also misconstrue his April 13 holding, which “was predicated on the referendum appearing on the ballot again once it was deemed legally sufficient.”

Vena referred to the “inherent irreconcilable inconsistency” of “seeking to void an election that overwhelmingly approved the conversion to an elected school board and then seeking to bar the repeat of the referendum that presumably supplies what the plaintiff claimed (and the court agreed) was missing.”

The statute did not specifically contemplate a vacated election but, in Vena’s view, it was arguably meant to prevent those who put forward a defeated question from coming back every year and trying again.

Or, as Steinhagen argued in her brief, the Frequency Restriction does not prohibit spending money on a second election if the first one was null and void and there are no winners or losers. “Rather, it evidences an intent to grant the voters in a Reclassification Referendum election that is upheld and remains valid the statutory right to have their vote binding for five years.”

Whether the voters of Orange will get the opportunity to reaffirm their support for a Type II district now that they have more information is once again uncertain in light of the emergent appeal.

The case is City of Orange Township Board of Education v. City of Orange, ESX-L-6652-17.

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