Verdict in EBOE free lunch case

After a five-week trial and less than an hour of deliberation the jury has made its decision in the case of a lawyer for the Elizabeth Board of Education (EBOE) charged with official misconduct, tampering with public records, hindering prosecution records and conspiracy in the ‘free lunch’ case.

Not guilty per

After a five-week trial and less than an hour of deliberation, a jury exonerated Kirk Nelson, 48, of interfering with the state’s investigation into the federally funded lunch program that serves Elizabeth’s low-income students.

Nelson, of Roselle, had been accused of official misconduct, tampering with public records, hindering prosecution records and conspiracy. Another former school board lawyer, Frank Capece, 64, has pleaded not guilty to the same charges and is set to go to trial June 27.

Nelson’s lawyer, Timothy Donohue, said the state should never have brought a case against him.


Nelson is entitled to reimbursement of his attorney’s fees by the Elizabeth Board of Education, Donohue said.

The question here is how can a defendant prosecuted by the state get their legal fees reimbursed by another entity? Unless another lawsuit, this one against the EBOE, is in the offing.


6 responses to this post.

  1. Posted by Tim Donohue on June 8, 2016 at 12:03 pm

    Dear Mr. Bury:

    There is a New Jersey statute right on point. It provides that any Board of Ed employee who is prosecuted for their actions while employed by the Board and who obtains a final disposition in their favor “shall” be entitled to all counsel fees etc.


    • Thank you for the clarification.

      Can you cite the statute and confirm that your client and Mr. Capece were Board of Ed employees and not contractors.


  2. Posted by tim donohue on June 8, 2016 at 2:08 pm

    Mr. Bury:

    The statute is NJSA 18A: 16-6.1 and it is mandatory. Also my client had contract with EBOE that also provides for indemnification of legal fees.

    Kirk Nelson was at all relevant times an employee of EBOE. I do not represent Mr. Capece. However my understanding is that Mr. Capece was an independent contractor to EBOE and not an employee of same.


    • After a ridiculous amount of fast-forwarding here is the the statute referred to:

      18A:16-6.1 Indemnity of officers and employees in certain criminal, quasi-criminal actions.

      18A:16-6.1. Should any criminal or quasi-criminal action be instituted against any such person for any such act or omission and should such proceeding be dismissed or result in a final disposition in favor of such person, the board of education shall reimburse him for the cost of defending such proceeding, including reasonable counsel fees and expenses of the original hearing or trial and all appeals. No employee shall be entitled to be held harmless or have his defense costs defrayed as a result of a criminal or quasi-criminal complaint filed against the employee by or on behalf of the board of education.

      Any board of education may arrange for and maintain appropriate insurance to cover all such damages, losses and expenses.


  3. Posted by steve on June 8, 2016 at 5:41 pm

    I guess the state just needed the practice-hard to believe no home work was done before charging—-again a double wammy for the tax payer—will this nonsense ever cease?–we live in a Disney land for lawyers—-This seems to be a politicians dream come true-lawyers from cradle to grave.


  4. Posted by Brian P Keane on June 9, 2016 at 10:53 am

    Frank Capece ‘Rat Boy’ The county funder lawyer was also named in the above criminal activity in the EBOE free lunches programs. The cranford lawyer was also speaking in front of the RP M&C dais last month when ethical pay to play actions came up during the June 2 2016 RP Public Council meeting. You can make over 100k for the county and still get a free lunch bumping a few innocent lower class kids out during 12 noon luncheon breaks


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