Three indicted in Elizabeth free lunch program scandal

ELIZABETH – On Monday, Dec. 9, a former Elizabeth Board of Education member, board attorney and outside board counsel were indicted by a grand jury on charges they covered up a false free lunch application filed by the board member’s wife. All three, previously arrested in April, face serious charges as a result.

Acting Attorney General John J. Hoffman said former school board member Juan Donoso, 42, of Elizabeth, was charged in a five-count indictment with two counts of official misconduct and one count each of tampering with public records or information, tampering with or fabricating physical evidence and hindering apprehension or prosecution.

Board Attorney Kirk Nelson, 46, of Roselle and Frank Capece, 63, of Cranford, were named in separate six-count indictments that charged each with two-counts of official misconduct, one count each of conspiracy, tampering with public records or information, tampering with or fabricating physical evidence and hindering apprehension or prosecution.

The attorney general’s office alleged that at Donoso’s request, Nelson and Capece obstructed a state investigation into abuse of the school lunch program by covering up a false application filed by Donoso’s wife.

After the state police served a subpoena on the school district which demanded all applications for the free lunch program going back to 2004, the attorney general said Nelson and Capece allegedly directed a school district employee to remove the wife’s application from district records so it would not be turned over in response to the subpoena.

Donoso’s wife, Olga Oviedo-Arevalo, was charged by complaint in April with filing several false applications but was admitted into the pre-intervention program in August. Charges against her will be dismissed, the attorney general’s office explained, if she successfully completes the program. Olga Oviedo-Arevalo also paid restitution of $1,700 as a condition of her enrollment in the program.
The attorney general’s office explained that Oviedo-Arevalo filed the false applications for three school years, 2008-09, 2009-10 and 2010-11.

Further investigation proved she only listed $13,000, or $250 a week, as an income for herself and did not put any income for Donoso when they, in fact, had an income of more than $50,000 a year for each of those years. This resulted in Oviedo-Arevalo’s son receiving $1,700 in free lunches. In addition, the attorney general’s office said, the Elizabeth mother also filed a false application for the 2011-2012 school year for her son and daughter that listed only a fraction of the income Donoso earned, said Honig. However, Donoso is not the father of her two children.

“We allege that these two defendants corruptly used their authority within the school district to try and sweep this matter under the rug,” said Acting Attorney General John Hoffman, adding “we simply will not tolerate such a blatant disregard for the law.”
Hoffman said Nelson and Capece orchestrated the entire scheme.

“These two attorneys allegedly did Donoso’s bidding by deliberately thwarting a state police subpoena that would have uncovered his wife’s false application for the free lunch program,” said Director Elie Honig of the Division of Criminal Justice.

“Rather than fulfilling their obligation as lawyers to uphold the law, Nelson and Capece allegedly obstructed a criminal investigation to satisfy their client. All three men rightfully face serious charges,” Honig added.

When reached, Capece said that under the advisement of his attorney, Robert DeGroot of Newark, he could not comment on the matter, but would rely on a statement released concerning the indictment.

In his statement, DeGroot said Capece entered a not guilty plea in April when he was arrested and “he stands by that plea and will vigorously defend his good name, and his years of public service from these charges.”

“At all times Mr. Capece acted honorably and in good faith and attempted to discharge his obligations as an attorney. When it became apparent that Mr. Donoso’s spouse had inaccurately sought school lunches for her children, Donoso was desirous of withdrawing his family from eligibility in a free nutritional program for their children,” DeGroot said in the prepared statement, vigorously defending that the Cranford resident had nothing to do with hiding the application.

“Mr. Capece’s sole involvement was to recommend the withdrawal of the application over which he had no control,” the attorney added, explaining his client “did everything he could to rectify the inaccuracies in the Donoso application and have it withdrawn from consideration for subsidized lunches.”

DeGroot also explained that the records in question were kept and maintained by others, not Capece, which put the matter out of his hands.
“Compliance with investigation and subpoenas were under the control of others and instead of recognizing Mr. Capece’s good faith attempt and recommendation to withdraw the application, the state has elected to give a sinister meaning to every action,” said Capece’s attorney, adding “that sinister reading of the events and its one sided presentation to the Grand Jury resulted in this indictment.”

“The air will be cleared when Mr. Capece finally gets to present the evidence,” said DeGroot, pointing out “he will then be exonerated.”
Sources involved with the case noted that Capece, Nelson and Donoso were not allowed to testify before the grand jury.

According to the indictment, which LocalSource obtained, the attorney general’s office felt Capece’s and Nelson’s part of the conspiracy involved directing an employee of the board of education to remove a document from the records of the board. The document, the indictment said, was the application submitted for the free lunch program.

The attorney general noted in the indictment that both Nelson and Capece knew the document was “relevant” to an ongoing investigation being conducted by the state but still went ahead and instructed this employee to alter an electronic computer entry related to the application for the free lunch program.

The indictment said Nelson and Capece between Aug. 1 and Dec. 22, 2011, “did purposely and unlawfully destroy, conceal, remove, mutilate or otherwise impair” a record that was required by law to be kept by the school district.

As a result the application was not turned over to the Division of Criminal Justice when the board of education responded to the subpoena. Afterward, the acting attorney general said, Capece and Nelson arranged for the application to be put back into the district’s files and the children were switched from free to paid status in the computer system.

Because the two attorneys allegedly tried to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense, they were charged with multiple offenses.

This is not the first time Elizabeth school district has been under the microscope for misconduct involving the federally funded free lunch program. It did, however, lead to the alleged crime committed by Donoso, Capece and Nelson.

Former board of education president Marie Munn and others in the district allegedly filed false free lunch program applications for the 2011-12 school years and were later charged by the Division of Criminal Justice.

After this story broke in the media, Hoffman said Donoso went to Capece and Nelson to explain that his wife had not accurately filled out the lunch application. He allegedly said he “wanted them to fix it so he would not end up like Munn,” the acting attorney general explained.