Residents petition state to toss referendum results Board of Ed. claims time frame to contest vote has passed BY JANE MEGGITT Staff Writer Five local residents have filed a petition asking the state commissioner of education to set aside the results of the Upper Freehold Regional School District's December 2004 referendum. Allentown residents Micah Rasmussen, Daniel Zorovich and Diane Sterner, along with Upper Freehold residents Marc Covitz and Gerald Nathanson, all filed the petition on Sept. 13. In December 2004, the voters of Upper Freehold and Allentown approved a $38.9 million referendum authorizing the Upper Freehold Regional School District to acquire land and construct a new middle school on Ellisdale Road in Upper Freehold Township. The petitioners allege that during a public meeting on June 28, school district officials acknowledged that prior to the election, the district was aware of but failed to disclose to voters the presence of dieldrin contamination on the proposed school site. The petitioners allege that a review of public records containing written and electronic promotional materials on the referendum, produced by the school board before the election, finds no disclosure of the school district's knowledge of the dieldrin contamination on the proposed school site. They allege that the school district's failure to disclose its knowledge of the dieldrin contamination - which they call "a serious material defect of the site" - denied voters their right to the due process of making an informed and educated decision on the referendum, and disenfranchised them from their right to cast an informed vote. The referendum asked voters to approve the costs of site acquisition and construction, according to the petitioners, but failed to ask voters to authorize the expenditure of funds for remediation - an expenditure that is expected to exceed the referendum's miscellaneous line item. The petitioners also allege that the voters and taxpayers of the school district currently have no responsibility and/or liability for the contamination and/or remediation of the site, yet they are being obligated to assume both without their informed consent. In addition, according to the petitioners, because the site has not yet been acquired nor has remediation begun, setting aside the results of the referendum on an expedited basis would prevent voters from being disenfranchised by the school district's commencement of remediation work and/or site acquisition, both of which would expose taxpayers to responsibility and/or liability without their informed consent. On Oct. 3, Board of Education Attorney Viola Lordi filed a notice with the commissioner of education to dismiss the petition in lieu of an answer. The brief on behalf of the board cited NJSA 18A:24-65, which requires all challenges to the election results of a bond referendum proposal to be heard within 20 days of the election. "Having waited more than 20 months after that date to file their petition," the notice states, "petitioners cannot now obtain an order setting aside the results of the referendum." The brief further states that the petitioners in this matter make a series of claims without any basis in fact or law, and that they have failed to advance a cause of action. "Without citing any statutory authority or support for their position, petitioners have asked the acting commissioner to set aside the results of this referendum," the notice states. "This request seeks to overturn the will of the voters on the basis of an election that petitioners apparently find unfavorable." At the Oct. 4 Board of Education meeting, Rasmussen said, "Up until today, I have been willing to accept the board at its word that failing to provide the full information was never meant to be an intentional oversight. "Unfortunately, now there can be no other conclusion than that the board's intention is to leave this oversight uncorrected," he continued. "It is one thing to leave voters in the dark about something the board knew about," Rasmussen said. "[Board President Joseph] Stampe conceded as much last week when he discussed the matter in open session [and] demonstrated that a board member did indeed know about the contamination before the election, as evidenced by that board member telling him about the contamination." But, according to Rasmussen, "It is quite another thing" to collectively decide as a group to oppose an effort to correct a denial of voters' fundamental right to make an informed decision." He called the board's actions to fight an attempt to right the wrong "a defense of an indefensible mistake." "It is wrong, it is shameful, and it is a sad day in the life of this community," Rasmussen said, "when elected officials choose to defend and perpetuate a mistake when they have a chance to correct it." Stampe said he could not comment on Rasmussen's statements by advice of counsel.