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Decision No. 12,961

Appeal of GEORGE SILANO from action of the Board of Education of the Sag Harbor Union Free School District and Thomas Roy, Superintendent, concerning censure.

Decision No. 12,961

(July 22, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondents, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a board resolution, which criticized actions taken by petitioner and censured him. Petitioner also appeals from respondent superintendent's directive, which excluded petitioner from the classrooms and hallways of the school buildings during regular school hours from February 22, 1993 until the end of the school year. The appeal must be sustained in part.

Petitioner is a member of the Board of Education of the Sag Harbor Union Free School District and a filmmaker. On February 4, 1993, he was a guest lecturer in a tenth grade math class in respondent district. He spoke about applied mathematics as used in the making of films. To illustrate his discussion, petitioner exhibited several film clips. One of those clips contained photographs of a group of men and women shown from the waist up without clothing.

Five of the eleven students in the class expressed varying degrees of embarrassment about the film. A number of parents complained about the incident, and the resulting controversy was reported by the media.

On February 18, 1993, respondent Roy sent an executive order to petitioner:

Given that you have shown poor judgment in your selection of materials presented to 10th grade youngsters and that the public controversy surrounding that incident has detracted from teaching and administrative time as well as the community respect for our school, our staff, our administrators, and your colleagues on the Board of Education;

I hereby order that you not be present in the classrooms or hallways of our school buildings during the hours of school attendance beginning Monday, February 22, 1993 and continuing for the remainder of this school year.

Any change in this Executive Order will be considered only through petition to the Board of Education and the Board directing the Superintendent to modify or terminate the order. NB: As a member of the Board of Education you certainly have access to the rooms normally referred to as the Central Office and also access to school events and functions such as sporting events, plays, musical performances, etc.

Four days later, respondent board adopted the following resolution:

WHEREAS, Board member George Silano was granted the authority to lecture a High School mathematics class; and WHEREAS, Board member George Silano exhibited poor judgment in distributing a film strip which evidenced nude actors, and, WHEREAS, the actions and deportment of members of the Sag Harbor Board of Education are expected to be above reproach in all dealings relating to the carrying-out of Board responsibilities and authorities,

NOW, THEREFORE, IT IS HEREBY RESOLVED:

a) that the action of Board member George Silano occurring within the High School mathematics class on February 4, 1993 is deemed as improper and representative of poor judgement on the part of Board member George Silano;

b) that Board member George Silano is censured by the Board of Education for the lack of judgement evidenced by way of the distribution of the subject film strip; and

c) that it is expected that Board member George Silano will, in the future, exhibit the appropriate conduct and judgement warranted in all matters relating to School District or Board of Education affairs.

This appeal ensued.

Before considering the merits, it is necessary to address a procedural issue. Petitioner offers new allegations and exhibits in his reply and supporting affidavit to the reply. The purpose of a reply is to respond to procedural defenses or new material contained in the answer (8 NYCRR ''275.3, 275.14). A reply is not meant to buttress allegations in the petition or to add assertions as exhibits that should have been in the petition and which respondent could have answered (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). Therefore, I will not consider those portions of the reply and supporting affidavit that raise new matters.

Petitioner contends that respondent Roy is not authorized to issue an order that bars him from the hallways and classrooms of the district during regular school attendance hours. Petitioner further contends that such an order interferes with his right and duty as an elected official to visit the schools of the district.

While petitioner contends that the executive order prevents him from fulfilling his duties as a member of the board, he offers no specific example of how he is so constrained, other than that he does not have unbridled access to classrooms and hallways during the school day. However, an individual board member has no more authority than any other qualified voter of the district (see Coughlin v. Cowan, 21 Misc 2d 667; Matter of Bruno, 4 Ed Dept Rep 14). Unless official action has been taken by the board designating an individual member as the representative of the board for a particular purpose, that board member has no authority to act for the board. Included in such activities by an individual board member are official visits to the schools (Education Law '1708[2]; Matter of Bruno, supra). The executive order emphasizes that petitioner continues to have free access to all areas of school facilities necessary for him to perform his duties as a member of a board of education. Accordingly, petitioner's request that respondent Roy's order be annulled is rejected.

Petitioner also maintains that respondent board is not authorized to censure him, and its resolution of February 22, 1993 must be overturned. In Matter of Legatos, 23 Ed Dept Rep 10, and Matter of Graham, 11 id. 220, it was determined that while the Commissioner of Education is authorized to remove a board member from office pursuant to Education Law '306, no provision of the Education Law authorizes the censure or reprimand of a board member by the Commissioner of Education. Similarly, while a board of education is authorized to remove one of its members for misconduct pursuant to Education Law '1709(18), no provision of the Education Law authorizes the censure or reprimand of a board member by a board of education.

Respondent board contends that its resolution of February 22, 1993 was not a reprimand of petitioner but merely a criticism of petitioner's poor judgment. As noted above, a board of education has no authority to censure or reprimand one of its members. However, a board may certainly criticize the actions of a board member for exhibiting poor judgment. While the introductory paragraph and paragraphs a and c of the resolution are confined to the board's opinion that petitioner used poor judgment regarding the incident in question, paragraph b of the resolution is clearly a censure and reprimand of petitioner. Paragraph b states that petitioner is "censured" and the tone of that paragraph conveys an intent to reprimand him. Accordingly, I am constrained to grant petitioner's request, to the limited extent, that only paragraph b of respondent board's February 22nd resolution is annulled.

Petitioner also maintains that respondents' actions violated numerous provisions of the U.S. Constitution. To the extent petitioner raises constitutional claims, an appeal to the Commissioner of Education is not the proper forum to decide novel constitutional questions (Appeal of Martin, 32 Ed Dept Rep 381; Appeal of Sewanhaka CHSD, 31 id. 360; Appeal of St. Cyr, 27 id. 351). I have reviewed petitioner's other claims and find them without merit.

Finally, petitioner's claim for attorney's fees must be dismissed because the Commissioner has no authority to award costs or attorney's fees in an appeal pursuant to Education Law '310 (Appeal of Martin, 31 Ed Dept Rep 441; Appeal of Sileo, 28 id. 313).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that paragraph b of respondent board's resolution adopted on February 22, 1993 censuring petitioner is annulled.

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