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Decision No. 13,511

Appeal of GEORGE SILANO, from action of the Board of Education of the Sag Harbor Union Free School District and Patricia Brandt, individually and as president of the Board of Education, Thomas Horn, Jr., individually and as vice president of the Board of Education and Dr. Thomas Roy, individually and as former superintendent of schools regarding collection of appellate costs.

Decision No. 13,511

(November 11, 1995)

Patricia Weiss, Esq., attorney for petitioner

Pelletreau & Pelletreau, L.L.P., attorneys for respondents, Richard Hamburger, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondents' action seeking appellate costs against him. The appeal must be dismissed.

Petitioner is a retired filmmaker and a member of respondent board of education whose term expired June 30, 1995. On February 4, 1993, he was a guest lecturer in a tenth grade mathematics class in respondent district. He spoke to the class about applied mathematics as used in the making of films. To illustrate his points, petitioner used film clips that contained photographs of a group of men and women shown from above the waist without clothing. As a result, respondent board censured petitioner and issued a reprimand. Petitioner appealed to the Commissioner of Education, who, among other things, declined to rule on the constitutional issues raised by petitioner (Appeal of Silano, 33 Ed Dept Rep 20).

Petitioner also filed a complaint on his constitutional claims in the United States District Court for the Eastern District of New York. In December 1993, Judge Arthur D. Spatt dismissed the complaint in its entirety, with prejudice. On January 27, 1995, the Second Circuit Court of Appeals affirmed.

Petitioner subsequently objected to respondent board's itemized and verified bill of costs in the amount of $384.90, but the Second Circuit denied petitioner's motion on February 16, 1995. On February 28, 1995, respondents' attorney wrote to petitioner requesting a check for $384.90 and notified petitioner that if that amount was not paid within the next 20 days, a transcript of judgment would be filed with the Suffolk County Clerk and would become a lien on petitioner's property. The parties exchanged correspondence concerning the disputed costs dated April 13, 25 and May 1, 1995. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on June 12, 1995. Subsequently, the United States Supreme Court denied petitioner's writ of certiorari.

Petitioner alleges that respondents have no authority to attach a lien on his property and that respondents' actions constitute unconstitutional retaliation against him. Petitioner also contends that respondents are using school district attorneys for personal gain and that respondent board's insurer has absorbed all the costs of litigation. Petitioner seeks an order staying the enforcement of the judgment against him. Respondents contend that their actions have been proper and that petitioner's appeal is frivolous. Respondents deny a conspiracy against petitioner and claim that they have simply sought to collect the appellate costs awarded against petitioner by the Second Circuit.

Petitioner relies on Education Law '1709 for his claims that respondents have no authority to collect a judgment against him. Section 1709 specifically enumerates the powers and duties of a union free school district. Generally, a board of education possesses those powers reasonably necessary to manage and control the educational affairs of the district. In this case, petitioner commenced legal proceedings against respondent, both before the Commissioner of Education and the courts. Respondent board properly defended itself in those actions and merely submitted an order for costs, as it has a right to do, which was granted by the Second Circuit Court of Appeals. Respondent board's attempts to collect those fees are not inappropriate. Respondent board is entitled to collect appellate costs that were awarded to it, and petitioner's claims are, for the most part, frivolous.

Petitioner also asserts that respondents' actions constitute unconstitutional retaliation against him for the lawful exercise of his constitutional rights. Other than petitioner's bare allegations, he has not proven that respondents are retaliating against him. In an appeal before the Commissioner of Education, petitioner has the burden of establishing facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Norkin, 33 Ed Dept Rep 643; Appeal of Singh, 30 id. 284; Appeal of Pickreign, 28 id. 163). On the record before me, petitioner has simply not carried that burden.

I have reviewed petitioner's remaining contentions and find them without merit.