SOBOL, Commissioner.--Petitioner, the Board of Education of the South Country Central School District, appeals the determination of a hearing panel convened pursuant to Education Law "3020-a which found respondent James Bradshaw guilty of immoral conduct and conduct unbecoming a teacher and authorized his suspension for approximately four years. Petitioner seeks a determination that respondent was also guilty of neglect of duty, insubordination, inefficiency and incompetence and that his employment should be terminated. Respondent cross-appeals the panel's determination that he is guilty of immoral conduct and asks that the recommended penalty be reduced. Petitioner's appeal must be sustained in part and respondent's cross-appeal must be dismissed.

Respondent is a tenured assistant principal at Bellport High School. On the morning of Friday, November 6, 1992, at approximately 10:15 a.m. while on a school-related errand, respondent was arrested for soliciting a prostitute, a misdemeanor. On the following Monday, November 9, 1992, petitioner's superintendent confronted respondent who admitted that he had been arrested the previous Friday. The superintendent immediately placed respondent on an administrative assignment at home.

On December 1, 1992, petitioner found probable cause to bring charges against respondent pursuant to Education Law "3020-a. Respondent was charged with immoral conduct based upon the following specifications:

Relying upon the identical language contained in the charge of immoral conduct, petitioner also charged respondent with neglect of duty and insubordination.

Petitioner also charged respondent with conduct unbecoming a teacher based upon the following specifications:

Relying upon the same language contained in the charge of conduct unbecoming a teacher, petitioner also charged respondent with inefficiency and incompetency.

A hearing was conducted over five days between February 5, 1993 and March 11, 1993. In a decision dated May 19, 1993, the panel found respondent guilty of immoral conduct and conduct unbecoming a teacher. The panel stated, however, that the remaining charges of neglect of duty, insubordination, inefficiency and incompetency "are mooted by our findings" in connection with the other two charges. The panel recommended that petitioner suspend respondent through June 30, 1997. The criminal charge against respondent was subsequently adjourned in contemplation of dismissal (see Criminal Procedure Law "170.55).

Petitioner maintains that respondent is also guilty of neglect of duty and insubordination because his actions occurred when he should have been at school. While respondent does not seek to justify his actions, he maintains that the incident in question did not take place while he was required to be at school, but occurred after he had completed a school-related errand and while he was going to lunch. I find respondent's argument unpersuasive. Because respondent was arrested, he was not able to complete the course of conduct he was pursuing. Even without this arrest, he would have spent some period of time away from school, engaged in an unauthorized activity. That absence from school constitutes neglect of duty. Respondent's action of absenting himself from his duties for an unauthorized purpose also constitutes insubordination. While respondent was not given a direct order not to use school time to solicit a prostitute, insubordination does not require defiance of a direct order (Appeal of Board of Education, City of Elmira, 23 Ed Dept Rep 163). A professional educator in a public school does not need to be told that unless authorized to the contrary, that person is expected to be at work (Appeal of Board of Education, City of New York, 22 Ed Dept Rep 247; Appeal of Board of Education, City of Elmira, supra). Accordingly, respondent is guilty of neglect of duty and insubordination for his actions on November 6, 1992.

Petitioner also contends that respondent is guilty of inefficiency and incompetency. Specifically, petitioner maintains that respondent's actions have precluded him from ever performing his duties involving student discipline, supervising the AIDS curriculum and acting as a role model to students. Respondent denies those contentions. While respondent has a duty to act as a role model for students (seeAmbach v. Nowick, et al., 441 U.S. 68), there is no evidence to support the contention that respondent will never again be able to perform his duties as an assistant principal. Moreover, the record indicates that the hearing panel recommended respondent's suspension for more than four years to address that very issue. By the time the suspension is completed, few if any of the current students in petitioner's high school will still be in attendance there. Accordingly, there is no basis for finding respondent guilty of inefficiency or incompetency. Indeed, petitioner's contention on this issue is contradicted by the character witnesses that appeared on behalf of respondent.

In his cross-appeal, respondent acknowledges that he is guilty of conduct unbecoming a teacher but contends that the charge of immoral conduct should be dismissed because it is nothing more than "piling on" additional charges. In an appeal before the Commissioner of Education, the party asserting a claim bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327). Respondent offers no legal basis to support his cross-claim on this issue.

Regarding the propriety of the penalty imposed, petitioner maintains that it should be authorized to terminate petitioner's employment. Respondent counters that the penalty of suspension without pay for approximately four years is excessive and should be reduced. As Commissioner, I may substitute my judgment of that of the hearing panel regarding the penalty imposed (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809; lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, 440 NYS2d 785, aff'd 56 NY2d 687, 451 NYS2d 732; Matter of Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212, aff'd 56 NY2d 700, 451 NYS2d 722). In determining whether to substitute my judgment for that of the panel, I must review the measure of discipline imposed and determine whether it is proportionate to the offense. It must also be borne in mind that the primary purpose of a disciplinary hearing is not punitive, but rather to determine an educator's fitness to carry out professional responsibilities (Matter of Bott v. Bd. of Educ., 41 NY2d 265, 392 NYS2d 274).

Based on the record, I conclude that the penalty is neither too lenient nor excessive. While respondent's actions are reprehensible and have brought shame and embarrassment upon himself and petitioner, there is no indication that respondent is unfit to serve as an educator ever again. Respondent has worked as an educator for 21 years without any other disciplinary problems. Respondent acknowledges his conduct, contends it was a one-time abberation and has demonstrated remorse and regret for this misdemeanor. It must also be noted that his actions did not involve students. Moreover, there is no basis in the record to indicate that the underlying conduct will reoccur or that respondent cannot regain the confidence and trust of the community and, eventually, return to a career in education.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it dismissed the charges against respondent of neglect of duty and insubordination.

THE CROSS-APPEAL IS DISMISSED.

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