IN RE WILL v. FRONTIER CENTRAL SCHOOL DIST

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum:

Upon our review of the record, we conclude that the termination of petitioner "`is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness'" ( Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 232, quoting Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364). Although respondent has a duty to protect its students from harm ( see, Matter of Benson v. Board of Educ., 209 A.D.2d 693, 694, appeal dismissed 85 N.Y.2d 847, lv denied 85 N.Y.2d 809) and is entitled to protect itself from liability, we nevertheless conclude that the penalty of termination is too harsh. This was an isolated incident in petitioner's 22 years of service, and petitioner took steps to follow the return-to-duty procedures ( see, Matter of Comins v. Camden Cent. School Dist., 214 A.D.2d 1032, lv denied 86 N.Y.2d 708). We therefore modify the judgment and grant the petition in part by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty not to exceed a one-year suspension without pay, commencing July 12, 1999, the maximum penalty supported by the record ( see, Matter of Johnson v. Town of Arcade, 281 A.D.2d 894 [decided herewith]).