ALJDEC decisions subject to certification as final

19A-001-BUS · Department of Public Safety - Student Transportation · 2019-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2019 APPEARANCES: Rebecca Silver on her own behalf; Michael Rassas, Esq. for the Department of Public Safety ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On March 14, 2019, the Department of Public Safety issued a Notice of Hearing setting the above-captioned matter for hearing on April 22, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The issue for hearing is Appellant Rebecca Silva’s appeal of the Department’s February 13, 2019 “Notice of Cancellation.” 3. Through the Notice of Cancellation, the Department alleges that Ms. Silva violated Ariz. Admin. Code sections R13-13-103(F)(1) and (F)(4). As such the Department alleged that grounds existed to cancel Ms. Silva’s instructor’s certification pursuant to Ariz. Admin. Code section R13-13-103, and it cancelled her certification on February 13, 2019.[1] 4. The Department presented the testimony of administrative assistant Patricia Martinez, and supervisor Jennifer O’Leary. Ms. Silva testified on her own behalf and presented the testimony of Freddy Chavez, general manager for Durham School Services’ Tucson and Casa Grande operations. 5. Ms. Silva began working for Durham School Services in 2016 as the safety training supervisor (“STS”) for its Casa Grande operation. 6. In late February 2018, Ms. Silva also became the STS for Durham’s Tucson operation. She works only one day per week in Tucson. 7. The issues that give rise to this matter occurred in Tucson. 8. On February 1, 2019, Joyce Soto-Moreno called the Department and alleged that Ms. Silva was providing prospective drivers the answers to the certification tests. Ms. Soto-Moreno asserted that Ms. Silva had called her (Ms. Soto-Moreno) and two others in and read to them the questions and answers. 9. On February 1, 2019, Aaron Kennedy called the Department and alleged that there were accidents occurring that were not being reported, that the mandatory evacuation drills were not being conducted, and that a driver was told to drive a bus on which the service door would open while the bus was in motion. 10. As set out below, with respect to the allegations that Ms. Silva had actual knowledge about, she provided credible testimony that these were without merit. 11. Mr. Chavez testified that Ms. Silva is “top-notch,” honest and straightforward, and wants to see that things are done right, and he testified to the effect that she holds management to the same standard. Allegation of Cheating 12. In support of the allegation that Ms. Silva was allowing or facilitating cheating on the driver’s examination, the Department presented only the hearsay statement from Ms. Soto- Moreno, and it appears that the Department did not do any independent investigation of Ms. Soto-Moreno’s allegation (e.g. contact the other employees that Ms. Soto-Moreno alleged participated in this cheating). 13. Ms. Silva provided credible testimony showing that Ms. Soto- Moreno’s allegation was false. Ms. Silva explained that she does prep the prospective drivers to help provide the information required to pass the examination, which includes using an outline she adapted from a 14-hour class, but she does not provide the questions and answers per se. Allegation of Unreported Accidents 14. Not all accidents are required to be reported. Although “accident” is defined in the administrative code, the Department did not identify a rule or policy showing which accidents must be reported and the record is vague as to what the actual reporting standard is. 15. There is no evidence showing that Mr. Kennedy identified any reportable accidents by date, time, location, driver, or any other information that could be verified. There is also no evidence to show that Mr. Kennedy was aware of which accidents are required to be reported to the Department. 16. Ms. Martinez acknowledged that she did not know of any reportable accidents that had not been reported. 17. In support of the allegation that Durham was not reporting accidents, the Department checked its records and found that between July 31, 2018 and February 1, 2019, Durham reported no accidents. But it appears that the Department did no other investigation of Mr. Kennedy’s allegation. 18. The Department argued that it was “far-fetched” to believe that there had been no reportable accidents between July 31, 2018 and February 1, 2019. But Ms. Martinez acknowledged that it was possible that no reportable accidents had occurred, and Mr. Chavez did not find it unusual to have no accidents in a seven month period based on his experience in another industry. 19. Ms. Silva provided credible testimony showing that Durham reports all accidents to its insurance provider, and to the effect that there had not been any reportable accidents that had gone unreported to the Department. 20. Ms. Silva acknowledged that there had been two accidents that were not reported to the Department, but to her understanding these were not reportable. Allegation of Failure to Conduct Evacuations 21. Regarding the mandatory evacuation drills, the requirement is that two be conducted during the school year, but there is no requirement as to when during the year that these must be conducted.[2] The Department checked its records and found that for the 2017 – 2018 school year, Durham’s Tucson operation had reported only one such drill. 22. Mr. Chavez testified that he knew that two bus evacuations had been conducted before Ms. Silva became the Tucson STS, but only one was reported to the Department. He also testified that he had not been aware that the drills had to be reported.[3] 23. The Department noted that for the current school year the required evacuations had not yet been completed. But it also acknowledged that this was not a violation of any rule. At the hearing, Ms. Silva presented evidence showing that the required evacuations had been conducted or were scheduled to be conducted within the required time-frame. Allegation of Unsafe Equipment 24. Mr. Chavez started working for Durham in July 2017. 25. Mr. Chavez testified as to his opinion that the STS prior to Ms. Silva was not following all the state’s rules and standards, which is why she no longer works for Durham. He testified that he found a number of issues that required correction when he started. He acknowledged that a Cecilia had been allowing buses to go out in poor condition, but he put a stop to that. There was no substantial evidence to show that any of this occurred after Ms. Silva became the Tucson STS. 26. Mr. Chavez acknowledged hearing Cecilia telling someone that they could take a bus out that was not in proper condition, but he disallowed that.[4] 27. Ms. Silva testified to the effect that she was not present in Tucson when the incident regarding the service door occurred. There was no evidence adduced to show that she had any involvement in this incident. CONCLUSIONS OF LAW 1. The Department bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted). 6. Statutes and rules are construed using the same principles. McKesson Corp. v. Arizona Health Care Cost Containment System, 230 Ariz. 440, 286 P.3d 784 (App. 2012) 7. Administrative Law Judge Decisions must be based on evidence that is substantial, reliable and probative. Ariz. Rev. Stat. § 41-1092.07(F)(1). 8. “Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704 (1999). 9. Although hearsay can be admitted at an administrative hearing, the Decision may not be based on unreliable hearsay. A sufficient foundation must be provided before hearsay can be considered reliable. “Reliable hearsay must be of the kind reasonable persons rely upon in serious matters.” Plowman v. Ariz. State Liquor Bd., 152 Ariz. 331, 337, 752 P.2d 222, 228 (App. 1986)(citation omitted). 10. As pertinent to this matter, Ariz. Admin. Code section 13-13- 103(F) provides that “The Department shall not recognize an individual as qualified to be a classroom or behind-the-wheel instructor if the individual: 1. Fails to meet or comply with the requirements of this Article…. 4. Provides false, incomplete, or misleading information to the Department[.]” 11. Regarding the allegation that Ms. Silva was providing prospective drivers with the answers to the test, the Department’s evidence consisted solely of the hearsay statement from Ms. Soto-Moreno and the Department did not demonstrate that this was reliable evidence. In contrast, Ms. Silva, who was subject to cross-examination, presented credible testimony that she has not engaged in the alleged behavior. The Department did not prove by a preponderance of the evidence that Ms. Silva was providing prospective drivers with the answers to the test. 12. Regarding the allegation that Durham was not reporting accidents, the Department’s evidence consisted of the hearsay statement from Mr. Kennedy and the fact that no accidents had been reported during a seven month period. Mr. Kennedy did not testify and was not subject to cross-examination, there is no evidence in the record providing any details of any alleged accident (e.g. time, date, driver), and the Department acknowledged that it could not actually identify any reportable accidents that were not reported. The Department did not prove by a preponderance of the evidence that Durham was failing to report accidents that it was required to report. 13. Regarding the allegation of unsafe equipment, Mr. Chavez acknowledged that Durham had been allowing unsafe equipment to be used, but he provided credible testimony that he put a stop to it after he began working for Durham in July 2017. He also appeared to acknowledge hearing Cecelia tell a driver to use a bus for which the door would swing open, but provided unrebutted testimony that he did not allow this to happen or continue. Consequently, this allegation does not provide a basis on which to discipline Ms. Silva. 14. Mr. Chavez acknowledged that Durham had not reported to the Department its second evacuation drill for the 2017 – 2018 school year. But he also provided credible testimony that this second drill was conducted. Although Ms. Silva was the STS for Tucson when the 2017 – 2018 school year ended, based on Mr. Chavez’s testimony, the second drill was conducted before she took that position. Nevertheless, one could argue that she bore responsibility to verify that Durham had completed and report both evacuation drills during the school year. 15. The Department has proven only one of the alleged violations (the evacuation drills), but the evidence shows that this was a reporting violation only. Consequently, although Ms. Silva could be subject to discipline, the Department has not proven by a preponderance of the evidence that Ms. Silva’s certification should have been cancelled. 16. Considering the above, Ms. Silva’s appeal should be sustained and her certification should be reinstated. RECOMMENDED ORDER IT IS ORDERED that the cancellation of Ms. Silva’s certification is rescinded. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is five days after the date of that certification.

Done this day, May 3, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Frank L. Milstead, Director Department of Public Safety ----------------------- [1] At the hearing, the Department acknowledged that the Notice of Cancellation erroneously cited section R13-13-102, which applies to drivers, not instructors. [2] This finding is based on testimony from both parties; the Department did not identify a statute or rule confirming that this was the requirement. [3] The responsibility for reporting does not fall within Mr. Chavez’s scope of duty. [4] It appears that he was referring to the service-door incident that Mr. Kennedy reported, but this is not certain because the Department did not provide the date of the alleged incident, and Mr. Chavez’s testimony did not explicitly show that he was referring to that incident.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826