ALJDEC decisions subject to certification as final

23A-017-BUS · Department of Public Safety - Student Transportation · 2023-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Cancellation of the School Bus Driver Certificate of:

Anthony J. Rolando

Certificate No. 53939

No. 23A-017-BUS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 18, 2023 at 1:00 PM.

APPEARANCES: Assistant Attorney General Kenneth Hughes, Esq. appeared on behalf of the Arizona Department of Public Safety (“Department”) with Kimberly Thomas as a witness. Dwayne Ross, Esq. appeared on behalf of Anthony Rolando (“Appellant”) with Appellant as a witness. Benjamin Buller observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Deputy Director of the Arizona Department of Public Safety (“Department”).

FINDINGS OF FACT

Hearing Evidence

The Department called Kimberly Thomas as a witness, and submitted a Prehearing Memorandum and Exhibits 1-6 into the record. Appellant testified on his own behalf and submitted Exhibits 1-6 into the record. The Notice of Hearing was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

The Student Transportation Unit (“Unit”) within the Department is responsible for overseeing School Bus Driver Certifications and training for the State of Arizona.

On an unknown date, the Unit issued School Bus Certificate No. 53939 to Appellant.

On February 01, 2023, the Unit received a complaint from Phoenix Union High School District #210 that alleged on January 31, 2023, Appellant failed to perform his post-trip student bus inspection and as a result left a student (“Student”) unattended aboard his bus, in the Bus Depot. Specifically, the complaint alleged that the student’s parents informed school administrators that they had received a call from the student was essentially trapped on the bus. Upon inspection, the student was discovered on the bus unharmed, and transported to campus. Subsequent video surveillance footage captured Appellant as the operator of the bus at issue.

On February 01, 2023, the Department issued a Notice of Cancellation (“Notice”) to Appellant regarding School Bus Certificate No. 53939. The Notice advised that Appellant’s certification was cancelled effectively immediately pursuant to Ariz. Admin. Code R13-13-102(K)(1), R13-13-102(K)(1)(a), R13-13-102(K)(1)(d), and R13-13-104(D)(4). The Notice further advised as follows, in pertinent parts:

[The Department] received notification and video from the Phoenix Union High School District on January 31, 2023, of an incident that occurred on your morning bus route. The video showed you failed to do post-trip check after dropping students off at school and left a student unattended on the school bus as you closed the doors and walked away. He remained on the bus for 30 minutes sleeping and unattended until he woke up and called his parents. This is a violation of Minimum Standards.

(Emphasis in original.)

The Department informed Appellant that he would be able to reapply for school bus driver certification after January 31, 2028, pending additional requirements.

On February 02, 2023, Appellant submitted a Letter of Explanation and hearing request to the Unit. The letter offered the following in pertinent parts:

In July of 2022, Appellant was assigned a Special Needs Route. No Aide was provided.

During the first week of school in August 2022 a student (“S”) urinated on the bus, and did so near daily thereafter. Appellant asked S’s mother to ensure he used the restroom prior to boarding, nonetheless S still urinated en route to school.

In January 2023, Appellant was assigned an Aide (“Aide M”). Aide M was effectively incompetent in the execution of her duties and responsibilities. Thus, instead of being afforded relief, Appellant was additionally burdened.

Student is mobile and can exit the bus on his own, and usually does so.

On January 31, 2023, Aide M was off duty. An Aide from another bus (“Aide A”) was taking a student to the restroom and offered to escort S from Appellant’s bus as well. Appellant agreed and remained with the other students on his bus. Aide A returned without S. Appellant asked Aide A to stay with his students and went to look for S near the bathrooms. Appellant was able to locate S and returned back to his bus. At that time school teachers were retrieving students off of the bus, so Appellant went to personally utilize the restroom. Because he did not see any students when he returned, Appellant assumed that all of the students on his bus had been taken into school. He intentionally did not check each seat to ensure no student(s) remained. Unbeknownst to Appellant, Student was asleep in his seat out of Appellant’s sight.

Appellant essentially argued that due to the length of his route, his lack of a competent aide, and the ongoing urination situation with S, he was stressed, frustrated, and distracted on January 31, 2023. Appellant opined, “I feel that if I had a good Aid [sic] to assist me, this situation would not have happened.” Appellant concluded his letter by offering his apologies and avowal to never let a similar incident occur in the future.

On or about February 12, 2023, Appellant submitted his second request for hearing to the Unit.

On February 23, 2023, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on March 31, 2023. Per the February 28, 2023, Notice of Hearing the issue(s) to be determined are whether grounds exist to justify the Department’s cancellation of School Bus Certificate No. 53939 pursuant to Appellant’s alleged violation(s) of Ariz. Admin. Code R13-13-102(K).

On February 24, 2023, the Department and Appellant participated in an Informal Settlement Conference. As a result, on March 02, 2023, and Amended Notice of Cancellation (“Amended Notice”) was issued for School Bus Certificate No. 53939 which reduced Appellant’s reapplication eligibility date by two (2) years, to January 31, 2026.

Additional Evidence

Appellant is a Union Steward. He has no prior disciplinary history with the Unit.

Appellant has been a bus driver for Sun Valley Baptist Church for several years, without incident.

No less than a dozen friends and colleagues provided letters of recommendation for Appellant. Each attest to Appellant’s kindness, integrity, and professionalism.

Closing Arguments

In closing, Appellant argued that the cancellation of his bus driver certification was not proportional with the mistake he made in leaving student in the bus on January 31, 2023, given his record with the Department and tenure of his position. Appellant further argued that, given the totality of the circumstances; including but not limited to stress and frustration over a student urinating on the bus for months, receiving inept assistance after asking for help for months, and searching for a missing student the day of the incident at issue whilst having to use the facilities himself after a lengthy route, which all contributed to his failure to perform a post-trip search to ensure no student were present, should not have resulted in such extreme discipline. Appellant analogized his error with the Department’s incorrect regulatory citation, and opined that all people “make mistakes.”

In closing, the Department argued that, notwithstanding its nonconsequential typographical error, that its burden of proof had been satisfied as the record established grounds for the Department to impose discipline against Appellant’s school bus driver certification for his failure to meet requisite minimum standards. The Department further argued that Appellant had not been deprived of any Due Process, as Appellant referenced the correct applicable regulatory language throughout the course of the hearing. The Department opined that it had fully taken into consideration all relevant facts, as evidence by its certificate reapplication moratorium reduction from January 31, 2028, to January 31, 2026.

CONCLUSIONS OF LAW

The Department has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 28-3228 and 28-3053, and Ariz. Admin. Code R13-13-101 to R13-13-112. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

In consultation with the Student Transportation Advisory Council, the Department has adopted rules to promote the safety and welfare of school bus passengers, commonly referred to as the Minimum Standards.

The Department bears the burden of proof to establish to discipline Appellant’s bus driver’s certificate by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Admin. Code R13-13-102(K)(1) provides, in pertinent parts, that based on an assessment of the totality of the circumstances, the Department may deny a certificate to an applicant or may cancel or suspend a certificate of a school bus driver:

1. Based on an assessment of the totality of the circumstances, the Department may deny a certificate to an applicant or may cancel or suspend a certificate of a school bus driver for:

a. Failing to meet or comply with the requirements of this Article;

* * *

d. Demonstrating behavior that endangers the educational welfare or personal safety of students, teachers, or school bus drivers or other co-workers.

Ariz. Admin. Code R13-13-102(K)(4) provides as follows:

The Department shall inform an applicant who is denied a certificate or a school bus driver whose certificate is canceled or suspended of the amount of time that must elapse before the applicant or the school bus driver may reapply for certification. The Department shall include this information in the notice of denial, cancellation, or suspension and the notice of final order, if any, served on the applicant or school bus driver. In determining the amount of time that must elapse before reapplication, the Department shall consider:

a. The seriousness of the offense leading to denial, cancellation, or suspension;

b. The frequency with which the offense occurred; and

c. The amount of time required to correct the offense.

Ariz. Admin. Code R13-13-104(D)(30) further provides, in pertinent part, that “Each time a school bus driver unloads passengers and it appears that no passengers remain on the school bus, the school bus driver shall inspect the interior of the school bus for passengers remaining and objects left on the school bus.”

The credible and relevant evidence of record establishes that on January 31, 2023, Appellant failed to perform a post-trip student bus inspection that resulted in Student being left unattended aboard his bus, for no less than thirty (30) minutes. The record also reflects that it was a concerted effort between Student, his parents, school administration, and another bus driver that freed Student from Appellant’s bus. The record further reflects that after the Notice was issued, Appellant supplied the Department with additional information which resulted in the Department reducing Appellant’s reapplication period from five (5) to three (3) years, via the Amended Notice. Thus, violations of Ariz. Admin. Code R13-13-102(K)(1)(a&d) and R13-13-104(D)(30) have been established.

Additionally, the record establishes that the Department acted in compliance with Ariz. Admin. Code R13-13-102(K)(4).

Thus, the Tribunal concludes that the Department acted within its authority regarding an incident that was established by the greater weight of the evidence to have constituted one or more violations within the Department’s jurisdiction. Notably, there is no evidence in the record which tends to suggest that the Department’s three-year reapplication waiting period is inappropriate. As such, Appellant may reapply for school bus driver certification on or after January 31, 2026, if he meets and complies with the requirements for the issuance of a school bus driver certificate, pursuant to Ariz. Admin. Code R13-13-101 through Ariz. Admin. Code R13-13-112.

Consequently, Appellant’s appeal should be denied.

RECOMMENDED ORDER

Based upon the foregoing,

IT IS RECOMMENDED that the Department’s March 02, 2023, Amended Notice regarding the cancellation of School Bus Certificate No. 53939 be affirmed.

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 will be five days from the date of that certification.

Done this day, May 03, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Lt. Col. Ken Hunter, Deputy Director

Department of Public Safety - Student Transportation

Kenneth Hughes, Esq., Assistant Attorney General

[email redacted]

Anthony J. Rolando, Appellant

c/o Dwayne Ross, Esq., Counsel for Appellant

[email redacted]

By: OAH Staff