ALJDEC decisions subject to certification as final

23A-101316-BUS · Department of Public Safety - Student Transportation · 2023-12-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Steven M. Safford

Certificate No. 64303

No. 23A-101316-BUS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2023

APPEARANCES: Appellant Steven M. Safford appeared on his own behalf. Assistant Attorney General Kenneth R. Hughes represented the Arizona Department of Public Safety.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Exhibits 1 through 3 for the Department and Exhibit A for Mr. Safford.

_____________________________________________________________________

FINDINGS OF FACT

Steven M. Safford (Appellant) was the holder of Arizona School Bus Driver Certificate No. 64303 (Certificate) issued by the Arizona Department of Public Safety (Department), issued in March of 2022.

At all times relevant, Appellant was employed by The Leona Group, a charter school management company; Appellant was working at Alta Vista High School. As part of his employment, Appellant was required to submit to random drug screening.

According to Department records, Appellant had completed a New Driver Training and Behind the Wheel training; the New Driver training was complete in November of 2022.

On August 23, 2023, Appellant submitted a urine drug screen, which results were documented as positive for Marijuana.

By letter dated September 14, 2023, the Department notified Appellant that his Arizona School Bus Driver Certificate No. 64303 been cancelled effective immediately and that he could reapply for certification after August 23, 2024.

The Department cancelled Appellant’s certificate because it found that he had violated Arizona Administrative Code (A.A.C.) R13-13-102(K)(1)(a) and A.A.C. R13-13-102(K)(1)(h).

On or about November 9, 2023, the Department issued a Notice of Hearing setting the matter for administrative hearing on December 12, 2023, at the Office of Administrative Hearings in Phoenix, Arizona.

At hearing, the Department presented the testimony of Kimberly Thomas, an employee of the Department. Appellant testified on his own behalf.

At hearing, Appellant argued that he had not been given the opportunity for an informal conference, which he had asked for in his appeal, via email, on October 5, 2023. In his appeal, Appellant noted his enrollment and near completion of the FMCSA Drug and Alcohol Clearinghouse, six-step SAP Program protocols.

Appellant acknowledged he had tested positive but argued that his enrollment and near completion of the FMCSA Drug and Alcohol Clearinghouse, six-step SAP Program protocols, should be considered, essentially, as a means of correcting the offense. Appellant erroneously thought that such enrollment was an appropriate next step to being allowed to drive again.

Appellant indicated that he had been terminated by the school but still worked for Leona Group.

Appellant stated that he had no explanation as to how the substance may have come into his system; he further indicated he did not have a medical marijuana card, and had not ingested any THC. Appellant explained that, as part of his job duties at the school when he was not driving, he was a bathroom monitor requiring him to go into bathrooms checking for smoking, unusual smells, and substances; if he found such, he then took the student to the principal.

The hearing record demonstrates that, through a series of emails in October 2023, the Department had considered the information Appellant had provided in his appeal, and had determined to proceed with the certification cancellation. Therein, the Department noted that Appellant had only driven for the school for ten (10) months and that the school had informed the Department it was their policy to terminate employees for failing a drug screen.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.

A preponderance of the evidence is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

A.A.C. R13-13-102 provides, in pertinent part, as follows:

K. Denial, cancellation, or suspension of certificate

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

. . . .

h. Having a verified positive result to any controlled substance or alcohol test required by subsections (C)(1), (2), or (3), at any time.

The evidence established that Appellant had a verified positive result to a controlled substance test. Consequently, the Department established grounds under A.A.C. R17-9-102(K)(1)(h) to cancel or suspend Appellant’s Arizona School Bus Certificate.

The violation of A.A.C. R17-9-102(K)(1)(h) constitutes a failure to meet or comply with the requirements of the applicable statutes. Therefore, the Department established valid grounds under A.A.C. R17-9-102(K)(1)(a) to cancel or suspend Appellant’s Arizona School Bus Certificate.

The Department is required to inform a school bus driver whose certificate is cancelled of the amount of time that must elapse before that driver may reapply for certification. In determining the amount of time that must elapse before reapplication, the Department shall consider: (a) the seriousness of the offense leading to the cancellation; (b) the frequency with which the offense occurred; and (c) the amount of time required to correct the offense. See A.A.C. R17-9-102(K)(4).

The Department informed Appellant that he could reapply after August 23, 2024. The Department considered the seriousness and frequency of the offense, and considered that Appellant’s New Driver training regarding the Minimum Standards had been completed less than a year before the drug screen. Therefore, the Department presented sufficient evidence to demonstrate that a one-year waiting period was appropriate.

Consequently, Appellant’s appeal should denied based on his violations of A.A.C. R13-13-102(K)(1)(a) and A.A.C. R13-13-102(K)(1)(h).

ORDER

IT IS ORDERED that Appellant’s appeal is denied and Appellant’s certificate is cancelled effective immediately.

IT IS FURTHER ORDERED Appellant is eligible to reapply for a School Bus Driver Certificate after August 23, 2024.

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 forty (40) days from the date of that certification.

Done this day, December 31, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically January 2, 2024 to:

Ken Hunter

Department of Public Safety - Student Transportation

2102 West Encanto Boulevard

Phoenix, AZ 85009

Kenneth Hughes

Assistant Attorney General

[email redacted]

Steven Michael Safford

[email redacted]

By: OAH Staff