ALJDEC decisions subject to certification as final

25A-101668-BUS · Department of Public Safety - Student Transportation · 2024-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Elizabeth Harutiunian

Certificate No. 65368

APPELLANT.

No. 25A-101668-BUS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27, 2024 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. Elizabeth Harutiunian (“Appellant”) appeared on her own behalf. Hagop Harutiunian and Vern Havens observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, Minute Entry dated September 13, 2024, Department Prehearing Memorandum, and Department Exhibits 1-6 were admitted into the evidentiary record.

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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 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. 65368 to Appellant.

On April 02, 2024, Appellant was involved in an at-fault accident while operating a school bus. Specifically, while transporting 3 students, Appellant made a right hand turn and struck an unoccupied parked car. On April 04, 2024, PVUSD reported the accident to the Unit. Appellant subsequently received additional bus driver training, but was not disciplined.

On June 14, 2024, the Unit received a complaint from Paradise Valley Unified School District (“PVUSD”) that alleged on May 21-22, 2024, Appellant operated a school bus in an unsafe manner. Specifically, the complaint alleged that Appellant exceeded posted speed limits en route to a field trip, traveling 50 mph in a 35 mph zone, and overloaded her bus with 77 passengers on the return trip whereby she again exceeded posted speed limits, traveling 75 mph in a 55 mph zone, and permitted passengers to block the aisle while the bus was in motion. It was also alleged that during student drop offs, Appellant did not routinely use her turning signal, pull over to the right side of the road, and/or put her bus in neutral and set the parking brake. It was further alleged that when leaving a stop Appellant routinely pulled away before students were seated, and usually only keeps one hand on the steering wheel when driving. Subsequent video surveillance footage captured Appellant as the operator of the bus at issue.

Subsequent video surveillance footage captured Appellant as the operator of the bus at issue, and captured her speeds against the posted limits; including those in construction zones, and number of passengers on the return trip.

On June 14, 2024, the Department issued a Notice of Cancellation (“Notice”) to Appellant regarding School Bus Certificate No. 65368. The Notice advised that Appellant’s certification was cancelled effectively immediately pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R13-13-102(K)(1), R13-13-102(K)(1)(a), R13-13-102(K)(1)(d), R13-13-104(D)(3), and R13-13-104(D)(6). The Notice further advised as follows, in pertinent parts:

[The Unit] received notification and video from the [PVUSD] on June 7, 2024, of Minimum Standard violations dating back to May 21 and 22, 2024. On April 2, 2024

you were involved in an accident where you received additional training. As a follow-up to your training, the District pulled additional videos confirming that you continue to disregard state laws and Minimum Standards by speeding (75 mph in a 65 mph zone on different occasions, failure to use turn signals, etc.). Video also shows that on at least one occasion, during a field trip, the maximum occupancy of the school bus was exceeded. These are violations of Minimum Standards.

(Emphasis in original.)

The Department informed Appellant that she would be able to reapply for school bus driver certification after May 21, 2025, pending additional requirements.

On an unknown date, Appellant submitted a hearing request to the Unit.

On July 31, 2024, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on September 27, 2024. Per the August 13, 2024, Notice of Hearing the issue to be determined is whether grounds exist to justify the Department’s appealable agency action; specifically, the cancellation of Appellant’s school bus driver certificate for alleged violation(s) of Ariz. Admin. Code R13-13-102(K).

Additional Evidence

Appellant testified that on May 22, 2024, 2 buses were supposed to pick up students and staff from a field trip, but that she was the only bus driver that timely arrived. Appellant called dispatch and was advised that the second bus was 20 mins away. A teacher asked Appellant to transport all students back to school because they were all tired. Appellant confirmed with dispatch that she was permitted to accept additional passengers, as long as they were all seated and the aisle was clear.

Appellant testified that she traveled with the “flow of traffic” when occupants were in her bus, and only exceeded the speed limit when she was driving alone.

Closing Arguments

In closing, Appellant questioned how she was supposed to clear the aisle of her bus on May 22, 2024, and argued that she was unable to pull over on the highway because of construction.

In closing, the Department argued 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 hers failure(s) to meet requisite minimum standards. The Department opined that Appellant’s excuses, acquiescing to a teacher’s request to overload her bus and exceeding the speed limit, were neither justifiable nor permissible. The Department further argued that it had fully taken into consideration all relevant facts, including the seriousness of Appellant’s offense and her prior record, when deciding to cancel School Bus Certificate No. 65368. As such, the Department asked that the Tribunal affirm its decision requiring Appellant to wait a year before reapplying for certification.

CONCLUSIONS OF LAW

The Department has jurisdiction over this matter pursuant to Arizona Revised Statutes (“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. School bus drivers must possess a certificate from the Department before they may operate a bus transporting schoolchildren.

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) 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)(3) further provides that “A school bus driver shall comply with all state traffic laws while operating a school bus except that the school bus driver shall not exceed 65 miles per hour or the posted speed limit, whichever is less, when operating the school bus on an interstate highway.”

Ariz. Admin. Code R13-13-104(D)(6) further provides that “A school bus driver shall not transport in a school bus more passengers than the rated capacity stated by the school bus manufacturer.”

The credible and relevant evidence of record establishes that between May 21, 2024, and May 22, 2024, Appellant, holder of School Bus Certificate No. 65368, violated Minimum Standards by exceeding posted speed limits in a construction zone, by exceeding 65 mph at any time, and by permitting passengers to obstruct the aisle while the bus was in motion. The record further reflects that Appellants violations came approximately 7-weeks after Appellant was retrained by the Department. Thus, violations of Ariz. Admin. Code R13-13-102(K)(1), R13-13-102(K)(1)(a), R13-13-102(K)(1)(d), R13-13-104(D)(3), and R13-13-104(D)(6) 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 the underlying incidents at issue established by the greater weight of evidence, to take action against School Bus Certificate No. 65368.

Notably, the record reflects that the Department’s proposed length of cancellation, given the seriousness of her offense, recent retraining, and failure to promptly correct her behavior, is reasonable under the circumstances. There is no evidence in the record which tends to suggest that the Department’s 1-year reapplication waiting period is inappropriate or otherwise unlawful. As such, Appellant may reapply for school bus driver certification on or after May 21, 2025, if she 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 June 14, 2024, Notice regarding the cancellation of School Bus Certificate No. 65368 be affirmed.

IT IS FURTHER RECOMMENDED that the Department deny Appellant’s appeal.

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, October 15, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Lt. Col Ken Hunter, Deputy Director

Department of Public Safety - Student Transportation

2102 W. Encanto Blvd.

Phoenix, AZ 85009

Kenneth Hughes, Esq., Assistant Attorney General

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Elizabeth Harutiunian, Appellant

545 E. Rosemonte Dr.

Phoenix, AZ 85024

[email redacted]

By: OAH Staff