Ana David-Pedi, New Jersey Department of Education, Office of Student Protection, 11/18/21, (#290-21)

OCR transcription for search; preserved printed pages are authoritative

290-21
New Jersey Commissioner of Education Final Decision
Ana David-Pedi,
Petitioner, V. New Jersey Department of Education, Office of Student Protection,
Respondent.
Synopsis
Petitioner - a school bus driver - appealed the Department's determination to suspend her school bus endorsement pursuant to N.J.S.A. 18A:39-28 et seq. after an incident in which a Central Jersey Prep student was left on petitioner's school bus at the end of one of her assigned bus routes on February 24, 2021. Petitioner did not dispute that the child was left on the bus but contended that the student was never left alone. Petitioner conceded that she had only conducted a visual "turn around" inspection of the bus, not a full visual walk-through, asserting that she had nowhere to pull over safely to walk through of the bus before continuing to her next route. Petitioner did conduct the required walk-through after her next stop and found the student asleep in a seat, after which she returned the unharmed child Central Jersey Prep. The respondent Department filed a motion for summary decision.
The ALJ found, inter alia, that: there are no material facts at issue in this case, and the matter is ripe for summary decision; petitioner has admitted that on February 24, 2021, she did not conduct a full visual inspection of her school bus when she dropped off students at the Central Jersey Prep in Franklin Township, before proceeding to her next assigned stop in South Brunswick; pursuant to N.J.S.A. 18A:39-28, petitioner had an affirmative duty to visually inspect the school bus at the end of the transportation route to determine that no pupil had been left on the bus, and her argument that at no point was the student left unattended since petitioner never stepped off the bus before finding the child is without merit; in accordance with N.J.S.A. 18A:39-29, if a school bus driver is found to have left a pupil on the bus at the end of a route, the driver's school bus endorsement shall be suspended for six months for the first offense. Accordingly, the ALJ granted summary decision to the respondent and affirmed the petitioner's six month suspension for leaving a child on the school bus at the end of a route.
Upon full review, the Commissioner concurred with the ALJ that the respondent is entitled to summary decision. Accordingly, the petition was dismissed; respondent was directed to notify the Motor Vehicle Commission of its obligation to suspend petitioner's school bus endorsement pursuant to N.J.S.A. 18A:39-26 et seq., and to notify petitioner's employer that she is ineligible for the period of suspension for continued employment as a school bus driver.
This synopsis is not part of the Commissioner's decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 04317-21
Agency Dkt. No. 41-3/21
New Jersey Commissioner of Education
Final Decision
Ana David-Pedi,
Petitioner,
v.
New Jersey Department of Education,
Office of Student Protection,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge that
petitioner violated N.J.S.A. 18A:39-28 when she failed to conduct a visual inspection of her
school bus at the end of her route and, as a result, a child was left on the bus while petitioner
continued on to her next route.
Accordingly, respondent’s motion for summary decision is granted and the petition of
appeal is dismissed. Petitioner’s “S” endorsement is hereby suspended for six months from the
date of this decision. Respondent is directed to notify the Motor Vehicle Commission of its
obligation to suspend petitioner’s school bus endorsement pursuant to
290-21

2
N.J.S.A.18A:39-26et seq., and to notify petitioner’s employer that she is ineligible for the period
of suspension for continued employment as a school bus driver.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
November 18, 2021
November 18, 2021

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

MOTION FOR SUMMARY DECISION
OAL DKT. NO. EDU 04317-21
AGENCY DKT. NO. 41-3/21

ANA DAVID-PEDI,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF EDUCATION,
OFFICE OF STUDENT PROTECTION,

Respondent.

Michael Policastro, Esq., for petitioner (The Policastro Law Firm, attorneys)

Sydney Finkelstein, Deputy Attorney General, for respondent Andrew J.
Bruck, Acting Attorney General, attorney)

Record Closed: October 11, 2021 Decided: October 13, 2021

BEFORE JUDITH LIEBERMAN, ALJ:

STATEMENT OF THE CASE

Petitiorer appeals the six-month suspension of her “S" endorsement to operate a

school bus, based on the determination by respondent New Jersey Department of

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 04317-21
Education, Office of Student Protection, (DOE) that a child was left on the school bus to which petitioner was assigned.
PROCEDURAL HISTORY
Petitioner was notified of the DOE's determination on or about March 1, 2021. She filed a timely appeal on or about March 10, 2021. The DOE Office of Controversies and Disputes transmitted the matter to the Office of Administrative Law (OAL), where it was filed on May 14, 2021, as a contested case. N.J.S.A. 52:14B-1 to-15; N.J.S.A. 52:14F-1 to-13. The matter was assigned to me on June 4, 2021, and the first prehearing status conference was conducted on August 2, 2021. During the status conference, respondent advised that it submitted to DOE a motion to dismiss the appeal in lieu of an answer and sought leave to proceed with the motion before the OAL. Because petitioner advised that she had retained counsel, the prehearing conference was rescheduled to August 13, 2021, to permit counsel's appearance. The motion was discussed during the August 13, 2021, prehearing conference. It was determined that the motion would be treated as a motion for summary decision and petitioner would file a brief in opposition to the motion no later than September 13, 2021. Oral argument would be permitted if either party requested.
On September 15, 2021, petitioner asked respondent for a one-week extension of time to respond to the motion. The request was not presented to the OAL until September 20, 2021, which was one week after the September 13, 2021, deadline. At that time, petitioner did not specify the length of the requested extension. On October 7, 2021, because petitioner did not respond to my legal assistant's inquiries concerning the length of the requested extension, petitioner was advised in writing that she must submit her response to the pending motion for summary decision no later than October 11, 2021. She was further advised that if the response was not received by that date, the motion would be decided without petitioner's response. As of the date of this opinion, petitioner did not submit a response to respondent's motion. Accordingly, the motion was deemed unopposed.
2

OAL DKT. NO. EDU 04317-21

FACTUAL DISCUSSION

The following facts are undisputed and, therefore, | FIND the following as FACT:

Petitioner possessed an “S” endorsement to operate school buses. On February
24, 2021, petitioner worked as a school bus driver. That day, she dropped off the children
on her bus at Central Jersey Prep in Franklin Township, New Jersey. At that time, she
observed, “from a turnaround view, [that] there were no children left on the bus.” March
10, 2021, Petition. She was unable to stop the vehicle to “perform a full child check”
because her “routes are too close in time gap" and, thus, she had “nowhere to pull over
safely[.]” lbid. Petitioner left Central Jersey Prep at 7:43 a.m. and proceeded to South
Brunswick, where her first stop was at 7:53 a.m. “Upon [her] drop off to the next school
in South Brunswick, [she] conducted a walk through and noticed that a child... was
slouched over asleep in one of the seats.” Ibid. Petitioner alerted her dispatcher that she
would return ti» Central Jersey Prep to drop off the child and asked that another bus driver
take over the vest of her route. Petitioner returned to Central Jersey Prep and walked the
child into the school. Petitioner asserted, “At no point during this time was the child left

unattended as | never stepped off the bus.” Ibid.

The dispatcher, Robert Wojciechowicz, wrote a letter in which he described his
interaction with petitioner. He asked her if she exited the bus at any time. P-1. Petitioner
told him she “never exited the bus at all[.]’ Ibid. Wojciechowicz wrote that he knew
petitioner was “telling the truth because all her routes run together. So there is no time
for [her] to stonf[.]” Ibid.

DOE determined that petitioner's “S” endorsement to operate a school bus must
be suspended because a child was left on the school bus to which she was assigned. It

proposed a six-month suspension because it was petitioner’s first offense.

OAL DKT. NO. EDU 04317-21

LEGAL ANALYSIS AND CONCLUSION

Summary decision may be granted “if the papers and discovery which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to prevail as a matter of law.”
N.JA.C. 1:1-12.5(b). Summary decision may be granted when

ihe competent evidential materials presented, when viewed in
the light most favorable to the non-moving party, are sufficient
to permit a rational fact-finder to resolve the alleged disputed
issue in favor of the non-moving party. The “judge’s function
is not himself [or herself] to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.”

Brill v. Guardian Life Insurance Company of America, 142 N.J.
520, 540 (1995)(quoting Anderson v. Liberty Lobby, 477 ULS.
242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212
,1986)).

See also R. 4:46-2(c)("An issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require submission
of the issue tc the trier of fact”). Here, the facts are not in dispute and, therefore, the

matter is ripe tor summary decision.

N.J.S.A. 18A:39-28 addresses school bus drivers’ obligation to ensure that

children are not left on their busses. It provides:

A school bus driver shall visually inspect the school bus to
which he is assigned at the end of the transportation route to
determine that no pupil has been left on the bus. For the
purposes of this act, “school bus” means every motor vehicle
cperated by, or under contract with, a public or governmental
agency, or religious or other charitable organization or
corporation, or privately operated for compensation for the
iransportation of children to or from school for secular or

OAL DKT. NO. EDU 04317-21

religious education, which complies with the regulations of the
Department of Education affecting school buses, including
“School Vehicle Type I” and “School Vehicle Type II" as
defined pursuant to R.S.39:1-1.

A penalty must be imposed if a bus driver is found to have violated the statute:

in the event that, after notice and opportunity to be heard, a
school bus driver is found to have left a pupil on the school
bus at the end of his route, his school bus endorsement shall
be:

a. suspended for six months, for a first offense; or
b. permanently revoked, for a second offense.

IN.J.S.A. 18A4:39-29.]

The statue does not require that the child must suffer an injury before a penalty
may be imposed. See Garner v. New Jersey State Department of Education, Criminal
History review Unit, OAL Dkt. No. EDU 06655-08, adopted, Comm’, Final Decision (May
1, 2009}(bus driver who exited the bus without first conducting mandatory visual

inspection to determine that no children were left on the bus was subject to a six-month
suspension for first offense, regardless of past employment record or absence of harm to

the child who was left on the bus).

In Arcos v. New Jersey Department of Education, Office of Criminal History Review
Unit, OAL Dkt. No. 01752-18, adopted, Comm’r, Final Decision (September 20, 2018),

the bus driver failed to observe that a student remained on her bus after she dropped

students off ai their school. The bus driver did not leave the school bus and relied upon
the representations of a teacher who was on the bus that all students had exited the bus.
The Commissioner affirmed the decision of the Administrative Law Judge (ALJ), who
granted summary decision in favor of the Department. The ALJ found that the driver had
an “affirmative duty” to visually inspect the bus at the end of the transportation route. Initial
Decision at *4 In examining when the end of the transportation route occurred, the ALJ
referenced Klein v. New Jersey Department of Education, Criminal History Review Unit,
Agency Dkt. No. 713-12/10, Final Decision (February 21, 2012) at *2, in which it was

OAL DKT. NO. EDU 04317-21

determined that the “end of the transportation route” was the “point where all of the
children in that group leave the bus to enter their school and the bus is empty of riders,
and before the driver moves on to her next route.” Thus, the end of the transportation
route was not synonymous with the end of the driver's entire shift and the driver was
obligated to irispect the bus for remaining children each time she reached a destination

at which children departed the bus. Arcos at *5-6.

Here, it is undisputed that petitioner intended to drop off all students at Central
Jersey Prep. She had thus reached the end of her route with respect to Central Jersey
Prep. It is also undisputed that a Central Jersey Prep student remained on the school
bus after the end of the route and when petitioner began her next route. Accepting
petitioner's assertion in her petition that she inspected the bus by way of a “turnaround
view,” and thet she did not have time to stop the bus, it is clear that she merely turned
around while in the driver's seat, and did not walk through the bus, in an effort to ensure

that all children had exited the vehicle. As discussed in Arcos v. New Jersey Department

of Education, Office of Criminal History Review Unit, it is of no moment that petitioner did

not exit the vehicle. Rather, the fundamental inquiry is whether petitioner conducted a
full visual inspection of the vehicle. She did not discover the child until she conducted an
inspection at the end of her next transportation route. While petitioner and her dispatcher
assert that there was not time to stop the bus to conduct an inspection, it is undisputed
that a full inspection was not conducted. The controlling statute does not permit
exceptions under circumstances such as this. |, therefore, CONCLUDE that respondent
properly determined that petitioner violated N.J.S.A. 18A:39-28

The penalty for a first offense of failing to comply with the mandatory inspection
statute is a six-month suspension. The penalty may not be waived or compromised.
Having found that petitioner violated the controlling statute, | CONCLUDE that she is

properly subject to a six-month suspension of her endorsement to operate a school bus.

OAL DKT. NO, EDU 04317-21

| ORDER that respondent’s motion for summary decision is GRANTED and its six-
month suspension of petitioner’s “S” endorsement is AFFIRMED.

| hereby FILE this initial decision with the COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.

This recommended decision may be adopted, modified or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by !aw is authorized
to make a final decision in this matter. If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limi! is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EOU 04317-21

Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND
DISPUTES, 190 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-

0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the

judge and to the other parties.

October 13, 2921

JUDITH LIEBERMAN, ALJ

DATE

Date Received at Agency: October 13, 2021
Date Mailed ta Parties: October 13, 2021
mph

OAL DKT. NO. EDU 04317-21

APPENDIX

List of Exhibits

For petitione::
March 10, 2021, Petition

P-1 Undated letter from Robert Wojciechowicz

For respondent:

May 12, 2021, Brief