308-24•Israel Torres V. New Jersey Department of Education, Office of Student Protection, 8/23/2024, (#308-24)
Israel Torres V. New Jersey Department of Education, Office of Student Protection, 8/23/2024, (#308-24)
308-24Njcommned
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308-24 New Jersey Commissioner of Education Final Decision Israel Torres, 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 his school bus endorsement for six months pursuant to N.J.S.A. 18A:39-28 et seq. after an incident on March 24, 2024, in which an elementary school student remained on petitioner’s bus beyond the end of his assigned bus route. Petitioner did not dispute that a sleeping child remained on the bus but contended that the student was never left alone, as he noticed the child while proceeding back to his base location. The Department filed a motion to dismiss in lieu of an answer, requesting that the motion be converted to a motion for summary decision upon transmittal of the matter to the Office of Administrative Law (OAL). 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 admitted that after completing his bus route on March 24, 2024, he noticed that a sleeping child remained on the bus; petitioner then located a safe place to stop, notified dispatch of the situation, and returned the child to the George S. Hess Elementary School; 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; “end of the transportation route” under N.J.S.A. 18A:39-28 means when the children are dropped off at the assigned destination, or the last bus stop; in accordance with N.J.S.A. 18A:39-29, if a school bus driver is found to have left a child 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, and to notify petitioner’s employer that he 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.
308-24 OAL Dkt. No. EDU 05575-24 Agency Dkt. No. 90-4/24 New Jersey Commissioner of Education Final Decision Israel Torres, 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 (ALJ) that the “end of the transportation route” under N.J.S.A. 18A:39-28 is when the children are dropped off at the assigned destination. Pursuant to N.J.S.A. 18A:39-28, school bus drivers have an affirmative duty to visually inspect the bus at the end of the transportation route to determine that no pupil remains on the bus. Here, the petitioner did not visually inspect the school bus before departing George L. Hess Elementary School, the end of his transportation route, and as a result a child was left on the bus. Thus, the ALJ correctly concluded that petitioner violated N.J.S.A. 18A:39-28. Accordingly, the Initial Decision is adopted as the final decision in this matter, and the petition of appeal is hereby dismissed. Petitioner’s “S” endorsement is hereby suspended for six
2 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 N.J.S.A. 18A:39-26 et seq., and to notify petitioner’s employer that he is ineligible during the period of suspension for continued employment as a school bus driver. IT IS SO ORDERED.1 ACTING COMMISSIONER OF EDUCATION Date of Decision: August 23, 2024 Date of Mailing: August 26, 2024 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.
New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW INITIAL DECISION SUMMARY DECISION OAL DKT. NO. EDU 05575-24 AGENCY DKT. NO. 90-4/24 ISRAEL TORRES, Petitioner, v. NEW JERSEY DEPARTMENT OF EDUCATION, OFFICE OF STUDENT PROTECTION, Respondent. ____________________________ Israel Torres, petitioner pro se Michael Lombardi, Deputy Attorney General, for respondent (Matthew J. Platkin, Attorney General of New Jersey, attorney) Record Closed: June 26, 2024 Decided: July 11, 2024 BEFORE KATHLEEN M. CALEMMO, ALJ: STATEMENT OF THE CASE Petitioner, Israel Torres (Torres), challenges the suspension of his bus driver “S” endorsement. The Office of Student Protection (OSP) determined that Torres violated N.J.S.A. 18A:39-28, et seq., in allegedly leaving a pupil on a school bus assigned to him
OAL DKT. NO. EDU 05575-24 2 at the end of his transportation route. As a first offense of this kind, the penalty is a six- month suspension of his “S” endorsement to operate a school bus. PROCEDURAL HISTORY Petitioner filed his Petition of Appeal with the Department of Education, Bureau of Controversies and Disputes (Department) on April 5, 2024. On April 23, 2024, the New Jersey Department of Education, Office of Student Protection (OSP) filed a motion to dismiss in lieu of an answer, pursuant to N.J.A.C. 6A:3-1.10.1 The matter was transferred to the Office of Administrative Law (OAL), where it was filed on April 24, 2024, as a contested case under N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. The matter was assigned to me on June 4, 2024. I held a telephone conference on June 17, 2024, and set a briefing schedule. Torres submitted his opposition to OSP’s motion to dismiss on June 18, 2024. On June 25, 2024, OSP filed a letter brief in reply. On June 26, 2024, Torres filed a statement replying to OSP’s reply, which I accepted and considered. The record closed on June 26, 2024. FINDINGS OF FACT On March 25, 2024, after departing George L. Hess Elementary School en route to the base location for Sheppard Bus, Torres visually scanned his student mirrors and noticed a sleeping student several rows behind him. After locating a safe place to stop, Torres notified dispatch for his bus company. Dispatch advised him to return to school with the student. Torres never left the student unattended and returned the student to school as instructed. 1 OSP had initially filed a Motion to Dismiss in Lieu of an Answer with the Commissioner under N.J.A.C. 6A:3-1.10. Upon transmittal to the OAL, the motion was converted to a summary-decision motion under N.J.A.C. 1:1-12.5.
OAL DKT. NO. EDU 05575-24 3 LEGAL ANALYSIS The School Bus Safety Act, N.J.S.A. 18A:39-26 to -33, requires that the 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.” N.J.S.A. 18A:39- 28. A violation of N.J.S.A. 18A:39-28 results in a mandatory penalty. N.J.S.A. 18A:39- 29. The statute dictates that “[i]n 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 . . . .” N.J.S.A. 18A:39-29(a). The issue in this case is whether the Department established by a preponderance of the credible evidence that Torres failed to comply with the statutory requirement that the 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.” N.J.S.A. 18A:39- 28. Torres acknowledged in his written statement that he discovered a sleeping student after departing the elementary school when he visually scanned his student mirrors. When Torres discovered the student, he was proceeding to the base location of Sheppard Bus, where he intended to perform the “mandated visual inspection in a safe and timely manner.” (Petitioner’s Opposition Statement.) Torres discovered the child before he reached his base location and upon notifying dispatch, returned the child to school. Therefore, the heart of the instant controversy lies in the interpretation of the “end of transportation route” phrase, which is not defined in the statute or regulations. In Klein v. Department of Education, Criminal History Review Unit, EDU 00852-11, the Commissioner of Education (Commissioner) concluded that the “end of the route” as used in N.J.S.A. 18A:39-26 “terminates at the point where all of the children in that group leave the bus . . . and the bus is empty of riders, and before the driver moves on to her next route. At that point, the driver shall inspect the bus for any remaining students.” Klein, Comm’r decision (February 21, 2012), <http://njlaw.rutgers.edu/collections/oal/>, at 2. The Commissioner explained that
OAL DKT. NO. EDU 05575-24 4 [t]he record show[ed] that the driver by walking to the back of the bus on that day, turning off the “Child Minder” button, taking the keys out of the ignition, letting the children out, and locking the doors, fulfilled all indicia of “end of the route” activities save one: She did not inspect the bus. Accepting [the driver’s] argument that the inspection did not have to take place until the bus returned to the depot at the end of the day defies reason and eviscerates the fundamental purpose of the statute – to protect our children and ensure their safety. [Id. at 2-3.] In 2015, in Herman v. Department of Education Criminal History Review Unit, EDU 10473-14, Initial Decision (June 23, 2015), <http://njlaw.rutgers.edu/collections/oal/>, rev’d, Comm’r (July 30, 2015), <https://www.nj.gov/education/legal/decisions/>, the Commissioner again rejected the argument that the “end of transportation route” means at the end of the workday, once the bus is dropped off at the bus depot lot. The Administrative Law Judge (ALJ) concluded that N.J.S.A. 18A:39-28’s requirement of a visual inspection at the end of the route did not apply. The ALJ determined that the route had not ended as long as the bus driver had not left the vicinity of the bus; and that the visual inspection would be performed when she did depart the vicinity of the bus at the bus depot. Herman, Initial Decision, <https://www.nj.gov/education/legal/decisions/>. Upon review, the Commissioner rejected the ALJ’s initial decision. Citing Klein, the Commissioner reiterated that the bus driver violated the School Bus Safety Act when she failed to visually inspect the school bus at the end of her route – that is, following the departure of the students from the bus, and before returning to the depot. Herman, Comm’r Decision, <https://www.nj.gov/education/legal/decisions/>, at 5. Concurring with what he described as the “well-reasoned definition” of “end of the transportation route” provided by the Commissioner in Klein, the Commissioner declared the ALJ’s rejection of the Commissioner’s holding in Klein “undermines the purpose and intent of the School Bus Safety Act.” Id. at 7. He explained: [a]s the Commissioner stated in Klein, “Accepting petitioner’s argument that the inspection did not have to take place until the bus returned to the depot at the end of the day defies reason and eviscerates the fundamental purpose of the statute – to protect our children and ensure their safety.” Klein, supra, at 2. To hold otherwise would excuse – if not
OAL DKT. NO. EDU 05575-24 5 promote – inefficiency (by endorsing needless rides to the bus depot for our students) and place children at unnecessary risk of harm. It is nonsensical to delay visual inspection of the school bus until arrival at the bus depot when, in fact, any heightened safety risk to the children can be avoided altogether if they are discovered on the bus while still present on school grounds or prior to leaving the route. While it may be true that [the student] was never left unattended, and it is not known from the present record whether he suffered any harm or distress, the visual inspection required by N.J.S.A. 18A:39-28 should have occurred prior to departing the [school] at the end of the transportation route – when all of the other children had exited the bus. [Id. at 7-8.] In his decision, the Commissioner also cited Vickery v. Department of Education Criminal History Review Unit, EDU 00083-15, Initial Decision (June 2, 2015), <http://njlaw.rutgers.edu/collections/oal/>, adopted, Comm’r (July 9, 2015), <https://www.nj.gov/education/legal/decisions/>, which he stated “reinforces the Act’s requirement that the visual inspection of the school bus should have occurred before departing the [school] at the end of the transportation route – when all of the other children had exited the bus.” Herman, Comm’r Decision, <https://www.nj.gov/education /legal/decisions/> at 6. In Vickery, a school bus driver similarly failed to complete the required visual inspection of the school bus following his departure at the last bus stop on route and consequently found a sixteen-year-old student, who had fallen asleep and failed to exit the bus, at the bus yard. The driver averred he had not violated the Act because he did not leave the child alone on the bus and conducted a visual inspection upon his return to the bus yard, which was the end of his route. The ALJ determined that pursuant to Klein the Act requires that an inspection be conducted when the last child is dropped off during the route, and not after the vehicle has finished its drop-offs and has returned to its garage or depot. Vickery, Initial Decision, <https://www.nj.gov/education/legal/decisions/>. On review, the Commissioner adopted the findings and determinations of the ALJ. Vickery, Comm’r Decision, <https://www.nj.gov/education/legal/decisions/>.
OAL DKT. NO. EDU 05575-24 6 Following Klein, Herman and Vickery, the Commissioner has consistently held that the “end of the transportation route” means at the end of a student drop-off point. See Arcos v. Dep’t of Educ., Crim. Hist. Rev. Unit, EDU 01752-18, Initial Decision, (November 7, 2018), adopted, Comm’r (September 20, 2018), <http://njlaw.rutgers.edu/ collections/oal/> (“the end of the transportation route” triggering the school bus driver’s affirmative duty to inspect the school bus under N.J.S.A. 18A:39-28 occurs when the driver drops off the children at the assigned destination and not when the bus driver competes all of her assigned routes for the day.); Pedi v. Dept. of Educ., Office of Student Protection, EDU 04317-21, Initial Decision (October 13, 2021), adopted, Comm’r (November 18, 2021), (bus driver violated N.J.S.A. 18A:39-28 when she merely conducted a “turnaround view” and not a full visual inspection of the bus after her first student drop off, continued onto her second route, and subsequently found a child from her first route.); and Severe v. Dept. of Educ., Office of Student Protection, EDU 01502- 21, Initial Decision (September 19, 2022), 2022 N.J. AGEN LEXIS 794, adopted, Comm’r (October 31, 2022), <http://njlaw.rutgers.edu/collections/oal/> (the “end of the transportation route” under N.J.S.A. 18A:39-28 is when the children are dropped off at the assigned destination, that triggers the school-bus driver’s affirmative duty to inspect the school bus under N.J.S.A. 18A:39-28, not when the bus driver competes all of her assigned routes for the day.) Here, Torres contends that it was unsafe to pull over on the premises of George L Hess Elementary School and perform a student check. In his opposition, Torres explained the traffic at the designated area for arriving and departing school buses. He explained that “he planned to perform my student check, and post trip inspection upon arrival to base” because that was the safest place to perform those duties. (Opposition Brief.) Torres failed to mention whether he performed a visual inspection of his bus after the students departed and prior to driving away. (emphasis mine.) According to Torres, after he drove off the premises, he noticed the sleeping student while visually scanning his student mirrors. As a result, Torres found a child on the bus as he was proceeding to his base location, having left the school. Regardless of Torres’ intentions, visual inspection was required to be performed at the school prior to departure.
OAL DKT. NO. EDU 05575-24 7 The statute requires the driver to visually inspect the bus at the end of his transportation route. N.J.S.A. 18A:39-28. There can no longer be any doubt that the end of the transportation route was George L. Hess Elementary School. Herein, there is no dispute to the material fact that Torres discovered the student after leaving the school en route to Sheppard Bus’s base location. For that reason, he violated N.J.S.A. 18A: 39-28. After OSP determines that a child was indeed left behind at the end of the route, a mandatory penalty is imposed due to the safety implications of such a violation. Garner v. N.J. Dep’t of Educ., Crim. Hist. Rev. Unit, 2009 N.J. AGEN LEXIS 173 (April 3, 2009), adopted, Comm’r (May 1, 2009), https://www.nj.gov/education/legal/. Thus, “[i]n the event that . . . a school bus driver is found to have left a pupil on the school bus . . ., his school bus endorsement shall be: (a) suspended for six months, for a first offense . . . .” N.J.S.A. 18A:39-29(a). Here, since Torres violated the statute, the penalty imposed is mandatory, and there is no discretion to impose anything less than a six-month suspension of his “S” endorsement. Where the violation has been established, no circumstances of the event or of the driver may be considered in determining the penalty. Garner, 2009 N.J. AGEN LEXIS 173 at *5–6. I CONCLUDE that the “end of the transportation route” under N.J.S.A. 18A:39-28 is when the children are dropped off at the assigned destination, that triggers the school- bus driver’s affirmative duty to inspect the school bus under N.J.S.A. 18A:39-28, not a safe and convenient location away from the designated route. The Department seeks relief pursuant to N.J.A.C. 1:1-12.5(b), which provides that summary decision should be rendered “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.” This provision mirrors the summary judgment language of R. 4:46-2(c) of the New Jersey Court Rules. The motion judge must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The “judge’s function is not himself [or herself] to weigh the evidence and determine the
OAL DKT. NO. EDU 05575-24 8 truth of the matter but to determine whether there is a genuine issue for trial.” Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 242, 249 (1986)). When the evidence “is so one-sided that one party must prevail as a matter of law,” the trial court should not hesitate to grant summary judgment. Ibid. (quoting Liberty Lobby, 477 U.S at 252). I CONCLUDE that the evidence presented by the parties does not establish any material facts in dispute. Given the limited facts that must be established to support a violation of the duty imposed by the Legislature on a school-bus driver to properly inspect the bus at the end of a route to assure that no child is left on the bus, the arguments offered by OSP amply support summary decision in its favor. And given the mandatory nature of the penalty for a first-time violator of the mandate, the six-month suspension is the only outcome when the violation is proven. N.J.S.A. 18A:39-29(a). OSP’S motion for summary decision must be GRANTED. ORDER It is hereby ORDERED that OSP’s motion for summary decision is hereby GRANTED, and it is further ORDERED that the petitioner’s “S” endorsement shall be suspended for six months. I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION for consideration. This recommended decision may be adopted, modified, or rejected by the ACTING COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to make a final decision in this matter. If the Acting Commissioner of the Department of Education does not adopt, modify, or reject this decision within forty-five days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Within thirteen days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the ACTING
OAL DKT. NO. EDU 05575-24 9 COMMISSIONER OF THE DEPARTMENT OF EDUCATION. Exceptions may be filed by email to ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-0500. A copy of any exceptions must be sent to the judge and to the other parties. July 11, 2024 DATE KATHLEEN M. CALEMMO. ALJ Date Received at Agency: Date Mailed to Parties: KMC/tat
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