Decision No. 13,721

(December 30, 1996)

Hon. Paul A. Crotty, Esq., Corporation Counsel, attorney for respondent, Norma Kerlin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Office of Pupil Transportation (OPT) of the City School District of the City of New York ("respondent"), which permanently revoked petitioner's school bus operator's certificate. The appeal must be dismissed.

Petitioner was employed by Atlantic Express Bus Company, which contracted with respondent to transport students. Petitioner was certified by respondent as a school bus operator in 1988. On October 26, 1995, petitioner's employer received a telephone call from the owner of an automobile who reported that a witness had seen a school bus, bearing number 1299, hit his vehicle the day before. The witness left a note on the owner's car. Petitioner's employer examined the bus petitioner had driven on the date in question and determined that it had been in an accident. The employer's director of personnel and safety and two other employees went to the accident scene where they met with the car's owner. Photographs were taken of the bus and the car. A piece of red taillight was found on the bumper of the bus.

On October 26, 1995, petitioner was informed that he was suspended for the accident but denied any knowledge of an accident with a car. Petitioner was terminated from his employment on October 30, 1995. On November 20, 1995, respondent received a facsimile from the Amalgamated Transit Union that petitioner had been involved in an accident. On November 21, 1995, OPT's executive director sent a letter to Amboy Atlantic Bus Company that OPT had received an allegation that petitioner left the scene of an accident and failed to report the accident to the company. A hearing was held on December 13, 1995 before an OPT conference officer concerning petitioner's certification. The witnesses included two Atlantic Express employees who discussed their findings of the accident. Petitioner presented a witness who saw him at the accident scene and testified that the bus pulled away without incident.

In a decision dated December 15, 1995, the conference officer determined that information obtained from the car's owner and the witness to the accident was proof that petitioner was at the scene of the accident, that the damage to the car matched the damage to the bus, that debris from the accident was found in the street, that the bus company's auto body manager's experience qualify him as an expert, and that petitioner's witness was not credible in her testimony that she had witnessed petitioner board his bus October 25, 1995 and pull into traffic without incident. The conference officer summarized petitioner's personnel record and found eight (8) violations and recommended permanent revocation of petitioner's school bus driver certification. The findings and recommendations of the conference officer were approved by the OPT Executive Director for Support Services on January 30, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on March 14, 1996. By letter dated October 18, 1996, I requested additional information from the parties pursuant to 8 NYCRR 276.5 concerning the issues raised in this appeal.

Petitioner alleges that respondent's revocation of his certification was not supported by the evidence, was arbitrary and unfair. Petitioner also alleges that the Amalgamated Transit Union, Local 1181, sought to stop petitioner from running for union office and thus had an interest in seeing his certification revoked. He seeks a determination restoring his certification. Respondent contends that the petition fails to state a cause of action upon which relief can be granted and that respondent's determination that petitioner's performance as a school bus driver is unsatisfactory is supported by substantial evidence in the record. Respondent also contends that petitioner fails to show the requisite moral character and reliability warranting the continuation of his certification.

Before reaching the merits, I will address respondent's procedural defense that the petition fails to state a cause of action upon which relief can be granted. Commissioner's regulation '275.10 requires a petition to contain a claim showing that petitioner is entitled to relief and a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act complained of. Petitioner's claims against respondent and the relief requested are apparent. Petitioner seeks restoration of this school bus driver's certification. I note that respondent has adequately addressed those claims in its answer. Therefore, I will not dismiss this appeal for failure to state a claim.

However, the appeal must be dismissed on the merits. Petitioner claims that the hearing did not elicit evidence which supports the determination that his certification should be revoked. However, petitioner was found to have been involved in an accident with the school bus he was driving. Respondent conducted a hearing concerning the incident and petitioner's certification, and the conference officer found, based on the record before her, that petitioner's certification should be revoked. Where a hearing is held in such cases, there must be substantial evidence in the record as a whole to support the findings and determination (Matter of Brigandi v. Board of Education, 119 AD2d 573, 500 NYS2d 740). In this case, I find that respondent's revocation of petitioner's certification was supported by the evidence.

Other than petitioner's assertions that he had no knowledge of the alleged accident and his allegations that the revocation of his certification was motivated by the union's desire to prevent him from running for union office, petitioner provides no basis for me to overturn respondent's determination that he is unfit to hold a school bus driver's certification. Based on the record before me, there is no reason to grant the relief petitioner seeks and restore his certification.

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