Appellate Division Docket No. 512137
Saratoga County Index No. 2010-2883
Court of Appeals
State of New York
SHENENDEHOWA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION,
Appellant,
For and Order and Judgment Vacating the Determination
of An Arbitrator Pursuant to C.P.L.R. 7511
-against-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,
LOCAL 1000, AFSCME, AFL-CIO, LOCAL 864
and CYNTHIA DIDOMENTICANTONIO,
Respondents.
BRIEF AMICI CURIAE OF THE
NEW YORK STATE SCHOOL BOARDS ASSOCIATION, INC.
NEW YORK STATE COUNCIL OF SCHOOL SUPERINTENDENTS
JAY WORONA, ESQ.
KIMBERLY A. FANNIFF, ESQ.
New York State School Boards Association
24 Century Hill Drive, Suite 200
Latham, New York 12110-2125
Tel.: (518) 783-0200
JACINDA H. CONBOY, ESQ.
New York State Council of School
Superintendents
7 Elk Street
Albany, New York 12207-1002
Tel.: (518) 449-1063
TIMOTHY G. KREMER
EXECUTIVE DIRECTOR
November 19, 2012
1
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................... 2
INTEREST OF THE AMICUS CURIAE ................................................................... 7
STATEMENT OF THE ISSUE ............................................................................... 12
STATEMENT OF FACTS ...................................................................................... 13
ARGUMENT ........................................................................................................... 14
I. THE STRONG PUBLIC POLICY OF THIS STATE TO
PROTECT STUDENTS RIDING ON A SCHOOL BUS
REQUIRES THAT THE ARBITRATOR’S AWARD AT ISSUE
HEREIN ORDERING THE SCHOOL DISTRICT TO
REINSTATE A BUS DRIVER WHO TESTED POSITIVE FOR
DRUGS SHORTLY AFTER COMPLETION OF A MORNING
BUS RUN MUST BE VACATED. ............................................................... 14
CONCLUSION ........................................................................................................ 28
2
TABLE OF AUTHORITIES
Cases Page
Collins v. Parishville-Hopkinton CSD, 274 A.D.2d 732 (3
rd
Dep’t 2000) .............. 25
Ernest v. Red Creek CSD, 93 N.Y.2d 664 (1999) ................................................... 16
Lawes v. Bd. of Educ., 16 N.Y.2d 302 (1965) ........................................................ 16
Malloch v. Ballston Spa CSD, 249 A.D.2d 797 (3
rd
Dep’t 1998) ............................ 25
Matter of Falzone (New York Centr. Mut. Fire Ins. Co.),
15 N.Y.3d 530 (2010) .............................................................................................. 14
Matter of Kowaleski (New York State Dept. of Correctional Servs.),
16 N.Y.3d 85 (2010) ................................................................................................ 14
Matter of Massaria v. Betschen, 290 A.D.2d 602 (3
rd
Dep’t 2002) ........................ 25
Matter of New York City Transit Authority v. Transport Workers’ Union of Am.
Local 100, AFL-CIO, 6 N.Y.3d 332 (2005) ............................................................ 14
Matter of Sprinzen (Nomberg), 46 N.Y.2d 623 (1979) ........................................... 15
Matter of Will v. Frontier CSD Bd. of Educ., 97 N.Y.2d 690 (2002) ..................... 25
McKenzie v. Bd. of Educ. of the City School Dist. of Albany,
2012 WL 5357277 (3
rd
Dep’t 2012) ........................................................................ 26
Mirand v. City of New York, 84 N.Y.2d 44 (1994) .................................................. 16
Robbins v. Malone CSD, 182 A.D.2d 890 (3
rd
Dep’t 1992) .................................... 25
Ronkese v. Bd. of Educ. of Highland CSD,
82 A.D.2d 1011 (3
rd
Dep’t 1981) ............................................................................. 25
Shante D. by Ada D. v. City of New York,
190 A.D.2d 356 (1
st
Dep't 1993), aff'd, 83 N.Y.2d 948 (1994) ............................... 16
3
In re Smith v. Bd. of Educ. of Taconic Hills CSD,
235 A.D.2d 912 (3
rd
Dep’t 1997) ............................................................................. 24
Stein v. Churchville-Chili CSD, 760 F.Supp.2d 308 (2011) .................................... 25
Thibodeau v. Northeastern Clinton CSD Bd. of Educ.,
39 A.D.3d 940 (3
rd
Dep’t 2007) ............................................................................... 25
Tyson v. Hess, 66 N.Y.2d 943 (1985) ...................................................................... 25
Statutory Authorities
CPLR §7511(b)(1)(iii) ............................................................................................. 14
Educ. Law §3624 ......................................................................................... 15, 19, 21
Educ. Law §3650 ..................................................................................................... 15
Educ. Law §3650(2) ................................................................................................. 22
Educ. Law §3650-b ............................................................................................ 15, 22
Educ. Law §3650-b(3) ............................................................................................. 23
Veh. & Traf. Law Art. 19-A .................................................................................... 15
Veh. & Traf. Law §375(20)(a) ................................................................................. 22
Veh. & Traf. Law §509-b(3) .................................................................................... 18
Veh. & Traf. Law §509-cc(2)(a), (b) ....................................................................... 20
Veh. & Traf. Law §509-cc(2)(c) .............................................................................. 21
Veh. & Traf. Law §509-cc(2)(c)(ii), (iii) ................................................................. 20
Veh. & Traf. Law §509-cc(4)(a), (b) ....................................................................... 20
Veh. & Traf. Law §509-cc(4)(c) .............................................................................. 21
4
Veh. & Traf. Law §509-d(1)(i) ................................................................................ 18
Veh. & Traf. Law§509-d(1)(ii), (iii) ........................................................................ 19
Veh. & Traf. Law §509-d(4) .................................................................................... 19
Veh. & Traf. Law §509-e ......................................................................................... 23
Veh. & Traf. Law §509-g ........................................................................................ 18
Veh. & Traf. Law §509-g(3) .................................................................................... 23
Veh. & Traf. Law §509-g(4) .................................................................................... 24
Veh. & Traf. Law §509-h ........................................................................................ 18
Veh. & Traf. Law §509-i ......................................................................................... 24
Veh. & Traf. Law §509-i(1), (1-a) ........................................................................... 24
Veh. & Traf. Law §509-k ........................................................................................ 21
Veh. & Traf. Law §509-l(1) ..................................................................................... 21
Veh. & Traf. Law §1111(d)(5) ................................................................................ 22
Veh. & Traf. Law §1171(a) ..................................................................................... 22
Veh. & Traf. Law §1192 .......................................................................................... 20
Veh. & Traf. Law §1229-d(4) .................................................................................. 22
Regulatory Authorities
8 NYCRR §156.3 ..................................................................................................... 15
8 NYCRR §156.3(b) ................................................................................................ 18
8 NYCRR §156.3(b)(3)(i) ........................................................................................ 19
5
8 NYCRR §156.3(b)(3)(iii) ..................................................................................... 19
8 NYCRR §156.3(b)(3)(iii)(a) ................................................................................. 19
8 NYCRR §156.3(b)(3)(iii)(b) ................................................................................. 20
8 NYCRR §156.3(b)(5)............................................................................................ 22
8 NYCRR §156.3(b)(5)(v) ....................................................................................... 22
8 NYCRR §156.3(d)(4)............................................................................................ 22
8 NYCRR §156.3(e)(2) ............................................................................................ 22
8 NYCRR §156.3(e)(6) ............................................................................................ 21
15 NYCRR Part 6 .................................................................................................... 15
15 NYCRR §6.2(c)(8), (9) ....................................................................................... 19
15 NYCRR §6.3(c)(2) .............................................................................................. 19
15 NYCRR §6.3(c)(3) .............................................................................................. 18
15 NYCRR §6.4 ....................................................................................................... 18
15 NYCRR §6.8(a) .................................................................................................. 23
15 NYCRR §6.8(b) .................................................................................................. 23
15 NYCRR §6.8(c) .................................................................................................. 23
15 NYCRR §6.10 ............................................................................................... 18, 19
15 NYCRR §6.10(b)(6), (7) ..................................................................................... 19
15 NYCRR §6.10(b)(11), (12) ................................................................................. 19
15 NYCRR §6.11(a) ................................................................................................ 24
6
15 NYCRR §6.15 ..................................................................................................... 23
15 NYCRR §6.21 ..................................................................................................... 24
15 NYCRR §6.21(a) ................................................................................................ 24
15 NYCRR §6.24(a) ................................................................................................ 21
15 NYCRR §6.28 ..................................................................................................... 24
17 NYCRR Parts 720, 721, 722, 723 ....................................................................... 15
17 NYCRR §721.4 ................................................................................................... 22
49 CFR §382.205 ..................................................................................................... 21
49 CFR §382.207 ..................................................................................................... 21
49 CFR §382.213 ..................................................................................................... 21
49 CFR §391.21(a)(11) ............................................................................................ 19
49 CFR §391.23(d) .................................................................................................. 19
49 CFR Part 571 subpart B ...................................................................................... 16
7
INTEREST OF THE AMICI CURIAE
The New York State School Boards Association, Inc. and the New York
State Council of School Superintendents (hereinafter referred to as “NYSSBA” or
“the Council” respectively, or as “the amici” or the “amici curiae” collectively)
submit this Brief Amici Curiae in support of the Appellant Shenendehowa Central
School District Board of Education (hereinafter the “School District”). NYSSBA
and the Council will invite the court’s attention to law and arguments that might
otherwise escape its consideration including a discussion of how the arbitrator’s
decision violates the paramount public policy of this state to protect the safety of
children while on school buses.
The New York State School Boards Association, Inc. (“NYSSBA”) is a not-
for-profit membership organization incorporated under the laws of the State of
New York. Its membership consists of approximately six hundred sixty seven
(667) or ninety-one percent (91%) of all public school districts in New York State.
Pursuant to Section 1618 of New York’s Education Law, NYSSBA has the
responsibility of devising practical ways and means for obtaining greater economy
and efficiency in the administration of the affairs and projects of New York’s
public school districts.
Throughout the years NYSSBA has appeared as amicus curiae in a number
of state and federal court proceedings involving constitutional and statutory issues
8
affecting the administration and operation of public schools, including this court.
Amongst those proceedings are: Matter of North Syracuse Cent. School Dist. v.
New York State Div. of Human Rights, 19 N.Y.3d 481 (2012);
Regional Economic Community Action Program, Inc. v Enlarged City School
Dist. of Middletown, 18 N.Y.3d 474 (2012); Baker v. Poughkeepsie City School
Dist., 18 N.Y.3d 714 (2012); Meegan v. Brown, 16 N.Y.3d 395 (2011); Consedine
v. Portville CSD, 12 N.Y.3d 286 (2009); Campaign for Fiscal Equity v. State of
New York, 8 N.Y.3d 14 (2006); Madison Oneida Board of Cooperative
Educational Services v. Mills, 4 N.Y.3d 51 (2004); Campaign for Fiscal Equity v.
State of New York, 100 N.Y.2d 893 (2003); Winters v. Board of Educ. of Lakeland
CSD, 99 N.Y.2d 549 (2002); Davis v. Mills, 98 N.Y.2d 120 (2002); In Matter of
Beau II, 95 N.Y.2d 234 (2000); Vestal Public Employees Ass’n v. Public
Employment Relations Board, 94 N.Y.2d 409 (2000); Matter of Enlarged City
School Dist. of Middletown v. City of Middletown, 95 A.D.3d 840 (2
nd
Dep’t 2012);
New York State United Teachers Assn. v. Bd. of Regents of Univ. of State of N.Y.,
Case No. 513191 (3
rd
Dep’t 2011, appeal settled); Scro v. Jordan-Elbridge CSD,
87 A.D.3d 1342 (4
th
Dep’t 2011); Geneva City School Dist. v. Anonymous, a
Tenured Teacher, 77 A.D.3d 1365 (4
th
Dep’t 2010); Byram Hills CSD v. Carlson,
72 A.D.3d 815 (2
nd
Dep’t 2010); East Meadow UFSD v. New York State Div. of
Human Rights, 65 A.D.3d 1342 (2
nd
Dep’t 2009); Wilson v. Board of Educ.
9
Harborfields CSD, 65 A.D.3d 1158 (2
nd
Dep’t 2009); Consedine v. Portville CSD,
49 A.D.3d 1289 (4
th
Dep’t 2008); Putnam Northern Westchester Board of
Cooperative Educational Services et. al v. Mills and Galluzzo, 46 A.D.3d 1062 (3
rd
Dep’t 2007); Mineola UFSD v. Mineola Teachers Ass’n, 37 A.D.3d 605 (2
nd
Dep’t
2007); Baker v. Board of Educ. of Wappingers CSD, 29 A.D.3d 574 (2
nd
Dep’t
2006); In re Binghamton City Sch. Dist. v. Peacock, 33 A.D.3d 1074 (3
rd
Dep’t
2006); Bryant v. Board of Educ. Chenango Forks CSD, 21 A.D.3d 1134 (3
rd
Dep’t
2005); Pocantico Home & Land Co., LLC v. UFSD of the Tarrytowns, 20 A.D.3d
458 (2
nd
Dep’t 2005); Polmanteer v. Bobo, 19 A.D.3d (4
th
Dep’t 2005); Board of
Educ. of City School Dist. of City of Buffalo v. Munoz, 4 A.D.3d 879 (4
th
Dep’t
2004); Campaign for Fiscal Equity, Inc., et al. v. The State of New York, et al., 295
A.D.2d 1 (1
st
Dep’t 2002); Liberty Management of New York, Inc. v. Assessor of
Town of Glenville, 284 A.D.2d 61 (3
rd
Dep’t 2001); Sackets Harbor CSD v. Munoz,
283 A.D.2d 756 (3
rd
Dep’t 2001); Forest Grove School District v. T.A., 129 S.Ct.
2484 (2009); Board of Educ. of the City School Dist. of the City of New York v.
Tom F., 128 S.Ct. 1 (2007); Arlington CSD v. Murphy, 126 S.Ct. 2455 (2006);
Good News Club v. Milford CSD, 533 U.S. 98 (2001); Mitchell v. Helms, 530 U.S.
793 (2000); The Bronx Household of Faith v. Board of Educ. of the City of N.Y.,
currently pending before the Second Circuit Court of Appeals; Zeno v. Pine Plains
CSD, currently pending before the Second Circuit Court of Appeals; J.S. v. Attica
10
CSD, 386 F.3d 107 (2
nd
Cir. 2004); McCormick v. School District of Mamaroneck,
370 F.3d 275 (2
nd
Cir. 2004); Board of Educ. of the Pawling CSD v. Schutz, 290
F.3d 476 (2
nd
Cir. 2002); Polera v. The Board of Educ. of the Newburgh Enlarged
City Sch. Dist., 288 F.3d 478 (2
nd
Cir. 2002); Murphy v. Arlington CSD Board of
Educ., 297 F.3d 195 (2
nd
Cir 2002).
The Council is a professional association located at 7 Elk Street, Albany,
New York 12207. Its membership comprises approximately 95% of school
superintendents in New York State, as well as BOCES superintendents and
superintendents of special act school districts. Pursuant to New York State
Education Law §§ 1711(2)(a), 2508(1) and 2566(1), superintendents of schools are
the chief executive officers of school districts. In this capacity, they are
responsible for enforcing all provisions of law and all rules and regulations relating
to the management of schools including educational, social, personnel and
budgeting issues, under the direction of the board of education. Superintendents
have the right to speak on all matters which come before a board of education.
One aspect of the Council’s mission is to advocate on behalf of the state’s
school superintendents, develop and promote policy on matters relating to
elementary and secondary education, school finance, school leadership and
superintendents’ role as chief executive officers of school districts. The Council
has over a century of service to New York State school superintendents.
11
The Council has appeared as amicus curiae in proceedings involving
constitutional and statutory issues affecting the administration, financing and
operations of public schools including: New York State United Teachers Assn. v.
Bd. of Regents of Univ. of State of N.Y., Case No. 513191 (3
rd
Dep’t 2011, appeal
settled); Campaign for Fiscal Equity v. State of New York, 100 N.Y.2d 893 (2003);
Polmanteer ex rel. Polmanteer v. Bobo, 19 A.D.3d 69 (4th Dep’t 2005); Matter of
Bd. of Educ. of the City Sch. Dist. of N.Y. City, et al. v. Mills et al., 8 A.D.3d 834
(3rd Dep’t 2004), 300 A.D.2d 981 (3rd Dep’t 2002); Matter of Gersen et al., 290
A.D.2d 839 (3rd Dept 2002).
NYSSBA and the Council submit this amici curiae brief on behalf of the
School District, on the grounds that the issues before this court are of statewide
importance to all school districts and BOCES throughout New York. In addition,
the amici curiae brief invites this court’s attention to law and arguments that might
otherwise not be brought to the attention of the court by the parties, and be of
special attention to the court.
12
STATEMENT OF THE ISSUE
Whether the strong public policy of this state to protect students riding on a school
bus requires that the arbitrator’s award at issue herein ordering the School District
to reinstate a bus driver who tested positive for drugs shortly after completion of a
morning bus run must be vacated?
The amici curiae respectfully submit the answer is yes.
13
STATEMENT OF FACTS
The amici curiae will not recite a separate statement of facts, except as
hereinafter specifically cited within the text of its brief, but will defer instead to the
facts submitted by the Appellant Shenendehowa Central School District Board of
Education, and as set forth in the Record before this Court.
14
ARGUMENT
The strong public policy of this state to protect students riding on
a school bus requires that the arbitrator’s award at issue herein
ordering the School District to reinstate a bus driver who tested
positive for drugs shortly after completion of a morning bus run
must be vacated.
Under Article 75 of New York’s Civil Practice Laws and Rules an
arbitration award will be vacated, in part, when a arbitrator “exceeds his power”
(CPLR §7511(b)(1)(iii)), such as when the award “violates a strong public policy,
is irrational or clearly exceeds a specifically enumerated limitation on the
arbitrator’s power” (Matter of Kowaleski (New York State Dept. of Correctional
Servs.), 16 N.Y.3d 85, 90 (2010) (quoting Matter of New York City Transit
Authority v. Transport Workers’ Union of Am. Local 100, AFL-CIO, 6 N.Y.3d 332
(2005)); Matter of Falzone (New York Centr. Mut. Fire Ins. Co.), 15 N.Y.3d 530
(2010)). The amici curiae will defer to the Shenendehowa Central School District
Board of Education’s (hereinafter “the School District”) arguments as to why the
arbitrator’s decision at issue herein is irrational and exceeds the arbitrator’s
powers. Instead, the amici curiae will address why the award violates a paramount
public policy of this state and why this Court should overturn the decision of the
court below and vacate the arbitrator’s award.
This Court has stated that “controversies involving questions of public
policy can rarely, if ever, be resolved by the blind application of sedentary legal
15
principles…Public policy, like society is continually evolving and those entrusted
with its implementation must respond to its ever changing demands” (Matter of
Sprinzen (Nomberg), 46 N.Y.2d 623, 628 (1979)). Courts may overturn arbitral
decisions “where public policy considerations, embodied in statute or decisional
law, prohibit, in an absolute sense, particular matters being decided or certain relief
being granted by an arbitrator” (Id. at 631).
The operation of school district transportation systems in New York is a
highly regulated enterprise and the employment of school bus drivers is no
exception. The extensive statutory and regulatory web that governs the
transportation of public school students clearly evinces not only the state’s public
policy of protecting children in general but particularly of ensuring their safety
while on a public school bus (see Educ. Law §§3624, 3650, 3650-b; Veh. & Traf.
Law Art. 19-A; 8 NYCRR §156.3, 15 NYCRR Part 6; 17 NYCRR Parts 720, 721,
722 and 723). According to respondents, federal law does not require dismissal of
a school bus driver based upon a positive drug test. Appellant itself acknowledges
that federal law does not impose such a requirement. However, such a fact is of no
consequence to resolution of this case, for whereas federal law does not require
dismissal based upon a positive drug test, it does not prohibit it either. Thus
federal law did not prevent the School District from terminating the bus driver in
this case as a result of her positive drug test. Instead, the more relevant and
16
controlling body of law is found in New York’s additional statutory and regulatory
requirements governing the transportation of students. As further discussed below,
these requirements clearly set out and embody the state’s paramount interest to
ensure the protection of students while traveling on school buses.
An average 65 passenger school bus is approximately 36 feet long, 7½ feet
wide and has a gross vehicle weight (weight when loaded with passengers) of
29,800 pounds. While school buses are engineered to be among the safest vehicles
on the road
1
, school districts are still mindful of the tremendous trust parents place
in the district to safely transport their children to school on a daily basis. In turn a
school district must have absolute faith in its employees who are hired to be drivers
of school buses to protect both the lives of students and the property of the district.
It is well established law that a school district has the duty to exercise the
same degree of care toward its students as would a reasonable, prudent parent
under comparable circumstances (Mirand v. City of New York, 84 N.Y.2d 44
(1994); Shante D. by Ada D. v. City of New York, 190 A.D.2d 356 (1
st
Dep't 1993),
aff'd, 83 N.Y.2d 948 (1994); Lawes v. Bd. of Educ., 16 N.Y.2d 302 (1965); see also
Ernest v. Red Creek CSD, 93 N.Y.2d 664 (1999)). It is without question that a
reasonable and prudent parent would not operate a vehicle containing his or her
child when in an impaired condition that would threaten his or her safe operation
1
See 49 CFR Part 571 subpart B for federal motor vehicle safety standards. (37 standards apply to school buses see
http://www.stnonline.com/resources/government/federal-motor-vehicle-safety-standards).
17
of the vehicle or permit others to do so as well. Upholding the arbitrator’s award
ordering reinstatement of a bus driver who tests positive on a drug test shortly after
a morning bus run would impede the ability of school districts to fulfill their
obligation to care for their students in the same manner as a prudent parent would.
In this case, the School District bargained for the right to terminate an
employee whose misconduct threatens the health or safety of school children and
staff. The collective bargaining agreement (CBA) defines a positive drug or
alcohol test to be such misconduct. The District bargained for such authority in
order to ensure its right to act as a reasonable and prudent parent and prevent an
employee with drug or alcohol misconduct from transporting school children.
The complexity of the myriad federal and state laws that impose a wide
range of responsibilities on school districts intended to safeguard students riding
school buses could not help but influence the bargaining goals of the School
District which sought and achieved the right to terminate a bus driver for a positive
drug or alcohol test. This authority was procured to allow the School District to
manage its transportation system so that it has complete confidence in its
employees. Put simply, the risk a potentially impaired driver represents is a risk
the School District is unwilling to bear.
Notable among the various laws and regulations that evince the state’s
paramount public policy for the protection of students riding school buses are those
18
relating for example to bus driver qualification, disqualification from employment,
vehicle operation, safety training, and monitoring.
Qualifications of bus drivers
Under the regulations of the commissioner of education a school bus driver
must be at least 21 years of age; have a currently valid driver's license or permit
for the operation of a bus in New York State; pass a physical examination which
meets standards specified in the vehicle and traffic law and regulations; pass a
performance test; and furnish to the school superintendent at least three statements
from three different persons not related to the applicant assessing his or her moral
character and reliability (8 NYCRR §156.3(b); see also Veh. & Traf. Law §§509-
b(3), 509-d(1)(i), 509-g; 15 NYCRR §§6.3(c)(3); 6.10).
School bus drivers are hired on a conditional basis pending a criminal
history clearance for a period not to exceed 90 days (Veh. & Traf. Law §509-h; 15
NYCRR §6.4). Additionally, a school district must obtain an abstract of a
conditional driver’s driving records from the appropriate agency in every state in
which the person has resided, worked or held a driver’s license or learner’s permit
during the preceding three years and forward such to the Department of Motor
Vehicles Bus Driver Certification Unit for inspection, as well as investigate the
driver’s employment record during the preceding three years (Veh. & Traf. Law
19
§509-d(1)(ii), (iii), (4); 15 NYCRR §§6.2(c)(8), (9); 6.3(c)(2); see also 49 CFR
§§391.21(a)(11); 391.23(d)).
Each school bus driver must pass an annual physical exam which proves he
or she has the physical and mental ability to operate safely a vehicle transporting
school children and to satisfactorily perform the other responsibilities of a school
bus driver (Educ. Law §3624; 8 NYCRR §156.3(b)(3)(i)). A bus driver’s medical
history or current clinical diagnosis may not include certain specified conditions
likely to cause loss of consciousness and which may interfere with the ability to
control and safety operate a bus (15 NYCRR §6.10(b)(6), (7); 8 NYCRR
§156.3(b)(3)(i); see 15 NYCRR §6.10 for all medical standards). Notably, the
regulations require that a bus driver not use an amphetamine, narcotic or any habit
forming drug or have a current clinical diagnosis of alcoholism (15 NYCRR
§6.10(b)(11), (12)).
A school bus driver also must pass a test approved by the commissioner of
education at least once every two years; and after an absence of 60 days or more (8
NYCRR §156.3(b)(3)(iii)) to determine whether the driver is able to:
-repeatedly open and close a manually operated bus entrance door
-climb and descend bus steps
-operate hand controls simultaneously and quickly
-have quick reaction time from throttle to brake
-carry or drag individuals in a bus emergency evacuation
-repeatedly depress clutch and/or brake pedals
-exit quickly oneself and students from an emergency door (8 NYCRR
§156.3(b)(3)(iii)(a)).
20
A bus driver who fails any part of the test may not operate a school bus until he or
she passes the test (8 NYCRR §156.3(b)(3)(iii)(b)). Drivers under the influence of
drugs, like the one in the case herein, are unable to be alert and in top physical
condition to avoid accidents, properly evacuate a bus in the event an accident
cannot be avoided and ensure the physical safety of students in their bus contrary
to the state’s clear policy requiring otherwise.
Disqualification from employment
It is axiomatic that all those who drive buses will be disqualified from
employment for a period of time for convictions of driving while under the
influence (see Veh. & Traf. Law §§509-cc(2)(c)(ii), (iii); 1192). However, another
sign of the priority the Legislature has placed upon ensuring the safety of school
children while on a school bus is the additional provisions for disqualification of
employment when serving as a school bus driver. School bus drivers are subject to
disqualification from employment for a greater number of criminal offenses than
are regular commercial bus drivers. For example, as opposed to commercial
drivers, school bus drivers will be disqualified from employment permanently
based on convictions for aggravated murder, vehicular manslaughter and criminal
solicitation in the first degree (Veh. & Traf. Law §509-cc(2)(a), (b), (4) (a), (b)). A
disqualification of five years results from convictions for: criminal possession of
marijuana in the first degree, criminal sale of marijuana in the first and second
21
degrees, endangering the welfare of a child and disseminating indecent materials to
minors (Veh. & Traf. Law §509-cc(2)(c), (4)(c)). These are but a few examples of
the greater number of convictions which will disqualify a school bus driver from
employment and exemplify the higher standards to which school bus drivers are
held, all intended to implement the state’s paramount policy of protecting students
being transported on school buses.
Driver Vehicle Operation
By state statute and regulations, a bus driver may not drive a school bus if he
or she uses or is under the influence of alcohol or a controlled substance within six
hours or less before duty and cannot consume or possess a drug or alcohol while on
duty (Veh. & Traf. Law §509-l(1); 15 NYCRR §6.24(a); see also 49 CFR
§§382.205, 382.207, 382.213)). Similarly, a bus driver cannot operate a bus if the
driver’s ability or alertness is so impaired or so likely to become impaired through
fatigue, illness or other cause as to make it unsafe to operate a bus (Veh. & Traf.
Law §509-k).
School bus drivers are also subject to limitations in how they operate a
school bus. The maximum speed vehicles engaged in the transportation of students
may travel is 55 miles per hour (Educ. Law §3624; 8 NYCRR §156.3(e)(6)).
When picking up or discharging passengers a school bus must use amber colored
“pre-warning” flashers prior to stopping and once stopped a stop arm must be
22
deployed together with red signal lights to warn motorists (Veh. & Traf. Law
§375(20)(a); 17 NYCRR §721.4). Bus drivers must instruct students who must
cross a public highway or street to do so 10 feet in front of the bus so as to be in
vision of the driver and to wait for the driver’s signal to proceed (8 NYCRR
§156.3(d)(4)). Law and regulations also govern school bus driver actions at
railroad crossings and steady red lights (see Veh. & Traf. Law §§1111(d)(5),
1171(a); 8 NYCRR §156.3(e)(2)). Driving under the influence of drugs impairs
the ability of bus drivers to comply with these requirements, thus placing the safety
of students on the bus at risk, contrary to the state’s paramount policy of protecting
them from harm.
Safety Training
The commissioner of education requires school bus drivers to receive
mandatory safety training in the form of a pre-service safety course, a basic safety
course and annual refresher training (8 NYCRR §156.3(b)(5); see also Educ. Law
§3650-b), provided by or under the supervision of an instructor certified by the
commissioner (8 NYCRR §156.3(b)(5)(v)). Drivers of students with disabilities
must undergo additional training and instruction related to understanding of and
attention to the special needs of such students (Educ. Law §3650(2); Veh. & Traf.
Law §1229-d(4); 8 NYCRR §156.3(b)(5)).
23
Every school district must annually certify its bus drivers have completed
the required safety training and include a report on the implementation and
effectiveness of the safety training program (Educ. Law §3650-b(3)).
The continued employment of drivers who test positive on a drug test,
particularly after the completion of a bus run, would be contrary to the paramount
state policy of protecting students on school buses that is evinced by the statutory
and regulatory provisions requiring such safety training.
Ongoing Monitoring of School Bus Drivers
In addition, at least once every twelve months, a school district must review
the driving record of each driver to determine whether that driver meets minimum
requirements for safe driving and is qualified to drive a bus. Such review must
encompass the driver’s accident record and violations of vehicle and traffic law
including speeding, reckless driving and operating a motor vehicle under the
influence (Veh. & Traf. Law §509-e; 15 NYCRR §6.8(a)). A personal interview
must be conducted as part of the review of the driving record in order to ascertain
the accuracy of the information the school district has on file (see 15 NYCRR
§§6.8(b); 6.15).
School districts must also perform regular observations of a driver’s
defensive driving performance while operating a bus with passengers (Veh. &
Traf. Law §509-g(3); 15 NYCRR §6.8(c)), as well as a biennial behind the wheel
24
driving test (Veh. & Traf. Law §509-g(4); 15 NYCRR §6.11(a)). The biennial test
assesses a driver’s ability to:
- conduct a pre-trip inspection
- place the vehicle in operation
- use of the vehicle's controls and emergency equipment
- operate the vehicle in traffic and while passing other vehicles
- turn the vehicle
- brake and slow the vehicle by means other than braking
- back and park the vehicle (Veh. & Traf. Law §509-g(4)).
Bus drivers themselves must notify their employing school district of any
conviction of a misdemeanor or felony under the vehicle and traffic law or similar
provisions in another jurisdiction; convictions for traffic infractions; and
convictions of any offense listed in Vehicle and Traffic Law §509-cc which would
disqualify a bus driver from employment (see Veh. & Traf. Law §509-i; 15
NYCRR §§6.21; 6.28). Failure to timely report such incidents will result in
suspension from employment (Veh. & Traf. Law §509-i(1), (1-a); 15 NYCRR
§6.21(a); see also In re Smith v. Bd. of Educ. of Taconic Hills CSD, 235 A.D.2d
912 (3
rd
Dep’t 1997)). The monitoring requirements provide further evidence of
the state’s paramount policy for protecting students on school buses.
All the foregoing examples represent just the broad strokes of the regulation
and control that New York imposes upon school district transportation systems.
As is clear from these myriad examples, New York indelibly has a public policy of
ensuring the safety of children while on school buses. Therefore, the reinstatement
25
of a bus driver to service after an unmitigated positive drug test when the CBA
permits termination violates the public policy of this state.
The case law of this state is replete with examples of bus drivers who have
been terminated for misconduct which endangered the safety of students (see
Matter of Will v. Frontier CSD Bd. of Educ., 97 N.Y.2d 690 (2002); Tyson v. Hess,
66 N.Y.2d 943 (1985); Thibodeau v. Northeastern Clinton CSD Bd. of Educ., 39
A.D.3d 940 (3
rd
Dep’t 2007); Matter of Massaria v. Betschen, 290 A.D.2d 602 (3
rd
Dep’t 2002); Malloch v. Ballston Spa CSD, 249 A.D.2d 797 (3
rd
Dep’t 1998);
Robbins v. Malone CSD, 182 A.D.2d 890 (3
rd
Dep’t 1992); Ronkese v. Bd. of Educ.
of Highland CSD, 82 A.D.2d 1011 (3
rd
Dep’t 1981); Stein v. Churchville-Chili
CSD, 760 F.Supp.2d 308 (2011)). The fact that a driver’s misconduct does not
result in an accident or injury does not diminish the graveness of safety violations
(Ronkese v. Bd. of Educ. of Highland CSD).
Relevant to this inquiry, our courts have seen fit to uphold termination of
school bus drivers for violations such as reporting to work with an elevated blood
alcohol level and for consuming alcohol on school grounds prior to attendance at a
safety training seminar (Will v. Frontier CSD; Collins v. Parishville-Hopkinton
CSD, 274 A.D.2d 732 (3
rd
Dep’t 2000)). These decisions support the premise that
the public policy of this state is violated when a bus driver who has an unmitigated
positive drug test is reinstated.
26
More recently, in a decision involving the termination of a custodial
employee for the off-campus possession of crack-cocaine the court stated “[w]hile
he denied at the hearing ever using cocaine while actually working as a custodian,
it is self-evident that allowing someone addicted to such an illegal substance to
have daily contact with students is incompatible with their best interests”
(McKenzie v. Bd. of Educ. of the City School Dist. of Albany, 2012 WL 5357277
(3
rd
Dep’t 2012)). This same logic applies even more to a school bus driver who is
responsible for transporting children and must be in full possession of his or her
faculties in order to safely operate a school bus. If a custodian who does not serve
in a safety sensitive position, cannot be allowed daily contact with students based
upon a drug addiction it is incomprehensible that the same is not true for school
bus drivers who do serve in a safety sensitive position.
The School District in this case bargained for the right to terminate a bus
driver when the driver’s conduct creates a danger to the health, safety or welfare of
staff, students and/or the general public. Given the incredible responsibilities a
district has in managing a transportation system the School District made sure it
had authority to terminate employees who test positive in any required drug or
alcohol test so as to maintain absolute faith in the employees it entrusts on a daily
basis with the safe transportation of students. To reinstate a bus driver with a
positive drug test in contravention of the employer’s right to terminate under the
27
CBA is a violation of public policy. It would place districts throughout the state at
risk of being powerless to appropriately protect the safety and security of the
state’s most prized possession- its children.
28
CONCLUSION
For all the foregoing reasons, the amici curiae respectfully request that this
Court reverse the decision of the court below and vacate the arbitrator’s decision at
issue herein, and grant any such other relief as the court might deem appropriate.
Dated: November 19, 2012
Latham, New York
Respectfully Submitted by:
__________________________
JAY WORONA, ESQ.
Attorney for Amici Curiae
New York State School Boards Assn., Inc.
24 Century Hill Drive, Ste 200
Latham, New York 12110-2125
Telephone: (518) 783-0200
