October 11, 1984
Mr. Michael E. Sebastian
Attorney at Law
Post Office Box 109
Kimball, South Dakota 57355
OFFICIAL OPINION NO. 84-41
Adult passengers on school buses
Dear Mr. Sebastian:
On behalf of the White Lake School District you have requested an official opinion based upon the following factual situation:
FACTS:
The White Lake School District runs a school bus on a daily basis to a school in a neighboring district for the purpose of transporting students to a vocational education class not available in the White Lake District. An adult patron of the White Lake District works in a town in the neighboring district and has requested that he be allowed to ride the bus on its return trip to White Lake. Space is available and the patron has indicated he would meet the bus at any stop so the school would not incur any expense. It is not contemplated that the school would charge for this service. The White Lake School District does not contain a first class municipality.
Based upon the foregoing facts, you have asked the following question:
QUESTION:
Is this a permissible use of school property?
There are several statutes that address use of school buses in South Dakota.
They are:
SDCL 13-24-20: The school board may rent or grant the use of school facilities, motor vehicles or land belonging to the school district for any purposes which it considers advisable as a community service for such compensation as it determines. The use may not interfere with school activities.
Any person or persons or public body using such school facilities, motor vehicles or land is responsible to the school district for any and all damages that may be caused by reason of the use or occupancy. The school district is not liable for any suit for damages which might arise as the result of such use or occupancy.
SDCL 13-29-1: The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board. If the use of a school bus is granted by the school board pursuant to subdivision (1) or (9) of § 49-28-2, the school district is not liable for suit or damages which may arise as the result of the use. The school board may authorize the use of the buses owned by the board for transportation of adults pursuant to subdivision (1) or (9) of § 49-28-2. The provisions to transport adults, provided in this section, shall not apply to school districts which contain a first class municipality. Use of a school bus for transportation of persons enumerated in subdivision (9) of § 49-28-2 is limited to providing shelter, health care, nutrition, religious activities and other necessities of life.
SDCL 49-28-2: Nothing in subdivision (8) of § 49-28-1 shall be construed to include or apply to:
(1) Motor vehicles used solely in transportation as authorized by § 13-29-1 to and from consolidated or other schools or on trips approved by the school district board for the purpose of attending interscholastic activities or other educational programs, or such motor vehicles when rented by or their use has been granted to a nonprofit club, group, organization, fraternal society, association or corporation under the provisions of § 13-24-20 for the transportation of persons under the age of twenty-one years. However when rented or the use is granted, the movement of the motor vehicle is restricted to a radius of one hundred miles in any direction from the point at which said motor vehicle is most frequently dispatched, garaged, serviced, maintained, operated or otherwise controlled; that the driver of said motor vehicle is fully qualified to drive said motor vehicle as required by the laws of this state; and that said motor vehicle is covered by an insurance policy similar to, with the limits no less than, the insurance coverage which is in effect while said motor vehicle is used for the transportation of school children, school personnel or other adult persons authorized by the school board of a school district in connection with school activities;
(2) through (7) N/A
(8) Motor vehicles used by a nonprofit organization to solely provide transportation to persons fifty-five years of age and over or to transport those who by reason of a physical or mental handicap are unable to utilize conventional public transportation;
(9) Buses owned and operated by a church to provide non-hire transportation to and from church related activities;
(10) through (13) N/A.
As an initial matter, it should be noted that due to an apparent scrivener's error when SDCL 13-29-1 was amended in 1983 amendments to SDCL 49-28-2 in that same year effected a change in the numbering of the subdivisions of § 49-28-2 which was not reflected in the reference to subdivision 9 of § 49-28-2 in § 13-29-1. In any event in order for the statute to make sense it must be determined that the reference in § 13-29-2 should be to subdivision 8 of § 49-28-2. I also note that Official Opinion No. 69-85 has been rendered obsolete, insofar as it addresses use of school buses, by the 1983 Legislative amendment to SDCL 13-24-20.
Review of all the statutes involved reveals that there is only a passing reference to the use of school buses by adults other than rental of the bus to an organization as a community service pursuant to SDCL 13-24-20 or use of the buses to transport senior citizens or handicapped individuals pursuant to subdivision 8 of SDCL 49-29-2. This reference is found in the final clause of subdivision 1 of § 49-28-2, as set out above, wherein it is stated:
. . . the insurance coverage which is in effect while said motor vehicle is used for the transportation of school children, school personnel or other adult persons authorized by the school board of a school district in connection with school activities.
Following the general rule that school districts can exercise only that authority explicitly granted or necessarily implied, it is my opinion that circumstances do arise where adults other than school personnel may be transported in a school bus when the transportation is 'authorized by the school board of a school district in connection with school activities.'
An example of the foregoing implied authorization would be allowing adults to accompany school teams as 'chaperons' or 'sponsors' when the bus is being used to provide transportation to a school activity.
I therefore conclude that allowing adults to use a school bus as a method to commute to and from employment would not be a 'school activity' which the school board could authorize.
Accordingly, my answer to your question is NO.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
