Nevada Attorney General on Vans

Opinion No. 98-25

SCHOOL DISTRICTS: MOTOR VEHICLES: PRIVATE SCHOOLS:
The 11 to 15 person van may be used by private or public schools to transport students to extra curricular activities only under certain circumstances. The words "regularly operated for the transportation of children" in NRD 484.148 does not mean "operated daily for the transportation of children."


Dr. Keith Rheault
Deputy Superintendent
Instructional, Research and Evaluative Services
Department of Education
700 East Fifth St.
Carson City, NV 89701-5096


Dear Dr. Rheault:

You have asked the Attorney General for an opinion regarding numerous issues raised by private and public schools within Nevada concerning use of passenger vans designed to carry 11 to 15 persons to transport pupils for school-related activities. You have asked the following questions:

QUESTION ONE

May a public or private school legally use vans designed to carry 11 to 15 persons that are owned or leased by a private school or public school district to transport students to school-related events on a less than regular basis if the van does not meet school bus standards pursuant to the State Board of Education regulations regarding school buses?

ANALYSIS TO QUESTION ONE

A board of trustees of a school district may permit school buses or vehicles belonging to school districts to be used for the transportation of public school students to and from interscholastic contests, school festivals, and other activities properly a part of a school program. The use of the school buses or other vehicles belonging to the school district is governed by the regulations of the board of trustees provided they are not in conflict with regulations of the State Board of Education. NRS 392.360(1) & (2). Thus, the statutes contemplate that a school district may use either school buses or other vehicles to transport students to the extracurricular activities. However, if it is a "school bus," it must meet the standards of the state board regulations.

The answer to your question focuses on the definition of "school bus" and whether an 11 to 15 person van fits within that definition. The education chapters of the Nevada Revised Statutes do not define a school bus. However, state law defines a school bus in the chapters of the Nevada Revised Statutes related to traffic safety and driver's licenses and for purposes of this opinion we adopt that definition.

1. "School bus" means every motor vehicle owned by or under the control of a public or governmental agency or a private school and regularly operated for the transportation of children to or from school or a school activity or privately owned and regularly operated for compensation for the transportation of children to or from school or a school activity.

2. "School bus" does not include a passenger car operated under a contract to transport children to and from school, a common carrier or commercial vehicle under the jurisdiction of the Surface Transportation Board or the transportation services authority when such vehicle is operated in the regular conduct of its business in interstate or intrastate commerce within the State of Nevada. (Emphasis added.)

NRS 484.148

At the threshold, the definition of school bus applies to "every motor vehicle" used as described that is not a common carrier and not a passenger car. A passenger car is defined in NRS 484.101 as "every motor vehicle, except motorcycles, power cycles, and motor driven cycles, designed for carrying 10 passengers or less and used for the transportation of persons." The 11 to 15 person van owned or operated by the school district or private school cannot be considered a passenger car and therefore is not an exception to the definition of school bus.

Your question parenthetically implies that "regularly used for" means used every day. The statutory language is "regularly operated for the transportation of children to or from a school activity..." "Regularly" is defined as "occurring at fixed intervals; periodic." The AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1521 (3d ed. 1992). A bus used daily would be used at fixed intervals, but a less frequent use could also be a use occurring at fixed intervals. For example, if the van is operated to transport student team members every other Friday to a game or meet it is "regularly used" for the transportation of students. It is immaterial that the individual student being transported changes or the nature of the sporting event changes from time to time provided that the use is periodic or occurs at fixed intervals. However, if the van was regularly operated to transport faculty or parents to school-related events, it would not be a school bus even if pressed into service for the transportation of students occasionally.

CONCLUSION TO QUESTION ONE:

The 11 to 15 person van may be used by private or public schools to transport students to school-related events provided that such use is not the regular operation of the vehicle. Whether the vehicle is regularly operated for that use is not measured by whether it occurs on a daily basis.

QUESTION TWO

May public or private schools legally use passenger vans to transport students to and from school related activities by contracting with a common motor carrier rented by the school or the public school district as authorized by NRS 392.330?

ANALYSIS TO QUESTION TWO

The answer to the question is yes. NRS 392.330 authorizes boards of trustees of school districts to arrange and pay for transportation provided by a common motor carrier holding a certificate from the transportation services authority. Of course, NRS 392.330 is not relevant to the expenditure of funds by the private school. NRS 392.330 does not override the threshold considerations of whether the transportation provided must be in a vehicle that meets school bus safety standards. However, generally, the common motor carrier's service to the school or school district will fit within the exception to the definition of school bus found in NRS 484.148(2).

Subsection 2 of NRS 484.148 defines what is not a school bus. That definition excludes a common carrier vehicle under the jurisdiction of the Surface Transportation Board or the Transportation Services Authority when such vehicle is operated in the regular conduct of its business in interstate of intrastate commerce within the State of Nevada.

It is within the regular conduct of its business for a common motor carrier to contract for charter service or special service, provided the carrier has the requisite license or permits. NAC 706.353 and NAC 706.232. Therefore a common motor carrier that provided a passenger van to transport the students as a charter service or special service would not be providing a "school bus." The van it provides would not have to meet school bus safety standards. We caution that there are proscriptions in regulations to chapter 706 of the Nevada Revised Statutes governing charter and special service that must be followed. The transportation of the students cannot be so frequent as to constitute a "regularly schedule route or service" and remain a permissible charter service. See NAC 706.353.

Your question also asks if there is a different conclusion if the van provided by the common carrier is provided without charge. Section 1 of NRS 484.148 describes a "school bus" as a motor vehicle privately owned and regularly operated for compensation for the transportation of children to and from school and school-related activities. If the transportation is without compensation, the definition does not apply. However, the result is the same whether or not there is compensation. Either by being outside the language of the definition itself (because there is no compensation) or by being within the exception to the definition described in subsection two (because it is the regular business of the common carrier), the van as described in question two is not a school bus.

CONCLUSION TO QUESTION TWO

An 11 to 15 passenger van chartered from a common carrier by a private or public school may be used to transport students to and from a school-related activity because, under such circumstances, it is excluded from the definition of "school bus" in NRS 484.148. Private schools and public school districts should not assume this opinion gives carte blanche to the use of charter of special service vans because there are limitations under the rules that regulate common carriers and charter service.

QUESTION THREE

Do the conclusions to questions one and two apply to a school operating as an Exempt Private School pursuant to NRS 394.211 that only uses 11 to 15 person vans to provide transportation services to children attend neighboring private or public schools before or after attendance at the exempt school?

ANALYSIS AND CONCLUSION TO QUESTION THREE

The school's status as an exempt private school does not make such school exempt from all laws and regulations. It is exempt from the requirement of licensure and specifically is exempt only from NRS 394.201-394.351, inclusive. See NRS 394.211. Therefore, the statutes and regulations discussed above related to school buses are applicable to both exempt and licensed private schools.

Question three focuses on a particular circumstance. In at lease on instance, a private exempt school provides care for children in grades kindergarten through second, who also attend the public school. The program in the after school care includes instruction in the required curriculum and meets the definition of a school. As long as the program that the children are being transported to and from is a school, all of the above conclusions apply. If the program is "day care" and the entity does not have the status of a school (exempt or otherwise) the children are being transported to day care, not to school or a school-related event.


FRANKIE SUE DEL PAPA
Attorney General


By: MELANIE MEEHAN-CROSSLEY
Deputy Attorney General
Government Affairs Section
(702) 687-3515


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'b9 In an analogous question this office opined that if a vehicle is not regularly operated for the transportation of children to or from school activities it is not defined as a school bus. We express no opinion regarding whether less than daily operation would fit within the term "regularly operated". See Letter opinion dated March 17, 1978, to John R. Gamble.