Can a Mississippi school district run a school bus route to bring teachers to work from out-of-district towns as a recruitment perk?

Plain-English summary

The Forest Municipal School District in Forest, Mississippi, was losing staff to other districts because some teachers were commuting long distances. The district considered an incentive: run school buses on a commuter route to pick up teachers in their home cities (Brandon, for example, about 35 miles away) and bring them to Forest schools each morning, then return them home each evening.

The district asked the AG five questions, all of which essentially come down to: can a Mississippi school district use its school buses to transport staff to and from work?

The AG said no. Mississippi statutes confine school bus use to a narrow set of purposes:

• Transporting public-school students who live one mile or more from school (§ 37-41-3).
• A few authorized special uses listed in §§ 37-41-3 (junior college students on existing routes) and 37-41-27 (special events, jury functions, emergencies, military air shows).

Outside those authorized uses, using a school bus "for any purpose other than one in connection with the school" is a misdemeanor under § 37-41-45.

Because there is no authority to use buses this way, the proposed staff-shuttle program would not be a "proper incentive" under Article 4, Section 96 of the Mississippi Constitution (which prohibits gifts and gratuities of public property). Without statutory authority for the underlying use, the constitutional question is academic; the program is unauthorized either way.

The district pointed to a 1983 AG opinion (Breland) suggesting school boards had authority to determine who could ride a school bus on space-available basis. The AG distinguished it: Breland did not involve commuter routes from outside district boundaries, and the statute it relied on (former § 37-41-1(m)) has been repealed. So Breland does not authorize this program.

What this means for you

If you're a Mississippi school superintendent or school board

Under this opinion, the district cannot use its public school buses to transport employees between their homes and the schools where they work, even from a town outside the district. The AG found no statutory authority for it: under § 37-41-3 buses transport students who live a mile or more from school, the only additional uses are the narrow ones in §§ 37-41-3 and 37-41-27, and § 37-41-45 makes it a misdemeanor to use a school bus "for any purpose other than one in connection with the school." Because there is no authority for the underlying use, the AG also concluded the staff-shuttle would not be a proper incentive under Article 4, Section 96 of the Mississippi Constitution. The opinion does not address or endorse any alternative incentive.

If you're a teacher or staff member

Under this opinion, your district has no authority to drive you to and from work on a district school bus, even as a recruitment or retention perk and even from outside the district. The AG resolved only the bus-use question; it did not opine on any other form of incentive.

If you're a school transportation director

Under this opinion, school bus use is confined to transporting students entitled to it and to the limited additional purposes the legislature authorized: § 37-41-27 lists special events, jury functions, emergencies, and military air show transportation, and § 37-41-3 allows junior college students on established routes. Using buses on a commuter route for employees falls outside those categories, and § 37-41-45 makes unauthorized use a misdemeanor.

Common questions

Q: Are there any times a school bus can be used for something other than transporting students?
A: Yes, in the limited situations the statutes list. § 37-41-27 ("Additional uses for school buses") covers special events, jury functions, emergencies, and military air show transportation, and § 37-41-3 allows junior college students on established routes. The AG says transporting employees on a commuter route is not among the authorized uses.

Q: Why isn't this a permissible incentive under Section 96?
A: The AG did not reach a full Section 96 analysis. It concluded that because there is no statutory authority to use the buses this way in the first place, the transportation "would not be considered a proper incentive under Article 4, Section 96 of the Mississippi Constitution."

Q: What was the 1983 Breland opinion, and why doesn't it help?
A: Breland addressed letting teachers and staff ride existing routes on a space-available basis. The AG distinguished it: Breland did not involve transporting teachers from outside the district, and it relied on § 37-41-1(m), which "has since been repealed." So the AG concluded Breland provides no authority for a commuter route from Forest to Brandon.

Q: Did the AG answer the questions about doing this before or after employees sign contracts?
A: The AG treated the before-contract and after-contract questions as moot or answered "no" in light of its conclusion that there is no authority to use the buses this way and that the transportation would not be a proper Section 96 incentive.

Background and statutory framework

Title 37, Chapter 41 of the Mississippi Code governs school transportation. The structure is permissive only for the uses the legislature has explicitly authorized, with a misdemeanor penalty in § 37-41-45 for unauthorized use.

The core rule, in § 37-41-3: students who live one mile or more from school are entitled to transportation, and bus routes are designed around student needs, with economy as a prime consideration. The State Board of Education has primary regulatory authority under § 37-41-1.

Section 37-41-27 expands authorized uses, but only modestly:

• Special events
• Jury functions
• Emergencies
• Military air show transportation

Section 37-41-3 also authorizes junior college students on established routes.

What is missing from the list: regular commuter transportation for staff.

Article 4, Section 96 of the Mississippi Constitution is the constitutional provision the opinion invokes. The AG did not run a full Section 96 analysis here; it concluded that, because there is no statutory authority to use school buses for employee commuting in the first place, the proposed transportation "would not be considered a proper incentive under Article 4, Section 96 of the Mississippi Constitution." The underlying authority problem resolves the question before the constitutional analysis matters.

Citations and references

Statutes and constitutional provisions:

• Miss. Code Ann. § 37-41-1 (general school transportation; State Board of Education rule-making)
• Miss. Code Ann. § 37-41-3 (student transportation; bus routes)
• Miss. Code Ann. § 37-41-27 (additional authorized uses for school buses)
• Miss. Code Ann. § 37-41-45 (misdemeanor for unauthorized use of school bus)
• Miss. Const. Art. 4, § 96 (prohibition on extra compensation/gratuity)

Prior AG opinions referenced:

• MS AG Op., Carnathan (Nov. 14, 1997)
• MS AG Op., Breland (Jan. 24, 1983), distinguished on facts and superseded statutory basis

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/03/E.Maron-February-24-2023-Transportation-Incentive-for-School-District-Employees.pdf

Original opinion text

February 24, 2023

Elizabeth Lee Maron, Esq.
Attorney, Forest Municipal School District
1018 Highland Colony Parkway, Suite 800
Ridgeland, Mississippi 39157

Re: Transportation Incentive for School District Employees

Dear Ms. Maron:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the Forest Municipal School District ("District") employs staff who travel long distances from their homes to teach in the District each day. The District is concerned that if travel costs are not addressed, the District will likely lose staff to school locations closer to their homes. The Board of Trustees of the District is reviewing a program offering transportation using school buses for District employees who live some distance away from the District —in Brandon, Mississippi, for example— but teach in Forest, Mississippi. Pursuant to a subsequent conversation, we understand that your request is limited to only using public school buses belonging to the District for such transportation.

Questions Presented

1. May the District use District buses to transport employees to and from work who live some distance away from or outside of the District boundaries?

2. Is the offer of transportation using District buses a proper incentive in light of Article 4, Section 96 of the Mississippi Constitution?

3. If transportation is an appropriate incentive, may the District fulfill the proposal of a transportation incentive as described above to District employees even though District employees have signed their contracts?

4. If the answer to Question 3 is no, may the District provide this incentive as consideration prior to the District employees signing their contracts?

5. Based on a prior 1983 Attorney General's Opinion placing the responsibility for determining who may enter a public school bus on the local school board, does the Board have the authority to establish a route from Forest, Mississippi to a fixed point, such as Brandon, Mississippi, for the purpose of providing transportation to employees who travel to teach or work in the District?

Brief Response

1. There is no statutory authority to use public school buses to transport employees between their homes and the schools where they work as described in your request.

2. No. Because there is no authority for school buses to be used in the manner described in your request, such transportation would not be considered a proper incentive under Article 4, Section 96 of the Mississippi Constitution.

3. This question is rendered moot by Responses 1 and 2.

4. No. See Responses 1 and 2.

5. A school board does not have the authority to establish a school bus route from Forest, Mississippi to Brandon, Mississippi, for example, for the purpose of providing transportation to employees who travel to teach or work in the District.

Applicable Law and Discussion

Pursuant to Section 37-41-3, students who live one mile or more from their school are entitled to transportation from home to school and from school to home. MS AG Op., Carnathan at *1 (Nov. 14, 1997). With limited exceptions, school buses may only be used for the transportation of public-school students in accordance with rules and regulations promulgated by the State Board of Education. Miss. Code Ann. § 37-41-1. "In the development of route plans, economy shall be a prime consideration. There shall be no duplication of routes except in circumstances where it is totally unavoidable." Miss. Code Ann. § 37-41-3.

In addition to transporting students who are entitled to transportation from home to school and from school to home, Title 37, Chapter 41 provides limited circumstances in which school buses may be used for additional purposes. See Miss. Code Ann. §§ 37-41-3 (allowing transportation of junior college students on established bus routes) and 37-41-27 (entitled "Additional uses for school buses; special events; jury functions; emergencies; military air show transportation"). Otherwise, it is a misdemeanor for a school bus to be used "for any purpose other than one in connection with the school." Miss. Code Ann. § 37-41-45. The transportation of teachers outside of specific school-related events is not provided for nor considered in Title 37. Thus, this office finds no authority for a school district to use public school buses to transport employees who live a significant distance away as described in your request.

Your fifth question cites a 1983 opinion that addresses whether the school district could provide transportation to teachers and other school district employees on established bus routes on a space available basis. MS AG Op., Breland (Jan. 24, 1983). However, the facts in Breland are distinguishable from your questions: Breland does not involve the District's authority to transport teachers on District buses from outside of the District limits. Further, Breland cites Section 37-41-1(m), which authorized the state board of education to promulgate rules and regulations for "[t]he method by which, and the circumstances in which, any individual who is not a student scheduled to be a passenger upon that particular bus, a member of the public school administration or faculty, or a law enforcement official may obtain entry upon said buses." Breland at 2 (quoting Miss. Code Ann. § 37-41-1(m) (Supp. 1982)) (internal quotations omitted). The opinion ultimately found that any rule promulgated by the state department of education under the purview of Section 37-41-1(m) placed "the responsibility for determining who may enter a public school bus upon the local school boards." Breland at 2. However, Section 37-41-1(m) has since been repealed. It is the opinion of this office that the 1983 Breland opinion provides no authority for the District to establish a bus route from Forest, Mississippi to Brandon, Mississippi, for example, to provide transportation to teachers who work in the District.

Because this office finds no authority to use public school buses to transport employees in the manner described in your request, such transportation would not be considered a proper incentive under Article 4, Section 96 of the Mississippi Constitution.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General