June 29, 2007

Mr. Ben Shew, Executive Director
Office of Transportation
West Virginia Department of Education Building 6 Room 464
1900 Kanawha Blvd. E
Charleston WV 25305

Dear Mr. Shew:

You have requested an interpretation whether a bus operator trainee may operate a school bus with a trainer on board if he or she is not yet an employee of a county board of education. To better address the question, I must first set forth how school bus operators are hired and certified.

Individuals wanting to become school bus operators must first be trained by the county board that wishes to hire them. They fill out an application form and provide proof that they are at least 21 years of age. They must be fingerprinted, and the fingerprint forms are sent from the county to the West Virginia Department of Education (WVDE) to send to the State Police for a background check.

The individuals must then obtain an instruction permit for a commercial driver's license (CDL) from the Department of Transportation (DOT). This requires that an individual's local doctor complete a physical and fill out a DOT form.
The individuals must also be trained by the county school systems. WVDE trains the trainers employed by the counties, who in turn train the individual trainees. Training consists of 30 hours course work, and a minimum of six hours experience driving a school bus. Training trainees is a significant expense for the counties. Some share trainers. After the individuals have completed the training, they obtain their CDL which requires them to pass a written test and a skills test.

Once the CDL is obtained, the county schools then request WVDE to certify the school bus operator. WVDE has its own physical form that must be completed, although the same physical exam taken for DOT can be used, as long as it occurred no more than three months prior to the certification request. The trainees must successfully take written and performance exams and a driving test administered by WVDE employees. They must also pass a drug test administered by an independent lab. WVDE also reviews the trainees' driving history with the Department of Motor Vehicles and the criminal background check for disqualifying events such as two convictions for driving under the influence.

WVDE then issues a certificate that must be renewed annually on July 1. If a certified school bus operator is not currently employed by a county as of July 1, he or she does not get a certificate renewal until he or she has obtained another position.

It has come to your attention that some county boards actually hire trainees at the outset of this process conditioned upon successful completion of the various requirements. These counties are under the impression that the law prohibits non-employees from driving a school bus for training purposes. However, the county does not treat the trainees as bona fide employees for purposes of workers' compensation premiums, school funding, unemployment tax or date of seniority.

Newly revised W. Va. Code 18-5-13(f) states, "Any school bus owned by the county board may be operated only by a bus operator regularly employed by the county board." It is my interpretation that this statute does not intend to prohibit a trainee who is not yet an employee from driving a school bus as part of his or her training to become a certified bus driver. Significantly, the required six hours of driving experience/instruction is supervised. Code 18-5-13(f) is not intended to prohibit trainees from acquiring this required experience. Rather, it is intended to avoid having nonqualified drivers operate county owned buses in unsupervised settings, which serves to reduce the county's liability for potential harm to the bus itself or to members of the public caused by negligent or careless use of the bus.

Consistent with this interpretation, West Virginia Code 17E-1-7(a) allows a person with a commercial driver's instruction permit to operate a commercial motor vehicle if accompanied by a holder of a CDL. There are certain requirements and prohibitions under this statutory section that would apply to county school systems as "employer" regardless of the designated status of the trainee. "Employer" is defined as a political subdivision of a state who owns a commercial motor vehicle or assigns a person to drive a commercial motor vehicle. For example, a county school system must require an "applicant" to provide certain information about his or her driving history and prior employment. W. Va. Code 17E-1-6(a). A county school system cannot authorize a driver to train on the bus if he or she has a driver's license suspended or has more than one driver's license at one time. W. Va. Code 17E-1-6(b)(1) & (2).

To the contrary, there are more legal complications that may arise from calling a trainee an employee. The trainee has none of the indicia of current employment: wages, workers' compensation coverage or unemployment insurance.

Whether the county school systems would have liability insurance coverage were a trainee involved in a vehicular accident while operating a school bus during training is of understandable concern. My office spoke with David Mason of the Board of Risk Management about this issue. Since training school bus operators is a necessary function of the school system, there is liability coverage regardless of the employment status of the trainee.

Should county boards of education wish to formalize the training process, the county superintendents may recommend to the boards that individuals be approved as trainees without designating them as employees or conditional employees.

Hoping I have been of service, I remain,

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools