MEMORANDUM

TO: Pete Baxter, Director
Division of School Traffic Safety and Emergency Planning
FROM: Kevin C. McDowell, General Counsel
RE: Interpretation of “Private Purpose.”
DATE: January 4, 2005

You have requested an interpretation of the phrase “private purpose” as it appears at I.C. § 20-9.1-5-1. For ease of reference, the statute reads as follows:

IC § 20-9.1-5-1 Use of School Buses; Generally
Sec. 1. No person shall operate or permit the operation of any school bus on any highway in Indiana for any private purpose or for any purpose other than transportation of eligible school children to and from school except as authorized by sections 1.5 through 9 of this chapter. However, this restriction does not apply to the use of school buses owned and operated by any private school or any nonprofit agency with primary responsibility for the habilitation or rehabilitation of developmentally disabled or physically disabled persons. (Emphasis added.)

The Indiana General Assembly has not defined “private purpose,” nor are there any judicial constructions of this phrase. As a consequence, the rules for statutory construction will need to be applied.

The general rule of statutory construction is that all statutes are to be construed according to their plain meaning, and words and phrases are to be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. LaPorte Civic Auditorium v. Ames, 641 N.E.2d 1045, 1046 (Ind. App. 1994), trans. den. (1995). Generally, one is not free to construe a statute that is otherwise unambiguous. However, legislative purpose is necessarily limited to the language of the statute. Office of Utility Consumer Counselor v. Public Service Co., 608 N.E.2d 1362, 1363-4 (Ind. 1993).

The General Assembly applies the same general rules for statutory construction through I.C. 1-1-4-1(1), which requires that all “[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense...[unless]...the construction is plainly repugnant to the intent of the legislature.”

These judicial and legislative rules of construction are applied generally and not strictly. A court will adopt a “rule of rationality and ordinary intelligence and discretion,” and apply this rule to a statute in order to avoid an absurd or illogical application of the statute. An “absurdity” means “anything which is so irrational, unnatural or inconvenient that it cannot be supposed to have been within the intention of men of ordinary intelligence and discretion.” Marks et al. v. State, 40 N.E.2d 108, 111 (Ind. 1942); Skirvin v. Review Bd. of Ind. Employment Sec. Div., 355 N.E.2d 425, 427 (Ind. App. 1997). “A fundamental rule of statutory construction requires the court to look at an act as a whole to ascertain the intent of the legislature.” Indiana Dep’t of State Revenue v. Estate of Wallace, 408 N.E.2d 150, 154 (Ind. App. 1980), quoting State ex rel. Rogers v. Davis, 104 N.E.2d 382 (Ind. 1952).

Judicial construction also calls for “upholding the manifest spirit of a legislative enactment” such that the spirit of the law “should prevail over a blind adherence to its exact letter.” City of Gary v. Baker, 333 N.E.2d 808, 810 (Ind. App. 1975). This “rule of construction according to the spirit of the law is especially applicable when adherence to the letter of the law would lead to injustice, absurdity, or contradictory provisions.” Town of Kewanna Water Works v. Ind. Employment Sec., 171 N.E.2nd 262, 264 (Ind. App. 1961). “Absurdity,” as noted above, may include inconvenience. Marks, 40 N.E.2d at 111.

With these guideposts in mind, the phrase “private purpose” as employed in this statute contextually is coextensive with the term “scope of employment.” A school employee acts within the scope of his employment “if the employee acts with the intention of serving the employer’s interests.” Gomez v. Adams, 462 N.E.2d 212 (Ind. App. 1984). Also see Norris v. Greenwood Community School Corporation, 797 F.Supp. 1452, 1459-60 (S.D. Ind. 1992). “Scope of employment” where governmental employees are involved, means “conduct of the same general nature as that authorized, or incidental to the conduct authorized.” City of Anderson v. Davis, 743 N.E.2d 359, 364, n. 3 (Ind. App. 2001) (internal punctuation omitted). “An act is incidental to authorized conduct when it is subordinate to or pertinent to an act which the servant is employed to perform or when it is done to an appreciable extent to further his employer’s business.” Id. (internal punctuation and citations omitted). “Even criminal acts may be considered as being within the scope of employment if the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. App. 2003), quoting Stopes v. Heritage House Children’s Center of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989). Also see Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993) (“The question of whether the tortious acts of an employee are within the scope of his employment is usually a question of fact, [citation omitted], but may be determined as a matter of law [citation omitted]. However, the question of whether the governmental employee was acting within the scope of his employment at the time of the incident (not the degree of culpability) remains the central focus of the inquiry.”)

Most of these cases involve excessive force by law enforcement officials acting as security guards, conversion of property, or personal injuries resulting from the actions of teachers or administrators.

Under I.C. § 20-9.1-5-1, “transportation of eligible school children to and from school” is the only authorized use unless otherwise provided “by sections 1.5 through 9 of this chapter.” Unless specifically authorized by one of these sections, the operation of the school bus would not be authorized and would, as a consequence, be for a “private purpose” and outside the scope of employment.

As noted supra, one must be cautious in interpreting and applying this provision as the question is fact-sensitive.

Should you require anything additional in this regard, please advise.

cc. File