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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5741 July 18, 1980 EMERGENCIES: Utilization of public school buses for purposes of evacuation in disaster GOVERNOR: Declaration of disaster Expenditures from disaster contingency fund SCHOOLS AND SCHOOL DISTRICTS: Use of school resources and public school buses in disaster Upon the declaration of a disaster by the governor, school district resources and school buses may be used to evacuate the population from a stricken area and the governor may authorize expenditures from the disaster contingency fund for use thereof. When school buses are used during a state of disaster, school districts are immune from liability and school district employees driving the buses are also immune from liability except in cases of wilful misconduct, gross negligence or bad faith. Honorable David C. Hollister State Representative The Capitol Lansing, Michigan You have requested my opinion on several questions relating to emergency and disaster planning pursuant to the Emergency Preparedness Act, 1976 PA 390, MCLA 30.401 et seq; MSA 4.824(11) et seq. Your questions may be phrased as follows: 1. May public school buses be used to evacuate or transport school children, school personnel and the public during a disaster? 2. When public school buses are used during a state of disaster, who is liable for damages caused by their use? 3. Under a declaration of disaster called by the governor, may resources maintained by a school district, such as gas, food, first aid supplies, and equipment be used if they are reasonably necessary to cope with the disaster? 4. Where a school district's resources are used during a state of disaster, may the cost of such resources be included in a school district's application for a grant from the disaster contingency fund? 1976 PA 390, supra, Sec. 3(2) empowers the governor to issue executive orders, proclamations, and directives having the force and effect of law for the purpose of implementing the Emergency Preparedness Act, 1976 PA 390, supra. Where a disaster has occurred or the threat of a disaster is imminent, the governor, pursuant to 1976 PA 390, supra, Sec. 3(3), is authorized to declare a state of disaster. Upon the declaration of a disaster, 1976 PA 390, supra, Sec. 5 sets forth the duties of the governor. This statutory provision, in pertinent part, states: '(1) In addition to the general authority granted to the governor by this act, he may, upon his declaration of a disaster: (b) Utilize the available resources of the state and its political subdivisions, and those of the federal government made available to the state, as are reasonably necessary to cope with the disaster. (d) Subject to appropriate compensation, as authorized by the legislature, commandeer or utilize private property necessary to cope with the disaster. '(e) Direct and compel the evacuation of all or part of the population from a stricken or threatened area within the state if necessary for the preservation of life or other disaster mitigation, response, or recovery. '(f) Prescribe routes, modes, and destination of transportation in connection with the evacuation. (j) Direct all other actions which are necessary and appropriate under the circumstances.' (Emphasis added.) By its plain and unambiguous terms, 1976 PA 390, Sec. 5, supra, clearly states that upon the declaration of a disaster, the governor is empowered to utilize the available resources of the state and its political subdivisions and direct the evacuation of all or part of the population from a stricken or threatened area. During an evacuation, the governor is authorized to prescribe routes, modes and destination of transportation in connection with such an evacuation. The exercise of these powers by the governor is implemented by the director of the department of state police or his authorized representative. Therefore, in answer to your first question, it is my opinion that upon the declaration of a disaster the governor may direct that public school buses be used to evacuate or transport any person from a stricken or threatened area. Turning to your second question, 1976 PA 390, supra, Sec. 11(3) states: '(3) Neither the state nor any political subdivision, nor, except in cases of wilful misconduct, gross negligence, or bad faith, the employees, agents, or representatives of the state or a political subdivision, nor any volunteer or auxiliary disaster relief worker or member of any agency engaged in any disaster relief activity, complying with or reasonably attempting to comply with this act, or any order, rule promulgated pursuant to the provisions of this act, or pursuant to any ordinance relating to blackout or other precautionary measures enacted by a political subdivision, shall be liable for the death of or injury to persons, or for damage to property, as a result of any such activity.' The above quoted statutory provision grants immunity from liability for school districts when their buses are utilized pursuant to 1976 PA 390, supra. School district employees driving the buses, when such buses are utilized pursuant to 1976 PA 390, supra, are granted a qualified immunity from liability unless they cause personal injury or property damage by wilful misconduct, gross negligence or bad faith. It should be noted that 1964 PA 170, Sec. 5; MCLA 691.1405; MSA 3.996(105), provides that governmental agencies shall be liable for bodily injury resulting from the negligent operation, by any agent or employee of the governmental agency, of a motor vehicle owned by the agency. While it appears that such statute and 1976 PA 390, Sec. 11(3), supra, quoted above, are in conflict, 1976 PA 390, Sec. 11(3), supra, is a specific provision which must control over the general provision of 1964 PA 170, Sec. 5, supra. Imlay Township Primary School District No 5 v State Board of Education, 359 Mich 478; 102 NW2d 720 (1960). Therefore, in response to your second question, it is my opinion that when school buses are used during a state of disaster, school districts are immune from liability and school district employees driving the buses are also immune from liability except in cases of wilful misconduct, gross negligence or bad faith. Responding to the third question, it is clear that, pursuant to 1976 PA 390, supra, Sec. 5(1)(b), the governor may direct the a political subdivision's resources be utilized if they are reasonably necessary to cope with the disaster. Thus, it is my opinion that when the governor has declared a disaster, the resources of a school district may be used if they are reasonably necessary to cope with the disaster. Turning to the fourth question, 1976 PA 390, supra, Sec. 19(1) provides: 'Under extraordinary circumstances, and subject to the requirements of this subsection, the governor may authorize an expenditure from the disaster contingency fund to provide state assistance to a local political subdivision when federal assistance is not available. When the governor proclaims a state of disaster, the first recourse for disaster related expenses shall be to funds of the political subdivision. If the demands placed upon the funds of a local political subdivision in coping with a particular disaster are unreasonably great, the governing body of the political subdivision may apply, by resolution of the local governing body, for a grant from the disaster contingency fund. . . . Assistance grants under this section shall not exceed $20,000.00 or 10% of the total annual operating budget for the preceding fiscal year of the political subdivision, whichever is less. The assistance under this subsection is to provide grants, excluding reimbursement for capital outlay expenditures, in mitigation of extraordinary burden of a local political subdivision in relation to its available resources.' Pursuant to the above quoted statutory provision, where a school district's resources are used during a state of disaster, the cost of such resources, except reimbursement for capital outlay expenditures, may be included in a school disaster's application for a grant from the disaster contingency fund. (a1) Authorization for such expenditures in in the governor's discretion. Frank J. Kelley Attorney General (a1.)
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