The Department of Public Safety could be unable to regulate smaller buses used to transport students to and from school because state statute requires the agency to first consult with the Student Transportation Advisory Council, which currently has no members.
The Governor’s Regulatory Review Council voted on April 1 to invalidate DPS’s substantive policy statement regarding the regulation of 11-to-15-passenger school vehicles because the regulations are supposed to be agency rules. However, DPS says it has been unable to proceed with the rulemaking process because the Student Transportation Advisory Council has been vacant for several years.
“I don’t think anyone on the council is arguing that school bus safety isn’t important, or that it shouldn’t be regulated, simply that a substantive policy statement is no substitute for a rule when the Legislature has specifically indicated how that rule is supposed to come about,” said Jessica Klein, the chair of the Governor’s Regulatory Review Council, during the April 1 council meeting.
The STAC is supposed to assist DPS in creating regulations for school buses and their drivers, but every seat on the council has been vacant since at least 2022. That year, former Gov. Doug Ducey signed a bill that would allow schools to use smaller buses and vans to transport students and gave DPS the authority to regulate the vans in consultation with the STAC.
Since the council had no members, DPS sought legal advice and decided to adopt a substantive policy statement in 2022 to regulate the vans in the interim, hoping that the rulemaking process could occur when the STAC was full. Statute requires the governor to appoint the 14 members of the council, but neither Ducey nor current Gov. Katie Hobbs have made those appointments
DPS told GRRC that it has frequently reminded the governor’s office about the vacancies, and has even submitted 60 names for potential appointees.
Still, the council remains vacant.
A spokesperson for the governor’s office did not immediately respond to a request for comment. The governor’s office previously declined to answer specific questions about the STAC for an unrelated story that found 16 state boards and commissions cannot meet due to vacancies.
DPS staff told GRRC during a meeting on March 25 that the policy statement was a “last resort.” Legal counsel advised the department that it could not go ahead with a rulemaking without consulting the STAC. Additionally, DPS said staff presented the policy statement at school bus transportation conferences in 2023 and 2024 to solicit feedback that would normally be given by stakeholders during the rulemaking process.
Policy statements are meant to serve as guidance from state agencies, while rules are backed up by statute and may be enforced by agencies. GRRC oversees the approval of agency rules and can review policy statements if petitioned by another party to do so.
A school employee, Amy Carlyle, filed a petition in late 2024 asking the council to invalidate the policy statement because DPS was enforcing it as if it were a rule. DPS said the school employee filed the petition because she was unhappy with inspections done by DPS staff on vehicles the school was using to transport students.
Under the policy statement, van drivers had to meet all requirements to be a school bus driver, but were not required to obtain a commercial drivers license to be certified by the department. DPS staff said the policy was meant to alleviate burdens for charter and private schools that do not use large school buses.
Carlyle told GRRC at a meeting on April 1 that a DPS inspector threatened to impound the school’s vehicles and revoke certifications from its van drivers. GRRC members were concerned by the allegations and said it motivated their decision to invalidate the policy statement.
Jenna Bentley, a member of GRRC, said during the meeting that she thinks DPS should either press the governor’s office to make appointments to the STAC or work with lawmakers on a legislative fix to remove the requirement to consult with the council. Bentley said enforcing a policy statement as an agency rule is not allowable, even if the rule cannot be created without the STAC.
It is unclear what, if any, next steps DPS will take. A spokesperson for DPS declined to comment as the agency reviews its options.
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