Bill Analysis Legislative Service Commission

Sub. S.B. 130* 122nd General Assembly (As Reported by S. State & Local Government & Veterans Affairs)

Sens. Watts, White

• Repeals existing law regarding the reemployment of public employees after military service, and requires that the reinstatement and reemployment rights of employees in the uniformed services conform to the federal Uniformed Services Employment and Reemployment Rights Act of 1994.

• Exempts the military pay and allowances of members of the reserve units of the armed forces of the United States and the Ohio National Guard from municipal corporation income tax.

• Excludes members of the Ohio organized militia while training or performing duty under the Ohio National Guard Law from coverage under the Public Employees Collective Bargaining Law.

• Exempts members and uniformed employees of the armed forces of the United States, members of the reserve components of the armed forces of the United States, and members of the Ohio National Guard, except United States reserve technicians, from the Commercial Driver's Licensing Law when operating a vehicle owned by the Department of Defense.

• Places in the unclassified civil service all commissioned, warrant, and noncommissioned officers and enlisted persons in the Ohio organized militia, including military appointees in the Adjutant General's Department.

* This analysis was prepared before the report of the Senate State and Local Government and Veterans Affairs Committee appeared in the Senate Journal. Note that the list of co- sponsors and the legislative history may be incomplete. • Exempts executive agencies of the United States from the required reporting of newly hired, rehired, or returning to work employees, to the Department of Human Services for child support and fraud detection purposes under section 5101.312 of the Revised Code.

• Provides that a reservist called or ordered to active duty for less than 31 days must not be required to pay more than the employee's share for the continuation of the employee's group health or medical care coverage.

• Provides that the stocking, accounting for, issuing, and dispensing of any pharmaceutical drug to any Ohio National Guard unit or member is governed exclusively by federal military regulations.

• Repeals the exemption from jury duty and serving on a posse comitatus for active duty members of the Ohio Military Reserve and the Ohio Naval Militia.

• Exempts the Adjutant General's Department from the filing and other requirements of section 111.15 of the Revised Code with respect to rules adopted by the Department.

• Repeals the Military Census Law.

• Modifies the Adjutant General Law.

• Modifies the Ohio National Guard Law.

• Modifies the Organized Militia Law.

• Declares an emergency.

TABLE OF CONTENTS

Rulemaking, adoption, and filing requirements ...... 3 Municipal income tax ...... 7 Commercial drivers licensing law ...... 7 Human Services information reporting ...... 7 Personnel changes relating to current and former members of the military ...... 8 Military service credit ...... 9 Posse comitatus and jury duty ...... 10 Technical changes ...... 11 Adjutant General Law ...... 11

Legislative Service Commission -2- Sub. S.B. 130 Receipt of gifts ...... 11 Sale of alcohol ...... 11 Duties of the Adjutant General ...... 12 Requirements for military staff of the Governor; rank of military officials ...... 13 Pay of Adjutant General and certain Assistants ...... 14 Adjutant General's authority as director of state armories; conferral of additional powers ...... 15 Miscellaneous provisions ...... 15 Military Census Law ...... 16 Ohio National Guard Law ...... 16 Regulation and publications governing the appointment of officers ...... 16 Moral fitness ...... 17 Compliance with food and drug regulations ...... 17 Discharge ...... 18 Retirement ...... 18 Pay ...... 18 Miscellaneous provisions ...... 18 Organized militia law ...... 19 Membership requirements ...... 19 Retirement ...... 20 Exemptions from duty ...... 21 Miscellaneous provisions ...... 21

CONTENT AND OPERATION

Rulemaking, adoption, and filing requirements

(sec. 111.15)

R.C. 111.15 states in pertinent part:

(B)(1) Any rule, other than a rule of an emergency nature, adopted by any agency pursuant to this section shall be effective on the tenth day after the day on which the rule in final form and in compliance with division (B)(3) of this section is filed as follows:

(a) Two certified copies of the rule shall be filed with both the secretary of state and the director of the legislative service commission;

(b) Two certified copies of the rule shall be filed with the joint committee on agency rule review.

Legislative Service Commission -3- Sub. S.B. 130 Division (B)(1)(b) of this section does not apply to any rule to which division (D) of this section does not apply.

* * *

If all copies are not filed on the same day, the rule shall be effective on the tenth day after the day on which the latest filing is made. If an agency in adopting a rule designates an effective date that is later than the effective date provided for by division (B)(1) of this section, the rule if filed as required by such division shall become effective on the later date designated by the agency.

Any rule that is required to be filed under division (B)(1) of this section is also subject to division (D) of this section if not exempted by division (D)(1), (2), (3), (4), (5), (6), (7), or (8) of this section.

(2) A rule of an emergency nature necessary for the immediate preservation of the public peace, health, or safety shall state the reasons for the necessity. Copies of the emergency rule, in final form and in compliance with division (B)(3) of this section, shall be filed as follows: two certified copies of the emergency rule shall be filed with both the secretary of state and the director of the legislative service commission, and one certified copy of the emergency rule shall be filed with the joint committee on agency rule review.

* * *

(3) An agency shall file a rule under division (B)(1) or (2) of this section in compliance with the following standards and procedures:

(a) The rule shall be numbered in accordance with the numbering system devised by the director for the Ohio administrative code.

Legislative Service Commission -4- Sub. S.B. 130 (b) The rule shall be prepared and submitted in compliance with the rules of the legislative service commission.

(c) The rule shall clearly state the date on which it is to be effective and the date on which it will expire, if known.

(d) Each rule that amends or rescinds another rule shall clearly refer to the rule that is amended or rescinded. Each amendment shall fully restate the rule as amended.

* * *

(D) At least sixty days before a board, commission, department, division, or bureau of the government of the state files a rule under division (B)(1) of this section, it shall file two copies of the full text of the proposed rule with the joint committee on agency rule review, and the proposed rule shall be subject to legislative review and invalidation under division (I) of section 119.03 of the Revised Code. If a state board, commission, department, division, or bureau makes a substantive revision in a proposed rule after it is filed with the joint committee, the state board, commission, department, division, or bureau shall promptly file two copies of the full text of the proposed rule in its revised form with the joint committee.

* * *

This division does not apply to any of the following:

* * *

(E) Whenever a state board, commission, department, division, or bureau files a proposed rule or a proposed rule in revised form under division (D) of this section, it shall also file one copy of the full text of the same proposed rule or proposed rule in revised form with the secretary of state and two copies thereof

Legislative Service Commission -5- Sub. S.B. 130 with the director of the legislative service commission. Except as provided in division (F) of this section, a state board, commission, department, division, or bureau shall attach a copy of the rule summary and fiscal analysis prepared under section 121.24 or 127.18 of the Revised Code, or both, to each copy of a proposed rule or proposed rule in revised form that is filed with the secretary of state or the director of the legislative service commission.

* * *

Under current law, section 111.15 of the Revised Code does not apply to the General Assembly or any court. The bill provides that section 111.15 of the Revised Code does not apply to the Adjutant General's Department (sec. 111.15(A)(2)).

Under current law, when prescribing rules for the management and guidance of organizations and units occupying the grounds and facilities under the direction of the Adjutant General, the Adjutant General need not comply with the Administrative Procedure Act (Chapter 119.). Under the bill, the Adjutant General also is not required to comply with Chapter 111. when prescribing those rules (Chapter 111. contains section 111.15 and prescribes the organization, powers, and duties of the Secretary of State). (Sec. 5911.011.)

Existing law permits the Adjutant General to prescribe and enforce rules and police regulations for all property under the jurisdiction of the Adjutant General as deemed necessary for protection and safety and permits the Governor to issue regulations governing the appointment of officers in the Ohio National Guard and other matters pertaining to the Ohio National Guard as necessary to conform to congressional requirements for federal funding. Existing law does not specifically require the Adjutant General to comply with the Ohio Administrative Procedure Act or any other procedures when promulgating these rules and regulations.

The bill authorizes the Adjutant General to prescribe and enforce regulations for property under the Adjutant General's control and to issue regulations and other publications governing the appointment of Ohio National Guard officers and other matters necessary to conform to congressional requirements for federal funding. The bill specifies that when prescribing or issuing those regulations and other publications, the Adjutant General need not comply with Chapter 111. or the Administrative Procedure Act. (Secs. 5913.10 and 5919.04.)

Legislative Service Commission -6- Sub. S.B. 130 Municipal income tax

(sec. 718.01)

Under current law, no municipal corporation may tax, for income tax purposes, the military pay or allowances of members of the armed forces of the United States. The bill expands that prohibition to additionally prohibit a municipal corporation from taxing the military pay and allowances of the members of the reserve components of the armed forces of the United States, including the Ohio National Guard (sec. 718.01(F)(1)).

Commercial drivers licensing law

(sec. 4506.02)

Under existing law, Chapter 4506. of the Revised Code governs the issuance and regulation of commercial driver's licenses. The chapter does not apply to any person when engaged in the operation of (1) a farm truck, (2) fire equipment for a fire department, volunteer or nonvolunteer fire company, fire district, or joint fire district, (3) a public safety vehicle used to provide transportation or emergency medical service for ill or injured persons, (4) a recreational vehicle, or (5) a commercial motor vehicle within the boundaries of an eligible unit of local government, if the person is employed by the eligible unit of local government and is operating the commercial motor vehicle for the purpose of removing snow or ice from a roadway by plowing, sanding, or salting, but only if either the employee who holds a commercial driver's license issued under Chapter 4506. and ordinarily operates a commercial motor vehicle for these purposes is unable to operate the vehicle, or the employing eligible unit of local government determines that a snow or ice emergency exists that requires additional assistance.

The bill adds to the list of exemptions from licensing described above an exemption for a vehicle owned by the Department of Defense and operated by any member or uniformed employee of the armed forces of the United States or their reserve components, including the Ohio National Guard. The bill provides that this exception does not apply to United States reserve technicians. (Sec. 4506.02(A)(6).)

Human Services information reporting

(sec. 5101.312)

Under existing law, specified employers must report in writing to the Department of Human Services the hiring, rehiring, or return to work as an

Legislative Service Commission -7- Sub. S.B. 130 employee of a person who resides, works, or will be assigned to work in this state to whom the employer anticipates paying compensation. The Department must use the reports to locate obligors under child support orders being administered by child support enforcement agencies in this state and to detect fraud in any program administered by the Department. The Department may submit to the Bureau of Workers' Compensation or the Bureau of Employment Services a copy of any report it receives from an employer. The Department must require an employer who fails to make a report to pay a fee of $25 for each failure.

The bill exempts an executive agency of the United States from this law by excepting them from the definition of employer in R.C. 5101.312(A)(2).

Personnel changes relating to current and former members of the military

Current law places in the unclassified civil service all commissioned and noncommissioned officers and enlisted persons in the military service of the state, including military appointees in the office of the Adjutant General. The bill revises this provision to place in the unclassified civil service all commissioned, warrant, and noncommissioned persons in the Ohio organized militia, including military appointees in the Adjutant General's Department. (Sec. 124.11(A)(6).) Existing law excludes from coverage under the Public Employees Collective Bargaining Law persons who are members of the organized militia, while on active duty. The bill revises this provision to exclude from this coverage members of the Ohio organized militia while training or performing duty under the Ohio National Guard Law. (Sec. 4117.01(C)(4).)

Existing law provides for the continuation of employee group health care coverage when reservists are called or ordered to active duty. The bill provides that a reservist called or ordered to active duty for less than 31 days must not be required to pay more than the employee share, if any, for the coverage. (Secs. 1751.54, 3923.381(C)(2)(b), and 3923.382(C)(2)(b).)

Present law provides for the restoration of the civil service status of classified public employees and the reemployment of public employees after such employees have completed their military service. The bill replaces these provisions of current law with a provision that states that the determination of reinstatement and reemployment rights of permanent public employees and permanent private employees in the uniformed services must be made in accordance with the federal "Uniformed Services Employment and Reemployment Rights Act of 1994." It also states that a person who enters the uniformed services at the time of holding an office or position in the public service is entitled to reinstatement in accordance with that Act. The bill requires the Director of Administrative Services to adopt rules for the implementation of these provisions

Legislative Service Commission -8- Sub. S.B. 130 and states that anyone who violates these provisions may be fined not more than $1,000 or imprisonment not more than six months, or both.

The bill defines "uniformed services" as the armed forces; the Ohio organized militia when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other category of persons designated by the President of the United States in time of war or emergency. It defines "private employer" as any person, institution, organization, or other entity that is not a public employer and that pays salary or wages for work performed or that has control over employment opportunities and "permanent private employee" as any person holding a position with a private employer. It also defines "service in the uniformed services" as the performance of duty, on a voluntary or involuntary basis, in a uniformed service under competent authority, including active duty, active duty for training, inactive duty for training, full-time National Guard duty, and performance of duty or training by a member of the Ohio Organized Militia. "Service in the uniformed services" includes also the period of time for which a person is absent from a position of public or private employment for the purpose of an examination to determine the fitness of the person to perform any duty described in the definition. (Secs. 124.28 (repealed), 124.29, 3319.13, 3319.14, 5903.01, 5903.02 (repealed and reenacted), 5903.03 to 5903.05 (repealed), 5903.09 (repealed), and 5903.99.)

Military service credit

Under existing law, a public employee who was or is out of active service as a public employee by reason of having become a member of the armed forces of the United States on active duty or service is entitled to have military service of ten years or less considered as the equivalent of prior service as a public employee for state retirement system (see definition below) or Cincinnati retirement system purposes. The credit must be given upon re-employment in the public service and completion of one year of service credit as covered by a state retirement system or the Cincinnati retirement system, within two years after an honorable discharge, upon presentation of an honorable discharge or certificate of service, and subject to the rules adopted by the retirement board. The credit is available to any member of the Public Employees Retirement System who was a member with not less than one year of payroll deductions before entering active duty with the armed forces and maintained membership in the Public Employees Retirement System as provided by section 145.41 of the Revised Code. Military service, as established by an honorable discharge or certificate of service, not in excess of ten years must also be considered prior service for a person who was a public employee and who has acquired service credit for five years prior to, and within the one year preceding, the date of entering active duty in the armed forces of the United States if the person was re-employed in the public service within one year after the

Legislative Service Commission -9- Sub. S.B. 130 honorable discharge and established a total service credit of 20 years exclusive of credit for military service. "State retirement system" is defined for these provisions as any of the following: the Police and Fireman's Disability and Pension Fund, the Public Employees Retirement System, the School Employees Retirement System, the State Highway Patrol Retirement System, or the State Teachers Retirement System. For the purposes of this military service credit, "armed forces" of the United States includes personnel of the Ohio National Guard, the Ohio Military Reserve, and the Ohio Naval Militia who are called to active duty pursuant to an executive order issued by the President of the United States or an act of Congress.

The bill replaces the requirement of an honorable discharge with a requirement that the service in the uniformed services be terminated in a manner other than as described in a federal law specifying the types of termination of service for which entitlement to benefits terminates.

The bill also removes personnel of the Ohio Military Reserve and the Ohio Naval Militia from the current definition of "armed forces" of the United States and thereby prohibits those members from receiving the above-described military service credit for state retirement system or Cincinnati retirement system purposes if they are called to active duty pursuant to an executive order issued by the President of the United States or an act of Congress. (Sec. 145.30.)

Posse comitatus and jury duty

(secs. 5920.09 and 5920.10)

Under current law, whenever the Ohio Military Reserve or any part thereof is ordered out for active service by the Governor, the Ohio Code of Military Justice is in full force in respect to those forces. Every officer and enlisted man of those forces is, during his service therein, exempt from service upon any posse comitatus and from jury duty. The bill eliminates the exemption from service upon any posse comitatus and from jury duty for officers and enlisted men of the Ohio Military Reserve when ordered out for active service by the Governor. (Sec. 5920.10.)

Under current law, the Ohio Naval Militia is organized, governed, drilled, and instructed in accordance with the regulations and customs provided for the navy of the United States, and Chapter 5924. of the Revised Code, together with the orders of the Governor. Every commissioned officer, warrant officer, and enlisted member, when ordered out for active service by the Governor, must during his service therein, be exempt from service upon any posse comitatus and from jury duty. The bill eliminates the exemption from service upon any posse

Legislative Service Commission -10- Sub. S.B. 130 comitatus and from jury duty for commissioned officers, warrant officers, and enlisted members of the Ohio Naval Militia when called out for active service by the Governor. (Sec. 5921.09.)

Technical changes

The bill makes technical changes to the language of various provisions of the bill by clarifying the definition of the Ohio National Guard and deleting references to the Ohio Air National Guard when that reference is used in conjunction with the Ohio National Guard (secs. 145.01, 3923.381(A)(3), 3923.382(A)(4), 4141.01, and 4911.04).

Adjutant General Law

(secs. 5913.08, 5913.10, and 5913.17)

Receipt of gifts

(sec. 5911.03)

Existing law states that the Adjutant General may receive gifts of land, money, or other property for the purpose of aiding in the acquisition of grounds and airfields, or the purchase, building, furnishing, or maintaining of an armory, building, or other facility for military purposes. All lands so acquired must be deeded to the state, and all property so received from any source must become the property of the state. The bill limits the requirement that all property so received become property of the state and that all lands so received be deeded to the state by stating that such is the case, except as may be provided in an agreement by which the United States contributes to the cost of acquiring, designing, or constructing the grounds, armory, airfield, or other facility used for developing, training, and operating units of the National Guard. In the grant of authority to the Adjutant General to receive gifts for an armory, building, or other facility, the bill replaces "building" with "airfield." (Sec. 5911.03.)

Sale of alcohol

(sec. 5911.08)

Under current law, the sale of intoxicating liquor in an armory, building, airfield, or other facility used for training and for the safekeeping of arms, clothing, equipment, and other military property belonging to the Ohio National Guard, the Ohio Military Reserve, or the Ohio Naval Militia is prohibited, and any person guilty of violating the prohibition must be punished as a court-martial directs. The bill prohibits the sale of beer or intoxicating liquor in such places,

Legislative Service Commission -11- Sub. S.B. 130 except as allowed under a permit issued under the Liquor Permit Law, and requires that violators of the prohibition be subject to punishment under the Liquor Permit Law instead of as a court-martial directs. (Sec. 5911.08.)

Duties of the Adjutant General

(sec. 5913.01)

Under current law, the Adjutant General is chief of staff to the commander in chief and administrative head of the organized militia. Under the bill the Adjutant General is the administrative head of the organized militia. (Sec. 5913.01(A).)

Under current law, the duties of the Adjutant General include having custody of all military records, correspondence, and other military documents; superintending the preparation of all returns and reports required by the United States from the state on military matters; and keeping a roster of all officers of the military forces of the state, including retired officers. He must, whenever necessary, cause the military code, orders, circulars, and memorandums of the Adjutant General's Department to be printed and distributed to the commissioned officers and organizations of the organized militia. He must prepare and issue all necessary books, blanks, and notices. He must attest all commissions issued to military officers. He must have a seal, and all copies of orders, records, and papers in his office certified and authenticated under the seal are evidence in like manner as if the originals were produced. All orders issued from his office must be authenticated with the seal. He must keep and preserve the arms, ordnance, equipment, and all other military property belonging to the state or issued to the state by the federal government, and he must make and issue such regulations as are necessary to keep, preserve, and repair such property as in his opinion conditions demand. He must issue the military property to the units of the Organized Militia as the necessity of the service requires. He must submit an annual report to the Governor at such time as the Governor requires of the transaction of his department, setting forth the strength and condition of the Organized Militia and other matters as he deems important. He must issue and distribute all orders of the commander in chief and perform the duties as the commander in chief directs and the duties as are prescribed by law.

Under the bill, in addition to assuming the duties of the commander in chief of the Ohio Organized Militia, the Adjutant General commands the state area command of the Ohio National Guard and may enter into cooperative agreements, contractual arrangements, or agreements for the acceptance of grants with the United States or any agency or department of the United States, other states, any department or political subdivision of this state, or any person or body politic, to

Legislative Service Commission -12- Sub. S.B. 130 accomplish the purposes of the Adjutant General's Department. The Adjutant General must cooperate with, and not infringe upon, the rights of other state departments, divisions, boards, commissions, and agencies, political subdivisions, and other public officials and public and private agencies when the interests of the Adjutant General's Department and those other entities overlap.

The funds made available by the United States for the exclusive use of the Department must be expended only by the Department and only for the purposes for which the federal funds were appropriated. In accepting federal funds, the Department agrees to abide by the terms and conditions of the grant or cooperative agreement and further agrees to expend the federal funds in accordance with the laws and regulations of the United States. (Sec. 5913.01(A)(11) and (C).)

Requirements for military staff of the Governor; rank of military officials

(secs. 5913.02 and 5913.021)

Under current law, the military staff of the Governor consists of an Adjutant General of the grade of major general with the duties of quartermaster general; an Assistant Adjutant General for Army of the grade of brigadier general; an Assistant Adjutant General for Air of the grade of brigadier general; and an Assistant Quartermaster General of the grade of colonel; all of whom are appointed by the Governor and hold office during his pleasure. The Governor's military staff also must include four aides-de-camp, who are appointed by the Governor and hold office during his pleasure. Existing law mandates that the military staff of the Governor consist of the above-listed officers. The bill removes the mandatory nature of the Governor's military staff by stating that the Governor's military staff may consist of the listed officers. It also alters the requisite rank of the members of the Governor's military staff as follows: (1) an Adjutant General in the grade of major general, who must perform the duties of quartermaster general, (2) an Assistant Adjutant General for Army in the grade of major general, (3) an Assistant Adjutant General for Air in the grade of major general, and (4) an Assistant Quartermaster General in the grade of colonel or any retired officer who has appropriate qualifications for the position, as determined by the Adjutant General and the Governor. All above named persons are appointed by the Governor and hold office during the Governor's pleasure. (Sec. 5913.02.)

Under existing law, the Adjutant General at the time of the General's appointment must be a federally recognized officer of the Ohio National Guard of the grade of colonel or above, the Assistant Adjutant General for Army at the time of appointment must be a federally recognized officer of the Ohio Army National Guard of the grade of lieutenant colonel or above, the Assistant Adjutant General

Legislative Service Commission -13- Sub. S.B. 130 for Air at the time of appointment must be a federally recognized rated officer of the Ohio Air National Guard of the grade of lieutenant colonel or above, and the Assistant Quartermaster General at the time of appointment must be a federally recognized officer of the Ohio National Guard of the grade of major or above. The Adjutant General, the Assistant Adjutant General for Army, the Assistant Adjutant General for Air, and the Assistant Quartermaster General at the time of appointment must each have not less than ten years' commissioned service in the armed forces of the United States, not less than five years of that service being in the Ohio National Guard, and must at all times during their tenure of office be federally recognized officers of the Ohio National Guard.

The bill alters the required rank of the Adjutant General's personnel as follows: the Assistant Adjutant General for Army at the time of appointment must be a federally recognized officer of the Ohio Army National Guard of the grade of colonel or above, the Assistant Adjutant General for Air at the time of appointment must be a federally recognized rated officer of the Ohio Air National Guard of the grade of colonel or above, and the Assistant Quartermaster General at the time of appointment must be a federally recognized officer of the Ohio National Guard of the grade of lieutenant colonel or above, or any retired officer who has appropriate qualifications for the position, as determined by the Adjutant General and the Governor. (Sec. 5913.021.)

Pay of Adjutant General and certain Assistants

Under existing section 141.02 of the Revised Code, the Adjutant General, the Assistant Adjutant General, the Assistant Adjutant General for Air, and the Assistant Quartermaster General must receive the pay and allowances of their rank according to the pay at the time prescribed for the armed forces of the United States, except that the Assistant Adjutant General for Air may not receive flying pay. The salaries must be paid according to the schedule established in division (B) of section 124.15 of the Revised Code (division (B) of that section provides that the pay schedule of all employees is on a biweekly basis with amounts computed on an hourly basis).

The bill modifies that section to specify that the salaries of the Adjutant General, the Assistant Adjutant General for Army, the Assistant Adjutant General for Air, and the Assistant Quartermaster General are to be paid according to divisions (B) and (H) of section 124.15 of the Revised Code (division (H) regulates pay schedules and salary adjustments for appointive managerial or professional positions paid under specified salary schedules) and that the Adjutant General, the Assistant Adjutant General for Army, the Assistant Adjutant General for Air, and the Assistant Quartermaster General are to receive the basic allowances for quarters and for subsistence of their rank according to the pay at

Legislative Service Commission -14- Sub. S.B. 130 the time prescribed for the armed forces of the United States, except that the Assistant Adjutant General for Air is not to receive flying pay. (Sec. 141.02.)

Adjutant General's authority as director of state armories; conferral of additional powers

(secs. 5911.011, 5913.051, and 5913.09)

The bill modifies the Adjutant General's authority as director of state armories to specify that the Adjutant General, as director of state armories, may acquire, design, construct, expand, rehabilitate, and convert grounds, armories, airfields, and other facilities for the purposes of developing, training, and operating units of the Ohio National Guard and for the safekeeping of arms, clothing, equipment, and other state or federal military property issued to the Ohio National Guard or state property issued to the Ohio Military Reserve or the Ohio Naval Militia. In acquiring grounds, armories, airfields, and other facilities, the Adjutant General may lease property for any term up to 99 years, subject to the availability of state funds or federal funds obtained under an agreement by which the United States contributes to the cost of leasing the grounds, armory, airfield, or other facility or the Adjutant General may build suitable buildings, airfields, and facilities for those purposes. (Sec. 5911.011.)

The bill makes permissive the existing requirement that the Adjutant General appoint an assistant to the state area commander for readiness and training for army (sec. 5913.051).

The bill specifically authorizes the Adjutant General, in accordance with applicable state and federal law and regulations and with the approval of the Attorney General, to enter into contracts for the construction, repair, renovation, maintenance, and operation of military or other Adjutant General's Department property. It also authorizes the Adjutant General, in accordance with applicable state and federal law and regulations and with the approval of the Governor to lease or exchange all or part of any military or other Adjutant General's Department property and to grant easements or licenses, if the lease, exchange, easement, or license is advantageous to the state. It requires that all property of the Adjutant General's Department be sold in accordance with specified statutory procedures or in accordance with an act of the General Assembly. (Sec. 5913.09(C)(2), (3), and (4).)

Miscellaneous provisions

(secs. 5911.04, 5913.03, 5913.04, 5913.05, 5913.06, 5913.08, 5913.10, and 5913.17)

Legislative Service Commission -15- Sub. S.B. 130 The bill contains numerous changes to clarify and gender neutralize the Adjutant General's law (secs. 5911.04 (removes a reference to "buildings" in a reference to "armories, other buildings, facilities, and airfields" for military purposes), 5913.03, 5913.04 (also removes a requirement that the Governor's "aides-de-camp" be detailed from Ohio National Guard officers "from a grade below that of colonel"), 5913.05, 5913.06 (includes references to "departmental property" in current references to state military property), 5913.08, 5913.10, 5913.17 (also removes a reference to a camp or cantonment of any military organization of the United States from prohibition against entering an encampment of the Ohio Organized Militia when forbidden to do so), and 5924.15).

The bill makes technical changes to the language of various provisions by replacing references to military or militia with "Ohio Organized Militia," replacing "military code" with "military provisions of the Revised Code," and making other similar changes.

Military Census Law

(Chapter 5917.)

The bill repeals current law authorizing the Governor to order and direct the Adjutant General to take a military census of this state at any time.

Ohio National Guard Law

Regulation and publications governing the appointment of officers

(sec. 5919.04)

Under current law, the Governor may issue such regulations governing the appointment of officers in the Ohio National Guard and such other matters pertaining to the Ohio National Guard as are necessary to conform to the requirements made by Congress for participation in federal appropriations for the National Guard. The bill allows the Adjutant General to issue the regulations and also to issue other publications governing the appointment of officers in the Ohio National Guard and all other matters as necessary to conform to the requirements made or authorized by Congress for participation in federal appropriations for the National Guard. In issuing the regulations and other publications, the Adjutant General need not comply with Chapter 111. or 119. (Administrative Procedure Act) of the Revised Code. (See "Rulemaking, adoption, and filing requirements," above.) (Sec. 5919.04.)

Legislative Service Commission -16- Sub. S.B. 130 Moral fitness

(sec. 5919.14)

Under current law, at any time the moral character, capacity, and general fitness for service, of any Ohio National Guard officer may be determined by an efficiency board of three commissioned officers, appointed by the Governor, who shall be senior in rank, if practicable, to the officer whose fitness for service is under investigation, and if the finding of the board is unfavorable to the officer and is approved by the Governor, he must be discharged. Under the bill, at any time the moral character, capacity, and general fitness for service of any Ohio National Guard officer may be determined by a board of officers, that must be convened and proceed according to publications of the Army or Air Force and the National Guard Bureau. The board of officers convened pursuant to this section is not a public body subject to the Open Meetings Law. (Sec. 5919.14.)

Compliance with food and drug regulations

New section 5919.35 provides that the stockage, accountability, issuance, and dispensing of any drug, as defined in section 4729.02 of the Revised Code, that is issued to any unit or member of the Ohio National Guard is governed exclusively by regulations or other directives prescribed by the United States Army or Air Force and the National Guard Bureau. It further provides that Ohio National Guard units and personnel are not subject to Chapter 4729. (Pharmacists and Dangerous Drugs Law) or 3715. (Pure Food and Drug Law) of the Revised Code or other statutes or regulations in conflict with military regulations or other directives when acting in furtherance of their official duties. The bill states that the above provisions apply despite the order of Ohio National Guard units or personnel to state active duty under section 5923.22 of the Revised Code or the fact that accountable officers or employees of the Ohio National Guard are employed in a civilian status.

The section applies only to Ohio National Guard units and personnel when acting in furtherance of their official duties. The section requires that the affected personnel operate in accordance with federal law when working with pharmaceutical drugs in their capacity as Ohio National Guard unit members. The Ohio National Guard member must comply with military regulations when those regulations conflict with the Ohio Pure Food and Drug Law or the Ohio Pharmacists and Dangerous Drugs Law, regardless of being called to state active duty. (Sec. 5919.35.)

Legislative Service Commission -17- Sub. S.B. 130 Discharge

The bill states that no enlisted person may be discharged from the Ohio National Guard except as provided by publications of the Army or Air Force and the National Guard Bureau. Existing law applies also to officers and requires the discharge or a demotion to be made pursuant to the Ohio National Guard Law (sec. 5919.22).

Retirement

Under existing law, any commissioned officer who has served as a member of the Ohio National Guard for ten years, five of which have been as a commissioned officer, may at his request and must upon termination of his federal recognition be placed upon the retired list, which is kept in the office of the Adjutant General. Any officer so retired receives no compensation for his service except as specified below. Retired officers may on all occasions of ceremony wear the uniform of the grade upon which they retired. The commander in chief may detail retired officers to duty other than to command troops, and, when so detailed, they receive like pay and allowances as officers on the active list under similar conditions. (Sec. 5919.13.)

Under the bill, any commissioned or warrant officer who has served as a member of the Ohio National Guard for 20 years, eight of which have been as a commissioned or warrant officer may at the officer's request and must upon the termination of the officer's federal recognition be placed on the retired list, which continues to be kept in the office of the Adjutant General. The bill retains the provisions about compensation and service of such retired officers, except that the Adjutant General may detail a retired officer to duty only consistent with federal regulations and the retired officer receives pay and allowances as prescribed under the Department of Defense pay manual. (Sec. 5919.13.)

Pay

The bill states that for satisfactorily performing inactive duty for training, annual training, and active duty for special work, Ohio National Guard personnel are to receive pay and allowances from the United States pursuant to the Department of Defense pay manual (sec. 5919.32).

Miscellaneous provisions

(secs. 5919.01, 5919.02, 5919.071, 5919.09, 5919.12, 5919.13, 5919.15, 5919.16, 5919.17, 5919.22, 5919.25, 5919.28, 5919.29, 5919.30, 5919.32, 5919.33, and 5919.35)

Legislative Service Commission -18- Sub. S.B. 130 The bill rewrites portions of the Ohio National Guard Law to clarify its application and, where appropriate, conform it to applicable federal law. In the sections listed above, the bill replaces "the table of organizations as prescribed by the Department of Defense" with "the organizational or allowance tables prescribed by the Department of the Army or Air Force and by the National Guard Bureau"; includes references to "warrant officer" in addition to references to "commissioned officer"; replaces references to "Department of Defense" with references to "Department of the Army or Air Force"; adds references to commissioned or warrant officer "in the Army or Air National Guard of the United States"; in reference to the enlistment period prescribed by act of Congress, includes a reference to "publications of the Army, Air Force, and National Guard Bureau"; changes references to "National Guard Reserve" to references to "Inactive National Guard"; replaces a reference to "regulations as the President prescribes" with a reference to "regulations that the National Guard Bureau prescribes"; replaces references to "armed forces of the United States" with references to "United States Air Force or Army"; corrects citations to applicable federal uniformed services acts; modifies the reference to the federal regulations pursuant to which inspections of the Ohio National Guard are to be made; and modifies the language establishing the procedure for paying Ohio National Guard personnel for satisfactory performance of inactive duty for training, annual training, and active duty for special work.

Organized militia law

Membership requirements

(sec. 5923.01)

Under existing law, the militia of the state consists of all able-bodied citizens of the state, who are more than 17 years of age, and not more than 67 years of age except for the exemptions provided for in section 5923.03 of the Revised Code. The militia is divided into four classes: the Ohio National Guard, the Ohio Naval Militia, the Ohio Military Reserve, and the unorganized militia. The Ohio National Guard, the Ohio Naval Militia, and the Ohio Military Reserve are known collectively as the organized militia. "Military forces" under current organized militia law includes the Ohio National Guard, the Ohio Naval Militia, the Ohio Military Reserve, and the unorganized militia. "National Defense Act," under current organized militia law means an act of Congress, entitled "An act for making further and more effectual provision for the national defense and for other purposes," approved by the President, June 3, 1916, and all acts amendatory thereof and supplementary thereto. Existing organized militia law provides that no troops shall be maintained in time of peace other than as authorized and prescribed under the "National Defense Act." The limitation does not affect the

Legislative Service Commission -19- Sub. S.B. 130 right of the state to the use of the militia within its borders in time of peace as prescribed in the military laws of this state. This restriction does not prevent the organization and maintenance of police. (Sec. 5923.01.)

The bill modifies the provisions of existing section 5923.01, as discussed in the prior paragraph, to specify that the Ohio organized militia consists of all citizens of the state who are not permanently handicapped, as handicapped is defined in section 4112.01 of the Revised Code, who are more than 17 years, and not more than 67 years, of age unless exempted under section 5923.02 and who are members of the Ohio National Guard, the Ohio Naval Militia, or the Ohio Military Reserve. In addition, under the bill, the Ohio National Guard, including both the Ohio Air National Guard and the Ohio Army National Guard, the Ohio Naval Militia, and the Ohio Military Reserve are known collectively as the Ohio Organized Militia, and the Ohio Naval Militia and the Ohio Military Reserve are known collectively as the State Defense Forces.

The bill modifies the restrictions on maintaining troops in time of peace so that they may be maintained only as authorized and prescribed under the "Act of August 10, 1956," 70A Stat. 596, 32 U.S.C.A. 101 to 716. As under existing law, this limitation does not affect the right of the state to the use of its organized militia within its borders in time of peace as prescribed by the laws of this state. This section does not prevent the organization and maintenance of police. (Sec. 5923.01.)

Retirement

Under existing law, any person who has served as a member of the organized militia of Ohio or of the armed forces of the United States, or both, for a period of three years, one year of which has been served as a commissioned officer of the Ohio State Guard, the Ohio State Naval Militia, or the Ohio Military Reserve, may be placed at his own request and upon approval of the Adjutant General upon the reserve list, which must be kept in the office of the Adjutant General. Those officers may not receive compensation for their services except as provided in section 5913.07 of the Revised Code, but are permitted on all occasions of ceremony to wear the uniform of their rank. The commander in chief of the state militia may assign or detail the officers to duty and when so assigned or detailed, they must receive the same pay and allowances as officers on the active list of the organized militia assigned, detailed, or employed under similar conditions. (Sec. 5913.07.)

The bill modifies these provisions to provide that any person who has served as a member of the Ohio Organized Militia or of the armed forces of the United States, or both, for a period of 20 years, eight years of which have been

Legislative Service Commission -20- Sub. S.B. 130 served as a commissioned officer of the Ohio Organized Militia, may be placed at the person's request and upon approval of the Adjutant General upon the retired list, which must be kept in the office of the Adjutant General. Retired officers may not receive compensation from the state for their services except as described below, but may on all occasions of ceremony wear the uniform of their rank. The Adjutant General may assign or detail retired officers upon duty and when so assigned or detailed, they must receive the same pay and allowances as officers on the active list of the element of the Ohio Organized Militia assigned, detailed, or employed under the same conditions. (Sec. 5913.07.)

Exemptions from duty

(sec. 5923.02)

Under current law, the officers, judicial and executive, of the departments of the state and of the United States, and the members of the General Assembly, without regard to age, are exempt from duty in the Ohio Militia, and all persons who because of religious belief claim exemption from military service, when the conscientious holding of such belief by such person is established under such regulations as the Governor prescribes, are exempted from military service in a combatant capacity; but no person exempted shall be exempt from military service in any capacity that the Governor declares to be noncombatant. (Sec. 5923.02.)

The bill modifies the provisions described in the prior paragraph to specify that the following persons, if subject to duty in the Ohio Organized Militia, may be exempted by the Adjutant General from duty on request (sec. 5923.02(A)): (1) the Vice-President of the United States, (2) the officers, judicial and executive, of the departments of the state and of the United States, and the members of the General Assembly, without regard to age, (3) members of the armed forces of the United States or their reserve components, (4) customhouse clerks, (5) employees of the United States Postal Service, (6) workers employed in armories, arsenals, or naval shipyards of the United States, (7) pilots on the navigable waters of the United States, and (8) mariners licensed by the United States. It further specifies that any person because of religious belief or other moral conviction held as a matter of conscience may claim exemption from Ohio organized militia service. (Sec. 5923.02.)

Miscellaneous provisions

(secs. 5923.03, 5923.05, 5923.09, 5923.10, 5923.21, and 5923.28)

Under current law, permanent public employees, as defined in section 5903.01 of the Revised Code, who are members of the Ohio National Guard, the Ohio Military Reserve, the Ohio Naval Militia, or members of other reserve

Legislative Service Commission -21- Sub. S.B. 130 components of the armed forces of the United States are entitled to leave of absence from their respective duties without loss of pay for the time that they are performing military duty for periods not to exceed 22 eight-hour work days or 176 hours in any one calendar year for each calendar year in which military duty is performed.

Under the bill, permanent public employees are entitled to such leave if they are Ohio Organized Militia, or members of other reserve components of the United State Armed Forces, including the Ohio National Guard. It also replaces "military duty" with "service in the uniformed services." (Sec. 5923.05.)

Under existing law, each enlisted man and each commissioned officer of the Ohio Military Reserve must be paid at rates to be prescribed from time to time by the Governor as commander in chief but not exceeding one-thirtieth of the monthly base pay of his grade, as is provided for enlisted men or commissioned officers of the armed forces of the United States, for each authorized regular drill attended, to be paid quarterly. Under the bill, each enlisted member and each commissioned and warrant officer of the Ohio Military Reserve or Ohio Naval Militia, if funds are appropriated for this purpose by the General Assembly, may be paid at rates to be prescribed by the Adjutant General but not exceeding one- thirtieth of the monthly base pay of the member's or officer's grade, as is provided for enlisted members or commissioned or warrant officers of the United States Armed Forces under the Department of Defense pay manual, for each authorized drill attended, to be paid monthly. (Sec. 5923.09.)

Under existing law, if any enlisted man in the Ohio National Guard, Ohio Naval Militia, or the Ohio Military Reserve willfully, maliciously, purposely, or through carelessness or neglect, permits any of the arms, equipment, or other property issued to him belonging to the state or the United States, to become lost, damaged, or destroyed, the commanding officer of his company, troop, battery, detachment, or other organization must charge the value of the same against any pay due him under such rules applicable thereto as prescribed by the Department of Defense or the Governor. All allowances and pay provided for officers and enlisted men must be applied to the payment of any shortage of or injury to state or United States property or funds for which such officers or enlisted men are responsible or accountable. The bill modifies these provisions by replacing "enlisted man" with "enlisted member," replacing "Ohio National Guard, Ohio Naval Militia, or the Ohio Military Reserve" with "Ohio Organized Militia," and authorizing the Adjutant General instead of the Governor to prescribe rules for charging the member with the value of the property. It also specifies that all property of the United States issued to a unit or member of the Ohio National Guard must be accounted and recouped for as provided by regulations of the

Legislative Service Commission -22- Sub. S.B. 130 Army or Air Force and National Guard Bureau, as supplemented by the Adjutant General. (Sec. 5923.10.)

Under existing law, the organized militia may be called by the Governor by proclamation to aid the civil authorities to do any of the following: (1) execute the laws of this state, (2) suppress insurrection, (3) repel invasion, (4) act in the event of a disaster within the state, and (5) promote the health, safety, and welfare of the citizens of this state. In all cases, the organized militia must be called to state active duty before the unorganized militia. The governor's proclamation must specify the statutory basis of the call. The bill eliminates the requirement that the organized militia be called to state active duty before the unorganized militia. (Sec. 5923.21.)

The bill specifies that the Ohio National Guard consists of the members of the Ohio Organized Militia who are enlisted, commissioned, or warranted in the Ohio National Guard, all as prescribed by publications of the Department of the Army or Air Force and the National Guard Bureau for the National Guard as prescribed under the Ohio National Guard Law. It further specifies that the Ohio Military Reserve consists of the members of the Ohio Organized Militia who are enlisted, commissioned, or warranted in the Ohio Military Reserve under applicable Ohio law. The Ohio Naval Militia consists of members of the Ohio Organized Militia who are enlisted, commissioned, or warranted under applicable Ohio law. (Sec. 5923.03.)

Under current law, the military laws of this state must conform to all laws and regulations of the United States affecting the same subject and anything to the contrary is void so long as the subject matter has been acted on by the United States. All matters relating to the organization, discipline, and government of the military forces, not otherwise provided by the laws of this state or the rules and regulations promulgated thereunder, must be decided by the custom, regulations, and usage of the armed forces of the United States. The bill modifies this provision by making technical changes in language, replacing the reference to subject matter acted on by the "U.S." with subject matter acted on by the "Army, Air Force, or National Guard Bureau," and replacing a reference to "military forces" with a reference to "state defense forces." (Sec. 5923.28.)

HISTORY

ACTION DATE JOURNAL ENTRY

Introduced 05-29-97 pp. 533-534 Reported, S. State & Local Gov't & Veterans Affairs ------

Legislative Service Commission -23- Sub. S.B. 130

S0130-RS.122/gridley/jc

Legislative Service Commission -24- Sub. S.B. 130