O
hio Legislative Service Commission
122nd Final Bill Analysis
Effective Date update from the LSC Status Sheet: 09/18/97

Because of Ohio Supreme Court interpretations, effective dates published in the LSC Status Sheet are not authoritative, and users of the LSC Status Sheet rely upon them at their own risk. The effective dates have been unofficially and undefinitively determined by the LSC Division of Legal Review and Technical Services solely for the convenience of users.

Am. Sub. S.B. 130
122nd General Assembly
(As Passed by the General Assembly)


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.
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.
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.
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.
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.
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.
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.
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.
Makes members of the Ohio Military Reserve and Ohio Naval Militia who were members of the Public Employees Retirement System ineligible, in the calculation of retirement benefits, to receive military service credit under section 145.30 of the Revised Code for any year of military service.
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.
Modifies the Adjutant General Law.
Repeals the Military Census Law.
Modifies the Ohio National Guard Law.
Modifies the Organized Militia Law.
Declares an emergency.

CONTENT AND OPERATION

Rulemaking, adoption, and filing requirements

Prior to the enactment of S.B. 130, R.C. 111.15 stated in pertinent part:

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

Under prior 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 did not need to comply with the Administrative Procedure Act. Under the act, 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.)

Prior law permitted the Adjutant General to prescribe and enforce rules and police regulations for all property under the jurisdiction of the Adjutant General as was deemed necessary for protection and safety and permitted 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. Prior law did 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 act 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 all other matters necessary to conform to congressional requirements for federal funding. The act 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.)

Municipal income tax

Under prior law, no municipal corporation was permitted to tax, for income tax purposes, the military pay or allowances of members of the armed forces of the United States. The act 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

Under existing law, Chapter 4506. of the Revised Code governs the issuance and regulation of commercial driver's licenses. The prior version of section 4506.02 contained exceptions to the chapter, stating that nothing in the chapter applies 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 act adds to those exemptions from licensing under Chapter 4506. 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. This exception does not apply to United States reserve technicians. (Sec. 4506.02(A)(6).)

Human Services information reporting

Under prior section 5101.312 of the Revised Code, specified employers were required to report in writing to the Department of Human Services the hiring, rehiring, or return to work as an employee of a person who resided, worked, or would be assigned to work in this state to whom the employer anticipated paying compensation. The Department was required to use the reports it received pursuant to that section 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 could submit to the Bureau of Workers' Compensation or the Bureau of Employment Services a copy of any report it received from an employer pursuant to that section. The Department was required to require an employer who failed to make a report as required by that section to pay a fee of $25 for each failure.

The act 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

Prior law placed 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 act 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).) Prior law excluded from coverage under the Public Employees Collective Bargaining Law persons who are members of the organized militia, while on active duty. The act 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).)

Prior law provided for the continuation of employee group health care coverage when reservists were called or ordered to active duty. The act 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 contribution, if any, for the coverage. (Secs. 1751.54(D)(5)(c), 3923.381(D)(5)(c), and 3923.382(D)(5)(c).)

Prior law provided for the restoration of the civil service status of classified public employees and the reemployment of public employees after those employees have completed their military service. The act replaces those provisions of 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." The Director of Administrative Services must adopt rules to implement the chapter that deals with these issues. Persons failing to determine reinstatement and reemployment rights in accordance with that Act may be fined not more than $1,000, imprisoned not more than six months, or both. The act 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 act requires the Director of Administrative Services to adopt rules for the implementation of these provisions. The act defines "uniformed services" to mean 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, initial 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 (teachers or nonteaching school employees), 3319.14 (teachers), 5903.01, 5903.02 (repealed and reenacted), 5903.03 to 5903.05 (repealed), 5903.09 (repealed), and 5903.99.)

Under prior law, upon the return to service of a teacher or a nonteaching school employee at the expiration of a leave of absence, the teacher or nonteaching school employee was required to resume the contract status that was held prior to the leave. Any teacher who left a teaching position to serve in the armed services or the auxiliaries thereof organized to prosecute World War II, upon returning honorably discharged from the service, could resume the contract status held prior to entering military service, subject to passing a physical examination. The contract status had to be resumed at the first of the school semester or the beginning of the school year following return from the armed services. The act replaces that language with a requirement that any "teacher who leaves a teaching position for service in the uniformed services and who returns from the service in the uniform services that is terminated in a manner other than as described in section 4304 of Title 38 of the United States Code, "Uniformed Services Employment and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C.A. 4304, may resume the contract status held prior to entering the uniformed services, subject to passing a physical examination." (Sec. 3319.13.)

Under prior law, any teacher who has left, or leaves, a teaching position, by resignation or otherwise, and within 40 school days thereafter entered, or enters, the armed services of the United States or the auxiliaries thereof, or any other services as specified in section 124.29 of the Revised Code, and who has returned, or returns, from the service with a discharge other than dishonorable, was required to be reemployed by the board of education of the district in which the teacher held the teaching position, under the same type of contract as that which they last held in the district, if the teacher, within 90 days after such discharge, applies to the board of education for reemployment. Upon application, the teacher was required to be reemployed at the first of the next school semester, if the application was made not less than 30 days prior to the first of the next school semester, in which case the teacher was required to be reemployed the first of the following school semester, unless the board of education waived the requirement for the 30-day period. The act revises that law to state that any "teacher who has left, or leaves, a teaching position, by resignation or otherwise, and within forty school days thereafter entered, or enters, the uniformed services and whose service is terminated in a manner other than as described in section 4304 of Title 38 of the United States Code, "Uniformed Services Employment and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C.A. 4304, must be reemployed by the board of education of the district in which the teacher held the teaching position, under the same type of contract as that which the teacher last held in the district, if the teacher applies to the board of education for reemployment in accordance with the "Uniformed Services Employment and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C.A. 4312." (Sec. 3319.14.)

Military service credit

Under prior 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 was 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 was required to be given upon reemployment 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 was 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 was also required to 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 reemployed in the public service within one year after the 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 act removes personnel of the Ohio Military Reserve and the Ohio Naval Militia from this 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.)

Under prior law, upon reemployment 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, and presentation of an honorable discharge or certificate of service and subject to rules adopted by the retirement board, 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, and 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 was required to have the military service, not in excess of ten years, considered as the equivalent of prior service. Military service as established by an honorable discharge or certificate of service, not in excess of ten years, also was required to 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 on active duty in the armed forces of the United States if the person was reemployed in the public service within one year after an honorable discharge from the armed forces and established a total service credit, as defined in division (H) of section 145.01 of the Revised Code, of 20 years exclusive of credit for military service.

The act replaces the term "honorable discharge" with "service in the uniform services that is terminated in a manner other than as described in section 4304 of Title 38 of the United States Code, "Uniformed Services Employment and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C.A. 4304." (Sec. 145.30(B).)

Prior law required the presentation of an honorable discharge or certificate of service in order to qualify for the military service credit. The act requires documentation of the service that was terminated in a manner other than as described in section 4304 of Title 38 of the United States Code. (Sec. 145.30(B).)

Posse comitatus and jury duty

Under prior law, whenever the Ohio Military Reserve or any part thereof was ordered out for active service by the Governor, the Ohio Code of Military Justice was in full force in respect to those forces. Every officer and enlisted man of those forces was required to be, during his service therein, exempt from service upon any posse comitatus and from jury duty. The act 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 prior law, the Ohio Naval Militia was 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, was required during his service therein, to be exempt from service upon any posse comitatus and from jury duty. The act eliminates the exemption from service upon any posse 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 act makes technical changes to the language of various provisions of the act 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(A)(4), 1751.54(A)(3), 3923.381(A)(3), 3923.382(A)(4), 4141.01(B)(3)(c)(iii), 4911.04, and 5924.15(E)).

Adjutant General Law

Receipt of gifts

Prior law stated that the Adjutant General could 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 were required to be deeded to the state, and all property so received from any source was required to become the property of the state. The act 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 act replaces "building" with "airfield." (Sec. 5911.03.)

Sale of alcohol

Under prior 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 was prohibited, and any person guilty of violating the prohibition was required to be punished as a court-martial directed. The act prohibits the sale of beer or intoxicating liquor in such places, 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

Under prior law, the Adjutant General was chief of staff to the commander in chief and administrative head of the organized militia. Under the act, the Adjutant General is the administrative head of the Ohio Organized Militia. (Sec. 5913.01(A).)

Under prior law, the duties of the Adjutant General included 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 was required to, 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 was required to prepare and issue all necessary books, blanks, and notices. He was required to attest all commissions issued to military officers. He was required to 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 were required to be authenticated with the seal. He was required to 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 was required to make and issue regulations as were necessary to keep, preserve, and repair property as in his opinion conditions demanded. He was required to issue the military property to the units of the Organized Militia as the necessity of the service required. He was required to submit an annual report to the Governor as the Governor required of the transaction of his department, setting forth the strength and condition of the Organized Militia and other matters as he deemed important. He was required to 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. (Sec. 5913.01.)

Under the act, in addition to assuming the duties of the administrative head 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 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).)

Rank of military officials

Under prior law, the military staff of the Governor consisted 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 were appointed by the Governor and held office during his pleasure. The Governor's military staff also included four aides-de-camp, who were appointed by the Governor and held office during his pleasure. Existing law mandated that the military staff of the Governor consisted of the above-listed officers. The act 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 prior law, the Adjutant General at the time of the General's appointment was required to 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 was required to be a federally recognized officer of the Ohio Army National Guard of the grade of lieutenant colonel or above, the Assistant Adjutant General for Air at the time of appointment was required to 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 was required to 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 had 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 at all times during their tenure of office must have been federally recognized officers of the Ohio National Guard.

The act 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 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 Army 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.)

Adjutant general, assistant, and quartermaster pay

Under prior 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 were required to 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 could not receive flying pay. The salaries were required to 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 act 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 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.)

Miscellaneous provisions

The act 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 act 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. (Sec. 5913.09(C)(2), (3), and (4).)

The act 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 act 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, and 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)).

The act 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

Under prior law, the Governor could order and direct the Adjutant General to take a military census of this state at any time.

The act repeals the law for taking a military census (Chapter 5917.).

Ohio National Guard Law

Regulation and publications governing the appointment of officers

Under prior law, the Governor could issue regulations governing the appointment of officers in the Ohio National Guard and other matters pertaining to the Ohio National Guard as were necessary to conform to the requirements made by Congress for participation in federal appropriations for the National Guard. The act 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.)

Moral fitness

Under prior law, at any time the moral character, capacity, and general fitness for service, of any Ohio National Guard officer could be determined by an efficiency board of three commissioned officers, appointed by the Governor, who were senior in rank, if practicable, to the officer whose fitness for service was under investigation, and if the finding of the board was unfavorable to the officer and was approved by the Governor, he was required to be discharged. Under the act, 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 act 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.)

Discharge

The act 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 prior law, any commissioned officer who had served as a member of the Ohio National Guard for ten years, five of which had been as a commissioned officer, could at his request and was required to 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 received no compensation for their service except as specified below. Retired officers could on all occasions of ceremony wear the uniform of the grade upon which they retired. The commander in chief could detail retired officers to duty other than to command troops, and, when so detailed, receive like pay and allowances as officers on the active list under similar conditions. (Sec. 5919.13.)

Under the act, any commissioned or warrant officer who has served as a member of the Ohio National Guard for 20 years, 8 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 act 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 act 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

The act rewrites portions of the Ohio National Guard Law to clarify its application and, where appropriate, conform it to applicable federal law. In the sections, the act 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 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 cites 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. (Secs. 5919.01, 5919.02, 5919.071, 5919.09, 5919.12, 5919.15, 5919.17, 5919.25, 5919.28, 5919.29, 5919.30, 5919.32, and 5919.33.)

Organized militia law

Membership requirements

Under prior law, the militia of the state consisted of all able-bodied citizens of the state, who were 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 was 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 were known collectively as the organized militia. "Military forces" under prior organized militia law included the Ohio National Guard, the Ohio Naval Militia, the Ohio Military Reserve, and the unorganized militia. "National Defense Act," under prior organized militia law meant 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. Prior organized militia law provided that no troops could be maintained in time of peace other than as authorized and prescribed under the "National Defense Act." The limitation did not affect the 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 did not prevent the organization and maintenance of police. (Sec. 5923.01.)

The act 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 act, 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 act defines the unorganized militia as all citizens of the state who are not permanently handicapped, who are more than 17 but not more than 67 years of age, and who are not members of the Ohio organized militia.

The act 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 prior 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 prior law, any person who had 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 had been served as a commissioned officer of the Ohio State Guard, the Ohio State Naval Militia, or the Ohio Military Reserve, at his own request and upon approval of the Adjutant General, could be placed upon the reserve list, which was kept in the office of the Adjutant General. Those officers could not receive compensation for their services except as provided in section 5913.07 of the Revised Code, but were permitted on all occasions of ceremony to wear the uniform of their rank. The commander in chief of the state militia could assign or detail the officers to duty and when so assigned or detailed, they received 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 act modifies this provision 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 served as a commissioned officer of the Ohio Organized Militia, at the person's request and upon approval of the Adjutant General, may be placed 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 provided 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

Under prior 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, were exempt from duty in the Ohio Militia, and all persons who because of religious belief claimed exemption from military service, when the conscientious holding of such belief by such person was established under regulations as the Governor prescribed, were exempted from military service in a combatant capacity; but no person exempted was exempted from military service in any capacity that the Governor declared to be noncombatant. (Sec. 5923.02.)

The act 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

Under prior law, permanent public employees, as defined in section 5903.01 of the Revised Code, who were members of the Ohio National Guard, the Ohio Military Reserve, the Ohio Naval Militia, or members of other reserve components of the armed forces of the United States were entitled to leave of absence from their respective duties without loss of pay for the time that they were 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 was performed.

Under the act, 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 prior law, each enlisted man and each commissioned officer of the Ohio Military Reserve was required to 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 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 act, 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 prior 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, permitted 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 was required to charge the value of the same against any pay due him under rules applicable thereto as prescribed by the Department of Defense or the Governor. All allowances and pay provided for officers and enlisted men were required to be applied to the payment of any shortage of or injury to state or United States property or funds for which officers or enlisted men were responsible or accountable. The act 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 Army or Air Force and National Guard Bureau, as supplemented by the Adjutant General. (Sec. 5923.10.)

The act 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 prior law, the military laws of this state were required to conform to all laws and regulations of the United States affecting the same subject and anything to the contrary was void so long as the subject matter had 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, were required to be decided by the custom, regulations, and usage of the armed forces of the United States. The act 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.)

Under prior law, the term "public employee" was defined for purposes of Chapter 145., the Public Employees Retirement System Law (PERS Law), to include any civilian employees of the National Guard and the Air National Guard employed in or with a unit of the Ohio National Guard or the Ohio Air National Guard, except those employed by the National Guard Bureau. Those specified Ohio National Guard and Ohio Air National Guard employees were considered employees of the Adjutant General of the state for the purposes of Chapter 145., although the employees may be paid by federal funds. The act deletes from the definition of "public employee" used for the PERS Law the above-described civilian employees of the National Guard and the Air National Guard and the requirement that they be considered employees of the Adjutant General. (Sec. 145.01(A)(4).)

Under prior law, the Consumers' Counsel was not permitted to hold any other office of trust or profit under the government of the United States, this state, or any political subdivision of this state, except that the Consumers' Counsel could serve in the reserve of the armed forces of the United States, the Ohio National Guard, the Air National Guard, or the Naval Militia. The act modifies the above-described exception to the prohibition against the Consumers' Counsel holding certain governmental offices to allow the Consumers' Counsel to serve in the "reserves of the armed forces of the United States or the Ohio Organized Militia." (Sec. 4911.04.)

Under prior law, when a person appealed certain punishments under the Code of Military Justice, the authority that was to act on the appeal was required to first refer the case to a judge advocate of the Ohio Army National Guard or the Ohio Air National Guard or to a law specialist of the Ohio Naval Militia for consideration and advice. Under the act, the authority considering such an appeal must refer the case to a judge advocate of the Ohio Organized Militia for consideration and advice. (Sec. 5924.15(E).)

HISTORY

ACTION DATE JOURNAL ENTRY

Introduced 05-29-97 pp. 533-534
Reported, S. State & Local
Gov't & Veterans Affairs 07-01-97 pp. 915-916
Passed Senate (33-0) 07-01-97 pp. 925-927
Reported, H. Veterans
Affairs 07-23-97 p. 1520
Passed House (96-0) 07-29-97 pp. 1558-1560
Senate concurred in House
amendments (32-0) 07-30-97 pp. 1053-1056



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