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Official Opinion 96-10

Official Opinion 96-10

April 4, 1996
To: 

Governor

Re: 

This will thank you for your January 2, 1996, appointment of me as a Special Attorney General. You asked us to render an opinion on the applicability of the United States Department of Defense Joint Ethics Regulation ("JER") to National Guard personnel while in a non-mobilized state status. Your request stems, in turn, from a similar request by Adjutant General William P. Bland, Jr.

Scope of the JER

We have concluded that the JER would at most apply to National Guardsmen while performing federal duties or during training, either "inactive duty training" or annual training. We do not believe that the JER could apply to traditional Guardsmen during other times. At first blush, the JER might seem to sweep more broadly, but this impression comes more from its inartfully worded definition of the covered "DoD Employees" than anything else. That definition purports to encompass not only "[a]ny Reserve or National Guard member on active duty under orders issued pursuant to title 10, United States Code, [i.e., when called into Federal service]," but also "[a]ny Reserve or National Guard member performing official duties, including while on inactive duty for training or while earning retirement points, pursuant to title 10, United States Code, or while engaged in any activity related to the performance of a Federal duty or function." DoD Directive 5500.7-R, § 1-211(d), (e) (emphasis added). The underscored language caused understandable consternation among traditional Guardsmen, who not only earn retirement points for each drill attended, each day of active service, and each day of active duty training, annual training or service school attendance, but also earn fifteen (15) points a year for each year of membership in the National Guard. 10 U.S.C.A. § 12732(a)(2) (West Supp. 1996). In other words, because National Guardsmen earn some retirement points simply by virtue of their membership, the JER might seem to reach all National Guardsmen, 365 days a year, 24 hours a day.

We do not believe the JER extends this far. The JER purports to address a wide range of conduct, ranging from political activities to receiving honoraria. Were the JER to reach traditional Guardsmen in their civilian lives, its provisions would trigger a host of troubling constitutional concerns -- ranging from the federalism issues raised by an extraordinary incursion into a traditionally state-regulated domain to issues of individual freedom, such as rights of political participation, expression, and others. The JER cannot, of course, extend beyond the Constitution's boundaries, and we construe the JER to avoid any such conflict. As in the statutory context, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (describing this as "cardinal principle of statutory construction").

We note, moreover, that the Army and Air Force General Counsel have recently sought to clarify the JER's scope by explaining that the "reference to retirement points in the JER was never intended to include the 15 points awarded annually to members of the reserve component pursuant to 10 U.S.C. § 12732(a)(2)(C). . . . [T]he JER is intended to apply to National Guardsmen and Reservists only when they are actually performing Federal duties, including inactive duty training and annual training, or are engaging in activities directly related to the performance of a Federal duty or function." (Nov. 13, 1995 Memorandum from William T. Coleman III & Sheila C. Cheston to Chief, Nat'l Guard Bureau) (emphasis added). To reinforce this clarification, the Army and Air Force General Counsel have proposed a new, more circumscribed definition, eliminating the reference to retirement points and applying the JER to traditional Guardsmen only "while performing official duties or functions under the authority of either Title 10 or Title 32 of the United States Code, or while engaging in any activity relating to the performance of such duties or functions, including any time the member uses his or her Reserve or National Guard of the United States title or position, or any

authority derived therefrom." (Id.) This clarification seeks to limit the JER to the hours in which National Guardsmen are performing Federal duties for which they receive Federal retirement points in lieu of pay.

Federal Authority

Thus limited, the JER would, we believe, fall within the Department of Defense ("DoD")'s authority. The U.S. Constitution includes two "Militia Clauses," the second of which grants to Congress the power "[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." U.S. Const., art. I, § 8, cl. 16.{1} Congress, in turn, has delegated this rule-making authority to the President. 32 U.S.C. § 110. In addition, Congress has authorized the Secretary of Defense to prescribe regulations for the availability of appropriations, see 32 U.S.C. § 107, and has given the President the power to bar any state's National Guard from receiving money or any other aid, benefit, or privilege authorized by law for failure to comply with any regulation prescribed under Title 32. See 32 U.S.C. § 108.

The federal courts have shown considerable deference to Congress and the President when exercising their authority over national defense. See Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (warning that "judicial deference" is at its "apogee" when reviewing "legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance"). Most recently, the Supreme Court reaffirmed this deference in Perpich v. Department of Defense, 496 U.S. 334 (1990). The Perpich Court construed the second Militia Clause as an enhancement, not a limitation, of congressional powers. Id. at 350. In particular, the Court interpreted the second Militia Clause as enhancing federal powers in three ways: Congress received the power (1) to organize, arm, and discipline the militia; (2) to govern the part of the militia that was employed in the service of the United States; and (3) to prescribe the discipline under which the states could appoint officers and train members. Id. at 350. On the one hand, the Court explained, National Guard members "must keep three hats in their closets -- a civilian hat, a state militia hat, and an army hat -- only one of which is worn at any particular time." Id. at 348. On the other hand, the Court continued, even "[w]hen the state militia hat is being worn," a Guardsman's training is "'according to the

discipline prescribed by Congress.'" Id.; see also id. at 350 ("[A]lthough the appointment of officers 'and the Authority of training the Militia', is reserved to the States respectively, that limitation is, in turn, limited by the words 'according to the discipline prescribed by Congress.'"). Id at 350. The Court concluded that its interpretation did not "nullify[] an important state power expressly reserved in the Constitution . . . [but] merely recognize[d] the supremacy of federal power in the area of military affairs." Id. at 351.

It is clear, therefore, that the Constitution grants Congress the authority to prescribe "the discipline" under which the states train their separate militia and that Congress has, in turn, delegated this authority to the executive branch. On the one hand, traditional Guardsmen remain state, not federal, employees during inactive duty training or annual training. See, e.g., Maryland v. United States, 381 U.S. 41, 48 (1965) ("[M]ilitary members of the Guard are employees of the States, and so the courts of appeals have uniformly held."). On the other hand, the federal government holds the authority to prescribe the "discipline" applicable to those training periods. See Perpich, 496 U.S. at 348, 350. Because ethics are the highest form of discipline, we believe that the DoD could properly apply ethical rules like the JER to traditional Guardsmen -- again, however, only during training or active federal service. During all other times, traditional Guardsmen are not only not under federal authority but are not in training either, making any "discipline prescribed by Congress" inapplicable. Should the DoD try to extend the JER to traditional Guardsmen beyond periods of training or active federal service, it would plainly overstep its authority.

A few examples illustrate how the JER would affect Georgia's traditional Guardsmen and underscore our conclusion that the JER would not reach such individuals except while on active duty or during training.

Political Activities

For instance, the JER incorporates DoD Directive 1344.10, which significantly restricts the political activities of "members of the Armed Forces on active duty," defined as anyone on "National Guard duty, as defined in 10 U.S.C. § 101(42)." That provision, now renumbered as 10 U.S.C. § 101(d)(5), encompasses all "training or other duty, other than inactive duty," under the training and service school provisions of Title 32 "for which the member is entitled to pay from the United States." See 32 U.S.C. §§ 316, 502-505. Individuals covered by the directive may not "hold or exercise the functions of civil office" in federal, state, or local government. DoD Directive 1344.10 D.3.a. Nor may such individuals campaign as nominees or candidates for nomination for civil office. Id. D.2.a.

To apply such prohibitions to traditional Guardsmen in their civilian lives would permanently bar an entire class of promising men and women from any elected office - with no proffered justification. We do not construe the JER to extend these prohibitions that far. The uniform of the National Guard, no less than "'[T]he uniform of our country . . . [must not] be the badge of disfranchisement for the man or woman who wears it.'" Carrington v. Rash, 380 U.S. 89, 97 (1965) (quoting Message of Governor Ellis Arnall to General Assembly of Georgia, p. 5 (Jan. 3, 1944)). The directive itself seems to recognize as much, specifically permitting "enlisted members and Reserve officers [to] hold partisan or nonpartisan civil office if such office is held in a private capacity and does not interfere with the performance of military duties." DoD Directive 1344.10 D.3.c.{2} Therefore, while the JER would prohibit National Guardsmen from actually campaigning during training hours, it would not prohibit them from holding civil office, from running for such office in the first place, or even from campaigning for such office during non-training, inactive periods.

Gifts

The JER also adds comprehensive restrictions on the receipt of "gifts from outside sources" by simply incorporating the "Standards of Ethical Conduct for Employees of the Executive Branch" set forth in 5 C.F.R. pt. 2635 (1995). Particularly significant are the provisions prohibiting the solicitation or acceptance of gifts from individuals or businesses seeking official action from, doing business with, or regulated by the recipient's agency. 5 C.F.R. § 2635.203(a), (d). These prohibitions cannot be read to prohibit traditional Guardsmen from receiving such gifts outside of training or federal service, except where the gift is offered or enhanced because of the Guardsman's official position, i.e., his membership in the National Guard. To read these restrictions more broadly would, for instance, prevent Guardsmen employed by many government contractors from receiving almost anything of value from their employers. The regulations themselves contradict such a sweeping construction, by including a specific exemption for gifts "based on outside business or employment relationships," as long as "it is clear that such benefits have not been offered or enhanced because of [the recipient's] official status." 5 C.F.R. § 2635.204(e)(2). Of course, numerous other exceptions and limitations exist, but National Guardsmen not performing their training duties or performing federal duties may accept gifts, such as complimentary tickets, golf rounds or meals, from their employers or clients, current or prospective, provided those gifts are wholly unrelated to their membership in the Guard.{3}

Honoraria

The JER also incorporates Executive Branch restrictions on the receipt of honoraria. See 5 C.F.R. § 2636 et seq. (1995). Section 2636.201, in particular, declares that "[a]n individual may not receive any honorarium while that individual is an employee." An "honorarium" for purposes of this prohibition, "means a payment of money or anything of value for an appearance, speech or article." 5 C.F.R. § 2636.203(a). This definition, however, expressly excludes compensation for other services even if appearing, speaking, or writing are incidental tasks to those other services, and it expressly excludes compensation for regular employment that involves appearing, speaking, and writing. Id. § 2636.203(a)(6)-(7). These prohibitions, therefore, would only prohibit traditional Guardsmen from receiving compensation for appearing, speaking, or writing "while [they are] employee[s]," i.e., only during weekend or annual training duty or when performing federal duties. Any broader application would interfere with the ability of Guardsmen to appear, speak, and write in their civilian occupations and activities -- times at which they wear purely civilian "hats" and during which they are neither federal "employees" nor participating in training "according to the discipline prescribed by Congress." See Perpich, 496 U.S. at 348-51.

Fundraising for Nonprofit Organizations

The JER incorporates Executive Branch restrictions on fundraising activities that distinguish between fundraising "in an official capacity" and fundraising "in a personal capacity." The former, in which an employee uses his official title, position, and authority, requires the authorization of a statute, Executive order, regulation, or agency. See 5 C.F.R. § 2635.808(b) (1995). The latter is less restricted, although the employee may not personally solicit from his subordinates and other known "prohibited sources," see id. § 2635.203(d), and may not use his official title, position, or authority in his efforts. Id. § 2635.808(c); see also DoD Directive 5500.7-R, § 3-300.{4} These restrictions, however, would only apply to National Guardsmen during training or active duty, for only at these times are they subject to the "discipline prescribed by Congress." During other times, of course, traditional Guardsmen should take care not to convey DoD endorsement in their fundraising activities, see DoD Directive 5500.7-R, §§ 3-210, 3-300(a), and must follow applicable guidelines regarding the use of federal resources in those efforts, id. § 3-305.{5} As the National Guard Bureau's Chief recently noted, most of these restrictions predate the JER and do not appear to create significant new burdens on fundraising by National Guard members. (Jan. 18, 1996, Memorandum from Lt. Gen. Edward D. Baca, Chief, NGB to Adjutants General).

Outside Employment

The JER also incorporates Executive Branch restrictions relating to outside employment. See 5 C.F.R. § 2635.801 et seq. (1995). Section 2635.802, in particular, prohibits an employee from engaging in outside employment or other outside activity that "conflicts" with his "official duties." Such a conflict can arise (a) when the activity is prohibited by statute or agency supplemental regulation; or (b) when the activity would "require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired," under the standards set forth in Sections 2635.402 and 2635.502. Id. § 2635.802. Almost all the referenced statutes, supplemental regulations, and standards, however, exempt "special Government employees," a category specifically including National Guardsmen "while on active duty solely for training." 18 U.S.C. § 202(a); 5 C.F.R. §§ 2635.102(l), 2635.801(d); DoD Directive 5500.7-R, §§ 2-206(a), 3-306(a).{6} These rules, therefore, seem largely inapplicable to traditional Guardsmen either on or off-duty.

Administrative Procedure Act

Despite our conclusion that the DoD holds the authority to apply the JER to traditional Guardsmen during weekend and annual training, any current attempt to enforce the JER may be invalid in the first place. The Administrative Procedure Act ("APA"), executive orders, and the DoD's own regulations set forth careful public notice and comment provisions for any proposed rulemaking. The APA requires that a general notice of a proposed rule be published in the Federal Register not less than thirty (30) days before its effective date and that interested persons be given an opportunity to participate in the rule making. See 5 U.S.C. § 553(b)-(d).{7} Similarly, Executive Order No. 12866 states that before issuing a notice of proposed rulemaking, the agency should seek the involvement of those who will benefit from and be burdened by any regulation, including specifically, state, local, and tribal officials, and should provide "a meaningful opportunity for comment" -- in most cases not less than sixty (60) days. Exec. Order 12866, § 6(a) (Sept. 30, 1993). Finally, the DoD's own regulations "encourage the maximum practicable participation of the public in the formulation of regulations having a substantial and direct impact on the public," 32 C.F.R. § 336.3, and require the publication of proposed regulations in the Federal Register. 32 C.F.R. § 336.1 et seq.; see, e.g., Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) (military departments must comply with own regulations). All three sources clearly entitled this country's slew of traditional Guardsmen to public notice and an opportunity to comment on the JER, before the JER's adoption.

The Army and Air Force General Counsel appear to have simply bypassed these important procedural requirements. Indeed, their sweeping decision apparently reached no higher than the DoD's General Counsel, who seems to have summarily ratified the action in a three-sentence memorandum.{8} At best, the DoD made an after-the-fact attempt to cure its failure by publishing the JER as a final rule on March 21, 1994. See 59 Fed. Reg. 13,211. While this publication invited comments, this invitation rings rather hollow -- it simultaneously listed an effective date of more than six months earlier, August 30, 1993. Providing for a comment period after the publication of a final rule cannot, of course, cure an APA violation because doing so would completely undermine the policies underlying that provision. See, e.g., United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 214-15 (5th Cir. 1979); Sharon Steel Corp. v. Environmental Protection Agency, 597 F.2d 377, 381 (3rd Cir. 1979). The JER represents a dramatic extension of sweeping ethical rules to a huge category of previously unaffected citizens, including not only some 500,000 traditional Guardsmen but also their employers, clients, and state and local governments. These rules pose a host of the sort of serious practical and policy concerns that make public notice and comment paramount. The apparent "end run" around this important process by the General Counsel of the DoD, Army, and Air Force flouts both the letter and spirit of the APA. Especially if the DoD attempts broader enforcement of the JER than otherwise permitted, suit to enjoin enforcement might well be appropriate.

Yours sincerely,

Griffin B. Bell

** Due to his membership in the Georgia Air National Guard, Attorney General Michael Bowers asked Governor Zell Miller to designate an attorney to prepare this particular opinion. Honorable Griffin B. Bell was the Governor's designee.

{1}The first Militia Clause provides that "[t]he Congress shall have Power . . . [t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. Const. art. I, § 8, cl. 15.

{2}A "reserve officer" is any "individual who currently holds an appointment in the Reserve of a Military Department or is a military officer of the National Guard with Federal Government Recognition." DoD Directive 5500.7-R, § 1-234.

{3}A National Guardsman finding himself in this situation might well have to recuse himself from Guard duties related to his private employer. See, e.g., id. § 2635.502.

{4}Political fundraising is expressly exempted from these restrictions. See id. § 2635.808, note. Hatch Act prohibitions, 5 U.S.C. §§ 7321-7326, apply to some employees, but military personnel are not included in the list of covered agencies and persons. See id. § 7322(1)(C); 5 C.F.R. § 734.101 (1995).

{5}The JER expressly permits DoD endorsement and support of fundraising and membership drives for certain organizations, notably including "organizations composed primarily of DoD employees or their dependents when fundraising among their own members for the benefit of welfare funds for their own members when approved by the head of the DoD Component command or organization." Id. § 3-210(a)(6).

{6}Section 2635.502 seems to lack this exemption and would therefore require a covered Guardsman to disqualify himself from a matter where he "determines that the circumstances would cause a reasonable person to question his impartiality," and he either (i) knows that the matter "is likely to have a direct and predictable effect on the financial interest of a member of his household," or (ii) knows that a person with whom he has a "covered relationship" [defined in § 2635.502(b)] "is or represents a party to such a matter." Even then, however, prior authorization by the agency designee will permit participation in the matter. Id. § 2635.502(a), (d).

{7}There can be no serious debate that the JER falls outside § 553's exception for "a military or foreign affairs function of the United States." 5 U.S.C. § 553(a)(1). This exemption is narrowly construed and "'appl[ies] only 'to the extent' that the excepted subjects are directly involved.'" Independent Guard Ass'n, Local No. 1 v. O'Leary, 57 F.3d 766, 769 (9th Cir.) (quoting S. Doc. No. 248, 79th Cong., 2d Sess. 199 (1946)), amended, 69 F.3d 1038 (9th Cir. 1995). The JER does not concern "military functions;" on the contrary, it consists chiefly of regulations already applicable to non-military Executive Branch personnel, regulations that the DoD has simply incorporated into the JER. The DoD's own conduct, moreover, belies any suggestion that the JER are exempted from the APA: The DoD published the JER's predecessors as proposed rules, see 51 Fed. Reg. 31,651 (Sept. 4, 1986); 58 Fed. Reg. 47,619 (Sept. 10, 1993), and has published the JER itself as a final rule, see 59 Fed. Reg. 13,211 (Mar. 21, 1994).

{8}See Mar. 16, 1995, Memorandum from Judith A. Miller to General Counsel, Dep't of Army.