B-152420, OCT 3, 1963

B-152420, OCT 3, 1963

PRECIS-UNAVAILABLE

SECRETARY OF THE ARMY:

BY LETTER OF SEPTEMBER 3, 1963, MR. E. T. PRATT, JR., ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) ASKED OUR OPINION CONCERNING TWO QUESTIONS WITH RESPECT TO THE EMPLOYMENT OF TECHNICIANS (CARETAKERS) BY THE ARMY NATIONAL GUARD OF THE SEVERAL STATES TO PROVIDE FIELD ECHELON MAINTENANCE OF PREDETERMINED ITEMS OF UNITED STATES ARMY RESERVE EQUIPMENT AND EQUIPMENT OF THE ACTIVE ARMY AND OTHER FEDERAL GOVERNMENT AGENCIES.

IT IS EXPLAINED THAT IN 1961 A "MEMORANDUM OF UNDERSTANDING" BETWEEN THE CHIEF, NATIONAL GUARD BUREAU, AND THE CHIEF, UNITED STATES ARMY RESERVE AND ROTC AFFAIRS, WAS EXECUTED PROVIDING FOR THE MAKING OF AGREEMENTS BETWEEN THE RESPECTIVE STATE ADJUTANTS GENERAL AND THE UNITED STATES ARMY CORPS COMMANDERS FOR THE MAINTENANCE OF UNITED STATES ARMY RESERVE EQUIPMENT. SUBSEQUENT TO THE SIGNING OF THIS "MEMORANDUM OF UNDERSTANDING" AGREEMENTS HAVE BEEN ENTERED INTO WITH OTHER FEDERAL GOVERNMENT AGENCIES TO PROVIDE THEM WITH SIMILAR SUPPORT.

IT IS FURTHER EXPLAINED THAT ALL AGREEMENTS PROVIDE FOR REIMBURSEMENT TO THE APPROPRIATION "OPERATION AND MAINTENANCE, ARMY NATIONAL GUARD" FOR ALL COSTS INCURRED UNDER THOSE AGREEMENTS. IN ORDER TO ACCOMPLISH THE WORKLOAD ASSUMED BY THE NEGOTIATION OF THESE AGREEMENTS, ADDITIONAL ARMY NATIONAL GUARD TECHNICIANS (CARETAKERS) HAVE BEEN EMPLOYED BY THE SEVERAL STATES. HOWEVER, THE EXPANSION OF EXISTING FACILITIES TO ACCOMPLISH THE WORKLOAD IS NOT NORMALLY CONTEMPLATED.

THE ASSISTANT SECRETARY OF THE ARMY SPECIFICALLY REQUESTS OUR OPINION ON THE TWO QUESTIONS SET FORTH BELOW CONCERNING THE LEGALITY OF THE MAINTENANCE AGREEMENTS WHICH HAVE BEEN ENTERED INTO BETWEEN ADJUTANTS GENERAL OF THE SEVERAL STATES AND FEDERAL GOVERNMENT AGENCIES.

"A. QUESTION: DOES SECTION 686, TITLE 31 U.S.C. (SECTION 601 OF THE ECONOMY ACT OF 1932) APPLY TO THE FACTS PRESENTED.

"B. QUESTION: MAY AGREEMENTS BE ENTERED INTO BETWEEN THE STATE ADJUTANTS GENERAL (STATES) AND FEDERAL GOVERNMENT AGENCIES AND MAY ADDITIONAL TECHNICIANS (CARETAKERS) BE HIRED TO REPAIR EQUIPMENT OF THOSE AGENCIES WITH THE COST BEING REIMBURSED TO THE OPERATION AND MAINTENANCE, ARMY NATIONAL GUARD APPROPRIATION."

SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED, 31 U.S.C. 686, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"(A) ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF, AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED ***."

WHETHER THE PROVISIONS OF 31 U.S.C. 686 ARE APPLICABLE TO THE FACTS PRESENTED HEREIN, AS ASKED IN THE FIRST QUESTION PRESENTED FOR DECISION, DEPENDS PRIMARILY ON WHETHER THE ARMY NATIONAL GUARD OF A GIVEN STATE IS A STATE AGENCY OR WHETHER IT IS AN "EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE" WITHIN THE MEANING OF THOSE TERMS AS USED IN 31 U.S.C. 686.

WITH THE POSSIBLE EXCEPTION OF PERIODS DURING WHICH THE NATIONAL GUARD IS CALLED INTO FEDERAL SERVICE, WE SEE NO CONVINCING LEGAL BASIS ON WHICH THE NATIONAL GUARD OF THE VARIOUS STATES CAN BE CONSIDERED TO BE AN "EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE" OF THE FEDERAL GOVERNMENT. AS INDICATED BY THE ASSISTANT SECRETARY OF THE ARMY WE CONSISTENTLY HAVE HELD IN OUR DECISIONS THAT TECHNICIANS IN THE NATIONAL GUARD ARE NOT CONSIDERED TO BE FEDERAL EMPLOYEES WITH REFERENCE TO PAY, LEAVE, RETIREMENT AND CIVIL SERVICE LAWS. THIS CONCLUSION IS BASED ON THE VIEW THAT WHILE FEDERAL AID HAS BEEN EXTENDED TO THE STATES AS AN INDUCEMENT TO THE MAINTENANCE OF STRONG STATE MILITIAS, THERE HAS AT ALL TIMES BEEN CAREFULLY MAINTAINED THE CONCEPT THAT THE NATIONAL GUARD IS ESSENTIALLY A STATE ORGANIZATION. SEE 21 COMP. GEN. 305 AND THE COURT CASES REFERRED TO THEREIN.

IN ADDITION, NATIONAL GUARD REGULATION 1, SECTION V, PARAGRAPH 29, RECOGNIZES THAT THE COMMAND OF THE NATIONAL GUARD IS VESTED IN THE GOVERNORS OF THE STATES AND THAT EACH GOVERNOR IS THE COMMANDER-IN CHIEF OF ALL UNITS AND MEMBERS OF THE NATIONAL GUARD IN HIS STATE. PARAGRAPH 35 OF THIS REGULATION STATES THAT THE OFFICE OF STATE ADJUTANT GENERAL IS A STATE OFFICE ADMINISTERED UNDER THE GOVERNOR OF THE STATE AS COMMANDER-IN- CHIEF OF THE STATE NATIONAL GUARD FORCES. SUCH BEING THE CASE, IT SEEMS EVIDENT THAT SUCH OFFICIAL CANNOT BE CONSIDERED TO BE THE HEAD OF A FEDERAL EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE WHO, UNDER 31 U.S.C. 686 MUST DETERMINE THAT AN ORDER PLACED WITH ANOTHER FEDERAL EXECUTIVE DEPARTMENT, ETC., IS IN THE INTEREST OF THE GOVERNMENT.

THE FIRST QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION PRESENTED FOR DECISION INVOLVES CONSIDERATION OF 32 U.S.C. 709 WHICH PROVIDES IN PART, THAT -

"(A) UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, FUNDS ALLOTTED BY HIM FOR THE ARMY NATIONAL GUARD MAY BE SPENT FOR THE COMPENSATION OF COMPETENT PERSONS TO CARE FOR MATERIAL, ARMAMENT, AND EQUIPMENT OF THE ARMY NATIONAL GUARD. ***"

SINCE, IN EFFECT, THIS PROVISION OF LAW AUTHORIZES THE EMPLOYMENT OF TECHNICIANS (CARETAKERS) ONLY AS NEEDED TO CARE FOR ARMY NATIONAL GUARD MATERIAL, ARMAMENT, AND EQUIPMENT, SUCH PROVISION TOGETHER WITH OUR ANSWER TO THE FIRST QUESTION REQUIRES THAT THE SECOND QUESTION ALSO BE ANSWERED IN THE NEGATIVE.