B-144566, FEBRUARY 1, 1961, 40 COMP. GEN. 440

B-144566, FEBRUARY 1, 1961, 40 COMP. GEN. 440

STATE NATIONAL GUARD - VOLUNTEER SERVICES AS FIREFIGHTERS - REIMBURSEMENT IN THE ABSENCE OF AUTHORITY IN THE WASHINGTON STATE CIVIL DEFENSE ACT FOR CALLING OUT THE MILITARY FORCES TO FIGHT A CRITICAL FOREST FIRE AND ANY INDICATION THAT IT WAS THE INTENT OF THE GOVERNOR TO ORDER OUT THE STATE NATIONAL GUARD, SUCH NATIONAL GUARD MEMBERS WHO VOLUNTEERED AS FIREFIGHTERS AT THE REQUEST OF THE STATE DIRECTOR OF CIVIL DEFENSE AND WHO HAVE NOT RECEIVED ANY PAY FROM THE STATE MAY BE PAID BY THE DEPARTMENT OF AGRICULTURE FOR SUCH SERVICES TO THE SAME EXTENT AS OTHER INDIVIDUALS RECRUITED FOR FIGHTING THE FOREST FIRE.

TO REED H. JENSEN, DEPARTMENT OF AGRICULTURE, FEBRUARY 1, 1961:

ON NOVEMBER 15, 1960, YOU REQUESTED OUR DECISION WHETHER A PAYROLL VOUCHER FOR $804.27 FOR TIME SPENT BY VARIOUS MEMBERS OF THE NATIONAL GUARD OF THE STATE OF WASHINGTON IN FIGHTING FOREST FIRES ON THE UMATILLA NATIONAL FOREST IN THE STATE OF WASHINGTON DURING THE PERIOD JULY 22 TO 25, 1960, MAY BE CERTIFIED FOR PAYMENT "AS CIVILIAN FIREFIGHTERS.'

YOU SAY THAT YOUR UNCERTAINTY REGARDING THE PROPRIETY OF PAYMENT FROM THE FOREST SERVICE APPROPRIATION, FIGHTING FOREST FIRES, TO THESE MEN AS CIVILIAN FIREFIGHTERS ARISES BECAUSE THE MEN INVOLVED ARE NATIONAL GUARDSMEN WHO WERE RECRUITED UNDER DECLARATION OF AN EMERGENCY BY THE GOVERNOR OF THE STATE OF WASHINGTON.

FROM THE FACTS STATED IN YOUR LETTER IT APPEARS THAT IN JULY 1960, EXTREME FOREST FIRE CONDITIONS PREVAILED IN EASTERN WASHINGTON AND OREGON WITH MANY LARGE FOREST FIRES BURNING UNCONTROLLED, PARTICULARLY IN THE UMATILLA NATIONAL FOREST. AT THE HEIGHT OF THIS CRITICAL SITUATION, THE GOVERNOR OF THE STATE OF WASHINGTON ISSUED THE FOLLOWING PROCLAMATION:

I, ALBERT D. ROSELLINI, GOVERNOR OF THE STATE OF WASHINGTON, PURSUANT TO THE AUTHORITY VESTED IN ME BY RCW 38.52.050 DO HEREBY PROCLAIM THAT STATE AND NATIONAL FORESTS AND PRIVATE PROPERTY ARE THREATENED BY FIRES WHICH ARE BEYOND THE RESOURCE CAPABILITIES IN THE SOUTHEASTERN PART OF THE STATE, AND SPECIFICALLY IN THE COUNTIES OF ASOTIN, GARFIELD, COLUMBIA AND WHITMAN.

I, THEREFORE, DECLARE THAT AN EMERGENCY EXISTS IN THIS AREA AND DIRECT THAT THE STATE DIRECTOR OF CIVIL DEFENSE ORDER THE DISPATCH OF PERSONNEL AND EQUIPMENT AND TAKE SUCH OTHER EMERGENCY MEASURES AS HE DEEMS NECESSARY TO ALLEVIATE THE THREAT.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND CAUSED THE SEAL OF THE STATE OF WASHINGTON TO BE AFFIXED AT OLYMPIA THIS TWENTIETH DAY OF JULY, A.D., NINETEEN HUNDRED AND SIXTY.

IN A LETTER DATED NOVEMBER 2, 1960, TO THE FOREST SUPERVISOR, U.S. DEPARTMENT OF AGRICULTURE, PENDLETON, OREGON, THE STATE DIRECTOR OF CIVIL DEFENSE STATED THAT:

* * * WE, THEREUPON, CONTACTED THE WASHINGTON STATE NATIONAL GUARDSMEN AND REQUESTED THAT TROOPS BE MADE AVAILABLE. TROOPS WERE DISCHARGED TO THE SECTION, AND COMMENCED OPERATIONS TO CONTROL THE FIRE. * * *

THE GUARDSMEN PERFORMED FIRE FIGHTING SERVICES UNDER THE GENERAL DIRECTION OF THE FOREST SERVICE. YOU SAY THAT THE FOREST SUPERVISOR UNDERSTOOD THAT THESE GUARDSMEN HAD FORMALLY MOBILIZED BECAUSE OF THE GOVERNOR'S PROCLAMATION. HOWEVER, IN A LETTER DATED SEPTEMBER 2, 1960, TO THE REGIONAL FORESTER, U.S. DEPARTMENT OF AGRICULTURE, 729 NORTHEAST OREGON, THE ADJUTANT GENERAL OF THE STATE OF WASHINGTON SAID THAT THE GUARD WAS NOT FORMALLY MOBILIZED AND THAT THE GUARDSMEN WERE SERVING AS VOLUNTEERS FOR FIGHTING FOREST FIRES.

THE MEN HAVE NOT BEEN PAID BY THE NATIONAL GUARD FOR THE SERVICE IN QUESTION.

SECTION 407 OF THE ACT OF AUGUST 31, 1951, 65 STAT. 246, 5 U.S.C. 574A, SPECIFIES THAT:

NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, THE DEPARTMENT IS AUTHORIZED ON AND AFTER AUGUST 31, 1951, TO EMPLOY OR OTHERWISE CONTRACT WITH PERSONS AT REGULAR RATES OF PAY FOR NECESSARY HOURS OF WORK FOR EMERGENCY FOREST FIRE FIGHTING AND PEST CONTROL AND FOR THE HANDLING OF ANIMALS, INCLUDING DAIRY CATTLE, WITHOUT REGARD TO SUNDAYS, FEDERAL HOLIDAYS, AND THE REGULAR WORKWEEK.

SECTION 6541.56 OF THE FOREST SERVICE HANDBOOK PROVIDES:

PAYMENTS TO NATIONAL GUARDSMEN IN FIRE SUPPRESSION AND OTHER EMERGENCY WORK. IN THOSE CASES WHEN THE NATIONAL GUARD IS ACTUALLY MOBILIZED AND OFFICIALLY ORDERED OUT AS A UNIT, FOREST SERVICE APPROPRIATIONS ARE NOT AVAILABLE FOR REIMBURSEMENT TO THE STATE. THIS IS ON THE PREMISE THAT SUCH SERVICE IS OF A PUBLIC NATURE TO WHICH THE UNITED STATES GOVERNMENT IS ENTITLED THE SAME AS ANY OTHER PROPERTY OWNER, RATHER THAN BECAUSE THE NATIONAL GUARD IS PARTLY FINANCED WITH FEDERAL FUNDS. HOWEVER, WHEN MEMBERS OF THE NATIONAL GUARD ARE MERELY REQUESTED TO VOLUNTEER THEIR SERVICES FOR FIGHTING FIRE AND/OR OTHER EMERGENCY WORK, THEY SHOULD BE INDIVIDUALLY EMPLOYED AND PAYROLLED IN THE SAME MANNER AS OTHER PICKUP FIRE FIGHTERS.' (ITALICS SUPPLIED.)

ARTICLE 3, SECTION 8 OF THE CONSTITUTION OF THE STATE OF WASHINGTON PROVIDES THAT THE GOVERNOR:

* * * SHALL BE COMMANDER-IN-CHIEF OF THE MILITARY IN THE STATE EXCEPT WHEN THEY SHALL BE CALLED INTO THE SERVICE OF THE UNITED STATES.

ARTICLE 10, SECTION 2, SPECIFIES IN PART THAT:

* * * THE GOVERNOR SHALL HAVE POWER TO CALL FORTH THE MILITIA TO EXECUTE THE LAWS OF THE STATE TO SUPPRESS INSURRECTIONS AND REPEL INVASIONS.

SECTION 38.08.020 OF THE WASHINGTON REVISED CODE PROVIDES THAT:

THE MILITIA OF THE STATE NOT IN THE SERVICE OF THE UNITED STATES SHALL BE GOVERNED AND ITS AFFAIRS ADMINISTERED PURSUANT TO LAW, BY THE GOVERNOR, AS COMMANDER-IN-CHIEF, THROUGH THE ADJUTANT GENERAL'S DEPARTMENT OF WHICH THE ADJUTANT GENERAL SHALL BE THE EXECUTIVE HEAD.

SECTION 38.08.040 PROVIDES:

IN THE EVENT OF WAR, INSURRECTION, REBELLION, INVASION, TUMULT, RIOT, MOB, OR BODY OF MEN ACTING TOGETHER BY FORCE WITH INTENT TO COMMIT A FELONY OR TO OFFER VIOLENCE TO PERSONS OR PROPERTY, OR BY FORCE AND VIOLENCE TO BREAK AND RESIST THE LAWS OF THIS STATE, OR THE UNITED STATES, OR IN CASE OF IMMINENT DANGER OF THE OCCURRENCE (SIC) OF ANY SUCH EVENTS, OR WHENEVER RESPONSIBLE CIVIL AUTHORITIES, FOR ANY REASON, FAIL TO PRESERVE LAW AND ORDER, OR PROTECT LIFE OR PROPERTY, OR THE GOVERNOR BELIEVES THAT SUCH FAILURE IS IMMINENT, OR IN EVENT OF PUBLIC DISASTER, THE GOVERNOR MAY ORDER THE ORGANIZED MILITIA, OR ANY PART THEREOF, INTO ACTIVE SERVICE OF THE STATE TO EXECUTE THE LAWS, AND TO PERFORM SUCH DUTY AS HE DEEMS PROPER.

HERE THE EMERGENCY PROCLAMATION WAS ISSUED BY THE GOVERNOR PURSUANT TO HIS AUTHORITY UNDER RCW 38.52.050, WHICH IS PART OF THE WASHINGTON CIVIL DEFENSE ACT OF 1951, AND WHICH PROVIDES IN PART THAT:

(1) THE GOVERNOR, THROUGH THE DIRECTOR, SHALL HAVE GENERAL SUPERVISION AND CONTROL OF THE CIVIL DEFENSE AGENCY, AND SHALL BE RESPONSIBLE FOR THE CARRYING OUT OF THE PROVISIONS OF THIS CHAPTER, AND IN THE EVENT OF DISASTER BEYOND LOCAL CONTROL, MAY ASSUME DIRECT OPERATIONAL CONTROL OVER ALL OR ANY PART OF THE CIVIL DEFENSE FUNCTIONS WITHIN THIS STATE.

THE WASHINGTON ( STATE) CIVIL DEFENSE ACT CONFERS NO AUTHORITY TO CALL OUT THE MILITARY FORCES OF THE STATE. CONSEQUENTLY, WE DO NOT CONSIDER THAT THE GENERAL DIRECTIVE BY THE GOVERNOR TO THE STATE DIRECTOR OF CIVIL DEFENSE IN THE PROCLAMATION CONSTITUTED AN EXERCISE OF THE GOVERNOR'S AUTHORITY TO CALL OUT THE STATE NATIONAL GUARD. SINCE THE EMERGENCY PROCLAMATION DID NOT CONTAIN A SPECIFIC DIRECTIVE BY THE GOVERNOR AUTHORIZING THE USE OF THE NATIONAL GUARD IN THE EMERGENCY, AND SINCE THERE IS NO INDICATION THERE WAS ANY INTENTION TO ORDER OUT THE NATIONAL GUARD (THE MEMBERS THEREOF NOT HAVING RECEIVED ANY PAY THEREFOR FROM THE STATE), WE ARE OF THE VIEW THAT THE MEN WHO WERE ASKED TO VOLUNTEER, AND WHO DID VOLUNTEER AS FIREFIGHTERS BECAUSE OF THE REQUEST OF THE STATE DIRECTOR OF CIVIL DEFENSE FOR TROOPS, WERE ENTITLED TO PAY FOR SUCH SERVICES TO THE SAME EXTENT AS OTHER INDIVIDUALS RECRUITED FOR THE PURPOSE OF FIGHTING THE FOREST FIRE.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT.