                 TO BE PUBLISHED IN THE OFFICIAL REPORTS

                      OFFICE OF THE ATTORNEY GENERAL
                                State of California

                              JOHN K. VAN DE KAMP
                                 Attorney General

                            _________________________

                                          :
                OPINION                   :                No. 86-201
                                          :
                    of                    :             AUGUST 7, 1986
                                          :
        JOHN K. VAN DE KAMP               :
           Attorney General               :
                                          :
        RODNEY O. LILYQUIST               :
         Deputy Attorney General          :
                                          :

________________________________________________________________________


         THE HONORABLE NOLAN FRIZZELLE, MEMBER, CALIFORNIA
ASSEMBLY, has requested an opinion on the following questions:

              1. Is an employee of a local public agency who is a member of the State
Military Reserve entitled to a temporary leave of absence from his employment to attend
active and inactive reserve activities?

             2. Under what circumstances, if any, may a member of the State Military
Reserve be ordered to active duty?

              3. What employment rights to salary and length of leave, if any, does an
employee of a local public agency have who is ordered to active duty as a member of the
State Military Reserve?




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                                        CONCLUSIONS

               1. An employee of a local public agency who is a member of the State
Military Reserve is entitled to a temporary leave of absence from his employment to
attend active, but not inactive, reserve activities.

             2. A member of the State Military Reserve may be ordered to active duty
during times of war, rebellion, insurrection, riot, public calamity or catastrophe and other
emergencies as set forth in Military and Veterans Code sections 142, 143, and 146.

              3. An employee of a local public agency who is ordered to active duty as a
member of the State Military Reserve is entitled to leave with pay for not more than 30
calendar days from his employer and a leave of absence for the duration of the duty as
specified in Military and Veterans Code section 395.05.

                                           ANALYSIS

             The State Military Reserve ("Reserve") is part of the Military Department,
along with the California National Guard, the Naval Militia, the California Cadet Corps,
and the Office of Adjutant General. (Mil. & Vet. Code, § 51.)1 The Reserve, the
National Guard, and the Naval Militia constitute the active militia of the state. (§ 120.)

               The Reserve is a voluntary organization under the authority and control of
the Governor. (See §§ 550, 551.) It is available "to assume the duties and functions of
the National Guard within the state whenever the National Guard is called into federal
service" and "to respond immediately whenever called in any natural disaster or civil
emergency to protect and preserve the lives and property of the citizens of the state."
(Stats. 1984, ch. 1545, § 1.)2


   1
       All references hereafter to the Military and Veterans Code are by section number only.
   2
     Use of the Reserve for these purposes has the consent of Congress. Clause 3 of section 10
of article I of the United States Constitution provides: "No State shall, without the consent of
Congress, . . . keep troops or ships of war in time of peace . . . ." Section 109 of title 32 of the
United States Code states:
                "(a) In time of peace, a State or Territory, Puerto Rico, the Virgin Islands,
        the Canal Zone, or District of Columbia may maintain no troops other than those
        of its National Guard and defense forces authorized by subsection (c).
                "(b) Nothing in this title limits the right of a State or Territory, Puerto
        Rico, the Virgin Islands, the Canal Zone, or the District of Columbia to use its
        National Guard or its defense forces authorized by subsection (c) within its

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               1. Temporary Leave of Absence

                The first question to be resolved is whether an employee of a local public
agency who is a member of the Reserve is entitled to a temporary leave of absence from
       3

his employer in order to attend active and inactive Reserve activities.4 We conclude that
he is so entitled only with respect to active Reserve activities.

               Subdivision (a) of section 389 states:

              "As used in this chapter, 'temporary military leave of absence' means
       a leave of absence from public employment to engage in ordered military
       duty for a period which by the order is not to exceed 180 calendar days
       including travel time for purposes of active military training, encampment,
       naval cruises, special exercises or like activity as a member of the reserve


       borders in time of peace, or prevents it from organizing and maintaining police or
       constabulary.
                "(c) In addition to its National Guard, if any, a State or Territory, Puerto
       Rico, the Virgin Islands, the Canal Zone, or the District of Columbia may, as
       provided by its laws, organize and maintain defense forces. A defense force
       established under this section may be used within the jurisdiction concerned, as its
       chief executive (or commanding general in the case of the District of Columbia)
       considers necessary, but it may not be called, ordered, or drafted into the armed
       forces.
                "(d) A member of a defense force established under subsection (c) is not,
       because of that membership, exempt from service in the armed forces, nor is he
       entitled to pay, allowances, subsistence, transportation, or medical care or
       treatment, from funds of the United States.
                "(e) A person may not become a member of a defense force established
       under subsection (c) if he is a member of a reserve component of the armed
       forces."
    3
      A local public agency would be a "county, city and county, city, municipal corporation,
school district, irrigation district, water district, or other district." (§ 389, subd. (c).) Civil
service employees of the state are covered by a separate statutory scheme, Government Code
sections 19770-19786; the employment benefits for military service are similar for the two
groups. (Bowers v. City of San Buenaventura (1977) 75 Cal.App.3d 65, 71-72.)
   4
      An "active" Reserve activity for our purposes means the 15-day annual summer camp or
more extensive training activities, while an "inactive" Reserve activity would be the usual
monthly weekend drills. (See §§ 389, 395; Bowers v. City of Buenaventura, supra, 75
Cal.App.3d 65, 73-75; 63 Ops.Cal.Atty.Gen. 483, 485-486 (1980).) The latter are now called
"unit training assemblies."

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       corps or force of the armed forces of the United States, or the National
       Guard, or the Naval Militia." (Emphasis added.)

This definition is made expressly applicable to Reserve members by section 566.5

               Section 395 provides in part:

              "Any public employee who is a member of the reserve corps of the
       armed forces of the United States or of the National Guard or the Naval
       Militia shall be entitled to a temporary military leave of absence as
       provided by federal law while engaged in military duty ordered for
       purposes of active military training, encampment, naval cruises, special
       exercises or like activity as such member, providing that the period of
       ordered duty does not exceed 180 calendar days including time involved in
       going to and returning from such duty, and provided that paid military
       leave of absence is not required for periods of inactive military duty."
       (Emphases added.)

Section 395 is made expressly applicable to Reserve members while they are in active
service.6

               The provisions of sections 389 and 395 were examined in Bowers v. City of
San Buenaventura, supra, 75 Cal.App.3d at pages 73-75. Based upon the legislative
histories of the two statutes, the court concluded that while "public employees must use
their own time to attend . . . weekend drills" (p. 73), they are entitled to a temporary leave
of absence from their employers for "more extensive training activity such as camp" (p.
75).

              In 63 Ops.Cal.Atty.Gen. 483, 486 (1980), we followed Bowers and
concluded, "Thus, public employees, as far as California statutes are concerned, are
required to be given military leave of absence for active military duty, but not for inactive
military duty, which includes weekend drills."

   5
     Section 566 is part of the State Military Reserve Act (§§ 550-567) and provides that certain
provisions of the Military and Veterans Code not contained in the act, including section 389, are
specifically applicable to Reserve members.
   6
      Section 564 states: "All of the rights, privileges and benefits provided in Sections 394 and
395 of this code are hereby extended to members of said forces while in the active service of this
State." (Emphasis added.) Similar to section 566, section 564 is part of the State Military
Reserve Act and makes certain provisions of the Military and Veterans Code not contained in the
act specifically applicable to Reserve members.

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              While section 395 has been amended since our 1980 opinion (see Stats.
1981, ch. 616, § 6), neither it, as currently written, nor any other provision of law requires
that a temporary leave of absence be given to Reserve members for inactive duty drills.
(See § 564.) If a scheduling conflict cannot be avoided and the employee chooses to
attend the weekend drill, his employer may require that he take vacation leave, make up
the lost time, or not be paid for the hours missed. As stated in Bowers v. City of San
Buenaventura, supra, 75 Cal.App.3d at 74-75:

              ". . . if the employee cannot arrange for the employer to adjust his
       working shift, the employee must take vacation or overtime to meet his
       reserve obligations. . . .

               "Thus plaintiff was not entitled to paid military leave for weekend
       drills even when such drills fell on his regularly scheduled work days. If he
       could not arrange for City to adjust his work schedule so that weekend
       drills would fall on his own time, he was required to use up "vacation time"
       or "overtime." (See Gov. Code, § 19774.) Far from being prohibited,
       adjustments in plaintiff's work schedule were authorized for his benefit. If
       conflict between the two schedules could not be avoided, plaintiff had to
       use vacation leave or make up the lost days in order to receive
       compensation. If plaintiff chose to make them up, City was not required to
       pay him at overtime rates on makeup days. (See Los Angeles Fire & Police
       Protective League v. City of Los Angeles, 23 Cal.App.3d 67, 76-77.)"

              In answer to the first question, therefore, we conclude that a temporary
leave of absence is not required to be given by a local public agency to an employee to
attend inactive Reserve activities. Such leave is required where the Reserve member is
attending active Reserve activities.7

               2. Ordered to Active Duty

           The second question presented for analysis concerns the conditions under
which members of the Reserve may be ordered to active duty.


   7
     These conclusions would also be applicable to Reserve members who are state civil service
employees. (See Gov. Code, §§ 19774-19775.2.) Along with the leave of absence a public
employee is entitled to a salary from his employer for the first 30 calendar days of such absence.
(§ 395.01; Gov. Code, § 19775.1.) Reserve members in private industry are entitled to a leave of
absence for active military training but are not entitled to a salary from their employers during
such activity. (§ 394.5.)

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               As previously mentioned, the Reserve is a component of the active militia
of the state. (§ 120.) Section 142 provides:

               "The Governor may order the active militia or any portion thereof to
       perform military duty of every description, including necessary
       administrative duties, and to participate in small arms gunnery competitions
       in this State or in any other state or territory or the District of Columbia, or
       in any fort, camp, or reservation of the United States. He may also
       authorize the performance of military duty or participation in small arms or
       gunnery competitions by any part of the active militia anywhere without the
       State or without the United States. Cruise duty ordered for the Naval
       Militia may be required to be performed on United States vessels."

Section 143 states:

              "Wherever the Governor is satisfied that rebellion, insurrection,
       tumult or riot exists in any part of the State or that the execution of civil or
       criminal process has been forcibly resisted by bodies of men, or that any
       conspiracy or combination exists to resist by force the execution of such
       process, or that the officers of any county or city are unable or have failed
       for any reason to enforce the laws, he may, by proclamation, declare any
       part of the State or the county or city or any portion thereof to be in a state
       of insurrection, and he may thereupon order into the service of the State
       such number and description of the active militia, or unorganized militia, as
       he deems necessary, to serve for such term and under the command of such
       officer as he directs."

Section 146 provides:

              "The Governor may call into active service such portion of the active
militia as may be necessary, and if the number available be insufficient, he may
call into active service such portion of the unorganized militia as may be
necessary, in any of the following events:

             "(a) In case of war, insurrection, rebellion, invasion, tumult, riot,
       breach of the peace, public calamity or catastrophe, or other emergency, or
       imminent danger thereof, or resistance to the laws of this State or the
       United States.

              "(b) Upon call or requisition of the President of the United States.


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             "(c) Upon call of any United States marshal in California, or upon
      call of any officer of the United States Army commanding an army, army
      area, or military administrative or tactical command including generally the
      State of California, or upon call of any officer of the United States Air
      Force commanding an air force, air defense force, air defense command or
      air command including generally the State of California.

              "(d) Upon call of the chief executive officer of any city or city and
      county, or of any justice of the Supreme Court, or of any judge of the
      superior court, or any sheriff, setting forth that there is an unlawful or
      riotous assembly with intent to commit a felony, or to offer violence to
      person or property, or to resist the laws of the State or the United States or
      that there has occurred a public calamity or catastrophe for which aid to the
      civil authorities is required.

            "(e) Upon call of the sheriff setting forth that the civil power of the
      county is not sufficient to enable him to execute process delivered to him."

               Specific inclusion of these statutes into the State Military Reserve Act
(§§ 550-567) pursuant to sections 564 or 566 is unnecessary since they are already
applicable to the Reserve due to the language of section 120. In most cases Reserve
members will be ordered to active duty by the Governor under section 146 to provide
assistance during a public calamity such as a fire or an earthquake. Administrative
positions in the Reserve may be filled pursuant to section 142. As previously mentioned,
such use of the Reserve is authorized by Congress. (32 U.S.C. § 109; see U.S. Const.,
art. I, §§ 8, 10; Martin v. Riley (1942) 20 Cal.2d 28, 41; 21 Ops.Cal.Atty.Gen. 66
(1953).)

             We thus conclude in answer to the second question that members of the
Reserve may be ordered to active duty during times of war, rebellion, insurrection, riot,
public calamity or catastrophe and other emergencies as specified in sections 142, 143
and 146.

             3. Active Duty Benefits

              The third question presented is whether an employee of a local public
agency has any employment rights to salary and a leave of absence when he is ordered to
active duty as a member of the Reserve. We conclude that he does.

             As previously discussed, section 389 and sections 395 through 395.01
detail the employment rights and benefits of a local agency public employee who is

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ordered to active training. The length of leave for such activity is limited therein to 180
calendar days. Subdivision (a) of section 395.05, on the other hand, describes the
employment benefits of such a person ordered to active duty:

              "Any public employee who is a member of the National Guard, shall
       be entitled to absent himself from his duties or service, without regard to
       the length of his public service, while engaged in the performance of
       ordered military or naval duty and while going to and returning from such
       duty, provided such duty is performed during such time as the Governor
       may have issued a proclamation of a state of extreme emergency or during
       such time as the National Guard may be on active duty in one or more of
       the situations described or included in Section 146 of this code provided
       such absence does not exceed the duration of such emergency. During the
       absence of such officer or employee while engaged in such military service
       during such emergency and while going to and returning from such duty,
       and for a period not to exceed 30 calendar days, he shall receive his salary
       or compensation as such officer or employee and shall not be subjected by
       any person directly or indirectly by reason of such absence to any loss or
       diminution of vacation or holiday privilege or be prejudiced by reason of
       such absence with reference to promotion or continuance in office,
       employment, reappointment to office, or reemployment."

This statutory provision is made expressly applicable to Reserve members by section
566. Section 395.05 thus requires a public employer to grant leave of absence to an
employee ordered into active service in the Reserve for the duration of the emergency
and further requires the public employer to pay the employee's salary during such leave
for not more than 30 calendar days.8

              In answer to the third question, therefore, we conclude that an employee of
a local public agency is entitled to a maximum of 30 calendar days of salary from his
employer as well as a leave of absence for the duration of the emergency when ordered to
active duty as a member of the Reserve.9

                                            *****

   8
     If the person is ordered to active federal duty, the same benefits would apply. (§§ 395.02,
395.03, 566.)
   9
     A state civil service employee who is a Reserve member would also be entitled to a
maximum of 30 calendar days of salary from his employer and a leave of absence while
performing active duty. (Gov. Code, §§ 19775-19775.2.)

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