SB-0175, As Passed Senate, June 11, 2013

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 175

A bill to amend 1967 PA 150, entitled

"Michigan military act,"

by amending sections 105, 151, 155, 159, 171, 179, 300, 302, 306,

316, 328, 354, 368, 372, 374, 376, 378, 380, 382, 382a, 384, 388,

and 410 (MCL 32.505, 32.551, 32.555, 32.559, 32.571, 32.579,

32.700, 32.702, 32.706, 32.716, 32.728, 32.754, 32.768, 32.772,

32.774, 32.776, 32.778, 32.780, 32.782, 32.782a, 32.784, 32.788,

and 32.810), sections 105 and 179 as amended by 2002 PA 133,

section 159 as amended by 1998 PA 212, section 302 as amended by

2002 PA 654, section 306 as amended by 2010 PA 255, section 328 as

amended by 1988 PA 493, sections 368 and 382 as amended and section

382a as added by 1992 PA 307, and section 410 as amended by 1980 PA

145; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 105. The definitions used in the command, administration,

supply, training, discipline, deployment, and employment of the

armed forces of the United States, unless clearly inapplicable or

contradictory, are adopted with respect to the state military

establishment except as otherwise provided in this act. As used in

this act:

(a) "Military" means a reference to all components of the

state military establishment.

(b) "Michigan national guard" means the army national guard

and the air national guard.

(d) "Active state service", as applied to the national guard

and the defense force, means military service in support of civil

authorities, at the request of state or local authorities,

including, but not limited to, support in the enforcement of laws

prohibiting the importation, sale, delivery, possession, or use of

a controlled substance, if ordered by the governor or as otherwise

provided in this act. ~~As used in this section, "controlled~~

~~substance" means that term as defined in section 7104 of the public~~

~~health code, 1978 PA 368, MCL 333.7104.~~

(e) "Special duty" means military service in support of the

full-time operation of the state military establishment for a

period of not less than 1 day if ordered by competent authority.

(f) "Active service" means service, including active state

service and special duty required by law, regulation, or pursuant

to order of the governor. Active service includes continuing

service of an active member of the national guard and the defense

force in fulfilling that active member's commission, appointment,

or enlistment.

(g) "Inactive status" means the status of those members of the

national guard who are listed on an inactive list authorized by a

federal statute or regulation.

(h) "In the service of the United States" and "not in the

service of the United States" mean the same as those terms are used

and construed under federal laws and regulations.

(i) "Officer" means a commissioned officer and a warrant

officer, unless a distinction between commissioned officer and

warrant officer is clearly evident.

(j) "Martial law" or "martial rule" means the exercise of

partial or complete military control over domestic territory in

time of emergency because of public necessity.

(k) "Armory" means a building, facility, or the lots and

grounds used by an army, navy, or air unit of the national guard or

organized militia as a home station or for military training.

(l) "Military establishment" means the organized militia of

this state, including the employees and equipment assigned or

necessary to carry out the provisions of this act.

(m) "Vital resource" means a public or private building,

facility, property, or location that the governor considers

necessary to protect the public health, safety, and welfare of the

citizens of this state.

(n) "Controlled substance" means that term as defined in

section 7104 of the public health code, 1978 PA 368, MCL 333.7104.

Sec. 151. The governor is the commander-in-chief of the

organized militia. He may order to active state service any members

of the organized militia in case of riot, tumult, breach of the

peace, resistance of process, or for service in aid of civil

authority, whether state or federal, or in time of actual or

imminent public danger, disaster, crisis, catastrophe or other

public emergency within this state or to respond to acts or threats

of terrorism or to safeguard military or other vital resources of

this state or of the United States. If the governor and his legal

successor are absent, disabled, or cannot be communicated with, the

adjutant general, if he believes the danger great and imminent, may

order out, in the name of the governor, such troops of the

organized militia as he believes necessary to meet the emergency.

Sec. 155. The governor may order into the defense force any

members of the unorganized militia in case of riot, tumult, breach

of the peace, resistance of process, or for service in aid of civil

authority, whether state or federal, or in time of actual or

imminent public danger, disaster, crisis, catastrophe or other

public emergency within this state.

Sec. 159. (1) The governor may enter into an agreement with

the governors of 1 or more other states authorizing the military

forces of this state, in time of invasion, rebellion, public

disaster, or catastrophe, or to assist a state or local law

enforcement agency, at the request of that state or local law

enforcement agency, in enforcing a law prohibiting the importation,

sale, delivery, possession, or use of a controlled substance as

~~that term is~~ defined in ~~section 7104 of the public health code,~~

~~1978 PA 368, MCL 333.7104, or as defined in~~ this act or a similar

law of the other state, or as necessary to comply with reciprocal

agreements for emergency assistance to other states under the

interstate emergency management assistance compact, 2001 PA 248,

MCL 3.1001 to 3.1004, or with other similar agreements, to be

employed within the area of the other states for mutual assistance

in the public interest.

(2) A member of the national guard from another state

performing support duty to a federal, state, or local law

enforcement agency in this state has the same immunity from

liability and prosecution as does a member of the Michigan national

guard in performing support duty to a federal, state, or local law

enforcement agency.

(3) The Michigan national guard is a law enforcement agency

under this act ~~solely~~ for the purpose of receiving or using

property or money forfeited under section 981(e)(2) of title 18 of

the United States Code, 18 ~~U.S.C.~~ USC 981, section 616 of part V of

title IV of the tariff act of 1930, ~~chapter 497, 98 Stat. 2987, 19~~

~~U.S.C.~~ 19 USC 1616a, and section 511(e)(1)(A) of part E of the

controlled substances act, title II of the comprehensive drug abuse

prevention and control act of 1970, ~~Public Law 91-513, 21 U.S.C.~~ 21

USC 881.

Sec. 171. The governor may direct the adjutant general to

organize, disband, arrange, transfer, convert, alter, consolidate,

or attach units of the military establishment. The transfer of

personnel to and within units shall be carried out by order of the

~~governor.~~adjutant general.

Sec. 179. (1) No civilian person, except the governor, may

command personnel of the state military establishment.

(2) If any portion of the organized militia is called into

active service, special duty, active state service, or the service

of the United States to execute the laws, engage in emergency or

disaster relief or other support operations pursuant to the

emergency management act, 1976 PA 390, MCL 30.401 to 30.421, or

suppress or prevent actual or threatened riot or insurrection,

repel invasion, respond to acts or threats of terrorism, or

safeguard military or other vital resources of this state or of the

United States, or to assist in the enforcement of a law prohibiting

the importation, sale, delivery, possession, or use of a controlled

substance, ~~as that term is defined in section 7104 of the public~~

~~health code, 1978 PA 368, MCL 333.7104,~~ a commanding officer shall

use his or her own judgment in apprehending or dispersing a sniper,

a rioter, a mob, or an unlawful assembly. In situations described

in this subsection, the commanding officer may apprehend a person

on a state military base, armory base, air base, or a vital

resource of this state or of the United States if the commanding

officer has reasonable cause to believe the person has committed a

felony or a misdemeanor punishable by imprisonment for more than 92

days on that state military base, armory base, air base, or a vital

resource of this state or of the United States. In situations

described in this subsection, the commanding officer or an

individual under his or her command may apprehend a person on a

state military base, armory base, air base, or a vital resource of

this state or of the United States if the person commits a crime in

the presence of the commanding officer or an individual under his

or her command on that state military base, armory base, air base,

or a vital resource of this state or of the United States. That

commanding officer shall determine the amount and kind of force to

be used in preserving the peace and carrying out the orders of the

governor. Except as provided in subsection (3), that commanding

officer's honest and reasonable judgment under the circumstances

then existing, in the exercise of his or her duty, is full

protection, civilly and criminally, for an act done in the line of

duty, and a member of the organized militia in active service,

special duty, active state service, or the service of the United

States is not liable civilly or criminally for an act committed by

him or her in the performance of his or her duty.

(3) A member of the organized militia in active service,

special duty, active state service, or the service of the United

States has the immunity of a peace officer in this state if 1 or

more of the following apply:

(a) The member is acting in aid of civil authorities and

acting in the line of duty.

(b) The member is assisting in the enforcement of a law

prohibiting the importation, sale, delivery, possession, or use of

a controlled substance ~~as that term is defined in section 7104 of~~

~~the public health code, 1978 PA 368, MCL 333.7104,~~ and acting in

the line of duty.

acts or threats of terrorism or to safeguard military or other

vital resources of this state or of the United States and is acting

in the line of duty.

(4) The attorney general of this state shall defend a civil

action or criminal prosecution brought in a state or federal court,

against a member of the organized militia or his or her estate,

arising from an act or omission alleged to have been committed

while in active service, special duty, active state service, or the

service of the United States.

Sec. 300. The office of the adjutant general, with the rank of

major general in the national guard, is created. He or she shall be

the commanding general of the military establishment. Under the

direction of the governor, he or she is charged with the

responsibility for the command, administration, logistics,

training, and fiscal direction of the military establishment. He or

she may perform any act authorized by this chapter or the

regulations issued pursuant to this ~~chapter~~ act through or with the

aid of such officers, officials, or directors of the military

department as he or she may designate. The adjutant general shall

direct the planning for the organization and employment of the

forces of the organized militia in carrying out their state

military mission and establish unified command of state forces

whenever they shall be jointly engaged.

Sec. 302. (1) The governor shall appoint the adjutant general

from among qualified federally recognized officers of the national

guard. The adjutant general shall have served as an officer of

field or general grade in the state military establishment for not

less than 5 years before appointment and shall have federal

recognition in the rank of colonel or higher and shall be capable

of being federally recognized to the rank of brigadier general

before appointment. The adjutant general shall serve at the

pleasure of the governor, and unless sooner relieved, shall serve

until the age ~~of 64.~~ designated for retirement for an active army

or air force officer of like grade. The adjutant general shall

receive pay and allowances equal to those of an active army or air

force officer of like grade and service. Not later than 10 days

after the appointment, the adjutant general shall file his or her

constitutional oath of office with the secretary of state.

(2) Only 1 adjutant general appointed by the governor under

this section in any 4-year period is eligible for retirement under

section 306(2).

Sec. 306. (1) Beginning January 1, 2011, except as otherwise

provided in this section, the adjutant general and the assistant

adjutants general who began employment on or after January 1, 2011

when relieved under honorable circumstances shall receive

retirement benefits as a qualified participant under the state

employees' retirement act, 1943 PA 240, MCL 38.1 to 38.69.

Retirement benefits will start on the date of retirement or

honorable relief from duty. Retirement under this ~~section~~

subsection requires not less than 20 years active service with the

national guard and/or state defense force.

(2) Beginning on the effective date of the amendatory act that

added this subsection and subject to the limitation provided in

subsection (5), the adjutant general and the assistant adjutants

general when retired or relieved under honorable circumstances

shall be placed on the retired list of the national guard. The

adjutant general and the assistant adjutants general shall receive

retirement pay equal to the retirement pay that an officer of like

grade and total years of service would receive as indicated in

appropriate federal regulations when they are retired or honorably

relieved. Subject to subsection (3), retirement benefits will start

on the date of retirement or honorable relief from duty.

(3) Retirement under subsection (2) requires all of the

following:

(a) Not less than 20 years active service with the national

guard or state defense force, or both.

(b) Not less than 4 consecutive years of special duty as an

adjutant general or assistant adjutant general. however, the

requirement for serving 4 consecutive years of service as an

adjutant general or assistant adjutant general for retirement pay

is waived if the service member is relieved due to a new governor

assuming office.

(4) Any retirement pay received from the federal government

for military service shall be deducted when computing the amount to

be received from this state for an adjutant general or assistant

adjutant general who retires under subsection (2). The deduction

shall start on the first day of the month the officer becomes

eligible for federal retirement. Once established, the amount of

the deduction shall not be changed. The retirement benefit will be

paid according to the federal regulations commensurate with active

duty years and traditional national guard service time. The full-

time adjutant general's and assistant adjutants general's service

will be credited at the equivalent of full-time active duty

service, and part-time traditional services will be credited to the

federal military points system, in a manner as determined by the

retirement system.

(5) Only 1 adjutant general appointed by the governor under

section 302 in any 4-year period is eligible for retirement under

subsection (2). Only 2 assistant adjutants general in any 4-year

period are eligible for retirement under subsection (2). However,

if the adjutant general or an assistant adjutant general is

mobilized pursuant to a federal mobilization and the governor

appoints a replacement adjutant general under section 302 or the

adjutant general appoints a replacement assistant adjutant general,

the replacement adjutant general or replacement assistant adjutant

general is eligible for retirement under subsection (2). If any

change or error in the records results in any member, retirant, or

beneficiary receiving from the retirement system more or less than

he or she would have been entitled to receive if the records had

been correct, the retirement system shall correct that error and,

as far as practicable, shall adjust the payment in such a manner

that the actuarial equivalent of the benefit to which that member,

retirant, or beneficiary was correctly entitled shall be paid.

Sec. 316. The adjutant general shall plan, negotiate, and

contract with the federal government for the maintenance,

remodeling, additions to, and construction of armories and other

military, veterans, or related state facilities within ~~the~~ this

state. He or she may receive and expend grants from federal sources

for these purposes and may enter into agreements with agencies of

the federal government for purposes of extending available

insurance programs to members and employees of the state military

establishment.

Sec. 328. (1) The adjutant general shall request civilian

positions and personnel of the military establishment, as he or she

considers necessary, to be included in the classified state civil

or state senior service. He or she also has the authority to call

officers and enlisted personnel, as he or she may designate, to

special duty in the military department. Officers and enlisted

personnel called to special duty shall receive pay and allowances

equal to that of active army or air force personnel of like grade

and service.

(2) When special duty personnel receive military pay from the

federal government for services performed during the hours of an

actual workday, as designated by the adjutant general under section

114, they shall be charged with a day of leave or a day of leave

without pay.

Sec. 354. ~~An armory board of control may be created~~ The

adjutant general may designate an armory manager for each armory of

the state military establishment, with the duty of operating and

maintaining the armory pursuant to law and regulations promulgated

by the adjutant general. The ~~board of control~~ armory manager may

rent or otherwise authorize the use of the armory to outside

parties for temporary purposes subject to regulations of the

adjutant general.

Sec. 368. The ~~state military board~~ adjutant general may

receive from the federal and local governments, corporations,

individuals, or other sources, gifts of property and money to aid

in providing, erecting, or improving armories or other facilities,

or training areas and other surrounding lands throughout ~~the~~ this

state for the use of the state military establishment. All gifts of

money received under this section shall be deposited by the state

treasurer in the Michigan national guard armory construction fund

created in section 382a , and shall be used as provided in that

section. When a deed to land has been presented to ~~the board~~ and

accepted by it the adjutant general for an armory site and the

~~board~~ adjutant general deems it necessary to change the location of

the site, the ~~board~~ adjutant general may accept a new deed or

relinquish the rights of ~~the~~ this state in the lands covered by the

prior deed without prejudice to the right of priority of the local

government to the erection of an armory on the land. The ~~state~~

~~military board~~ adjutant general has authority to do any act and

execute any deeds to carry out the provisions of this act.

Sec. 372. The ~~state military board~~ adjutant general may take

title to real property to be used for military purposes in the name

of ~~the~~ this state.

Sec. 374. The ~~state military board~~ adjutant general may

condemn property for armory building sites and military training

areas in accordance with the ~~statutes~~ laws of ~~the~~ this state. of

~~Michigan.~~

Sec. 376. The ~~state military board~~ adjutant general may grant

easements under and over any state-owned real property under the

jurisdiction and control of the state military establishment. An

easement shall not be granted for the benefit of a public utility

unless the board determines that it is in the public interest and

will not adversely affect the use of the property for military

purposes.

Sec. 378. When a site is deeded to ~~the~~ this state for the

erection of an armory, and thereafter any person or local

government or combination of local governments wish to deed to ~~the~~

this state another site, and the ~~state military board~~ adjutant

general after inspection believes that the new site is superior to

the old site, the ~~state military board~~ adjutant general may accept

the new site after an examination of the title has been made by the

attorney general, and deed the old site to the grantor deeding the

new site to the state.

Sec. 380. State-owned or leased armories and accessory

buildings, military warehouses, arsenals and storage facilities for

military equipment, and lands and appurtenances required for the

construction of armories or buildings, are not subject to zoning or

building ordinances of any local government. The ~~state military~~

~~board~~ adjutant general shall take cognizance of local zoning

ordinances and restrictions in the selection and acceptance of

lands for armory or other military buildings and shall conform as

nearly as possible to master plans of the local governments where

it may be done without impairing the convenience and usefulness of

the armories and buildings.

Sec. 382. (1) The ~~state military board~~ adjutant general may

dispose of Michigan national guard armories, facilities, or lands

under the jurisdiction of the state military establishment if, in

the ~~state military board's~~ judgment of the adjutant general, the

armory, facility, or land is obsolete, inadequate, unusable, or no

longer is required for Michigan national guard purposes. The

disposal shall be by sale for fair market value or by exchange at

fair market value for other lands owned by private persons or

entities, local units of government, or the federal government.

(2) Disposal of armories, facilities, or land under this

section shall be in accordance with policies established by the

~~state military board~~ adjutant general and in accordance with

procedures established by the department of technology, management,

and budget. Each disposal action also shall be subject to approval

by the state administrative board.

(3) Not later than July 31, 1993, and July 31 of each year

thereafter, the department of military and veterans affairs shall

report to the standing committees of the senate and house of

representatives that are responsible for legislation concerning

military affairs, and to the senate and house appropriations

committees, as to the actions taken by the department under this

section during the preceding reporting period.

Sec. 382a. (1) The Michigan national guard armory construction

fund is created as a separate fund in the state treasury. All money

received as gifts under section 368 or from sales, transfers, or

exchanges under section 382 shall be deposited by the state

treasurer in the Michigan national guard construction fund. Money

in the fund shall not revert to the general fund at the close of

the fiscal year but shall remain in the fund.

(2) Money in the Michigan national guard construction fund

shall be expended by the state treasurer at the exclusive direction

of the ~~state military board~~ adjutant general for the purpose of

acquiring facilities and training lands and constructing new

facilities. Each expenditure from the fund shall be subject to

appropriation by the legislature. The unexpended portion of the

fund shall be invested by the state treasurer and the earnings on

the fund shall be credited to the fund at the state treasurer's

common cash investment income rate.

Sec. 384. The ~~state military board~~ adjutant general shall hold

title to the camp Grayling military reservation under the terms of

the deed from the Hanson estate and in accordance with the

provisions of ~~Act No. 172 of the Public Acts of 1913, as amended,~~

~~being sections 32.221 to 32.226 of the Compiled Laws of 1948.~~1913

PA 172, MCL 32.221 to 32.226.

Sec. 388. The department of ~~conservation~~ natural resources

shall transfer to the ~~state military board~~ adjutant general such

lands under its control as competent authority shall direct. These

lands shall form a part of the camp Grayling military reservation

and shall be supervised and controlled by the adjutant general,

except that hunting shall not be prohibited on the lands. The ~~state~~

~~military board~~ adjutant general may with approval of the

legislature exchange or sell any lands transferred to it under this

act in order to obtain any other lands, oil and mineral rights

excepted, whether owned by private interests or by the United

States government, within the external boundaries of the camp

Grayling military reservation as enlarged by this act, and may make

all necessary conveyances to effect the exchanges and sales.

Sec. 410. (1) For purposes of this section, "eligible

surviving spouse" means the person to whom the deceased officer or

enlisted person was married preceding the death of the officer or

enlisted person, or to whom the deceased retired officer or retired

enlisted person was married at the time of retirement.

(2) ~~An officer or enlisted person retired from special duty~~

~~with the military establishment because of having reached maximum~~

~~age or because of federal law or regulation shall receive~~

~~retirement pay equal to that authorized to personnel of like grade,~~

~~rank, and longevity who are retired from the active federal armed~~

~~forces by appropriate federal regulation. Retirement under this~~

~~section requires not less than 20 years active service with the~~

~~national guard or state defense force, or both. Any retirement pay~~

~~received from the federal government for military service shall be~~

~~deducted when computing the amount received from the state. The~~

~~deduction shall start on the first day of the month the person~~

~~becomes eligible for federal retirement. Once established, the~~

~~amount of the deduction shall not be changed; however, it shall not~~

~~deprive the retired person from receiving a total of state and~~

~~federal pay equal to that authorized to personnel of like grade,~~

~~rank, and total longevity who are retired from the active federal~~

~~armed forces. These retirement benefits from the state shall be~~

~~effective on the date of retirement.~~An adjutant general or

assistant adjutant general who retires or is relieved due to a new

governor assuming office will receive pay and benefits as defined

by section 306.

(3) If an ~~officer or enlisted person~~ adjutant general or

assistant adjutant general who continues on special duty on or

after the date the officer ~~or enlisted person~~ acquires 15 years of

~~special duty~~ active service dies before retirement as provided in

section 306 and subsection (2) and leaves an eligible surviving

spouse, the eligible surviving spouse shall be paid a survivor's

benefit equal to 67% of the retired pay to which the officer or

~~enlisted person~~ would have been authorized had the officer or

~~enlisted person~~ retired the day preceding death.

(4) If an ~~officer or enlisted person~~ adjutant general or

assistant adjutant general who retires is receiving retirement pay

as provided in section 306 and subsection (2) , dies and leaves an

eligible surviving spouse, ~~50% of the retirement pay of the officer~~

~~or enlisted person shall be continued to the eligible surviving~~

~~spouse.~~the eligible surviving spouse shall begin receiving 50% of

the retirement pay of the officer.

(5) Officers, other than the adjutant general and assistant

adjutants general, who are appointed to state special duty prior to

July 1, 2013 because of having reached the maximum age or because

of federal law or regulation and retire shall receive retirement

pay as provided in section 306. Retirement under this section

requires not less than 20 years' active service with the national

guard or state defense force, or both. Any retirement pay received

from the federal government for military service shall be deducted

when computing the amount received from this state. The deduction

shall start on the first day of the month the person becomes

eligible for federal retirement. Once established, the amount of

the deduction shall not be changed.

Enacting section 1. Sections 133, 360, 362, 364, 366, and 390