Who can issue 'competent orders' for the Tennessee State Guard so members can take military leave from their day jobs?

Subject

Opinion No. 11-82, Tennessee State Guard Entitlement to Unpaid Leave of Absence, December 12, 2011

Plain-English summary

Tennessee State Guard is the state's volunteer military force, separate from the National Guard. It is composed of volunteers aged 16 to 75 and sits inside the Military Department under the governor as commander-in-chief. Tenn. Code Ann. § 58-1-104; Tenn. Const. art. III, § 5.

Tennessee employment law gives State Guard members a useful protection. Tenn. Code Ann. § 8-33-110 entitles members who are "engaged in the performance of duty or training in the service of the State of Tennessee under competent orders" to an unpaid leave of absence from any public or private employer, without loss of time, pay, regular leave, or vacation. The protection applies to all state employees, county employees, municipal employees, school district employees, other political subdivision employees, all other public employees, and all private sector employees. It is broad.

The hinge phrase is "under competent orders." General Counsel Denson at the Military Department asked the AG two questions about what that means:

Question 1: when is a Guard member under competent orders? The AG read the phrase using statutory construction principles (Wilson v. Johnson County, Freeman v. Marco Transp. Co., In re C.K.G.) and dictionary meanings. "Competent" means "legally qualified or fit." "Orders" means "formal written instructions to report for military duty at a specified time and place." Putting those together, competent orders are formal written orders issued by a person with the legal authority to issue them.

Question 2: who has that authority? The governor as commander-in-chief, plus statutory delegations. Tenn. Code Ann. §§ 58-1-105, 58-1-106, 58-1-401, 58-1-408 give the governor authority to activate, control, and supervise the State Guard. The governor can delegate to the adjutant general; Op. Tenn. Att'y Gen. 05-112 (July 18, 2005) had already confirmed that delegation. Tenn. Code Ann. § 58-1-114 makes the adjutant general the commanding general of Tennessee's military forces, including the State Guard. Tenn. Code Ann. § 58-1-410 authorizes the adjutant general (with the governor's approval) to set up a reserve State Guard organization.

The senior volunteer commander, by contrast, is not in any of those provisions. Tenn. Code Ann. § 58-1-405 says the governor as commander-in-chief appoints officers and prescribes rules and regulations governing State Guard personnel. No statute and no rule (see Tenn. Comp. R. & Regs. 0930) confers on a senior volunteer commander the authority to issue competent orders directly. And neither the governor nor the adjutant general had delegated that authority.

So when the senior volunteer commander issued "Command Policy Letter Number 18" stating that orders signed by the "Commander of the Tennessee State Guard" are competent orders for § 8-33-110 purposes, the policy letter was wrong. A volunteer commander cannot self-confer the legal authority that statute reserves to the governor and adjutant general. Members acting on a volunteer commander's orders alone are not under "competent orders" within the meaning of § 8-33-110 and are not entitled to the unpaid leave protection.

The opinion has a footnote tying this to two collateral consequences. Members of the State Guard are eligible for workers' compensation and immunity from suit only when activated to active state duty by the governor or adjutant general. Op. Tenn. Att'y Gen. 02-011 (Jan. 10, 2002); Op. Tenn. Att'y Gen. 05-112 (July 18, 2005). The same authority gates those protections.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The unpaid-leave entitlement. Tenn. Code Ann. § 8-33-110: all state, county, municipal, school district, political subdivision, public, and private sector employees who are members of the Tennessee State Guard and Civil Air Patrol are entitled to unpaid leave for periods of service when engaged in "the performance of duty or training in the service of this state, under competent orders."

State Guard as state military. Tenn. Code Ann. § 58-1-104. Distinct from the National Guard. Tenn. Code Ann. § 58-1-402. Volunteer composition, ages 16 to 75.

Governor as commander-in-chief. Tenn. Const. art. III, § 5; Tenn. Code Ann. § 58-1-105.

Governor's powers over the State Guard. Tenn. Code Ann. §§ 58-1-105, 58-1-106, 58-1-401, 58-1-408 grant authority to activate, control, and supervise.

Delegation to adjutant general. Op. Tenn. Att'y Gen. 05-112 (July 18, 2005). Tenn. Code Ann. § 58-1-114 makes the adjutant general commanding general of Tennessee's military forces.

Reserve organization. Tenn. Code Ann. § 58-1-410 authorizes the adjutant general, with governor's approval, to set up a reserve State Guard.

Statutory construction principles applied. Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994); Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000); In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005).

Definitions used. The American Heritage Dictionary (2d College ed. 1985): "competent" = "legally qualified or fit"; "orders" = "formal written instructions to report for military duty at a specified time and place."

The contested policy. Command Policy Letter Number 18, signed by the senior volunteer commander, purported to declare that orders signed by the "Commander of the Tennessee State Guard" are competent orders.

Collateral consequences. Op. Tenn. Att'y Gen. 02-011 (Jan. 10, 2002) on workers' compensation eligibility; Op. Tenn. Att'y Gen. 05-112 on immunity from suit; Tenn. Code Ann. § 8-42-101(3)(B) on registration as volunteers for immunity purposes.

Common questions

Does this mean a volunteer commander cannot give any orders?

No. The opinion is specific to § 8-33-110's "competent orders" trigger for employer unpaid leave. A volunteer commander can give operational direction within the chain of command. The narrow holding is that those internal directives don't carry the legal effect that compels an employer to grant unpaid leave.

What format does a competent order need to take?

The opinion does not impose a particular form, but the dictionary definition the AG used ("formal written instructions to report for military duty at a specified time and place") suggests a written order. Internal Military Department practice likely already follows this norm. A verbal direction from the senior volunteer commander would not qualify.

Could the governor or adjutant general delegate to a senior volunteer commander?

Possibly. The opinion notes there is no such delegation as of December 2011. Whether the governor or adjutant general could lawfully delegate the authority to issue competent orders for § 8-33-110 purposes to a volunteer officer would depend on the statutory scheme allowing delegation. The opinion did not analyze the boundaries of that authority.

Does this affect federal USERRA protections?

USERRA, the federal Uniformed Services Employment and Reemployment Rights Act, has its own scope and standards. State Guard members may or may not be covered by USERRA depending on the activation context. Tennessee's § 8-33-110 is a state-level supplement; the opinion did not address USERRA.

What about workers' compensation if a member is injured under non-competent orders?

The footnote points to Op. 02-011, which concluded workers' compensation eligibility for State Guard members runs through gubernatorial or adjutant-general activation to active state duty. A member injured while acting on a volunteer commander's directives, absent proper activation, would likely face the same gating issue.

Citations

• Tenn. Code Ann. § 8-33-110
• Tenn. Code Ann. § 58-1-104
• Tenn. Code Ann. § 58-1-105
• Tenn. Code Ann. § 58-1-106
• Tenn. Code Ann. § 58-1-114
• Tenn. Code Ann. § 58-1-401
• Tenn. Code Ann. § 58-1-402
• Tenn. Code Ann. § 58-1-405
• Tenn. Code Ann. § 58-1-408
• Tenn. Code Ann. § 58-1-410
• Tenn. Code Ann. § 8-42-101(3)(B)
• Tenn. Comp. R. & Regs. 0930
• Tenn. Const. art. III, § 5
• Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994)
• Freeman v. Marco Transp. Co., 27 S.W.3d 909 (Tenn. 2000)
• In re C.K.G., 173 S.W.3d 714 (Tenn. 2005)
• Op. Tenn. Att'y Gen. 02-011 (Jan. 10, 2002)
• Op. Tenn. Att'y Gen. 05-112 (July 18, 2005)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-082.pdf

Original opinion text

December 12, 2011
Opinion No. 11-82
Tennessee State Guard Entitlement to Unpaid Leave of Absence

QUESTIONS

1. Under what circumstances would a volunteer member of the Tennessee State Guard be considered "under competent orders" so as to be entitled to an unpaid leave of absence from a public or private sector employer pursuant to Tennessee Code Annotated § 8-33-110?

2. Does the senior volunteer commander of the Tennessee State Guard have authority to issue "competent orders" under which volunteer members of the Tennessee State Guard would be entitled to an unpaid leave of absence from a public or private sector employer as provided in Tennessee Code Annotated § 8-33-110?

OPINIONS

1. In order to be entitled to an unpaid leave of absence from a public or private sector employer, a member of the Tennessee State Guard must be engaged in the performance of duty or training in the service of the State of Tennessee under competent orders issued by a person with the legal authority to do so.

2. No, the senior volunteer commander of the Tennessee State Guard does not have legal authority to issue "competent orders" as contemplated by Tennessee Code Annotated § 8-33-110.

ANALYSIS

1. Under the provisions of Tennessee Code Annotated § 8-33-110, members of the Tennessee State Guard are entitled to an unpaid leave of absence from a public or private sector employer when engaged in the performance of duty or training in the service of the State of Tennessee under competent orders. This statute specifically states:

All officers and employees of this state, or any department or agency thereof, or of any county, municipality, school district, or other political subdivision, all other public employees of this state and all private sector employees who are, or may become, members of the Tennessee State Guard and Civil Air Patrol shall be entitled to an unpaid leave of absence from their respective duties, without loss of time, pay, regular leave or vacation, or impairment of efficiency rating, for all periods of service during which they are engaged in the performance of duty or training in the service of this state, under competent orders.

Tenn. Code Ann. § 8-33-110.

You have asked what criteria must be met in order for a volunteer member of the Tennessee State Guard to be considered "under competent orders" as provided in Tennessee Code Annotated § 8-33-110. In construing statutes, courts must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). When the statute is unambiguous, legislative intent is determined from the plain and ordinary meaning of the language used in the statute. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000). Statutes that are related to the same subject matter should be read in pari materia. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). Thus, in construing the term "under competent orders" as used in § 8-33-110, words must be given their natural and ordinary meaning when read in the context of other state statutes related to the performance of duties or training by Tennessee State Guard members in the service of the State of Tennessee.

The Tennessee State Guard is part of the military forces of the State. Tenn. Code Ann. § 58-1-104. It is in addition to and distinct from the national guard organized under existing law. Tenn. Code Ann. § 58-1-402. The Tennessee State Guard is composed of volunteers between the ages of sixteen and seventy-five. Id. The governor is the commander in chief of the Tennessee State Guard. Tenn. Const. art. III, § 5. See also Tenn. Code Ann. § 58-1-105. As the commander in chief, the governor is statutorily granted certain powers and duties, including the authority to activate, control, and supervise the Tennessee State Guard. Tenn. Code Ann. §§ 58-1-105, 58-1-106, 58-1-401, 58-1-408. As this Office has previously opined, the governor is authorized to delegate his authority to activate, control, and supervise the Tennessee State Guard to the adjutant general. Op. Tenn. Att'y Gen. 05-112 (July 18, 2005). In addition, during the time when the Tennessee State Guard is not activated, the adjutant general is authorized and empowered, on the approval of the governor, "to set up and maintain a reserve organization of the state guard upon a voluntary basis under such system as to the adjutant general may seem most feasible." Tenn. Code Ann. § 58-1-410.

The term "competent" is ordinarily defined as "[l]egally qualified or fit." See The American Heritage Dictionary 301 (2d College ed. 1985). For military purposes, the term "orders" is ordinarily defined as "[f]ormal written instructions to report for military duty at a specified time and place." Id. at 875. Accordingly, in order to be considered "competent orders" so as to require the participation of members of the Tennessee State Guard in the service of the State of Tennessee, the orders must be issued by a person with the legal authority to do so.

2. You have asked whether Command Policy Letter Number 18, written by the senior volunteer commander of the Tennessee State Guard, has the effect of authorizing the volunteer commander to issue "competent orders" within the meaning of Tennessee Code Annotated § 8-33-110. This policy letter states that competent orders for purposes of § 8-33-110 are those signed by the "Commander of the Tennessee State Guard." As provided in Tennessee Code Annotated § 58-1-114, the adjutant general is the commanding general of the military forces of the State of Tennessee, which includes the Tennessee State Guard. Tenn. Code Ann. § 58-1-104. The governor as commander-in-chief is authorized to appoint and commission necessary officers for the Tennessee State Guard and to prescribe rules and regulations "governing the enlistment, organization, administration, pay, equipment, discipline and discharge of the personnel of the state guard." Tenn. Code Ann. § 58-1-405. To our knowledge there is no specific legal authority, either statutory or regulatory, allowing the senior volunteer commander of the Tennessee State Guard to issue orders requiring members of the Tennessee State Guard to engage in "the performance of duty or training in the service of this state" as provided in § 8-33-110.[1] See Tenn. Comp. R. & Regs. 0930 (2011). Nor to our knowledge has the governor or adjutant general appropriately delegated their authority to issue "competent orders" to the senior volunteer commander, or any other person. As noted above, Tennessee law authorizes the governor or adjutant general to order members of the Tennessee State Guard to engage in the performance of duty or training in the service of the State. Thus, it is our opinion that the volunteer commander does not have requisite authority to issue competent orders to require Tennessee State Guard members to engage in the performance of duties or training in the service of the State within the meaning of § 8-33-110 and under which they would be entitled to an unpaid leave of absence.

[1] A member of the Tennessee State Guard may be eligible for workers' compensation and immune from suit only when activated by the governor or adjutant general to active state duty. See Op. Tenn. Att'y Gen. 02-011 (Jan. 10, 2002). Members of the Tennessee State Guard may also be registered as volunteers under Tennessee Code Annotated § 8-42-101(3)(B) by the adjutant general, as head of the Military Department, for purposes of eligibility for immunity from suit. See Op. Tenn. Att'y Gen. 05-112 (July 18, 2005).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

DIANNE STAMEY DYCUS
Deputy Attorney General

Requested by:
Fred R. Denson
General Counsel
Military Department of Tennessee
Office of the Adjutant General
Houston Barracks
P.O. Box 41502
Nashville, TN 37204-1502