Opn. No.

Hon. Vito J. Castellano Major General Chief of Staff to the Governor Division of Military and Naval Affairs

This is in response to your request for an opinion as to whether National Guard personnel in an inactive duty training or annual training status under US Code, Title 32, §§ 502-505 are "employees" within the definition of section 17 of the Public Officers Law.

Section 17 of the Public Officers Law defines "employee" to include "any person holding a position by election, appointment or employment in the service of the state, whether or not compensated, or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but should not include an independent contractor". (Emphasis added.)

It is clear that National Guard personnel performing training duty under the provisions of US Code, Title 32, §§ 502-505, are not in Federal service. US Code, Title 10, § 3495 also indicates that such persons are not to be considered in Federal service. Moreover, numerous cases have held that members of the National Guard engaged in training procedures or functions are not on active Federal duty. Ursulich v PuertoRico National Guard, 384 F. Supp. 736 (DC for the District of Puerto Rico, 1974); Gross v United States, 177 F. Supp. 766 (EDNY 1959); andSadowski v State, 51 Misc.2d 832 (Ct Cl, 1966).

In contrast, it has also been widely and uniformly held that members of National Guard, when not on active duty, are State employees. Maryland vUnited States, 381 U.S. 41 (1965); Gross v United States, supra; StorerBroadcasting Company v United States, 251 F.2d 268 (5th Cir, 1958), and cases cited therein.

In our opinion, National Guard personnel in an inactive duty training or annual training status under US Code, Title 32, §§ 502-505, are in the "service of the State" and are, therefore, "employees" under the provisions of section 17 of the Public Officers Law.