OKPOLICY.ORG
David Dickerson is a retired military officer who served in the active component, Reserve, and National Guard. He now works as an advocate for veterans at the local, state, and national level.
During the last thirteen years of sustained war in Afghanistan and Iraq, National Guard and Reserve units and personnel have been deployed with unprecedented frequency to augment the active component forces. Thousands of Oklahoma’s National Guard and Reserve service members have served with distinction while having their “normal” lives disrupted. Some of those mobilized and deployed in support of Operation Enduring Freedom and Operation Iraqi Freedom also held elected and appointed offices in state and local governments.
Article II, Section 12 of the Oklahoma Constitution presently states:
No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State.
Examples of positions or trust or profit include:
- Legislators;
- State Judges;
- District Attorneys;
- Statewide elected officials, such as the Governor, Lieutenant Governor, Attorney General and Treasurer;
- Members of State Boards, Agencies and Commissions, and
- Many County Officers.
When not mobilized and during the normal training periods– the familiar one weekend per month and two weeks per year – National Guard members are under the command of the Governor. When National Guard service members are mobilized for deployment, they are ordered to federal service under Title 10 of the United States Code. Therefore, they hold an office of trust in the federal government. For Oklahomans who both serve in the National Guard or Reserve and hold elected office, this presents a problem. As currently written, the Oklahoma Constitution makes it illegal for them to hold that elected office or any other position of trust in Oklahoma once that service member’s Title 10 federal active duty orders are effective.
In one particular case, the Oklahoma Attorney General cited this section of the state constitution to issue an opinion stating that Osage County District Attorney Rex Duncan, who was called up to service in Afghanistan in 2011, had “vacated” his elected position by accepting Title 10 mobilization. Duncan sued the state for his position and accrued leave and benefits, contending that federal Uniformed Services Employment and Reemployments Rights Act (USERRA) provided him protection. The court ruled in favor of Duncan, with Oklahoma County Special Judge determining that the federal law preempts state law.
State Question 769 will address this situation and similar ones that were impossible for the drafters of Oklahoma’s Constitution to anticipate. SQ 769 will amend Art. II, Sec. 12 to specifically exempt officers and enlisted members of the National Guard, Reserves, and state militia from the prohibition of holding offices in both the state and federal government. This will prevent future challenges to a National Guard member’s or Reservist’s ability to hold his or her elected or appointed office while mobilized for federal duty. It will also prevent potential challenges to the legality of a National Guard member or Reservist to be elected to a seat in Congress and remain a member of the Guard or Reserve. There are several Guard and Reserve members from other states serving in Congress at this time.
This Constitutional amendment will continue Oklahoma’s strong tradition of support for its citizens serving in the National Guard and Reserve. State Question 769 should pass with overwhelming support.
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So who stands in for the Guard,Reserve,Deployed person when deployed for more than two weeks
I think our legislators SHOULD be able to serve in the Guard and Reserves, but SQ 769 adds “any other militia or military force organized under state law.” Many militia groups are organized under the law but do not necessarily have the intent of representing state or federal laws. The Oklahoma Voluntary Militia and the Central Oklahoma Militia are examples that (intentionally or not) may well be included under this question. Do you really want your elected representatives to be toting guns to serve the self-styled 111%?
Should this SQ 769 pass will it allow elected officials to continue to hold their office while on ACTIVE duty? How can a legislator represent his/her district when in a foreign country? He/she must be on the floor of the chamber to vote on bills and participate in floor debate or in committee meetings.
James, Federal law already prohibits active duty military members from holding elected office. For applicability to State and local offices, scroll to the last paragraph below:
“Title 10 U.S.C. Sec. 973. Duties: officers on active duty; performance of civil functions restricted
“(a) No officer of an Armed Force on active duty may accept employment if that employment requires him to be separated from his organization, branch, or unit, or interferes with the performance of his military duties.
“(b)(1) This subsection applies–
(A) to a Regular officer of an Armed Force on the active-duty list (and a Regular officer of the Coast Guard on the active duty promotion list);
(B) to a retired Regular officer of an Armed Force serving on active duty under a call or order to active duty for a period in excess of 270 days; and
(C) to a Reserve officer of an Armed Force serving on active duty under a call or order to active duty for a period in excess of 270 days.
(2)(A) Except as otherwise authorized by law, an officer to whom this subsection applies may not hold, or exercise the functions of, a civil office in the Government of the United States–
(i) that is an elective office;
(ii) that requires an appointment by the President by and with the advice and consent of the Senate; or
(iii) that is a position in the Executive Schedule under sections 5312 through 5317 of title 5.
(B) An officer to whom this subsection applies may hold or exercise the function of a civil office in the Government of the United States that is not described in subparagraph (A) when assigned or detailed to that office or to perform those functions.
(3) Except as otherwise authorized by law, an officer to whom this subsection applies may not hold or exercise, by election or appointment, the functions of a civil office in the government of a State, the District of Columbia, or a territory, possession, or commonwealth of the United States (or of any political subdivision of any such government).