ENDORSEMENT OF MEMBERSHIP IN NON-FEDERAL ENTITIES

Introduction

 I have been asked by the National Guard Association of the United States (NGAUS) to clarify and explain

the applicable federal law about endorsement of membership in non-federal entities like NGAUS. I will

set forth what, I believe, is the governing law, explain what it means to me, and offer some examples of

 activities that I believe, are and are not permissible.

Purpose

NGAUS wants to pro-actively increase its membership, while, at the same time, adhere to applicable law.

Also, NGAUS realizes that because its own leadership changes, new TAGs and senior leaders constantly emerge, and new National Guard officers are accessed, there should be consistent guidance for existing and future generations of permissible activities to endorse membership in NGAUS. Lawful activities endorsing membership should be explained, published, and used to promote membership which is the lifeblood of any non-federal entity like NGAUS.

In reviewing some of the published guidance on this subject and in speaking with some of the Guard's senior leaders, it appears that some of this guidance is conflicting and sometimes misstates or incorrectly interprets the law. This, in turn, has created confusion and uncertainty among senior Guard leaders about what they may or may not do to endorse membership in organizations like NGAUS. And this, in turn, has stifled their legitimate actions to endorse membership. This paper, and what it requests, is an attempt to develop a uniform, consistent approach for senior Guard leaders to lawfully endorse membership in NGAUS.

TAGs may wish to send this paper to their full-time and traditional Guard counsel for review and comment, as this paper does not cover applicable state law on this subject.

I have written this paper to:

1. Share my thoughts with you professionally and collegially;

2. Request your comments, collectively, through your full-time state counsel or TAG on;

                a) whether I have correctly stated and interpreted the federal law cited;

                b) Whether that is the applicable law, or if not, what I have omitted;

3. Request your comments on my conclusions about permissible and impermissible activities of senior

Guard leaders to endorse membership; and

4.  Request you identify your applicable state law that supports, limits, or invalidates these conclusions.

In sum, please tell me where I am wrong and why. If you agree with my conclusions under federal law, but your state law limits or invalidates them, please tell me that, as another state may not have a law like yours. While your agreement with my interpretation of federal law is helpful, I will assume that no comment by your state means you agree with my interpretation of federal law and your state has no law that invalidates my conclusions.

Our overall purpose is to collect your responses and see if uniform or consistent guidance emerges, and to share it with you through the TAGs. I emphasize that NGAUS has requested this study to develop lawful ways to increase its membership.  Requests for non-attribution will be honored when information collected is shared.

Applicable Federal Law

DoDD §5500.7-R is the JER and is divided into chapters and sections. The key ones are re-printed verbatim for your ease of reference.

3-208 - Distributing Information:

In accordance with public affairs regulations, official channels may be used to notify DoD employees of events of common interest sponsored by non-federal entities.

Supplementing JER 3-208, AR 25-1, ¶6-1 e authorizes personal use of government communications systems, to include brief internet searches and e-mail use that are of reasonable duration and frequency. These limitations require the use not adversely affect performance of official duties by the employee or employee's organization; and that government communications systems are used, whenever possible, during the employee's personal time, such as during lunch, break, and other off-duty periods.

1-211 - DoD Employee (a-g):

The only applicable sections for this paper are § (d) and § (e).

§d. Any Reserve or National Guard member on active duty under orders issued pursuant to Title 10, United States Code.

§e. Any Reserve or National Guard member while performing official duties or functions under the authority of either Title 10 or Title 32, United States Code, or while engaged in any activity related to the performance of such duties or functions, including any time the member uses his Reserve or National Guard of the United States title or position, or any authority derived therefrom.

§ 3-209 - Endorsement:

Endorsement of a non-federal entity, event, product, service, or enterprise may be neither stated nor implied by DoD or DoD employees in their official capacities and titles, positions, or organization names may not be used to suggest official endorsement or preferential treatment of any non-federal entity except those listed in  subsection 3-210, below.

§ 3-210 - Fundraising and Membership Drives:

a. DoD employees shall not officially endorse or appear to endorse membership drives or fundraising for any non-federal entity except the following organizations which are not subject to the provisions of subsection 3-211 of this Regulation, below:

(1) - (6)

(7) For National Guard members who are "DoD employees" as defined in subsection 1-211, above, charitable, community, or civic organizations, as identified in 32 U.S.C. 508 and DoD Directive 1100.20 (references (l) and (m)), when approved by the head of the DoD Component command or organization after consultation with the DAEO, or designee; provided, however, that no member of the National Guard may be ordered, coerced, or compelled to participate in or contribute to any fundraising or membership drives.

Discussion

The net of these sections appears to be that if a person is neither in Title 10 nor 32 status, and the activity is not related to duties performed in either of these statuses, and a person does not use his federal National Guard of the United States title, position, or authority, then that section of the JER otherwise prohibiting the endorsement of membership in NGAUS does NOT APPLY.

TAGs and other senior leaders in the state usually support NGAUS, individually. If they encourage their officers to join, membership will likely increase. Obviously, there can be no adverse consequences to any officer for not joining. The question is what may TAGs and senior leaders do, in compliance with applicable law, to make officers in this state aware of what good things NGAUS does for the Guard ,and to encourage dues-paying membership.

The thread running throughout the lawful endorsement of membership in these organizations is that the endorser's personal association with the organization should not be perceived as an official endorsement.

Permitted Activities

I submit to you that the following are permitted activities for the reasons and authority stated:

                1. Government computers at the workplace may be used, preferably and prudently during personal time, such as lunch, breaks, and off-duty periods, to access information on the internet about NGAUS' upcoming events or activities (JER §3-208; AR 25-1).

                2. The JER only prohibits a "DoD employee's" endorsement of membership in non-federal entities like NGAUS. under JER 1-211, a Guard member is only a "DoD employee" while in Title 10 or 32 status, or, if not in these statuses, while doing a related activity to duty under these statuses, or if he/she uses their federal (ANGUS or ARNGUS) title, position, or authority. Thus, when TAGs, commanders , and other senior leaders are not in title 10 or 32 status, and the activity (endorsing membership) does not relate to either of those statuses  and they do not use their federal (ARNGUS or ANGUS) title, position, or authority to do the activity (endorsing membership), the JER prohibition does not apply to them as they are not "DoD employees." Thus, TAGs and senior Guard leaders, in these situations, and non-military statuses, may:

                                a. Speak at a commander's call or other unit function and encourage their officers to join NGAUS because of the good work it does for the Guard. The prudent TAG and senior leader will know that if the function is at a government installation (as it usually is), or during the duty day (as is common), the primary purpose of the function should not be to endorse membership in non-federal entities, and that only a small percentage of the leader's remarks will be devoted to endorsing membership in NGAUS. But with these things in mind, in these situations, TAGs and senior officers may proactively suggest that their officers "join NGAUS" since that suggestion does not relate to tile 10 or 32 duty;

                                b. Send a letter to all officers in the state, mailed to their home address, telling them about the benefits of NGAUS and what it does, and endorsing their membership in NGAUS.

                                c. Publish the leaders' participation in NGAUS activities, along with their other military or community -related activities in the state's Guard or unit media, whenever these occur;

                                d. Encourage their officers' participation in NGAUS-sponsored Officer Professional Development by attending NGAUS-sponsored events like the National Convention;

                                e. Encourage leadership at all levels of the state's Guard units to attend local, state , and national NGAUS-sponsored activities;

                                f. Publicize in the state Guard or unit media a NGAUS-sponsored essay contest on how senior Guard leaders may lawfully promote membership in NGAUS.

This list of permitted activities to endorse membership is not exhaustive and I invite your thoughts on what else may lawfully be done to increase NGAUS membership. As you know, some states, perennially, have 100% membership; others, perennially, have much less. We are trying to change that in the right way, and need your help so that your TAGs and other leaders may lawfully promote membership.

Prohibited Activities

Accordingly, I realize that the following may not (and should not) be done by unit leadership:

1.  Written lists publishing in any form, anywhere, who has paid or not paid their dues (JER 3-210);

2.  Announcements at formation or at any unit function who has not yet paid their dues (JER 3-210);

3.  Special treatment for those who have paid their dues (JER 3-210);

4. Publishing membership statistics to influence nonmembers;

5. Publishing membership goals for the unit;

6. Incentives for joining;

7.  Statements in Officer Evaluation Reports (OERs) about support, or the lack of support, for NGAUS (JER  2-310);

8.  One-on-one or private counseling why officers should join NGAUS or pay dues (JER  2-310);

9.  Unit's  use of the names of its organization to endorse NGAUS itself or membership in NGAUS over another non-federal entity (JER  2-309).

10.  AGR members may not do any of the "permitted activities" suggested above (JER 1-211; 2-309; 3-210).

11. While JER 3-210(7)'s proscription against Guard members being ordered, compelled, or coerced to pay dues or contribute to fundraising efforts might seem, to some, to permit junior officers or even enlisted members to "sell" NGAUS to officers senior to them, I believe they are wrong. First under JER 3-209, ALL DoD employees (if the definition is met) are prohibited from officially endorsing or appearing to endorse membership. That means if the "seller" is a DoD employee, the prohibition applies whether the targeted audience is junior, senior, or equal or equivalent in grade or rank to the "seller." Second, while, superficially, it may seem there is no likelihood of violating JER 3-210's prohibition against ordering, compelling, or coercing participation in fundraising or membership drives by junior officers to senior officers, it is not hard to see that who the DoD employee junior officer is or works for, may create the perception of the targeted officers being "ordered, coerced or compelled."

Again, NGAUS wants to do this the right way.  I thank you for sharing your expertise, and consistent with your other duties, I thank you in advance for doing this as soon as you are able.

                                                                                                Sincerely,

                                                                                                Robert I. Gruber, Major General (ret),  USAFR

                                                                                                Sixth ANG Assistant to TJAG, USAF