State of Arizona
House of Representatives
First Regular Session
HOUSE BILL 2274
Providing for transferring and renumbering; repealing title 26, chapter 1, article 1.1, Arizona Revised Statutes; Amending sections 26-152 and 26‑153, Arizona Revised Statutes; repealing section 26-183, Arizona Revised Statutes; amending sections 26-231, 26-303, 26-305.01, 26‑1067, 26-1135 and 35-192, Arizona Revised Statutes; repealing section 43-619, Arizona Revised Statutes; making an appropriation; relating to the department of emergency management and military affairs.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Transfer and renumber
Section 26-113, Arizona Revised Statutes, is transferred and renumbered for placement in title 26, chapter 1, article 1, Arizona Revised Statutes, as section 26-104.
Sec. 2. Repeal
Title 26, chapter 1, article 1.1, Arizona Revised Statutes, is repealed.
Sec. 3. Section 26-152, Arizona Revised Statutes, is amended to read:
26-152. National guard fund; camp Navajo fund; definition
A. The national guard fund is established consisting of monies appropriated to the national guard. The adjutant general shall administer the fund. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35‑313, and monies earned from investment shall be credited to the fund. Monies in the fund are continuously appropriated to the national guard and are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
B. The fund may be drawn upon on by the adjutant general, or the adjutant general's designee, for any purpose commensurate with the purpose and mission of the national guard.
C. The amount of the national guard fund appropriated for capital outlay or improvements shall be exempt from the provisions of section 35‑190 relating to lapsing appropriations.
D. All proceeds from the rental or use of armories received by the general staff pursuant to the authority of section 26‑115, subsection E The adjutant general is authorized to utilize any national guard facility for commercial purposes. All proceeds from commercial activities shall be deposited, pursuant to sections 35‑146 and 35‑147, in a separate account in the national guard fund, and the monies are continuously appropriated to the department for the operation, maintenance of armories, support and capital improvements of any national guard facility. Monies in the account are exempt from the provisions of section 35‑190 relating to lapsing of appropriations. , except that any monies remaining in the account for one hundred eighty days after the end of the fiscal year in which they were received revert to the state general fund.
E. A camp Navajo fund is established for the operation, maintenance, capital improvements and personal services necessary for the national guard to operate a regional training site and storage facility at Bellemont. The fund consists of monies received from storage of commodities and services provided as approved by the adjutant general. The adjutant general shall administer the fund. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35‑313, and monies earned from investment shall be credited to the fund. Monies in the fund are continuously appropriated to the national guard and are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
F. After all budgeted operational, maintenance, support and capital improvement requirements are met at Camp Navajo, the adjutant general may utilize remaining monies in the Camp Navajo fund to provide for the operation, maintenance, support and capital improvements of any national guard facility.
G. For the purposes of this section, "Facility" means all property under the control and administration of the adjutant general.
Sec. 4. Section 26-153, Arizona Revised Statutes, is amended to read:
26-153. Morale, welfare and recreational fund; sources of monies; exemptions
A. A The morale, welfare and recreational fund is established as a state fund for morale, welfare and recreational activities and support personnel for the national guard. Support personnel shall be employees of the fund and not of this state. The adjutant general shall administer the fund pursuant to regulations of the general staff, subject to approval of the governor. Monies shall be deposited, pursuant to sections 35‑146 and 35‑147, in the fund from the following sources:
1. Monies transferred by the director of the department of transportation pursuant to section 28‑2415.
2. Monies deposited pursuant to section 26‑102, subsection B, paragraph 8 or monies generated from recycling activities consistent with federal recycling policies.
3. Any other nonappropriated monies received by the national guard from state and federal revenue producing military activities relating to morale, welfare and recreation.
B. Monies in the fund are from nonappropriated sources, are not subject to legislative appropriation and are exempt from the provisions of section 35‑190 relating to lapsing of appropriations. The adjutant general may establish bank accounts for monies withdrawn from the fund to administer the operations of the morale, welfare and recreational programs.
C. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35‑313, and monies earned from investment shall be credited to the fund.
D. Expenditures of monies in the fund are subject to general staff regulations rules adopted by the department of emergency and military affairs and are exempt from the procurement code requirements of title 41, chapter 23.
Sec. 5. Repeal
Section 26-183, Arizona Revised Statutes, is repealed.
Sec. 6. Section 26-231, Arizona Revised Statutes, is amended to read:
26-231. Acquisition of property by national guard; surplus property of municipalities; acquisition by eminent domain; purchase; rent or lease; armory property fund
A. A county, city or town may sell, lease or otherwise grant to the state for national guard purposes surplus real or personal property owned by it. The determination of the governing body of the county, city or town that the property is surplus is final, and the property may be sold to the state for a consideration agreed upon on between the governing body and the general staff adjutant general or the adjutant general's designee, or for a nominal consideration. The sale shall be conducted without formalities, advertisement for bids or consideration of bids by other persons.
B. The governor may exercise the power of eminent domain to obtain from individuals, corporations or municipalities lands appropriate for national guard purposes.
C. The national guard may purchase real property, buildings and appurtenances from any person, corporation or municipal corporation with funds monies appropriated for that purpose.
D. The national guard may lease or rent real property, buildings and appurtenances with funds monies appropriated for that purpose.
E. The national guard may sell surplus armory real property and deposit the proceeds in a state armory property fund established for that purpose. Monies in the fund are continuously appropriated to the national guard for the construction and capital improvement of national guard armories, subject to the approval of the joint committee on capital review. On notice from the adjutant general, the state treasurer shall invest and divest monies in the fund as provided by section 35‑313, and monies earned from investment shall be credited to the fund.
Sec. 7. Section 26-303, Arizona Revised Statutes, is amended to read:
26-303. Emergency powers of governor; termination; authorization for adjutant general; limitation
A. During a state of war emergency, the governor may:
1. Suspend the provisions of any statute prescribing the procedure for conduct of state business, or the orders or rules of any state agency, if the governor determines and declares that strict compliance with the provisions of any such statute, order or rule would in any way prevent, hinder or delay mitigation of the effects of the emergency.
2. Commandeer and utilize any property, except for firearms or ammunition or firearms or ammunition components or personnel deemed necessary in carrying out the responsibilities vested in the office of the governor by this chapter as chief executive of the state and thereafter the state shall pay reasonable compensation therefor as follows:
(a) If property is taken for temporary use, the governor, within ten days after the taking, shall determine the amount of compensation to be paid therefor. If the property is returned in a damaged condition, the governor, within ten days after its return, shall determine the amount of compensation to be paid for such damage.
(b) If the governor deems it necessary for the state to take title to property under this section, the governor shall then cause the owner of the property to be notified thereof in writing by registered mail, postage prepaid, and then cause a copy of the notice to be filed with the secretary of state.
(c) If the owner refuses to accept the amount of compensation fixed by the governor for the property referred to in subdivisions (a) and (b), the amount of compensation shall be determined by appropriate proceedings in the superior court in the county where the property was originally taken.
B. During a state of war emergency, the governor shall have complete authority over all agencies of the state government and shall exercise all police power vested in this state by the constitution and laws of this state in order to effectuate the purposes of this chapter.
C. The powers granted the governor by this chapter with respect to a state of war emergency shall terminate if the legislature is not in session and the governor, within twenty‑four hours after the beginning of such state of war emergency, has not issued a call for an immediate special session of the legislature for the purpose of legislating on subjects relating to such state of war emergency.
D. The governor may proclaim a state of emergency which shall take effect immediately in an area affected or likely to be affected if the governor finds that circumstances described in section 26‑301, paragraph 15 exist.
E. During a state of emergency:
1. The governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter.
2. The governor may direct all agencies of the state government to utilize and employ state personnel, equipment and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency. The governor may direct such agencies to provide supplemental services and equipment to political subdivisions to restore any services in order to provide for the health and safety of the citizens of the affected area.
F. The powers granted the governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the governor or by concurrent resolution of the legislature declaring it at an end.
G. No provision of this chapter may limit, modify or abridge the powers vested in the governor under the constitution or statutes of this state.
H. If authorized by the governor, the adjutant general has the powers prescribed in this subsection. If, in the judgment of the adjutant general, circumstances described in section 26‑301, paragraph 15 exist, the adjutant general may:
1. Exercise those powers pursuant to statute and gubernatorial authorization following the proclamation of a state of emergency under subsection D of this section.
2. Incur obligations of twenty one hundred thousand dollars or less for each emergency or contingency payable pursuant to section 35‑192 as though a state of emergency had been proclaimed under subsection D of this section.
I. The powers exercised by the adjutant general pursuant to subsection H of this section expire seventy‑two hours after the adjutant general makes a determination under subsection H of this section.
J. Pursuant to the second amendment of the United States Constitution and article II, section 26, Constitution of Arizona, and notwithstanding any other law, the emergency powers of the governor, the adjutant general or any other official or person shall not be construed to allow the imposition of additional restrictions on the lawful possession, transfer, sale, transportation, carrying, storage, display or use of firearms or ammunition or firearms or ammunition components.
K. Nothing in this section shall be construed to prohibit the governor, the adjutant general or other officials responding to an emergency from ordering the reasonable movement of stores of ammunition out of the way of dangerous conditions.
Sec. 8. Section 26-305.01, Arizona Revised Statutes, is amended to read:
26-305.01. Nuclear emergency plan; duties of division and director
A. The division is designated the lead agency and has the overall and primary responsibility for development of a state plan for off‑site response to an emergency caused by an accident at a commercial nuclear generating station.
B. The director shall develop the plan by appointing a coordinator and response group and working in consultation with designated representatives from the following:
1. Radiation regulatory agency.
2. Arizona department of agriculture.
3. Department of health services.
4. Department of public safety.
5. Department of transportation.
6. Division of military affairs within the department of emergency and military affairs.
7. 6. Arizona commerce authority.
8. 7. Arizona corporation commission.
9. 8. Department of environmental quality.
10. 9. Any other agencies or offices deemed necessary by the division of emergency management.
Sec. 9. Section 26‑1067, Arizona Revised Statutes, is amended to read:
26-1067. Court of military appeals; members; terms; compensation; duties; review; procedures
A. The Arizona court of military appeals is established and is located for administrative purposes only in the department of emergency and military affairs. The court shall consist of five judges appointed by the governor on the recommendation of the adjutant general with the advice of the state judge advocate for a term of six years. Initial appointments shall be staggered. The term of office for all successor judges is six years, but any judge appointed to fill a vacancy occurring before the expiration of the term for which his the judge's predecessor was appointed shall be appointed only for the unexpired term of his the predecessor. Not more than three judges of the court may be appointed from the same political party. Judges may succeed themselves in office. A person is eligible for appointment to this court who, in addition to the requirements of article VI, section 22, Constitution of Arizona, has at least five years' experience as a judge advocate in the national guard or armed forces of the United States.
B. The governor shall designate one of the judges to act as chief judge. The chief judge has precedence and shall preside at any session which he the judge attends. The other judges have precedence and shall preside according to the seniority of their appointments. Judges whose commissions bear the same date have precedence according to seniority in age.
C. The court shall sit in panels of no less than three judges to be selected by the presiding judge.
D. Judges of the Arizona court of military appeals may be removed by the governor, on notice and hearing, for neglect of duty or malfeasance in office or for mental or physical disability but for no other cause.
E. The judges of the Arizona court of military appeals, while actually sitting in review of a matter placed under their jurisdiction by this chapter, and while traveling to and from such session, are eligible to receive compensation equal to that compensation prescribed for the judges of the Arizona court of appeals, as provided by law, together with the actual cost of meals, lodging and travel expense or the amount set by law if private transportation is utilized. Payment shall be made from monies appropriated to the national guard.
F. The Arizona court of military appeals has exclusive appellate and special action jurisdiction, in appeals filed by this state pursuant to section 26‑1062, or on petition of an accused, to hear and review the record in all general and special court‑martial cases and all summary court‑martial cases in which a sentence of confinement has been adjudged.
G. The accused has thirty calendar days from the time of receipt of actual notice of the final action on his the case by the convening authority under section 26‑1060 to petition the Arizona court of military appeals for review. The court shall act on a petition within sixty calendar days after receipt. If the court fails or refuses to grant a petition for review, the final action of the convening authority is deemed approved. Notwithstanding any other provision of this chapter, if the court grants a hearing of an appeal, the court may grant a stay or defer service of the sentence of confinement or any other punishment until the court's final decision on the case.
H. The Arizona court of military appeals may act only with respect to the findings and sentence as finally approved and ordered executed by the convening authority.
I. If the Arizona court of military appeals sets aside the findings and sentence, it may order a rehearing, except if the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed. After the Arizona court of military appeals has acted on the case, the record shall be returned to the state judge advocate who shall notify the convening authority of the court's decision. If further action is required, the state judge advocate shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, the state judge advocate may dismiss the charges.
J. Decisions of the Arizona court of military appeals are subject to review by the Arizona supreme court by a petition for review in accordance with the Arizona rules of criminal procedure and the rules of the supreme court of Arizona.
K. With monies appropriated to the national guard, the adjutant general may employ persons necessary to assist the Arizona court of military appeals in its duties.
L. The adjutant general staff with the approval of the governor shall adopt rules necessary for the administration of the court. The accused has a right to appointed military counsel for his an appeal.
Sec. 10. Section 26‑1135, Arizona Revised Statutes, is amended to read:
26-1135. Courts of inquiry
A. Courts of inquiry may be convened to investigate any matter by any person authorized to convene a general court‑martial or by any other person designated by the adjutant general for that purpose, whether or not the persons involved have requested such an inquiry.
B. A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.
C. Any person who is subject to this chapter and whose conduct is subject to inquiry shall be designated as a party. Any person who is subject to this chapter or employed by the division of military affairs and who has a direct interest in the subject of inquiry may be designated as a party on request to the court. Any person designated as a party shall be given due notice and may be present, may be represented by counsel, may cross‑examine witnesses and may introduce evidence.
D. Members of a court of inquiry may be challenged by a party but only for cause stated to the court.
E. The members, counsel, reporter and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.
F. Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts‑martial.
G. Courts of inquiry shall make findings of fact but shall not express opinions or make recommendations unless required to do so by the convening authority.
H. Each court of inquiry shall keep a record of its findings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.
Sec. 11. Section 35-192, Arizona Revised Statutes, is amended to read:
35-192. Authorization for declaration of disaster; authorization for liabilities and expenses; priorities and limitations; review and report of expenditures
A. The governor may declare an emergency arising from such major disasters as provided in this section and incur liabilities therefor, regardless of whether or not the legislature is in session.
B. When the governor, or the director of the division of emergency management in the department of emergency and military affairs pursuant to section 26‑303, subsection H, determines that a contingency or disaster so justifies, and declares an emergency, specific liabilities and expenses provided for in this section are authorized to be incurred against and to be paid as claims against the state from unrestricted monies from the general fund to mitigate and meet contingencies and emergencies arising from:
1. Invasions, hostile attacks, riots or insurrections.
2. Epidemics of disease or plagues of insects.
3. Floods or floodwaters.
4. Acts of God or any major disaster.
5. Wildland fires, but only after all necessary authorizations under section 37‑623.02 are exhausted.
C. When authorized by the governor, specific liabilities and expenses provided for in this section may be incurred against and may be paid as claims against the state from unrestricted monies from the general fund to meet contingencies and emergencies arising from incidents relating to hazardous materials as defined in section 26‑301 and search or rescue operations conducted pursuant to section 11‑251.02, section 11‑441, subsection C or section 26‑306 subject to the limitations provided in section 35‑192.01. Within ninety days after monies are awarded under this section, the department of emergency and military affairs shall post in a prominent location on the department's official website the amount of monies awarded under this section, who received the monies and how the monies were spent.
D. Liabilities and expenses authorized under subsection B of this section may be incurred for any of the emergencies or contingencies prescribed in subsection B of this section in the following order of priority:
1. Reimbursement for expenses incurred to combat a menace to the health, lives or property of any considerable number of persons of the state, or to property of the state or its political subdivisions.
2. Reimbursement for expenses incurred to repair damage to any property of the state.
3. Reimbursement for expenses incurred to repair damage to any property of the political subdivisions of the state.
4. Reimbursement for expenses incurred in search or rescue operations.
5. Reimbursement for expenses incurred in emergency or disaster recovery activities or in matching federal disaster recovery programs.
6. Reimbursement for expenses for property loss mitigation measures or to match federal property loss mitigation programs.
E. The auditor of the department of emergency and military affairs shall review liabilities incurred and expenditures made under this section and report to the state emergency council at ninety-day intervals during the emergency and conduct a final review of each emergency within ninety days after the termination of the emergency. The state emergency council shall make a written report not later than August September 1 of each year to the legislature of the actions of the state emergency council during the preceding fiscal year, including an itemized statement of expenditures for each emergency during the year. The department of emergency and military affairs shall post the report in a prominent location on the department's official website.
F. All liabilities incurred under this section shall be subject to the following limitations:
1. No liability shall be incurred against the monies authorized without the approval of the governor, or the adjutant general pursuant to section 26‑303, subsection H, for each contingency or emergency.
2. Incurring of liabilities in excess of two hundred thousand dollars in any single disaster or emergency shall not be made without consent of a majority of the members of the state emergency council.
3. The aggregate amount of all liabilities incurred under this section shall not exceed four million dollars for any fiscal year beginning July 1 through June 30. Monies authorized for disasters and emergencies in prior fiscal years may be used in subsequent fiscal years only for the disaster or emergency for which they were authorized. Monies authorized for disasters and emergencies in prior fiscal years, and expended in subsequent fiscal years for the disaster or emergency for which they were authorized, apply toward the four million dollar liability limit for the fiscal year in which they were authorized.
4. Notwithstanding the limitations in paragraph 3 of this subsection, monies that were previously obligated but not used for a declared emergency or disaster may be reallocated to an outstanding obligation for another declared emergency or disaster and shall remain available for expenditure for the outstanding obligation. The reallocation of monies pursuant to this paragraph does not apply toward the four million dollar liability limit of the fiscal year to which the monies were reallocated or in which the monies are spent.
5. An obligation of monies under this section may be made only when one or more of the following conditions exist:
(a) No appropriation or other authorization is available to meet the contingency or emergency.
(b) An appropriation is insufficient to meet the contingency or emergency.
(c) Federal monies available for such contingency or emergency require the use of state or other public monies.
G. The director of the division of emergency management in the department of emergency and military affairs shall develop rules for administering the monies authorized for liabilities under this section, subject to approval by the governor.
Sec. 12. Repeal
Section 43-619, Arizona Revised Statutes, is repealed.
Sec. 13. Transfer of monies
All unexpended and unencumbered monies remaining in the national guard relief fund established by section 26-183, Arizona Revised Statutes, as repealed by this act, are transferred to the department of veterans' services on the effective date of this act. Using the rules or policies for grants adopted pursuant to section 41-608, Arizona Revised Statutes, the department of veterans' services shall distribute the monies transferred pursuant to this section to a nonprofit organization that provides financial assistance to Arizona national guard members and their families.