Is a New York school district employee on non-active military reservist status entitled to military leave when he voluntarily attends funerals of retired military personnel and veterans?

Plain-English summary

A Tonawanda City School District employee belonged to the Naval Reserve on non-active status. He had been volunteering to attend funerals of retired military personnel and veterans. The district's counsel asked the AG whether the employee's voluntary funeral honors duty entitled him to military leave under Military Law §§ 242 or 243.

The AG said no.

Section 242 provides paid leave for public employees while engaged in "ordered military duty." The statute defines that term to mean military duty performed pursuant to "orders issued by competent state or federal authority." Voluntary attendance, by definition, isn't done under orders. The duty falls outside § 242.

Section 243 provides unpaid leave for school district employees engaged in "military duty," including reservists mobilized under specific federal laws. The statute expressly excludes "temporary and intermittent gratuitous service in any reserve or auxiliary force." Voluntary funeral honors fit that exclusion. The Appellate Division in Wulff v. Teachers' Retirement Board characterized § 243 as protecting employees who left public employment temporarily for national service or in compliance with draft laws, intending to return. Volunteer funeral honors are not that.

The opinion is narrow. It does not preclude a school district from granting voluntary leave, paid or unpaid, for funeral honors duty as a matter of district policy or collective bargaining. It only concludes that Military Law §§ 242 and 243 do not by themselves require such leave.

Currency note

This opinion was issued in 2003. 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.

Common questions

Q: Why doesn't voluntary funeral honors count as "ordered military duty" under § 242?
A: Because the statute requires the duty to be performed pursuant to orders from competent state or federal authority. Voluntary attendance is by definition not under orders, so it doesn't fit the statutory definition.

Q: What about § 243, which covers a broader range of military duty?
A: Section 243 expressly excludes "temporary and intermittent gratuitous service in any reserve or auxiliary force." Volunteer funeral honors are temporary, intermittent, and gratuitous. They fit the exclusion.

Q: Does federal military funeral honors duty (10 U.S.C. § 1491) make a difference?
A: The opinion does not address federal authority directly. The AG's analysis focused on whether § 242 or § 243 by their terms covered the activity. If a reservist were activated under federal authority to provide funeral honors, the activation orders might convert it to "ordered military duty," but voluntary participation does not.

Q: Can a school district still grant leave for funeral honors duty even though it's not required?
A: Yes, as a matter of policy or collective bargaining agreement. The opinion only addresses statutory entitlement under Military Law §§ 242 and 243. It does not limit a district's voluntary choices.

Q: What's the underlying purpose of § 243?
A: Wulff v. Teachers' Retirement Board described it as protecting public employees who leave their jobs temporarily to serve in response to national need or to comply with draft laws, with the intent to return. Volunteer funeral honors don't fit that purpose.

Background and statutory framework

Military Law § 242 deals with paid leave for public employees engaged in ordered military duty. § 242(1)(b) defines "ordered military duty" as "[a]ny military duty performed in the service of the state or of the United States . . . pursuant to orders issued by competent state or federal authority." § 242(2) entitles the employee to a leave of absence. § 242(5) entitles the employee to be paid salary or other compensation during the leave.

Military Law § 243 deals with unpaid leave from certain public employments (including school districts) for "military duty." § 243(1)(b) defines "military duty" to include mobilized reserve service under specific federal laws but to exclude "temporary and intermittent gratuitous service in any reserve or auxiliary force."

Together the two provisions protect public employees facing the standard mobilization or activation scenarios. They do not reach voluntary, non-ordered, intermittent service like volunteer funeral honors duty.

Citations and references

Statutes:

• Military Law § 242 (paid leave for ordered military duty)
• Military Law § 242(1)(b) (definition of ordered military duty)
• Military Law § 242(2) (leave entitlement)
• Military Law § 242(5) (paid leave)
• Military Law § 243 (unpaid leave for military duty)
• Military Law § 243(1)(b) (exclusion for temporary, intermittent, gratuitous reserve service)

Cases:

• Wulff v. Teachers' Retirement Board of City of New York, 27 A.D.2d 929 (1st Dep't 1967), aff'd 21 N.Y.2d 802 (1967) (§ 243 purpose)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-7_pw.pdf

Original opinion text

MILITARY LAW §§ 242, 243.

Voluntary attendance at the funerals of retired military personnel or veterans by an employee of a school district who is a non-active military reservist does not constitute "ordered military duty" within the meaning of Military Law § 242 or the performance of "military duty" within the meaning of section 243.

July 21, 2003

Chris G. Trapp, Esq.
Bouvier & O'Connor, LLP
Main Place Tower
350 Main Street, Suite 1400
Buffalo, New York 14202-1344

Informal Opinion
No. 2003-7

Dear Mr. Trapp:

In your capacity as counsel for the Tonawanda City School District, you have requested an opinion regarding Military Law §§ 242 and 243. An employee of the school district who is a member of the naval reserve on non-active status has been volunteering to attend the funerals of retired military personnel and veterans. Your question is whether the employee's voluntary attendance at such funerals constitutes "military duty," making him eligible for leaves of absence under Military Law §§ 242 or 243. For the reasons below, we believe that it does not.

Analysis

A. Military Law § 242

Military Law § 242(2) provides as follows:

Every public officer or employee shall be entitled to absent himself and shall be deemed to have a leave of absence from his duties or services as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.

Every public officer or employee is entitled to be paid his salary or other compensation for periods of absence while engaged in the performance of "ordered military duty." Military Law § 242(5).

Military Law § 242(1)(b) defines "ordered military duty," in pertinent part, as follows:

Any military duty performed in the service of the state or of the United States, including but not limited to attendance at any service school or schools conducted by the armed forces of the United States, by a public officer or employee as a member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States, pursuant to orders issued by competent state or federal authority, with or without the consent of such public officer or employee.

(Emphasis added).

"Ordered military duty," therefore, presupposes orders issued by competent state or federal authority. We conclude that the voluntary attendance at the funerals of retired military personnel and veterans by a public employee does not fall within the provisions of section 242 because it is not military duty performed pursuant to orders issued by competent state or federal authority.

B. Military Law § 243

Military Law § 243 provides that certain public officers or employees, including employees of school districts, are entitled to unpaid leaves of absence from their positions while engaged in the performance of military duty and reinstatement to their positions upon their return. While the definition of "military duty" in section 243 includes military reservists mobilized under specific federal laws not applicable here, it specifically excludes "temporary and intermittent gratuitous service in any reserve or auxiliary force." Military Law § 243(1)(b). Moreover, section 243 was intended to protect public employees who left their public employment temporarily in response to national need or in order to comply with draft laws, but who intended to return to their careers upon release from military duties. Wulff v. Teachers' Retirement Board of City of New York, 27 A.D.2d 929, 930 (1st Dep't 1967), aff'd, 21 N.Y.2d 802 (1967).

In the circumstances that you describe, the employee is not a mobilized reservist; nor is he requesting a leave of absence to respond to a national need or to comply with draft laws. Accordingly, we conclude that voluntary attendance at military funerals by a non-active military reservist does not fall within the definition of "military duty" and thus does not entitle the employee to an unpaid leave of absence under Military Law § 243.

Conclusion

In conclusion, therefore, we are of the opinion that voluntary attendance at funerals of retired military personnel or veterans by an employee of the school district who is a non-active military reservist does not constitute "ordered military duty" within the meaning of Military Law § 242 or the performance of "military duty" within the meaning of section 243.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions

By: ______
WILLIAM E. STORRS
Assistant Solicitor General