CHAPTER 14

LEGAL ISSUES IN EMERGENCY MANAGEMENT[^1]

by

William C. Nicholson, Esquire

This chapter provides an overview of the many legal issues involving
emergency management. It explains concept of negligence, and explores
its specific application to emergency management. The chapter examines
relevant sources of federal, state, and local law and immunities. Also
discussed are NFPA 1600 and its evolution toward becoming the legal
standard through EMAP. Legal duties of emergency managers and daily
challenges in such areas of law as torts, contracts, ethics, and human
resources are also covered. Legal aspects of mutual aid, standard
operating procedures, and incident command, including the NRP and NIMS,
are considered in some detail. The chapter explores legal issues in
working with volunteers, planning responsibilities, and declaring an
emergency, as well as response and recovery issues.

#### **Introduction**

Local authorities face many decisions in connection with emergency
management activities. Unfortunately, the essential nature of
emergencies and disasters is that something is going wrong or is about
to go wrong. Whether the event springs from an occurrence or imminent
threat of widespread or severe damage, injury, or loss of life or
property resulting from any natural or manmade cause,[^2] the choices
that must be made by local officials frequently are not easy to make.
Indeed, often the options from which a course of action must be selected
are all unpleasant. Sometimes, different plaintiffs will see the same
action as wrong for the opposite reasons.

For example, a flood threatens a city and limited resources mean that
one of two residential areas may be preserved through sandbagging and
diking. One region has many low-income residents and property values
that are minimal. The other area is a wealthy enclave with extremely
high property values. Assuming all residents can be safely evacuated,
the choice that must be made is still not a happy one. Whether the
selection is to preserve the higher property values or the greater
number of residences, many citizens will be dissatisfied that their
neighborhood was not saved. In this case, as with many emergency
management decisions, either group may have the basis for a lawsuit. The
legal challenge for leaders of local government, as for emergency
management as a whole, lies in taking proactive steps to avoid bad
choices like the one discussed above. Of course, not every bad choice
can be prevented. Still, with close involvement of legal counsel in all
phases of emergency management, the situation may be vastly improved.
This approach is known as "litigation mitigation" (Nicholson, 2003a).

Litigation mitigation has three goals:

-   reduced exposure to legal claims;

-   improved life safety; and

-   enhanced property protection.

Lawyers are trained to look at the first of these three factors as their
main concern. A leader of local government must view all three as of
fundamental importance. Actually, reduction of legal exposure naturally
results in higher life safety and property protection.

The fact is that the array of laws that regulate the conduct of local
government may be bewildering. Emergency managers sometimes disregard
legal issues and vociferously declare that they are "too busy saving
lives and protecting property to bother with all that legal nonsense."
Such a line of attack is peculiar, given the "all hazards" nature of
emergency management. Unfortunately, educational materials are generally
deficient when it comes to treatment of legal issues (Nicholson, 2003b).
Liability issues have, in fact, been called the "great unplanned for
hazard faced by emergency management" (Nicholson, 2003a).

#### **Sources of Emergency Management Law**

Emergency management law in the US is rooted in all three levels of
government---federal, state and local. While all three types of legal
responsibility may result in liability, the most likely source is state
law, specifically the tort concept known as negligence. Immunities allow
protection for emergency managers under certain circumstances. The NFPA
and post-9/11 federal law have created new standards that apply to all
emergency managers. The availability of federal funds for emergency
management results in setting criteria for state and local emergency
management performance.

Many other laws affect emergency management's daily activities. Some of
these laws spring from duties peculiar to the discipline, such as
obligations to plan, train, and exercise. Emergency managers who are
government employees have obligations that arise from their service,
like complying with government ethics rules and special requirements for
procurement. Other important legal considerations arise from general
managerial responsibilities, and affect managers in both the private and
public sectors. These include issues such as personnel law and contract
law.

*Negligence*

Negligence is a common law doctrine that has evolved over the years. Its
basic principle is this: every person has a general obligation to act in
a reasonable manner at all times, considering the circumstances. When
one acts (or fails to act) unreasonably and that act (or failure to act)
is the legal cause of an injury to a person or property, liability
ensues.

**Table 14-1. Elements of Negligence**

  -------------------------- --------------------------------------------
  Element                    Explanation

  Duty                       Obligation to act in a reasonable manner

  Breach of Duty             Unreasonable action or failure to act

  Legal Causation            Frequently referred to as "proximate cause,"
                             this simplymeans that the harm happened as a
                             reasonably close result of the act or
                             failure to act

  Personal injury or         Occurs
  property damage            

  Result                     Liability
  -------------------------- --------------------------------------------

In the emergency management context, negligence usually arises from the
failure to perform (or unreasonably bad performance of) specific
governmental duties. The unit of government may incur liability from
failure to properly train or supervise emergency management workers.
Other frequent sources of liability include failure to perform the
duties that are generally accepted as being part of emergency
management's responsibilities. (See the discussion below of NFPA 1600
and EMAP.)

Types of activity that may give rise to negligence liability vary. They
include failure to adhere to a plan (Lerner, 1991), executive level
decision making (poor choices, poor planning, bad emergency response),
or an Incident Commander's lack of wisdom.

Another frequent cause of liability is the failure to comply with a
legal duty, such as OSHA law. Also, a violation of law may be used as
proof in a civil suit requesting damages for personal injury or wrongful
death. When the elements of the violation are the same as the elements
required for civil liability and the burden of proof is the same for
both, the only issue in a civil trial may be the measure of damages.[^3]

*Immunities*

###### Units of government enjoy immunity, or protection from legal liability, for many of their activities. This immunity is not, however, unlimited. During an emergency, the needs of a small group of people (their personal lives, businesses and property) frequently must be considered and balanced against society's greater interest. Disaster response statutes and common law provide customary defenses and immunities for protection of emergency responders who are working in the capacity of a governmental employee (Lerner, 1991).

####### *Immunity under state law*. To protect from litigation, state legislatures incorporate within their laws tort liability immunities for official acts.[^4] Such acts must be within the employee's scope of employment for immunity to apply.[^5] State disaster or emergency statutes[^6] often contain more specific immunity provisions to protect government executives engaged in critical decision-making procedures in emergencies (Swanson, 2000). Some states have gone further by establishing broad immunities shielding a variety of players (i.e., the state, political subdivisions, or local governmental entities) who act during an emergency response, rather than solely individuals involved in the decision-making process.[^7] Such provisions are typically contained in a state's emergency management laws.

####### Some states make available particular immunity provisions directed at emergency workers, whether volunteers or employees. Also, immunities exist for people owning or controlling real estate or motorized vehicles who voluntarily authorize the usage of their property during an emergency. "Good Samaritan" statutes may also provide immunity to certain classes of emergency medical responders, although such statutes often do not apply if the responder is operating in an official capacity.

####### *Immunities under federal law.* General tort immunity may also bar a civil lawsuit springing from an emergency or disaster response. For the federal government, two tort immunity doctrines may apply: "governmental function" and "discretionary action."

####### The "governmental function" analysis guards long-established or inherent governmental activities including measures assigned by constitution or statute and actions like collecting taxes, law enforcement, and legislation. Such actions are usually characterized as being performed solely by a governmental entity, done for the benefit of the public, with no private sector equivalent.[^8] The government does not make a profit from such acts. Emergency planning and response acquires its immunity from tort liability as a traditional or inherent governmental function.

####### The Federal Tort Claims Act (FTCA) contains the "discretionary action" exclusion. The "discretionary" immunity centers on a particular governmental act or decision instead of the type of activity undertaken. Its purpose is to protect governmental employees at the policy level from worrying about lawsuits during disaster planning and response. If, however, the action objected to does not involve a permitted use of policy judgment, the government will not be protected.

####### The United States Supreme Court in *Berkovitz v. US* [^9] created a two-part test for use of the "discretionary immunity" exemption found in FTCA. The first step requires analyzing the nature of the conduct. If the questioned conduct is not an optional matter but instead is an action mandated by a federal statute or policy, then the discretionary immunity exemption will not apply to the conduct. The employee has no choice but to follow the directives. The Court reasoned that, in the absence of choice---no judgment made, there is no discretion in the conduct to protect. The second step only applies if there is no statutory, regulatory, or procedural policy instruction mandating a course of action. The conduct must involve a quantity of judgment, which then may be determined to be the sort of judgment that the discretionary immunity exemption was designed to guard. The exemption shields only governmental actions and decisions based on public policy (i.e., social, economic, or political policy). If the activity was not founded on public policy, then the suit may continue.

####### Most states recognize some form of this test within their own statutes. Where state courts have mentioned repetitively that the discretionary immunity exemption provided by their code is essentially the same as the discretionary immunity exemption within the Federal Tort Claims Act, the "discretionary immunity" test applies (Fraiser, 1999).

####### In the recent *Commerce and Industry Insurance Company v. Grinnell Corporation*[^10] decision, the 5^th^ Circuit Court of Appeals reversed summary judgment by a lower court, finding that the "discretionary immunity" test was inappropriately employed. The Circuit Court held that specific regulations and distinct fire department policies decreed procedures for firefighters to follow at a warehouse fire, and that the firefighters violated them.[^11] The Court stated that the city could not be allowed the immunity exemption provided by La. Rev. Stat. Ann. § 9:2798.1 (West, 1997) and remanded the case for further proceedings.

####### The *Commerce and Industry Insurance Company* decision may indicate the potential future evolution of cases brought against emergency management organizations for improper actions during emergencies or disasters. In an emergency response such as that in the *Commerce and Industry Insurance Company* case, the courts may hold the organization and its employees responsible for actions that fall outside established regulatory standards (such as the requirement to have a current plan and standard operating procedures). Emergency management may be hard pressed to rely on discretionary immunity to protect the unit of government and employees from liability.

####### Courts interpret statutory waivers of government immunity extremely narrowly. They look closely into the facts underlying the alleged waiver.[^12] Also, tort immunities may not always apply. They are virtually never to be had if death, injury, or damages result from conduct other than negligence, including willful conduct, gross negligence, wanton disregard, or bad faith on the part of government employee or entities. [^13]

###### *NFPA 1600:* [^14] *The New Standard for Emergency Management*

On April 29, 2004, the American National Standards Institute (ANSI)
recommended to the 9/11 Commission that NFPA 1600 be established as the
national preparedness standard. On July 22, 2004, the 9/11 Commission
formally endorsed NFPA 1600 and urged that compliance with NFPA 1600 be
taken into account by the insurance and credit rating industries in
assessing a company's insurance rating and creditworthiness. The 9/11
Commission also believes "compliance with the standard should define the
standard of care owed by a company to its employees and the public for
legal purposes."[^15]

NFPA 1600 establishes a shared set of norms for disaster management,
emergency management, and business continuity programs. It also
recognizes ways to exercise plans and makes available a listing of
resource organizations within the fields of disaster recovery, emergency
management and business continuity planning. One vital aspect of NFPA
1600 is its requirement that all emergency management and business
continuity programs must comply with all relevant laws, policies and
industry practice.[^16]

*Incorporating NFPA 1600 Through EMAP*

The National Emergency Management Association (NEMA) has also endorsed
NFPA 1600 as an appropriate standard for emergency management. As early
as 1998, NEMA passed a resolution signaling its support of NFPA
1600.[^17], which provides the foundation for EMAP.[^18] The
accreditation process includes application, self-assessment, on-site
assessment by an outside review team, committee and commission review of
compliance with the EMAP Standard, and re-certification every five
years.

EMAP has moved rapidly from a concept first expressed in 1997 through
pilot tests and assessments through certification of units of
government, the first of which was awarded in 2003.

**Table 14-2. EMAP Timeline**

  --------------- -------------------------------------------------------
  Date            Activity

  April 2002      EMAP opened for registration and for state applications

  Summer-Fall     Local pilot tests
  2002            

  2003            EMAP conducted 20 state/territorial baseline
                  assessments

  June 2003       Two states are conditionally accredited: Arizona and
                  North Dakota

  September 2003  First two jurisdictions receive EMAP accreditation:
                  Florida and District of Columbia

  January 2004    Continue state/territorial baseline assessments and
                  begin conducting local on-site assessments for programs
                  seeking accreditation
  --------------- -------------------------------------------------------

EMAP is supported by a large number of important players in emergency
management, including the National Emergency Management Association,
International Association of Emergency Managers, Federal Emergency
Management Agency, US Department of Transportation, Association of State
Flood Plain Managers, Institute for Business and Home Safety,
International Association of Fire Chiefs, National Association of
Counties, National Association of Development Organizations, National
Conference of State Legislatures, National Governors Association,
National League of Cities, and the US Environmental Protection Agency.

Although EMAP accreditation is voluntary, the fact that it is endorsed
by such a wide variety of authorities means it is well on its way to
becoming the *de facto* standard for emergency management in the United
States. The more programs become accredited under the standard, the more
likely a Court will be to hold all emergency management to the norm.
Accepted industry practices frequently move from *de facto* to *de jure*
acceptance through common law adoption in the Courts.[^19] Clearly,
potential liability could result from not performing to the standards
set by EMAP. The wise emergency management program manager will take
prompt steps to ensure that his or her program is accredited under EMAP.

*The Local/State/Federal Interface*

Local emergency management organizations' planning, training and
exercising responsibilities are contained in the Performance Partnership
Agreement (PPA) and the Cooperative Agreement (CA) with FEMA. These
documents explain the stipulations that must be accomplished before the
federal government, through the state emergency management agency, will
release emergency management funds to local units of government. The PPA
is a strategic plan, and is revised on a five year timetable. The CA is
an accord revised every year that creates goals for emergency management
statewide in the federal fiscal year, which runs from October 1 through
September 30. The duties of local emergency management are referred to
as \"Outputs,\" whose fulfillment the state supervises and reports to
FEMA. Each SEMA co-operates with local emergency managers to condense
these outputs into detailed assignments, which are called "Compliance
Requirements." These standards act as a form of private law, binding
states and localities that receive funds to obey federal mandates.

Some counties do not choose to comply with the terms of the PPA and CA,
and hence do not receive federal funding through Emergency Management
Performance Grants (EMPGs). The vast majority of counties nationwide
comply with the documents. This creates an industry benchmark that
compliments NFPA 1600. A court may hold this to be a standard of care,
creating potential legal liability for those units of government with
non-compliant LEMAs.

####### Legal Duties of Emergency Management Directors

Local and state emergency management directors have many legal duties.
The basis for these duties includes both specific emergency management
law and other laws of general application, such as Occupational Safety
and Health Administration (OSHA) law, contract law, personnel law, and
government ethics law.

*State Emergency Management Law*

Every state has some form of emergency management law. Such laws
typically include specifications that:

-   Set up a state emergency or disaster management agency;

-   Specify state and local organization roles in responding to
    disasters;

-   Assign executive authority to declare a state of emergency;

-   Explain special executive powers that result from such a
    declaration; and

-   Allow cooperation in the form of mutual aid with neighboring
    jurisdictions.

These statutes also address many other aspects of disaster preparedness
and response. Typically, such laws provide a rather detailed set of
responsibilities for emergency managers. For example, in Indiana, the
local emergency manager must fulfill a variety of duties during all
phases of emergency management. The specifically enumerated duties are
limited to preparing and keeping current the emergency plan, preparing
and distributing a list of emergency duties for all officials, and
documenting the chain of command for continuity of government
purposes.[^20]

Other duties are found elsewhere in the law. The definition section lays
out the broad scope of the discipline's responsibilities. " 'Emergency
management' means the preparation for and the coordination of all
emergency functions, other than functions for which military forces or
other federal agencies are primarily responsible, to prevent, minimize,
and repair injury and damage resulting from disasters. The functions
include the following:

1.  Firefighting services.

2.  Police services.

3.  Medical and health services.

4.  Rescue.

5.  Engineering.

6.  Warning services.

7.  Communications.

8.  Radiological, chemical, and other special weapons defense.

9.  Evacuation of persons from stricken areas.

10. Emergency welfare services.

11. Emergency transportation.

12. Plant protection.

13. Temporary restoration of public utility services.

14. Other functions related to civilian protection.

15. All other activities necessary or incidental to the preparation for
    and coordination of the functions described in subdivisions (1)
    through (14)."[^21]

As can be easily seen, while the enumerated duties appear to be limited,
their scope is all-inclusive. Also, keeping a "current plan" is a
specific responsibility, whose failure to fulfill may expose the
emergency manager and his/her jurisdiction to liability.

*Local Emergency Management Ordinance*

The local emergency manager is obliged to understand and obey all
relevant local ordinances, particularly those directed at his or her
functions. The emergency management ordinance serves a number of
functions. This local law can:

> • "Fill in the blanks" in state law for local emergency management;
>
> • Delineate the local line of succession;
>
> • Specify grants of emergency authority to the leaders of the unit of
> government;
>
> • Provide a structure for governmental emergency management
> activities;
>
> • Act as a teaching tool to help all government employees understand
> their roles during a disaster;
>
> • Provide legal support to the emergency operations plan; and
>
> • Assure that proper steps are taken at all phases of emergency
> management to save lives and protect property.

Attached to this chapter as an appendix is a model ordinance drafted by
the municipal attorney for Grand Forks, North Dakota, in the wake of
catastrophic flooding that took place in spring 1997 (Swanson, 2000).
While this is a fine place to start with an ordinance, one must recall
the NFPA 1600 and NIMS standards discussed at various points in this
chapter, and ensure consistency with their requirements.

*Other Legal Duties*

The local emergency manager must bear in mind the mandates of NFPA 1600
and NIMS, as well as numerous other laws that must be complied with to
prevent legal blame. These other laws are detailed below.

**Understanding Contract Law to Prevent Claims**

Every emergency manager enters into contracts for purchase of goods and
personal services. The basics of contract law are straightforward,
consisting of three elements:

-   The offer, typically in the form of "I will sell you these goods or
    perform these services for this amount of money."

-   Acceptance, "I accept your offer." and

-   Consideration, or the fee paid for the services.

Difficulties may arise when the parties do not have a mutual
understanding of exactly what is offered or the nature and character of
the consideration. To facilitate mutual understanding, frequently
referred to as a "meeting of the minds", contracts are typically written
rather than oral. Having the agreement in writing allows both parties to
see clearly the subject matter of their bargain.

One key thing to remember is that the party that creates the initial
draft of the contract will typically end up with a document that
reflects his or her desires more than those of the other party. This is
why emergency managers should strive whenever possible, particularly
with expensive purchases, to assure that their attorney drafts the
contract. For some, this step is a given, as units of government may
have standardized contracts for purchase of goods or services.

Frequently, the contractor will have a standard contract of its own that
will be proposed to be the first draft. The contractor may say that they
always use this contract, and threaten to walk away if it is not used.
Unless one company uniquely produces the subject matter, it is not a bad
idea to let the contractor walk away in this instance. Remember that the
purchaser has the upper hand for the most part in negotiations, because
he or she has the money, and the contractor must have work to prosper.
Another tack is to take the contractor's document and use pieces of it
in crafting one's own contract.

Sometimes, the contract officer will be tempted to use the contractor's
document as is, because it will mean less work for that busy individual.
One must be extremely careful in reading such texts and always be ready
to delete unacceptable language. Their wording commonly will contain
indemnification requirements, waivers of inadequate performance,
arbitration clauses, and other language that dilutes the obligations of
the contractor. Their language also may include requirements that are
contrary to existing state or local law.

The emergency manager and his or her attorney or contract officer should
carefully scrutinize the contents of standardized contracts when
big-ticket items are involved. Modification of standard language is
often appropriate in such situations. Examples of modification to ensure
the prompt and proper performance by the contractor are discussed in
detail below.

Prompt performance is often a big concern. Three steps are available
that can be a big incentive for rapid completion of the work or delivery
of the goods. The first is a schedule for performance, with times for
completion of different tasks or delivery of a certain amount of goods,
and partial payment scheduled to match. One thing to watch out for is
that each piece of the job must be carefully inspected for conformance
with contract standards before acceptance. The second item, penalties
for late delivery or performance, is actually a disincentive for delayed
compliance. The third item is extra pay for early performance. The
combination of these three elements in a contract can be very helpful
when the emergency program needs something yesterday.

One key part of drafting a contract for purchase of goods is performance
standards. These are particularly important when the items purchased are
being custom built, as is the case with antenna systems, for example.
The emergency manager and the subject matter expert need to get together
to discuss in fine detail exactly what is desired, and how it is
expected to operate when the entire system is installed. They then need
to meet with the attorney or contracting officer to make sure that the
standards are put together in complete form, leaving nothing out. If
this preparatory step is properly taken, one is much more likely to end
up with the end product desired.

When purchasing a complex and expensive system, there may be political
pressure to award different contracts to various people within the
jurisdiction, with the goal of "spreading the wealth." While this may
sound like a good idea, in actuality it could be the cause of unending
headaches. When a system, such a communications network, is installed,
all of its parts must mesh and work together properly for it to perform
as advertised. If multiple contractors have performed the work and there
is a problem, they may all point fingers at one another as the cause of
the problem, and refuse to cooperate in fixing things. This can be both
inconvenient and politically embarrassing. One good way to avoid this
problem is to insist on getting quoted on a "turn key" system with
proper guarantees in the contract that it will perform as advertised
prior to acceptance by the purchaser. In this situation, it is important
when setting up a schedule of partial payments that a significant
portion, usually 25--33%, be held back until verification tests,
possibly by a third party, have been performed to ensure that the entire
system works as advertised. There are five contract modifications that
can benefit the emergency manager:

-   Schedule delivery dates with partial payments upon acceptance of the
    goods or services.

-   Impose penalties for late performance.

-   Provide rewards for early performance.

-   Define detailed operation standards for equipment.

-   Try to get a "turn key" system.

Remember that when the actual product differs from the contents of a
written contract, the party whose expectations are frustrated will have
a number of legal options. First, there may be a cause of action for
damages or specific performance. Second, the contract may be repudiated,
or cancelled. Third, if part of the contract has been complied with, and
some performance is contrary to the contract requirements, there may be
payment for partial performance only.

**Personnel Law Issues for Emergency Management**

All employers face the potential of dealing with workers who act in ways
that are contrary to the requirements of the best interests of the
organization, whether it be a unit of government, private business, or
other entity. Indeed, personnel issues may consume a large percentage of
the emergency manager's time. While employment law is a subject with
many potential intricacies, understanding the basics will be of great
benefit to the emergency manager. Knowing the fundamental outlines of
this area of law will assist in planning ahead to avoid personnel
disputes, an important aspect of litigation mitigation. This knowledge
will also provide insight into the best way to react when problems do
occur.

Ideally, both the employer and employee should understand that it is to
their mutual benefit to cooperate in helping the enterprise to succeed.
Unhappy workers mean lower performance and decreased satisfaction for
the head of the organization. The boss benefits when the group does
well, so it is in his or her best interest to assist in that effort.
Actually, however, disputes between people at different levels of
authority are a daily part of economic and social life. As such,
employment law may be very political.

Employment law includes a lot of governmental regulation, both federal
and state. The employer frequently also has extensive standards for
employees. This is particularly the case where, as with emergency
response and emergency management, the job entails significant potential
hazards. Four kinds of legal rules govern the daily life of employees.
These include:

-   Statutes, which often authorize administrative agencies to take
    action.

-   The body of law that comprises the rules, regulations, and rulings
    of administrative agencies.

-   Common law tort and contract rules.

-   State and federal constitutional specifications that delineate
    employee rights, mostly regarding government employees.

Statutes that govern the employment relationship are of two types: those
that govern collective action (union activity); and those that cover all
employees. Collective action is governed by the National Labor Relations
Act,[^22] specific laws regarding federal employment, and other laws not
relevant to the limited purposes of this chapter. On the federal side,
employees of DHS have extremely limited rights compared to their
counterparts in other agencies, which was the subject of vigorous debate
during the adoption of the HS Act. State regulation of union activities
is frequently preempted by the broad federal statutes.

*Torts*

Work-related torts cover an assortment of interests, and are discussed
briefly below.

*Invasion of privacy.* An employee has only a limited expectation of
privacy at work. Generally, however, conduct that can be described as
"snooping" by the employer goes too far. This does not mean that the
employer cannot obtain information on the employee that directly affects
workplace performance (like performing reasonable and impartial testing
for drugs or alcohol) or may endanger the employer's reputation or the
safety of other employees. Also, one must recall that emergency
management is a public safety role, where employees may have access to
classified information. As such, a greater degree of intrusion into the
employee's affairs may be appropriate. It is very important to consult
with legal counsel before taking intrusive action.

*Defamation.* Employers may not do harm to their employees' fame,
character, or reputation by means of false or malicious declarations.
The declaration may be in the form of gestures or action rather than
words. In one case, an employer fired the employee, stood over him while
he packed him belongings, and escorted him to the door. This was found
to be defamatory activity, because it implied that the employee was
dishonest and untrustworthy.[^23]

*False imprisonment.* False imprisonment means detaining a person
without cause and not permitting him or her liberty to leave, when the
person knows that he or she may not leave. This was found to exist in a
case where a security guard and the owner of the security service kept a
grocery clerk in a room and would not let her use the telephone other
than to receive one call during a three hour interrogation. The guard
put himself between her and the door and told her he would decide if she
was going to jail.[^24]

*Intentional infliction of emotional distress.* To prove intentional
infliction of mental distress: first, the employer must act in an
extreme and outrageous way; second, the employer must have intended to
cause emotional distress or had a substantial certainty that it would
ensue; third, substantial emotional distress must result from the
employer's behavior. Courts have differing ideas about what is
outrageous. In one case, the employer ordered the employee to lower his
trousers and expose himself to fellow employees. The trial court found
for the employee, the appeals court reversed, and the state supreme
court reversed again, holding for the employee.[^25]

*Fraudulent misrepresentation.* Fraudulent misrepresentation happens
when an employer falsely makes a statement of opinion, fact, law, or
intention, intending the employee to act based on it. One employer told
an employee that if the employee would accept a job in California, the
employer would buy his house. After accepting the transfer, the employee
tried to get the employer to buy the home, and was fired. The employer's
lie changed the way the employee evaluated the job offer, and recovery
was permitted.[^26]

*Intentional interference with contractual relations.* The employer here
must act, with knowledge of an existing or possible contract between the
employee and a third party, with the intent of interfering with it, and
actually cause the harm intended. This tort must be carefully kept in
mind by emergency manager supervisors in this time when many contractors
are attempting to "cherry pick" the best emergency management employees
to work for them. Interfering with this process, despite understandable
anger with the employee, may expose the supervisor and employer to
liability.

*Malicious prosecution.* For this action to succeed, one must prove that
the antagonist began a legal action, the antagonist lost the case, the
antagonist did not have probable cause to begin the case, the antagonist
began the case with "malice," and the case caused harm for which damages
may be had. Either employer or employee may use this theory, but courts
do not like this type of action. When successful, however, large damages
may be won.

*Abuse of process.* Like malicious prosecution, this kind of case
springs from misuse of the legal system, and may be used by either
employer or employee. One must prove that the adversary used the legal
system due to a secret bad motive and that the process was used for a
purpose other than that for which it was designed. This can occur, for
instance, when one plants evidence to discredit a person and calls the
police to arrest the person.

*Blacklisting*. This tort involves preventing or trying to prevent an
employee from getting future employment. The employee must establish
that the employer did this out of malice. Employers have a limited
privilege to talk about matters that concern them both. Giving a bad
reference is the classic example of this. If false information is given
out, there will be a basis to get damages. If the statements are on
overall "suitability," they may be held to be mere opinion or
information.[^27]

*Constitutional Provisions*

The United States Constitution defines the relationships between the
federal and state governments, as well as between these government and
its citizens. It does not regulate conduct between citizens. It is
therefore not relevant in many employment relationships. The
Constitution does, however, regulate employment relationships in the
public sector, as these are between the government and its citizens.
Constitutional provisions control government emergency management
programs.

As a general matter, no level of government may exercise its power to
take away constitutionally guaranteed rights of employees. The rights of
privacy, free speech, and association are those most often at issue.

*Right to privacy.* Searching a government employee's desk has been
found unconstitutional.[^28] As mentioned above, however, the fact that
emergency management is a public safety entity may create greater
opportunities for oversight of employees. Again, the jurisdiction's
attorney should be consulted prior to any such action.

*Free speech and association.* The Supreme Court has ruled that hiring,
promotions, transfers, and recalls of a low ranking government employee
may not be based on support for a particular political party.[^29] The
employee's first amendment rights of free speech and association are
improperly limited by such a requirement, unless party membership can be
shown to be a proper prerequisite for effective performance in the job.
This would be a difficult matter to prove. The Fourteenth Amendment's
equal protection clause stops racial discrimination by government
employers.

*Regulations of Special Interest to Emergency Management.*

There are many governmental regulatory programs that affect employment,
and their full scope is well beyond this chapter. Some must be mentioned
if only in passing because of their effect on emergency management
activities.

*Health and safety: OSHA.* Occupational Safety and Health Administration
(OSHA) [^30] regulations apply to all workplace activities, including
those of government entities. The OSHA statute permits states to have
responsibility for workplace safety if their programs meet specific
guidelines.[^31] The state standards must be at least as strict as those
of the federal government. The emergency manager should become familiar
with the regime in place covering his or her workplace.

# OSHA imposes two duties on employers:

-   Provision of a hazard-free workplace, and

-   Compliance with OSHA standards.[^32]

The OSH Act gives employees several important rights:

-   To question unsafe conditions and request a federal inspection,

-   To assist OSHA inspectors,

-   To bring an action to make the Secretary of Labor seek injunctive
    relief where there is imminent danger to employees,

-   To gain access to records about the employee's health an exposure to
    hazardous substances.[^33]

Employers of 11 or more employees must keep records of occupational
diseases and injuries.[^34] Failure to do so is a very serious matter
that may result in huge fines.

*Health and Safety: Workers Compensation.* Government and private sector
employees are typically compensated for their on-duty injuries through
workers compensation schemes, which vary from state to state. These
programs include "exclusive remedy" clauses, which prevent all but a
very small number of lawsuits against employers for workplace injuries.
The big exception occurs when the employer clearly intends to harm
workers. Federal civilian employees are covered by the Federal Employees
Compensation Act (FECA).[^35]

*Progressive Discipline*

Many employment contracts utilize a system called "progressive
discipline" to deal with employees who perform below par or contrary to
the employer's rules. Such programs typically call for a graduated set
of penalties before en employee may be terminated. An example follows:

-   First offense: verbal reprimand.

-   Second offense: written reprimand.

-   Third offense: uncompensated suspension for up to a maximum period,
    typically two weeks.

-   Fourth offense: termination.

Frequently in such programs, the written reprimand and suspension
periods will be accompanied by a plan for correction. This is a sort of
"mini contract" in which the manager specifies areas of shortfall, and
the employee agrees to correct shortcomings on a schedule. Failure to
comply with the plan may result in further discipline.

One challenge with this system is its requirement that managers actually
manage. All too often, an underperforming employee may be given one
verbal reprimand after another, with no written documentation.
Eventually, the sum of failures to perform may be sufficient for
termination, but the fact that these events have not been noted in the
employee's file may mean that the employee stays on for additional time
while a sufficient record for termination is compiled. Such a situation
may be the basis for discipline of the manager by his or her superiors.
It certainly is frustrating for the attorney who must explain the need
for such documentation and fight against the employee's appeal.

Of course, where an employee's actions are illegal or bring the employer
into disrepute, like running a gambling ring from one's desk, immediate
termination may be appropriate. Similarly, putting oneself or fellow
employees at risk through unsafe behavior, like a heavy equipment
operator who drinks on the job, may also be grounds for immediate
termination. Any possible deviation from the system must, however, be
discussed with legal counsel before taking place.

*Avoiding Ethical Lapses in Emergency Management*

Both government and business employees are bound by ethical standards.
The difference between the two is that ethical standards for business
are largely self-imposed, while those binding government employees may
be matters of law or policy. Government ethics guidelines apply to the
actions of employees whether they are at work or not. The reason for
this intrusion into employees' private lives is that they are seen as
representing the government at all times.

Public service is a public trust, therefore, government employees must
behave in ways that will promote trust by the general public. The
following statements are minimum standards of conduct for government
employees to follow. (Taken from the Indiana Ethics Commission
standards.)

-   Employees are to be impartial in the discharge of their duties.

-   Decisions and policies must not be made outside the proper channels
    of government.

-   Public office is not to be used for private gain.

-   Employees may not make unapproved use of government property,
    personnel, or facilities.

-   Employees may not use government time for other than official
    duties.

-   Employees may not benefit financially from information of a
    confidential nature gained through government employment.

-   Employees may not solicit or accept outside payments for the
    performance of official duties.

-   An employee may not accept a gift, favor, service, entertainment,
    food or drink which could influence the employee's action.

-   Payment for an appearance, speech, or article may not be accepted if
    the appearance, speech, or article could be considered part of the
    employee's official duties.

-   An employee may not accept payment of expense for travel,
    conventions, conferences, or similar activities that could influence
    the employee's action.

-   Employees may not have outside employment incompatible with their
    government employment or against their agency's rules.

-   Supervisors may not solicit political contributions from employees
    they supervise.

-   An employee may not solicit political contributions from persons or
    entities that have a business relationship with the employee's
    agency.

*The Hatch Act*

The Hatch Act applies to state and local employees of the executive
branch. They must be principally employed in connection with programs
financed in whole or in part by loans or grants made by the United
States or a federal agency. Emergency management agencies that operate
using the federal funds made available through the Emergency Management
Performance Grants as well as employees whose salary is partially paid
by programs like the Chemical Stockpile Emergency Preparedness Program
(CSEPP) are subject to the Hatch Act. State law and agency regulations
also apply to such employees. State and local laws do not affect the
Hatch Act's prohibitions.

Covered state and local employees may:

-   Run for public office in nonpartisan elections

-   Campaign for and hold office in political clubs and organizations

-   Actively campaign for candidates for public office in partisan and
    nonpartisan elections

-   Contribute money to political organizations and attend political
    fundraising functions

Covered state and local employees may not:

-   Be candidates for public office in a partisan election

-   Use official authority or influence to interfere with or affect the
    results of an election or nomination

-   Directly or indirectly coerce contributions from subordinates in
    support of a political party or candidate

Violation of the Hatch Act may result in significant penalties. If the
Merit Systems Protection Board finds a violation that calls for
discharge from employment, the agency must either remove the employee or
surrender a part of the federal assistance equal to two years salary of
the employee. If the Board decides the violation does not warrant the
employee\'s firing, there will be no penalty (for further information,
see www.osc.gov/hatchact.htm).

**Mutual Aid Agreements**

Mutual aid agreements (MAAs) are a key part of emergency management.
They are mandated by a number of standards, including NFPA 1600 and
NIMS. Their importance to the EOP is obvious: they allow multiplication
of resources. The proper contents for intra-state and inter-state mutual
aid agreements are found on the Emergency Management Assistance Compact
(EMAC) Web site (www.emacweb.org). These are:

-   Definitions of key terms used in the agreement;

-   Roles and responsibilities of individual parties;

-   Procedures for requesting and providing assistance;

-   Procedures, authorities, and rules for payment, reimbursement, and

-   Allocation of costs;

-   Notification procedures;

-   Protocols for interoperable communications;

-   Relationships with other agreements among jurisdictions;

-   Workers compensation;

-   Treatment of liability and immunity;

-   Recognition of qualifications and certifications; and

-   Sharing agreements, as required.

Authorized officials from each of the participating jurisdictions will
collectively approve all mutual-aid agreements.

EMAC is the benchmark for interstate agreements. Various states have
adopted slightly differing versions of EMAC.[^36] One issue that EMAC
does not address is the credentialing of visiting emergency responders
such as Emergency Medical Technicians and doctors. This was reportedly a
matter of such controversy when EMAC was written that the decision was
made to allow each state to deal with the issue separately.[^37] It is
unfortunate that there is not a uniform national approach to this issue
in EMAC.

For those who become federally certified under the authority of NIMS,
nationwide credentialing will be a part of the package.[^38] This
approach will do a great deal to lessen potential confusion in the
aftermath of an emergency or disaster.

The EMAC web page also contains a model intrastate agreement.[^39] Some
states already have made provision for an intrastate agreement. For
example, Indiana has an intrastate mutual aid program that applies to
every political subdivision of the state that does not opt out by
adopting an ordinance or resolution stating that it does so.[^40]

Jurisdictions that request mutual aid assistance must be aware of
potential legal claims that may arise from doing so. While the model
agreements discussed above will cover issues like who is responsible for
injuries to members of the assisting unit, case law indicates that the
requesting entity may be responsible for their workers compensation
claims if they are injured during the response.[^41]

**Standard Operating Procedures**

Emergency response groups employ SOPs to direct their members during
daily operations (Brunacini, 1985, p. 16). One vital reason for the
mutual aid agreement is to guarantee that responding entities, whether
public or private, abide by SOPs or standard operating guidelines (SOGs)
during mutual aid responses (Federal Emergency Management
Agency---United States Fire Administration, 1999).[^42] When writing
SOPs, MAAs should be considered, similarly, when drafting MAAs, SOPs
must be assessed. Many other texts, plans and agreements must be
evaluated as well when developing SOPs, including the requirements of
the Hazardous Waste Operations and Emergency Response ("HAZWOPER")
Standard. Like mutual aid agreements, SOPs must be written to be
successful. They have to be enforced to succeed (Brunacini, 1985, pp.
16-17).

The NFPA characterizes an SOP as " 'an organizational directive that
establishes a standard course of action.' " (Federal Emergency
Management Agency---United States Fire Administration, 1999, p. 2). A
comprehensive collection of SOPs specifies in a comprehensive way how an
emergency response organization will operate during an event, working as
a "game plan" prior to the event (Brunacini, 1985, p. 16). SOPs must be
drafted with intelligent risk management as their main goal to make sure
that safety is the norm expected by all involved. Safety-specific SOPs
are unqualified mandates that must be abided by, no matter what else is
going on.

For individual responders, SOPs provide comprehensible declarations of
employer standards and act as a detailed description of expectations.
Managers use SOPs for several reasons: examining their operations from a
strategic viewpoint, recording needed changes, detailing regulatory
compliance, creating intentions, as well as bettering training and
measuring performance. According to Brunacini (1985, p. 18), "Standard
operating procedures become the basis for much of the use of the regular
management process. The standard steps of the system
development/training/application/ review/revision are used in the
development, application, and ongoing management of SOPs." They
communicate legal and administrative mandates to members of emergency
response groups. At a sizeable event with multiple responding agencies
involved, SOPs become even more important.

Fire departments were the first emergency response organizations to
utilize SOPs during emergency response. As departments grew beyond their
casual roots, they began to address safety issues through internal
controls. These requirements, originally termed "rules of engagement,"
protected firefighters during daily fire actions. The more contemporary
terminology for these guidelines is standard operating procedures. As
fires have become more complicated, SOPs have developed from measures
that are "chiseled in stone" to SOGs. SOGs permit increased flexibility
in responding to difficult fire scenes, encouraging the full
exploitation of firefighters' knowledge, skills and abilities. Other
emergency response groups learned from the fire service's knowledge,
likewise developing ever more highly developed SOPs and SOGs. For hazmat
responses, employers must encompass SOPs in their written safety and
health program.[^43]

Legally, SOPs are a form of "private law," that is, they are created by
an organization and delineate the obligations of its members. For those
people, the SOP is a rule of law, and violation can have serious
consequences. These results can be internal penalties. Violations can
also be the basis for a lawsuit for negligence, since the SOP is, at
least, a site-specific industry standard. Indeed, many SOPs reflect
generally accepted safe practices, and their violation could well result
in liability. Failure to adopt SOPs is not a way to avoid these
potential liabilities. The only legal safe harbor is to adopt good SOPs
and enforce them.

**The Role of ICS**

Concern that the nation required a common method for management of
incidents led the Congress, in the Homeland Security Act of 2002,[^44]
to require adoption of IMS.[^45] In response to the Congressional
directive, DHS released NIMS on March 1, 2004. (see www.dhs.gov/
interweb/assetlibrary/NIMS-90-web.pdf). Use of ICS is required by both
NFPA 1600[^46] and NIMS.[^47] As mentioned above, the emergency manager
is therefore obligated to ensure that it is utilized in emergency
responses. HAZWOPER, which has been in existence for over 20 years,
requires all hazmat responses to make use of ICS[^48] and requires the
Incident Commander (IC) to categorize, to the extent possible, all
hazardous substances or conditions at hand and address site analysis,
use of engineering controls, maximum exposure limits, hazardous
substance handling procedures, and use of any new technologies.[^49] The
IC's duties at this point consist of identifying the substance and
controlling the hazard.

The IC must put into practice suitable emergency operations, and ensure
that the personal protective equipment (PPE) worn is appropriate for the
hazards present.[^50] There are particular requirements for breathing
equipment.[^51] "\[T\]he number of emergency response personnel at the
emergency site, in those areas of potential or actual exposure to
incident or site hazards . . . , \[must be limited\] to those who are
actively performing emergency operations."[^52]

The "buddy system" in twos or more must be used.[^53] This necessitates
that one is available to observe and, if required, save the other.
Back-up workers must be prepared to provide support or rescue. Advance
emergency medical personnel must also be present with medical equipment
and transportation.[^54]

Perhaps the most imperative obligation is naming a safety officer who is
well-informed about operations at the incident scene.[^55] He or she has
the specific responsibility of identifying and evaluating hazards and
providing direction respecting safety of operations. The safety officer
has the power to alter, suspend, or terminate those activities.[^56] The
safety officer must immediately inform the IC of any action required to
rectify hazards at an emergency scene. Case law demonstrates that the
safety officer must be an individual other than the IC him or
herself.[^57]

**Incorporating Volunteer Resources**

Volunteers are a vital resource for emergency management. Properly
managed, they can prove to be a key element is the successful response
to an emergent situation. Their contributions are particularly important
when funding for many types of preparedness and response activities are
shrinking, as terrorism becomes the obsession of our national
leadership. A number of legal issues may arise in connection with the
utilization of volunteer resources.

*Who Is a Volunteer?*

The first question that must be addressed is the definitional
issue---who is a volunteer? The answer is more complex than it might
seem. One does not become a volunteer by simply showing up at the scene
of an event. Rather, a person must be a member of an accredited
organization or an integrated member of the emergency response team.

*Incorporating Volunteers*

The most important step that can be taken to prevent liability with
regard to volunteers is properly integrating them into the emergency
response organization. This may be done in a couple of ways. The best
approach is to establish ongoing relationships with the major volunteer
groups prior to a crisis. Like other emergency response groups,
volunteer organizations need to be included in planning, training, and
exercising. Their roles should be spelled out in the EOP. Typically, the
parent organization ensures individual volunteers are properly trained
and provides them with documentation so that they are identified
appropriately during an incident. This removes a significant
administrative burden from the IC at the incident scene.

*Emergent Volunteers*

One of the IC's biggest headaches may be the crowd of well-meaning
emergent volunteers that often congregates at the scene. These people
are frequently not affiliated with the groups with which the unit of
government has existing mutual aid agreements. They may or may not be
trained responders. One of the IC's major duties is access control. When
trained responders arrive as the prearranged outcome of a mutual aid
agreement, the result can be useful resources. Unfortunately, emergency
responders converge on the incident scene at the location individually
or in groups, despite not being asked for or even being actively
discouraged. This happened both in New York and at the Pentagon after
the 9-11 strikes. The IC must show decision and tact to maintain control
of the site. One of the first responsibilities for an IC is organization
of a perimeter, which should be controlled by law enforcement
(Brunacini, 1985, p. 22). People trying to come into the perimeter
without proper permission must be prevented from doing so and moved to a
distant staging area (Brunacini, 1985, p. 23-24). There, training and
capabilities can be assessed, and their proper role, if any, can be
assigned. In the event that they are found to be trained responders with
needed skills, a record of the assessment must be made. They can then be
officially rostered as approved responders. Taking these steps will
protect the emergency response organization from liability, as it shows
that they are taking reasonable steps to find out the competencies of
the volunteers. Of course, there is an accompanying duty to assign the
volunteers to duties for which they are qualified (Nicholson, 2003b).

###### *The Volunteer Protection Act of 1997*

###### Many members of Congress believe that the possibility of litigation may lessen the likelihood of people to volunteer for public service. In response, they enacted the Volunteer Protection Act of 1997 (VPA) to make available statutory immunity to increase the labor pool for voluntary entities.[^58] The VPA preempts state laws providing higher levels of liability for volunteer[^59] than gross negligence. States may opt out of the VPA[^60] In addition to shelter from negligence lawsuits, punitive damages may not be awarded against a volunteer acting within the scope of his/her responsibilities to a nonprofit organization, even when that volunteer is negligent or grossly negligent[^61] The immunity does not attach to the volunteer's organization.

Notably, the VPA does not exempt volunteers from liability for any harm
caused while driving a motor vehicle[^62] This exclusion is important,
since research indicates that half the claims involving emergency
response organizations arise from vehicle accidents[^63] While the VPA
alters the basis for a lawsuit, it probably does not affect
administrative actions taken on a negligence basis. Laws that name
negligent conduct endangering persons as the basis for administrative
penalties therefore continue to be valid.

**The Planning Process**

The first step in emergency management at all levels of government is
planning. Correct planning signifies that resources, proper procedures,
and trained personnel are organized when a disaster occurs. Emergency
response plans may vary widely in size and comprehensiveness, depending
on the nature of the jurisdiction they serve and the planning philosophy
of the drafters.

*Proactive Preparation for Federal Assistance*

One matter that can make a tremendous difference in the amount and
quality of assistance that a jurisdiction receives from the federal
government is the legal enactments it has in place regarding
infrastructure replacement. Building and fire codes should be up to
date, and require that all new or rebuilt structures comply with current
codes. Standards for replacement of infrastructure, such as bridges and
highways, must specify that new construction or repairs shall conform to
currently accepted best practices. The reason for these legal steps is
that federal aid will pay for reconstruction or repair only to the
extent that the unit of government imposes the same requirements on
itself or private parties.

Good financial controls will also make a tremendous difference when the
time comes to request federal reimbursement. The federal government will
only pay for items for which properly documented receipts exist.
Although these matters may seem beyond the scope of traditional
emergency management planning, having them in place is an excellent
example of how proper planning on the legal side can result in
significant financial benefits.

*Potential Liabilities Arising from the Duty to Plan*

As described above, the common custom is to create and maintain an EOP.
If possessing such a plan improves response, the next query must be
whether lack of a plan would be the basis for a lawsuit. Violation of a
"specific and mandatory" statutory or other mandate to establish a plan
would not be discretionary under *Berkovitz v. United States*, discussed
above. All states have statutory requirements to prepare an EOP.
Further, environmental law requires preparation of a response plan for
releases of extremely hazardous substances.[^64]

Failing to prepare a mandated plan will result in liability. In a case
involving failure by the Nuclear Regulatory Commission to prepare a plan
mandated by its own rules, the court found that the "choice" made by the
agency's employee was a failure or refusal to follow safety standards,
resulting in a lack of immunity. Where the challenged governmental
activity involves safety considerations under an established policy
rather than the balancing of competing public policy considerations, the
rationale for the exception falls away and the US government will be
held responsible for the negligence of its employees.[^65]

Another situation that may result in liability is where a plan exists,
but may have been negligently drafted. Interestingly, at the federal
level, planning is considered inherently discretionary, while
operational activities are not. This means that cases brought under the
Federal Tort Claims Act for bad plans (as opposed to the previous
discussion where a mandatory plan was not created) will typically not
succeed.[^66]

The adoption of NFPA 1600, however, will most probably result in
liability for negligently drafted plans. This is because the planning
portion of NFPA 1600 details particular tasks. Several plans are
mandated:

> **5.7.1\*** The program shall include, but shall not be limited to, a
> strategic plan, an emergency operations/response plan, a mitigation
> plan, a recovery plan, and a continuity plan.[^67]

The content of these plans is laid out with some particularity. The
emergency response plan is described as follows:

2.  The emergency operations/response plan shall assign responsibilities
    to organizations and individuals for carrying out specific actions
    at projected times and places in an emergency or disaster. [^68]

> All of the plans required by NFPA 1600 have several shared components:
>
> **5.7.3 Common Plan Elements.**
>
> **5.7.3.1** The functional roles and responsibilities of internal and
> external agencies, organizations, departments, and individuals shall
> be identified.
>
> **5.7.3.2** Lines of authority for those agencies, organizations,
> departments, and individuals shall be established or identified. [^69]

NFPA 1600 also requires other steps be taken that are a normal part of
planning, such as hazard identification, risk assessment, and impact
analysis.[^70] As mentioned previously, NFPA 1600 also imposes a duty to
adhere to current laws, policies, and industry practices.[^71] This
means the requirements of NFPA 1600 are a moving target. Avoidance of
liability for bad planning will therefore require constant attention to
evolving standards.

In addition to NFPA 1600, NIMS sets mandatory standards for emergency
management programs that wish to receive federal funds, including
Emergency Management Performance Grants (EMPGs),[^72] after October
2004.[^73] NIMS requires EOPs, corrective action and mitigation plans,
and recovery plans.[^74] NIMS' requirements for EOPs are rather
extensive.[^75] These are to:

-   Define the scope of preparedness and incident management activities
    necessary for the jurisdiction.

-   Describe organizational structures, roles and responsibilities,
    policies, and protocols for providing emergency support.

-   Facilitate response and short-term recovery activities

-   Drive decisions about long-term prevention and mitigation efforts or
    risk-based preparedness measures directed at specific hazards.

-   Be flexible enough for use in all emergencies.

-   Describe the purpose of the plan, situation and assumptions, concept
    of operations, organization and assignment of responsibilities,
    administration and logistics, plan development and maintenance, and
    authorities and references.

-   Contain functional annexes, hazard-specific appendices, and a
    glossary.

-   Predesignate jurisdictional and/or functional area representatives
    to the IC or UC to facilitate responsive and collaborative incident
    management.

-   Include preincident and postincident public awareness, education,
    and communications plans and protocols.

NIMS establishes a national industry standard. Even though NIMS frames
its mandates as suggestions, using the term "should" rather than "must",
the requirement of NFPA 1600 that plans incorporate industry standards,
however, renders these voluntary elements mandatory. NIMS complements
NFPA 1600, and sets the benchmark for planning. Failure to plan to its
requirements may well result in liability.

Since 9/11, states have expanded their statutory schemes to include
specific enactments addressing terrorism. In particular, states that
list planning requirements frequently have added planning for terrorist
events to their laws.[^76] This is an example of the evolving nature of
planning requirements. As experienced emergency managers say, the plan
is never final, but rather a "living document."

####### *Failure to Follow the Plan*

Assuming that a good plan has been established, failure to follow it in
the wake of an emergency may subject the emergency manager to liability.
In federal court, the response hinges on whether the plan is interpreted
as setting a compulsory course of action. An EOP could be construed as a
"specific and mandatory" obligation, although it is an internal document
with no direct legal consequences for the public. That result may be
gotten from *Berkovitz*, which refers to "statute, regulation or
policy."[^77] Violating an internal policy, therefore, may give a basis
to sue if the policy "leaves no room for implementing officials to
exercise independent policy judgment".[^78]

Determining whether a document limits an official\'s choice or only
informs his or her discretionary judgment requires close scrutiny. EOPs
generally contain a range of substance varying from general to specific.
A general tasking for protecting the public (e.g., to the county
commissioners) clearly envisages the use of discretion. Conversely,
where the plan contains detailed lists of actions, there may be no
opportunity to do other than required by the list, except if the plan
permits deviation. Some plans have mandatory, automatic protective
measures---like evacuating the public. As noted in Chapter 10, nuclear
power plants classify emergencies as an Unusual Event, Alert, Site Area
Emergency, or General Emergency. Neighboring areas may include language
in their plans that particular measures, such as activating sirens or
evacuating a given radius in the region of the plant, must automatically
occur when the plant gets to the Site Area Emergency or General
Emergency, whether or not any radioactive material has been released.
Failing negligently to take the required actions could expose the
emergency manager to tort liability.

**Planning for Special Risks**

*Hazardous Materials Releases*

The acts of all responders to emergencies, particularly those involving
hazmat---such as a weapons of mass destruction (WMD) event, are closely
regulated by both OSHA[^79] and the EPA.[^80] Emergency managers should
take steps to ensure responders understand the applicability of these
rules to their activities, and ensure safety mandates are followed.

# Both public and private groups have responsibility for first response to a hazmat incident. Usually, in-plant response teams will be first at industrial incidents. OSHA's rule for Process Safety Management of Highly Hazardous Chemicals mandates these teams. This rule's purpose is preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.[^81] Offsite spills or airborne releases occurring on public property such as highways or exceeding the boundaries of an industrial facility, the first response organization is normally the fire service. The highly dangerous nature of hazmat requires sophisticated technical expertise of responders (Federal Emergency Management Agency/United States Fire Administration, [2000)]{.smallcaps}.

####### *Planning Structure for Extremely Hazardous Substances.* The requirements of the Emergency Planning and Right to Know Act (EPCRA) mandate a separate structure for planning for extremely hazardous substances (EHS) releases. EPCRA is part of Title III of the Superfund Amendment and Reauthorization Act of 1986 (SARA Title III).[^82] States frequently enact EPCRA's requirements into their own laws to provide a supporting state structure for the program.[^83] EPCRA creates a structure consisting of LEPCs, which report to, and are lesser parts of, SERCs. The LEPC also has specific roles that are directed by law, some of which coincide with the LEMA's duties. 

*SERC and LEPC duties.* The SERC has four responsibilities. First, it
promotes emergency planning and provides information about potential
chemical hazards statewide. Second, it helps the state to obey the
obligations imposed by SARA Title III. Third, it sets up and oversees
the operation of state emergency planning districts. Fourth, it collects
and issues information needed for successful emergency response
planning.

SARA Title III requires LEPCs to do the following:

-   Prepare an EHS release plan.

-   Revise the plan annually.

-   Evaluate resources needed to develop, implement and exercise the
    plan.

-   Make recommendations for additional needed resources.

-   Submit the plan to the SERC.[^84]

*LEPC and LEMA interface.* In contrast to the LEPC, LEMAs are clearly
part of local government. As mentioned, the LEPC's planning requirement
under EPCRA is expressly limited to SARA Title III chemical releases.
The LEPC's plan cannot, however, stand alone, for LEPCs are not the only
bodies charged by law with planning for emergencies. NFPA 1600 and state
laws require LEMAs to prepare and keep current a local EOP for its area.

Under the all hazards approach, emergency managers must consider
possible emergencies concerning hazmat. The EOP must include a current
appendix for response to hazmat incidents. Possible hazmat emergencies
incorporate the EHSs covered by SARA Title III, as well as an assortment
of other substances. Required planning compliance requirements for LEMAs
will typically include submitting the local EOP, in its entirety,
including the SARA Title III plan as a hazard-specific appendix.

The overlapping planning responsibilities of LEPCs and LEMAs may
occasionally result in some doubling of effort, and even disputes as to
the proper approaches to the nine planning elements required of LEPCs.
In order to join together the planning responsibilities of local
emergency management and those of LEPCs, it makes sense for the SARA
Title III plan to be a hazard-specific appendix to the EOP. Nonetheless,
the SARA Title III plan continues to be the LEPC's responsibility. As an
appendix, the SARA Title III plan should make use of the rest of the
EOP. Subjects required to be part of the LEPC plan---such as community
notification, evacuation, training, and exercising---should refer to the
corresponding portions of the EOP, rather than being duplicated in the
LEPC's plan.

The shared goals of saving lives and protecting property unite LEMAs and
LEPCs, just as they link the SEMA and SERC. All involved must, however,
work with both mutual deference and awareness of the legal limits on
LEMAs and LEPCs. Working carefully together, LEMAs and LEPCs can ensure
that the best feasible steps have been taken to plan for incidents
involving EHSs.

*Terrorism*

Terrorism is an unfortunate danger of modern life. Some emergency
managers believe, in fact, that terrorism has become the single hazard
tail that wags the all hazards dog of their professional life.
Requirements for terrorism planning, however, are not new. Indeed, they
pre-date the 9/11 attacks by a number of years. In 1995, President
Clinton issued Presidential Decision Directives 39,[^85] which detailed
ways of dealing with terrorism, including planning. FEMA promulgated the
Federal Response Plan (FRP) Terrorism Incident Annex [^86] in 1999 to
ensure the FRP would provide a structure to fully respond to terrorism
incidents.

Congress, in the Homeland Security Act of 2002, Public Law 107-296 (HS
Act),[^87] requires DHS to build a comprehensive national incident
management system with federal, state, and local government personnel,
agencies, and authorities, to respond to terrorist attacks and
disasters; and consolidate existing federal government emergency
response plans into a single, coordinated national response plan.[^88]
On February 28, 2003 President Bush issued HSPD 5, which states:[^89]

> to prevent, prepare for, respond to, and recover from terrorist
> attacks, major disasters, and other emergencies, the United States
> Government shall establish a single, comprehensive approach to
> domestic incident management. The objective of the United States
> Government is to ensure that all levels of government across the
> Nation have the capability to work efficiently and effectively
> together, using a national approach to domestic incident
> management.[^90]

To accomplish the preparedness goals of that policy, DHS directs in the
NIMS that planning be performed for all types of incidents, including
acts of terrorism.[^91] The consequences of failing to plan as directed
by the HS Act are discussed above.

*School Violence*

In the wake of events like the Columbine High School massacre in
Colorado, the federal government enacted the Safe and Drug-Free Schools
and Communities Act of 1994 (Safe Schools Act).[^92] The Safe School Act
requires schools to develop appropriate school safety plans that will
help control student-on-student violence. The Safe Schools Act is a
federal grant program that focuses on preventing violence and drug abuse
in schools. These goals are achieved through federal aid to states so
that they can make grants to local educational agencies and community
organizations. Federal money also goes to support private, nonprofit
organizations and colleges and universities that develop anti-violence
and anti-drug initiatives.

Unfortunately, as frequently happens when funds become available to
fulfill a mandate, some unscrupulous contractors came on the scene
touting questionable school safety plans. Comparing these "plans" often
revealed them to be "one size fits all" documents. A form plan that does
not take into account the particular characteristics of a school is an
inadequate plan. The potential liabilities that flow from embracing an
inadequate plan are discussed above.

**Training and Exercising the EOP**

Typically, training and exercising are matters for which LEPCs may
legitimately expend funds. States often require LEPCs to include
training[^93] and exercising[^94] their plans.

######## *Training Responsibilities*

The PPA often sets objectives for training such as developing and
delivering training to individuals and groups with important emergency
management duties, focusing on deficiencies in their ability to respond
to identified risks. Such training is often required to be accomplished
at all levels of government as well as the private sector, and to
include on the job training for local emergency management organization
staff from unaffected areas during genuine emergencies.

For every year, the CA contains specific requisites that help the state
and its local units of government achieve the objectives specified in
the PPA. The training specifications of the CA often set training
objectives such as:

-   Train a state's quick reaction team,

-   Provide support to state agencies in creation of SOPs,

-   Conduct training for state and local agencies in specific hazards
    such as earthquakes or hurricanes,

-   Deliver training through the SEMA,

-   Develop new training,

-   Provide a robust public awareness program, and

-   Accomplish SARA Title III training.

Required training compliance requirements for local emergency management
organizations may include one SEMA training course annually for each
staff member for whom the federal government provides salary
reimbursement.

# *Exercising Responsibilities* 

EPCRA requires that an LEPC's plan must be exercised at least once
annually. A SERC may create a policy permitting the exercise to be a
tabletop, functional, or full-scale exercise. The SERC may require a 30
day advance notification and brief description of the exercise to be
conducted. Sometimes, a SERC will permit an incident response to be used
as a substitute for an exercise.

For local emergency management, the PPA may set exercise objectives such
as:

-   Establish a comprehensive exercise program to test and assess all
    aspects of the state\'s emergency management system, including
    federal programs, such as the Radiological Emergency Planning (REP),
    Chemical Stockpile Emergency Preparedness (CSEP), earthquake,
    hazmat, and terrorism;

-   Conduct statewide tabletop exercises that incorporate federal, state
    and local response personnel; and

-   Conduct critiques to assess shortcomings and identify corrective
    actions.

A CA may require exercises during a given federal fiscal year such as:

-   Participate in federally created exercises that evaluate federal
    response planning concepts,

-   Observe all exercises and create a procedure to correct
    shortcomings, and

-   Require that all participants in the federal reimbursement program
    meet the exercise standards set by FEMA, including correction of
    deficiencies.

Required exercise compliance requirements for local emergency management
may include one actual incident, one full scale exercise, one functional
exercise, or two table top exercises. All incidents or exercises must
meet established criteria. Working together, LEMAs and LEPCs should be
able to combine their requirements in joint exercises that will satisfy
both the SERC and SEMA. These exercises should immediately be followed
by critiques that identify where the emergency response system worked
correctly and where it needs improvement. The failure to apply lessons
learned from exercises in the form of revisions to the EOP, procedures,
facilities, equipment, and training may result in liability if the
uncorrected deficiencies result in property damage or personal injury in
a subsequent actual incident.

**Declaring an Emergency**

Many types of events are characterized as emergencies, from a one car
accident with minor injuries and property injury to a hurricane or
terrorist attack. Clearly, the resources necessary to respond to an
event vary considerably depending on its type, and magnitude. Happily,
the vast majority of incidents are closer to the one car accident end of
the spectrum than to a catastrophe. In most instances, therefore,
assistance from beyond a jurisdiction's borders is not required.

Emergency managers should know what resources are available locally. In
compliance with NFPA 1600 and NIMS, there should also be established
MAAs to obtain help from neighboring jurisdictions. When a major
incident occurs, however, the emergency manager knows how long readily
obtainable resources will last. There is not a requirement that every
available resource be exhausted before help from higher levels of
government may be obtained. As a general matter, local capabilities must
be in either actual or imminent danger of being overwhelmed before a
successful request for aid may be made.

One need not wait for an incident to occur before asking for help. The
timing of a request for assistance from the next higher level of
government is determined by whether a unit of government (or any part
thereof) is experiencing or is in imminent danger of experiencing a
natural or manmade emergency or disaster. The procedure for asking for
help from the next higher level of government is similar, whether the
requestor is at the local or state level. The requirements for both
include a written declaration, which must contain six elements.

-   A statement that a disaster is current or imminent.

-   A description of the threat.

-   A statement that resources are or soon will be exhausted.

-   The extent of damage.

-   The types of assistance requested.

-   A request for assistance.

The request must be made through the proper channels. Local government
may request help from the state. The state must be the entity that asks
the federal government for assistance.

####### *Federal Support to States*

FEMA processes a governor's request for Presidential Disaster
Declaration (PDD) or Emergency Declaration under the Stafford Act.
Governors submit these requests to FEMA indicating the extent of damage
and the types of federal assistance required. FEMA then forwards the
governor\'s request to the White House, simultaneously notifying the
Secretary of DHS, along with a recommended course of action. Concurrent
with a PDD of a major disaster or emergency and official appointment of
an FCO, FEMA designates the types of assistance to be made available and
the counties eligible to receive assistance. In catastrophic incidents,
the declaration process can be expedited. In some cases, the Stafford
Act authorizes declarations without a governor's request. [^95]

*Effect of Declaring an Emergency*

Declaring an emergency activates the emergency response and disaster
recovery components of the EOPs of the affected political subdivision or
area. Additionally, it typically will activate specific powers for the
head of government to take a variety of actions for the duration of the
declaration. These may include any of the following:

-   Deploying and using any forces to which the plan or plans apply;

-   Using or distributing any supplies, equipment, materials, and
    facilities assembled, stockpiled, or arranged to be made available
    under any law relating to disaster emergencies;

-   Authorizing the governor to act as the commander-in-chief of the
    organized and unorganized militia and of all other forces available
    for emergency duty;

-   Suspending the provisions of any regulatory statute prescribing the
    procedures for conduct of government business, or the orders, rules,
    or regulations of any agency if strict compliance with any of these
    provisions would in any way prevent, hinder, or delay necessary
    action in coping with the emergency;

-   Using all available resources of the unit of government reasonably
    necessary to cope with the emergency;

-   Transfering the direction, personnel, or functions of departments
    and agencies or units for performing or facilitating emergency
    services;

-   Subjecting to any applicable requirements for compensation,
    commandeer or use any private property if the governor finds this
    action necessary to cope with the emergency;

-   Assisting in the evacuation of all or part of the population from
    any stricken or threatened area in the jurisdiction if the head of
    the unit of government considers this action necessary for the
    preservation of life or other disaster mitigation, response, or
    recovery;

-   Prescribing routes, modes of transportation, and destinations in
    connection with evacuation;

-   Controlling ingress to and egress from a disaster area, the movement
    of persons within the area, and the occupancy of premises in the
    area;

-   Suspending or limiting the sale, dispensing, or transportation of
    alcoholic beverages, firearms, explosives, and combustibles;

-   Making provision for the availability and use of temporary emergency
    housing;

-   At the state level, allowing persons who hold a license to practice
    medicine, dentistry, pharmacy, nursing, engineering, and similar
    other professions as may be specified by the governor to practice
    their respective profession in the state during the period of the
    state of emergency if the state in which a person\'s license was
    issued has a mutual aid compact for emergency management with the
    state;

-   Giving specific authority to allocate drugs, foodstuffs, and other
    essential materials and services.[^96]

*When to Declare*

Generally, an emergency should be declared when doing so will benefit
the jurisdiction. In most states, the head of the unit of government
makes the declaration, with advice from the emergency manager. An
unnecessary declaration may be the source of liability. This would be
most likely if the declaration were clearly unneeded and the special
powers that accrue to the head of the unit of government, such as
ignoring normal contracting requirements or taking private property,
were used in an objectionable way. This is an unlikely scenario; to
succeed, a suit would need to prove that the declarer acted in a grossly
negligent or malicious manner. A delayed declaration could result in
hindering prompt assistance from higher jurisdictions that possess
manpower and equipment that could prevent a bad situation from further
deteriorating. If the delay resulted in property damage, personal
injury, or death, liability might result.

As discussed above, different states approach the matter of emergency
management immunities in their own ways. In some states, a delay in
declaring will be accompanied by a postponement of immunities for the
emergency response organization. In other states, in contrast, all
activities connected with emergency management, whatever phase may be
involved, are protected by immunity statutes.

**Legal Issues in Evacuation**

One of the most challenging aspects of emergency response is the fact
that often a decision must be made between options that are universally
unattractive. Sometimes, different plaintiffs will see the same action
as wrong for the opposite reasons. Evacuation is a good example of this
phenomenon. Legal authorities for declaring an evacuation are found in
state and local emergency management acts and ordinances. Such laws
often grant the head of government the authority to force people to
evacuate their homes and businesses. Often, evacuation may be the best
protective step that can be taken. Unfortunately, evacuation can be very
expensive and disruptive for households and businesses. Further, it
creates safety hazards. Evacuation illustrates the fundamental challenge
to the person making choices during responses---reacting appropriately
to situational demands while avoiding needless disturbance to daily
life. Public policy decisions such as deciding whether and how broadly
to evacuate are the sorts of action that should typically be covered by
discretionary function immunity.

Sometimes, people refuse to evacuate. Options at that point are not
attractive. Does one spend vital time trying to convince the
recalcitrant resident to evacuate when there are others to be saved?
Does one spend limited resources on arresting and confining the person
(risking a potential suit for false arrest)? One effective approach has
been to require those refusing to evacuate to fill in a "next of kin"
form so that the government may inform their survivors after they die
(the implication is that failing to leave will render death inevitable).
The form also should contain waiver of liability language so that the
government will not be responsible for the person's death. One reason
that people may not wish to leave is that their companion animals may
not accompany them to Red Cross shelters. Many jurisdictions are
addressing this issue by making advance agreements for assistance with
veterinarians to care for such animals.

Sometimes, it is necessary to reenter the evacuation area for vital
tasks during the emergency. At this point, this nature and criticality
of the task must be evaluated to ascertain whether it is worthwhile to
risk lives and legal liability to permit such action. To be on the safe
side from a legal perspective, only when the danger has passed should
reentry be allowed.

**Legal Issues During Disaster Recovery**

The legal requirements for ending a state of emergency may be found in
emergency management laws and ordinances. Typically, the event is
terminated by action of law after incident conditions have stabilized.
Renewal of the state of emergency may be possible by a simple
declaration by the head of government, or it might take ratification by
the legislative body.

There are three varieties of federal major disaster recovery assistance:

-   Mitigation,

-   Individual Assistance, which applies to individuals and households,
    and

-   Public Assistance, which applies to infrastructure owned by local
    government.

If a Small Business Administration emergency has been declared, low
interest loans may be available to businesses. The interested reader to
should refer to additional very lengthy federal publications covering
this issue. Answers to some basic questions and referral to more
extensive materials may be found on the FEMA web site at:
www.fema.gov/rrr/qanda.shtm

**Transitioning from Recovery to Mitigation**

Emergency managers have a legal obligation to ensure lessons learned
from an incident are incorporated into the community's hazard mitigation
practices. NIMS requires corrective action plans and mitigation plans,
as well as recovery operations plans, new developments that go beyond
the traditional EOPs. Corrective action plans are intended to put into
practice measures based on lessons learned from actual incidents or
training and exercises. Mitigation plans explain actions that can be
taken prior to, during, or after an event to reduce or eliminate risks
to persons or property or to lessen the actual or possible effects or
consequences of an incident. Recovery plans explain measures beyond
quick damage assessment and any that may be needed to supply urgent life
support for victims. Long-term recovery planning entails identifying
strategic priorities for restoration, improvement, and growth. This
includes rebuilding to withstand future calamities. The discussion above
of legal steps that may be taken in the planning stage is relevant at
this point as well.

**Conclusion**

Emergency managers must comply with a wide variety of legal
responsibilities that spring from federal and state statutes, local
ordinances, case law, and policies. Some of these apply specifically to
emergency management, having been drafted specifically for the
discipline. Further obligations apply to all government managers, and
still other standards pertain to all management personnel.

Avoidance of liability requires creating a proactive partnership with
legal advisors that runs through all phases of emergency management. In
mitigation, updating fire and building codes to address local hazards
can mean a less severe effect from a disaster. Before a disaster
strikes, an attorney can help draft plans, evaluate training standards,
and monitor exercises for potential legal issues, as well as assure that
EOP revisions are sufficient from a legal standpoint. During emergency
response, the attorney may advise the leader of the unit of government
and emergency manager on potential legal effects of various options.
During disaster recovery, the lawyer can help to make sure that expenses
are properly documented and that the transition into mitigation is
properly performed. Only when emergency managers and the attorneys who
advise them understand each other's responsibilities and contributions
can they work together to diminish the potential for litigation.

**Appendix 14-A**

**Model Local Disaster or Emergency Ordinance**[^97]

**Section 1-0101. Intent.**

It is the intent of this article to provide the necessary organization,
powers, and authority to enable the timely and effective use of all
available City resources to prepare for, respond to and recover from
emergencies and/or disasters, whether natural or man made, likely to
affect the health, security, safety, or property of the inhabitants of
the City. It is intended to grant as broad of power as permitted.

**Section 1-0102. Definitions.**

\(1\) Civil emergency: Conditions of unrest including, but not limited
to riot, civil disturbance, unlawful assembly, hostile military or
paramilitary action, war, terrorism, or sabotage.

\(2\) Disaster: The occurrence of widespread or severe damage, injury,
or loss of life or property resulting from any natural or manmade cause
including but not limited to flood, fire, cyclone, tornado, earthquake,
severe high or low temperatures, blizzard, landslide, mudslide,
hurricane, building or structural collapse, high water table, water
pollution, air pollution, epidemic, riot, drought, utility emergency,
sudden and severe energy shortages, volcano, earthquake, snow, ice,
windstorm, waves, hazardous substance spills, chemical or petroleum
spills, biological material release or spill, radiological release or
spill, structural failure, public health emergency or accidents.

\(3\) Emergency: Any occurrence or threat of natural or man made
disaster of a major proportion in which the safety and welfare of the
inhabitants of the City or their property are jeopardized or placed at
extreme peril that timely action may avert or minimize.

\(4\) Utility emergency: Any condition which endangers or threatens to
endanger the safety, potability, availability, transmission,
distribution, treatment, or storage of water, natural gas, fuel or
electricity through their respective systems.

**Section 1-0103. Authorization to issue declaration of emergency or
disaster.**

The Mayor is authorized to declare a local emergency or disaster if the
Mayor finds that the City or any part thereof is suffering from or is in
imminent danger of suffering a natural or manmade emergency or disaster.

**Section 1-0104. Filing of declaration.**

Any declaration of an emergency or disaster by the mayor shall be
promptly filed with the City Auditor and the public shall be notified
through general publicity of said declaration.

**Section 1-0105. Term of declaration.**

The declaration of a local emergency or disaster shall be in effect as
determined by the Mayor for a period of up to thirty (30) days. This
period may be extended only upon the approval of the City Council.

**Section 1-0106. Succession of Authority.**

If the Mayor is unavailable, the President of the City Council shall
have the same authority as is granted to the Mayor hereunder, followed
by the Vice President of the City Council, the Chair of the Public
Safety Committee, the Chair of the Public Service Committee, the Chair
of the Finance Committee, the Chair of the Urban Development Committee,
and then followed by the next most senior member of the City Council.

**Section 1-0107. Powers.**

Upon the issuance of an emergency or disaster declaration, the Mayor may
exercise the following powers, including, but not limited to:

> \(1\) an order establishing a curfew during such hours of the days or
> nights and affecting such categories of persons as may be designated.
>
> \(2\) an order to direct and compel the evacuation of all or a part of
> the population from any stricken or threatened areas within the City
> if the Mayor deems this action is necessary for the preservation of
> life, property or other disaster or emergency mitigation, response or
> recovery activities and to prescribe routes, modes of transportation
> and destination in connection with an evacuation.
>
> \(3\) an order controlling, restricting, allocating or regulating the
> use, sale, production or distribution of food, water, fuel, clothing,
> and other commodities, materials, goods, services and resources.
>
> \(4\) an order requiring the closing of businesses deemed nonessential
> by the Mayor.
>
> \(5\) an order suspending or limiting the sale, distribution,
> dispensing, or transportation of alcoholic beverages, firearms,
> explosives and/or combustible products and requiring the closing of
> those businesses or parts of businesses insofar as the sale,
> distribution, dispensing or transportation of these items are
> concerned.
>
> \(6\) an order prohibiting the sale or distribution within the City of
> any products which, the mayor determines, could be employed in a
> manner that would constitute a danger to public health or safety.
>
> \(7\) an order closing any streets, alleys, sidewalks, public parks,
> public ways or other public places.
>
> \(8\) an order closing the access to any buildings, streets, alleys,
> sidewalks or other public or private places.
>
> \(9\) establish and control routes of transportation ingress or
> egress.
>
> \(10\) control ingress and egress from a disaster or emergency area.
>
> \(11\) subject to requirements for compensation, commandeer or utilize
> private property if necessary to cope with emergency or disaster
> conditions.
>
> \(12\) appropriate and expend funds, exclude contracts, authorize the
> obtaining and acquisition of property, equipment, services, supplies
> and materials without the strict compliance with procurement
> regulations or procedures.
>
> \(13\) transfer the direction, personnel or functions of City
> departments and agencies for the purposes of performing or
> facilitating emergency or disaster services.
>
> \(14\) utilize all available resources of the City as may be
> reasonably necessary to cope with the emergency or disaster whether in
> preparation for, response to or recovery from an emergency or
> disaster.
>
> \(15\) suspend or modify the provisions of any ordinance if strict
> compliance thereof would in any way prevent, hinder or delay necessary
> action in coping with any emergency or disaster.
>
> \(16\) accept services, gifts, grants and loans, equipment, supplies
> and materials whether from private, nonprofit or governmental sources.
>
> \(17\) temporarily suspend, limit, cancel, postpone, convene,
> schedule, or continue all meetings of the City Council, and any City
> committee, commission, board, authority or other City body as deemed
> appropriate by the Mayor.
>
> \(18\) suspend or limit the use of the City\'s water resources.
>
> \(19\) suspend or limit the burning of any items of property within
> the City limits and up to two (2) miles outside the corporate City
> limits.
>
> \(20\) require emergency services of any City officer or employee. If
> regular City forces are determined to be inadequate, then to acquire
> the services of such other personnel as are available, including
> citizen volunteers. All duly authorized persons rendering emergency
> services shall be entitled to the privileges and immunities as
> provided by state or local law.
>
> \(21\) hire or contract for construction, engineering, architectural,
> building, electrical, plumbing, and/or other professional or
> construction services essential to continue the activities of the City
> without the advertising of bids or compliance with procurement
> requirements.
>
> \(22\) make application for local, state or federal assistance.
>
> \(23\) terminate or suspend any process, operation, machine, device or
> event that is or may negatively impact the health, safety and welfare
> of persons or property within the City of Grand Forks.
>
> \(24\) delegate authority to such City officials as the Mayor
> determines reasonably necessary or expedient.
>
> \(25\) requiring the continuation, termination, disconnection or
> suspension of natural gas, electric power, water, sewer or other
> public utilities.
>
> \(26\) close or cancel the use of any municipally owned or operated
> building or other public facility.
>
> \(27\) prescribe routes, modes of transportation and destination in
> connection with any evacuation.
>
> \(28\) exercise such powers and functions in light of the exigencies
> of emergency or disaster including the waiving of compliance with any
> time consuming procedures and formalities, including notices, as maybe
> prescribed by law pertaining thereto.
>
> \(29\) issue any and all such other orders or undertake such other
> functions and activities as the Mayor reasonably believes is required
> to protect the health, safety, welfare of persons or property within
> the City of Grand Forks or to otherwise preserve the public peace or
> abate, clean up, or mitigate the effects of any emergency or disaster.

**Section 1-0108. Enforcement of Orders.**

A. The members of the police department and such other law enforcement
and peace officers as may be authorized by the Mayor are further
authorized and directed to enforce the orders, rules and regulations
made or issued pursuant to this chapter.

B. During the period of a declared emergency or disaster, a person shall
not:

\(1\) enter or remain upon the premises of any establishment not open
for business to the general public, unless such person is the owner or
authorized agent of the establishment.

\(2\) violate any of the orders duly issued by the Mayor or authorized
personnel.

\(3\) willfully obstruct, hinder, or delay any duly authorized City
officer, employee or volunteer in the enforcement or exercise of the
provisions of this chapter, or of the undertaking of any activity
pursuant to this chapter.

**Section 1-0109. Authority to enter a property.**

During the period of a declared emergency or disaster, a City employee
or authorized agent may enter onto or upon private property if the
employee or authorized agent has reasonable grounds to believe that
there is a true emergency and an immediate need for assistance for the
protection of life or property, and that entering onto the private land
will allow the person to take such steps to alleviate or minimize the
emergency or disaster or to prevent or minimize danger to lives or
property from the declared emergency or disaster.

**Section 1-0110. Location of governing body meetings and departments.**

\(1\) Whenever an emergency or disaster makes it imprudent or impossible
to conduct the affairs of the City at its regular locations, the
governing body may meet at any place, inside or outside the city limits.
Any temporary disaster meeting location for the governing body shall
continue until a new location is established or until the emergency or
disaster is terminated and the governing body is able to return to its
normal location.

\(2\) Whenever a disaster makes it imprudent or impossible to conduct
the affairs of any department of the City at its regular location, such
department may conduct its business at any place, inside or outside the
city limits and may remain at the temporary location until the emergency
or disaster is declared ended or until the department is able to return
to its normal location.

\(3\) Any official act or meeting required to be performed at any
regular location of the governing body or of its departments is valid
when performed at any temporary location under this section.

\(4\) The provisions of this section shall apply to all executive,
legislative and judicial branches, powers and functions conferred upon
the city and its offices, employees, and authorized agents.

**Section 1-0111. Mutual aid agreements.**

\(1\) The Mayor may, on behalf of the City, enter into such reciprocal
aid, mutual aid, joint powers agreements, intergovernmental assistance
agreements or other compacts or plans with other governmental entities
for the protection of life and property. Such agreements may include the
furnishing or exchange of supplies, equipment, facilities, personnel
and/or services.

\(2\) The governing body or any of its committees, commissions or
authorities may exercise such powers and functions in light of the
exigencies of the emergency or disaster and may waive compliance with
time consuming procedures and formalities prescribed by law pertaining
thereto.

\(3\) The foregoing shall apply to all executive, legislative and
judicial powers and functions conferred upon the City and its officers,
employees and authorized agents.

**Section 1-0112. Severability.**

The provisions of this chapter are declared to be severable, and if any
section, sentence, clause or phrase of this chapter shall for any reason
be held to be invalid or unconstitutional or if the application of this
chapter to any person or circumstance is held to be invalid or
unconstitutional, such holding shall not affect the validity of the
remaining sections, sentences, clauses and/or phrases of this ordinance.

[^1]: Note: This chapter is not legal advice, and William C. Nicholson
    is not your attorney. For legal advice, consult your own lawyer.

[^2]: Indiana Code 10-14-3-1(a) (2004) definition of a disaster.

[^3]: *See, e.g.*, Meridian Ins. Co. v. Zepeda, 734 N.E. 2d 1126,
    1130-31 (Ind. App. 2000). ". . . a criminal conviction may be
    admitted in evidence in a civil action and may be conclusive proof
    in a civil trial of the factual issues determined by the criminal
    judgment." *Id*.

[^4]: *See, e.g.,* [Ind. Code]{.smallcaps} § 34-13-3-3 (2004), which
    includes a long list of actions for which government and its
    employees are immune.

[^5]: *See, e.g.,* [Ind. Code]{.smallcaps} § 34-13-3-3 (2004), which
    requires that actions must be within the scope of employment if they
    are to be protected.

[^6]: Howard D. Swanson, *The Delicate Art of Practicing Municipal Law
    Under Conditions of Hell and High Water*, 76 [N.D. L.
    Rev.]{.smallcaps} 487, 490 n.10 (2000) lists citations for emergency
    management statutes in various jurisdictions.

[^7]: *See, e.g.*, [Ind. Code]{.smallcaps} § 10-14-3-15(a) (2004). "Any
    function under this chapter and any other activity relating to
    emergency management is a governmental function. The state, any
    political subdivision, any other agencies of the state or political
    subdivision of the state, or, except in cases of willful misconduct,
    gross negligence, or bad faith, any emergency management worker
    complying with or reasonably attempting to comply with this chapter
    or any order or rule adopted under this chapter, or under any
    ordinance relating to blackout or other precautionary measures
    enacted by any political subdivision of the state, is not liable for
    the death of or injury to persons or for damage to property as a
    result of any such activity."

[^8]: 57 [Am. Jur.]{.smallcaps} 2d *Municipal, County, School and State
    Tort Liability* § 57 (2001).

[^9]: Berkovitz v. United States, 486 US 531 (1988).

[^10]: Commerce and Indus. Ins. Co. v. Grinnell Corp., 280 F.3d 566
    (5^th^ Cir. 2002).

[^11]: Alleged negligent actions and omissions included: (1) attempting
    to restore electrical power before an electrical inspection had been
    conducted, in violation of code and policy; (2) turning off the
    sprinkler system without posting personnel with two-way radios at
    the sprinkler valves, in contravention of a specific regulation; (3)
    opening the large bay doors before the fire was declared out,
    despite wind velocities of 21 mph; (4) failing to "overhaul" any of
    the upper level racks even though they had been subjected to intense
    heat; and (5) departing the scene "under these conditions" within
    six minutes after declaring the fire out, without leaving adequate
    personnel and equipment for a fire watch.*Id*. at 569.

[^12]: Caillouette v. Hercules, Inc., 827 P.2d 1306, 1311-13 (N.M. App.
    1992). The New Mexico Department of Public Safety was found not to
    have waived immunity on the facts of the case in a wrongful death
    action arising from a hazmat cleanup incident.

[^13]: *See, e.g.*, [Ind. Code]{.smallcaps} § 10-14-3-15(a) (2004).
    "\[E\]xcept in cases of willful misconduct, gross negligence, or bad
    faith, any emergency management worker complying with or reasonably
    attempting to comply with this chapter or any order or rule adopted
    under this chapter, or under any ordinance relating to blackout or
    other precautionary measures enacted by any political subdivision of
    the state, is not liable for the death of or injury to persons or
    for damage to property as a result of any such activity."

[^14]: NFPA 1600 (2004 Edition) may be accessed on at:
    www.nasttpo.org/NFPA1600.htm.

[^15]: The 9/11 Commission Report 398 (2004).

[^16]: NFPA 1600 § 5.2 (2004 Edition).

[^17]: NFPA 1600 Standard Resolution, found at www.nemaweb.org/?335.

[^18]: EMAP Recent and Upcoming Activities, found at
    www.emaponline.org/What/Implementation/Description_Full.cfm.

[^19]: Indeed, custom and usage within an industry need not be complete
    or general where improved safety standards, which EMAP provides for
    emergency management, are involved. See *TJ Hooper*, 60 F 2d 737 (2d
    Cir. 1932), certiorari denied, *Eastern Transportation Co. v.
    Northern Barge Corp*[.]{.underline}, 287 US 662 (1932), where in
    1932, despite the absence of statutes, regulations or even custom as
    to radio receiving sets, Judge Learned Hand found a vessel
    unseaworthy for lack of one. Two barges had been lost in a storm and
    the tugs and their tows might have sought shelter in time had they
    received weather reports by radio. This case may show which way the
    wind blows for the future of emergency management certification
    under EMAP.

[^20]: Indiana Code 10-14-3-17 (h)

[^21]: Indiana Code 10-14-3-2(a).

[^22]: 29 USC §§ 151-169 (2004).

[^23]: *Bolton v. Minnesota Dept. of Human Services*, 527 NW 2d 149
    (Minn. App. 1985).

[^24]: *Buckel v. Rodriguez*, 891 P2d 16 (Or. App. 1995).

[^25]: *Madani v. Kendall Ford, Inc.*, 818 P 2d 930 (Or. 1991).

[^26]: *Palmer v. Beverly Enterprises*, 823 F 2d 1105 (7^th^ Cir. 1987).

[^27]: *Austin v. Torrington Co.*, 180 F 2d 416 (4^th^ Cir. 1987),
    *cert. denied*, 484 US 977 (1987).

[^28]: *O'Connor v. Ortega*, 480 US 709 (1987).

[^29]: *Rutan v. Republican Party of Illinois*, 497 US 62 (1990).

[^30]: In 1970, Congress enacted the federal Occupational Safety and
    Health Act of 1970 (\"OSH Act\"). 84 Stat. 1590 (codified at 29 USC
    553, 651-678 (2002)). The OSH Act specifically authorized the
    Secretary of Labor to promulgate national health and safety
    standards. 29 USC 655(a).

[^31]: 29 USC § 667.

[^32]: 29 USC § 634(a).

[^33]: 29 USC § 657.

[^34]: 29 USC § 657 (c).

[^35]: 5 USC §§ 8101-8151.

[^36]: See, e.g., Indiana Code 10-14-6 Interstate Emergency Management
    and Disaster Compact (2004).

[^37]: See, e.g., Indiana Code §§ 10-14-3-3 and10-14-3-15(b) for one
    approach. Section 10-14-3-3 defines "emergency management worker" as
    any full-time or part-time paid, volunteer, or auxiliary employee
    of: (1) the state; (2) other: (A) states; (B) territories; or (C)
    possessions; (3) the District of Columbia; (4) the federal
    government; (5) any neighboring country; (6) any political
    subdivision of an entity described in subdivisions (1) through (5);
    or (7) any agency or organization;performing emergency management
    services at any place in Indiana subject to the order or control of,
    or under a request of, the state government or any political
    subdivision of the state.

    Sec. 15. (b) Any requirement for a license to practice any
    professional, mechanical, or other skill does not apply to any
    authorized emergency management worker who, in the course of
    performing duties as an emergency management worker, practices a
    professional, mechanical, or other skill during a disaster
    emergency.

[^38]: NIMS at 46. "Personnel certification entails authoritatively
    attesting that individuals meet professional standards for the
    training, experience, and performance required for key incident
    management functions. Credentialing involves providing documentation
    that can authenticate and verify the certification and identity of
    designated incident managers and emergency responders."

[^39]: See
    emacweb.org/docs/Wide%20Release%20Intrastate%20Mutual%20Aid.pdf

[^40]: Indiana Code 10-14-3-10.6.

[^41]: See, e.g., *Thomas v. Lisbon*, 550 A.2d 894 (S.Ct. Conn. 1988).

[^42]: Federal Emergency Management Agency---United States Fire
    Administration (1999). \[hereinafter Developing SOPs\] "Mutual or
    automatic aid agreements . . . help \[to\] ensure that agreements
    are enforced and joint operations are coordinated."

[^43]: 29 CFR § 1910.120(b)(1)(ii)(F).

[^44]: Homeland Security Act of 2002, H.R. 5005, 107^th^ Cong. (2002)
    (enacted).

[^45]: Id. at § 501 (5) The HS Act requires "\[b\]uilding a
    comprehensive incident management system with Federal, state, and
    local government personnel, agencies, and authorities, to respond
    to. . . \[terrorist\] attacks and disasters."

[^46]: NFPA 1600 § 5.8.

[^47]: NIMS at 1-2.

[^48]: 29 CFR § 1910.120(q)(3)(i) requires that during an emergency
    response the most senior emergency response official becomes the
    individual in charge of a site-specific Incident Command System
    (ICS). All emergency responders and their communications shall be
    coordinated and controlled through the individual in charge of the
    ICS assisted by the senior official present for each employer. *Id*.

[^49]: 29 CFR § 1910.120(q)(3)(ii).

[^50]: 29 CFR § 1910.120(q)(3)(iii) requires personal protective
    equipment to "meet, at a minimum, the criteria contained in 29 CFR §
    1910.156(e) when worn while performing fire fighting operations
    beyond the incipient stage for . . . \[the\] incident."

[^51]: 29 CFR § 1910.120 (q)(3)(iv).

[^52]: 29 CFR § 1910.120(q)(3)(v).

[^53]: 29 CFR § 1910.120(q)(3)(v).

[^54]: 29 CFR § 1910.120(q)(3)(vi).

[^55]: 29 CFR § 1910.120(q)(3)(vii). "The individual in charge of the
    ICS shall designate a safety official, who is knowledgeable in the
    operations being implemented at the emergency response site. . . ."

[^56]: 29 CFR § 1910.120(q)(3)(viii).

[^57]: *See Victor Microwave, Inc.,* 1996 OSAHRC LEXIS 57, at \*44-47.
    Failure to designate a separate safety officer was found to be a
    serious violation.

[^58]: Pub. L. No. 105-19, 111 Stat. 218 (codified at 42 USCA. §§
    14501-14505 (West Supp. III 2002)). As is the case with any type of
    tort reform, the VPA has come in for significant criticism. *See,
    e.g.*, Andrew F. Popper, *A One-Term Tort Reform Tale: Victimizing
    The Vulnerable*, 35 [Harv. J. on Legis]{.smallcaps}. 123, 130-137
    (Winter 1998). "An underlying principle of tort law is that the
    threat of personal liability creates individual accountability and
    thereby enhances the quality of goods and services. Accordingly, the
    common law imposes a minimum level of due care on people who choose
    to volunteer. The Volunteer Protection Act changes that standard,
    and in so doing, reduces the incentive to provide quality services."
    *Id*. at 134-35 (citations omitted).

[^59]: ^s^

[^60]: ^.^

[^61]: ^.^

[^62]: ^.^

[^63]: ^.^

[^64]: The Comprehensive Environmental Response, Compensation, and
    Liability Act (CERCLA) section 104 (i), as amended by SARA, requires
    the Aganecy for Toxic Ssubstances and Disease Registry and the EPA
    to prepare a list, in order of priority, of substances that are most
    commonly found at facilities on the National Priorities List (NPL)
    established by the National Contingency Plan (NCP). The NCP provides
    guidelines and procedures needed to respond to releases and
    threatened released of hazardous substances, pollutants, or
    contaminates. Superfund Amendment and Reauthorization Act of 1986
    (SARA or Superfund), 42 USC §§ 11001et seq. This act provided for
    broad Federal authority to respond directly to releases or
    threatened releases of hazardous substances that may endanger public
    health or the environment.

[^65]: *Roberts v. United States*, 724 F.Supp. 778, 791 (D.DC 1989).

[^66]: See, e.g., *In Re: Ohio River Disaster Litigation,* 862 F.2d 1237
    (6^th^ Cir. 1988).

[^67]: NFPA 1600 § 5.7.1 (2004 Edition).

[^68]: NFPA 1600 § 5.7.2.2 (2004 Edition).

[^69]: NFPA 1600 § 5.7.3 (2004 Edition).

[^70]: NFPA 1600 § 5.3 (2004 Edition).

[^71]: NFPA 1600 § 5.2 (2004 Edition).

[^72]: EMPG description on the web at:
    <http://www.fema.gov/preparedness/empg.shtm>

[^73]: Homeland Security Presidential Directive 5, § 20 Subject:
    Management of Domestic Incidents, The White House, February 28,
    2003.
    http://www.whitehouse.gov/news/releases/2003/02/20030228-9.html

[^74]: NIMS at 36-37.

[^75]: NIMS at 36-37.

[^76]: See, e.g., Fla. Stat. § 252.34 (2004) emergency management
    responsibilities, Fla. Stat. § 395.1056 (2004) requiring hospitals
    to plan for terrorism events.

[^77]: *Berkovitz* at 536.

[^78]: *Berkovitz* at 547.

[^79]: Occupational Safety and Health Standards 29 CFR §1910.120 (q)
    (1998) covers employees who are engaged in emergency response to
    hazardous substance releases no matter where it occurs except that
    it does not cover employees engaged in operations specified in
    paragraphs (a)(1)(i) through (a)(1)(iv) of this section. Nor does it
    cover those emergency response organizations that have developed and
    implemented programs equivalent to this paragraph for handling
    releases of hazardous substances pursuant to section 303 of the
    Superfund Amendments and Reauthorization Act of 1986 shall be deemed
    to have met the requirements of this paragraph.

[^80]: Environmental Protection Agency (EPA) 40 CFR § 372.18 (1995)
    deals with the enforcement and compliance guidelines for toxic
    chemical release reporting and community right-to-know

[^81]: 29 CFR § 1910.119 deals with preventing or minimizing the
    consequence of catastrophic release of hazardous materials in the
    industrial setting.

[^82]: 42 United States Code §§ 11001-11050 (2004).

[^83]: See, e.g., Indiana Code 13-25-2 (2004).

[^84]: 42 USC § 11003.

[^85]: Presidential Decision Directive 39, US Policy on Counterterrorism
    (June 21, 1995)

[^86]: Federal Response Plan Terrorism Incident Annex, *available at*
    http://www.fema/gov/pdf/ rrr/frp/frptem.pdf (1999). "The purpose of
    this annex is to ensure that the Federal Response Plan (FRP) is
    adequate to respond to the consequences of terrorism within the
    United States, including terrorism involving WMD." *Id*. at 1.

[^87]: Homeland Security Act of 2002, H.R. 5005, 107^th^ Cong. (2002)
    (enacted) \[hereinafter HS Act\].

[^88]: HS Act §§ 501(5) and (6).

[^89]: Homeland Security Presidential Directive 5, Subject: Management
    of Domestic Incidents, The White House, February 28, 2003.
    http://www.whitehouse.gov/news/releases/2003/02/20030228-9.html

[^90]: HSPD 5 § 3.

[^91]: NIMS at 1, 35-37 (planning elements).

[^92]: Safe and Drug-Free Schools and Communities Act of 1994 (Safe
    Schools Act) 20 USC §§ 7101 *et.seq .*(2004).

[^93]: See, e.g., Indiana Code 13-25-2-5(c)(8) (2004).

[^94]: See, e.g., Indiana Code 13-25-2-5(c)(9) (2004).

[^95]: This information is from the National Response Plan, Draft #2 at
    61 (April 28, 2004).

[^96]: This list is adapted from Indiana Code 10-14-3-12 (2004).

[^97]: Note: This ordinance is found in: Howard D. Swanson, *The
    Delicate Art of Practicing Municipal Law Under Conditions of Hell
    and High Water*, 76 [N.D. L. Rev.]{.smallcaps} 487 (2000)